State v Ryland [2017] FJHC 242; HAC20.2015 (30 March 2017)

IN THE HIGH COURT OF FIJI AT LABASA

CASE NO: HAC 20 of 2015

[CRIMINAL JURISDICTION]

STATE

V

1. SEKOVE RYLAND
2. PAUL SENIKUBA
3. BA WAQOVI
4. JONE KAIATIA
5. JONETANI NABORISI
6. NAVITALAI SEREIVALU
   

Counsel : Ms.A. Vavadakua for State

Ms. S. Devi for 1^st, 2^nd, 4^th & 6^thAccused

Ms.S. Nasedra for 3^rd and 5^th Accused
Dates of Hearing : 20^th – 28^th March 2017
Date of Summing up: 29^th March 2017

Date of Judgment : 30^th March 2017
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as S.M.)

JUDGMENT

1. The accused persons are charged with the following offences;
   

Count 1

Statement of Offence

RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Act 2009.

Particulars of Offence

SEKOVE RYLAND, between the 1^st day of August 2013 and the 31^st day of August 2013 in Qamea, in the Northern Division, penetrated the vagina of S.M., with his penis, without her consent.

Count 2

Statement of Offence

RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Act 2009.

Particulars of Offence

PAUL SENIKUBA, between the 1^st day of August 2014 and the 31^st day of August 2014 in Qamea, in the Northern Division, penetrated the vagina of S.M., with his penis, without her consent.

Count 3

Statement of Offence

RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Act 2009.

Particulars of Offence

PAUL SENIKUBA, BA WAQOVI, JONE KAIATIA and JONETANI NABORISI, between the 1^st day of August 2014 and the 31^st day of August 2014 in Qamea, in the Northern Division, penetrated the vagina of S.M., with their penis, without her consent.

Count 4

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

NAVITALAI SEREIVALU, between the 22^nd day of December 2014 and the 11^tht day of January 2015, in Qamea, in the Northern Division, unlawfully and indecently assaulted S.M.

2. The assessors have returned with the unanimous opinion that all accused persons are guilty as charged.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 29^th March 2017 and the evidence adduced during the trial.
4. The prosecution led the evidence of four witnesses including the complainant. The second and fourth prosecution witnesses were called to counter the alibi evidence of the 3^rd accused and the 2^nd accused respectively. The four charges are based on four separate incidents.
   
5. In relation to the first count, the complainant’s evidence was that the 1^st accused asked her whether he could have sex with her, she said ‘no’, then he held her by her left hand, closed her mouth and carried her to the mango tree. Then the 1^st accused penetrated her vagina with his penis without her consent.
   
6. In her statement to police dated 23/03/15 it was stated that the she was carried to a stone cave and that the incident took place in 2015. She initially denied saying this to police. Later she admitted that she changed her version after one year when she gave her statement dated 25/04/16. Though she testified that the 1^st accused carried her during her evidence in chief, during her cross-examination she said that the 1^st accused dragged her.
   
7. In relation to the second count, the complainant’s evidence was that the 2^nd accused approached her; asked her to have sex with him; she said ‘no’; he then grabbed her; closed her mouth and carried her to the cassava patch. She further said that the 2^nd accused carried her using both hands and was covering her mouth with his right hand at the same time. Then the 2^nd accused penetrated her vagina with his penis without her consent.
   
8. In relation to the third count, the complainant’s evidence was that, when she was on her way home after buying kerosene from the shop, the 2^nd accused approached her; asked her whether he can have sex with her again; she said ‘no’, he grabbed her; closed her mouth and then she was taken behind the vacant house near the stream by the 2^nd, 3^rd, 4^th and 5^th accused persons. After she was taken there the 4^th accused covered her mouth and the 2^nd accused was holding her hands. She said the 5^th accused penetrated her vagina with his penis without her consent while the ‘others’ were pressing her hands onto the ground. She did not say what each accused did when the 5^th accused was penetrating her vagina.
   
9. The same sequence of events is noted in the evidence given by the complainant on the three incidents relevant to the first three counts. That is, the accused approaches, asks her whether he could have sex with her, she says ‘no’, the accused grabs her and closes her mouth. Her evidence was that her mouth was covered by the respective accused in the first two instances while she was being carried. Defence says that this is not possible. With regard to the first two incidents she said the relevant accused carried her and with regard to the third count she said the four accused persons took her. The complainant had admitted that the residents in the nearby houses would be able to see if someone is carried from where the mango tree is. Though it may be possible, it is not usual for three events to take place in the same or a similar order. This seemingly unusual nature taken together with the improbabilities strongly suggests that the evidence is fabricated.
   
10. Further, in all three incidents referred to above, it is pertinent to note that the complainant was first asked whether to have sex. According to the complainant, the 2^nd accused penetrated her vagina without her consent on the first occasion. But her evidence on the third incident was that, the 2^nd accused again asked her, and this time he asked her whether they can have sex ‘again’. If the 2^nd accused had sexual intercourse with her without her consent on the first occasion, is it probable that he would ask her whether he can have sex with her on a subsequent occasion? More importantly, why would he ask her whether he can have sex again? The complainant’s evidence that the 2^nd accused asked this question in this manner on the second occasion raises doubt on her evidence among other matters, that the 2^nd accused had sexual intercourse with her without her consent on the previous occasion.
    
11. There are serious concerns with regard to the complainant’s evidence about the person who came with a torch during the third incident.
    
12. The complainant avoided informing the court who this person is, though it can be reasonably inferred that the said person was known to the complainant at that time. This person is the first outsider the complainant met soon after the alleged (third) incident. But the complainant did not say in her evidence that she complained to this person regarding what happened to her. There was no evidence that the person who came with the torch was disturbed from what he/she saw. The complainant’s evidence was that she asked the accused persons about the kerosene while standing with the person with the torch and then she was told by the accused persons where it was kept.
    
13. This evidence suggests that the complainant appeared normal even after this alleged dreadful event where four persons forcefully took her behind a vacant house and raped her. The complainant had the proper frame of mind to look for the kerosene she was supposed to take home after that incident. Further, according to the complainant, the accused persons dressed her up when they saw the light. She talks to them and asks them where the kerosene is and she was told where it was kept. The aforementioned conduct of the complainant and of the accused persons cannot be reconciled with the complainant’s claim on the assault she was subjected to. This evidence is suggestive of the existence of some form of agreement and understanding between the complainant and the alleged offenders.
    
14. Going back to the evidence regarding the person with the torch, the complainant said during her evidence in chief, that this person who came with the torch knew that she was there from the conversation the person heard. During cross-examination after she confirmed that her mouth was closed during the incident and that she did not utter a word throughout, she gave a second version on how that person with the torch came to know that she was there. She said it was through the conversation of the accused persons. Then again she changed that and gave a third version when she was further cross-examined and said it was when the light was shone on her after that person came towards her.
    
15. In relation to the fourth count, the complainant’s evidence was that the 6^th accused touched her breast by putting his hand through the window when she was sleeping. During cross-examination she said that a person cannot stand outside and put the hand inside through the window as the window was high. Later she said she saw a chair beside the window the next morning. However, she admitted that she mentioned about the chair for the first time during cross-examination.
    
16. Therefore, there are significant inconsistencies and several improbabilities in the account given by the complainant relevant to all four counts.
    
17. One other issue raised by the defence is the delay in making a complaint. The first incident had taken place in August 2013, the second and the third in August 2014 and the final incident between 22/12/14 and 11/01/15.
    
18. According to the evidence presented by the prosecution, the complainant did not inform anyone about the incidents until January 2015. In January 2015, after the third prosecution witness explained to her about boys and what might happen if they become attracted to boys among other matters, the complainant informed the said witness about the incidents. The third prosecution witness in her evidence did not inform this court of the exact details the complainant gave her. According to her evidence it appears that the complainant had simply confided in her about the complainant’s experience as opposed to making a complaint. Therefore, the prosecution correctly did not consider the third prosecution witness as a recent complaint witness.
    
19. It is pertinent to note that, when the third prosecution witness was asked by the prosecution whether the complainant told her that the complainant consented or not, she said that the complainant told her that it was painful, felt dirty and after it happened the complainant was embarrassed. It was noted that this witness was evasive when she answered this particular question. Her response to the aforementioned question raises a doubt whether she was told by the complainant something that is inconsistent with the complainant’s evidence on the issue of consent.
    
20. Coming back to the question of delay, I note that it took about another two months for this matter to be reported to the police after the third witness was so informed in January 2015. The matter was first reported to police on 18/03/15. The complainant admitted that she had given more than one statement to police on 18/03/15, another statement on 23/03/15 and the last statement on 25/04/16. However, during cross examination the complainant admitted that the statement shown to her dated 18/03/15 and the statement dated 23/03/15 are incorrect and she said that the statement she gave more than a year after her first statement which is on 25/04/16, is the correct version. The reason the complainant gave was that she recalled the incidents one day when she was sitting at home and then she went to the police and informed them.
    
21. The reason she gave for not informing her parents or any adult before the year 2015 was that she was afraid after the 1^st accused and then the 2^nd accused threatened her. When the complainant gave evidence on the first incident which involves the 1^st accused, she simply said that the accused told her in a rough tone not to tell anyone. Then when she gave evidence on the second incident which involves the 2^nd accused, her evidence was that the 2^nd accused told her that he will do the same thing what the 1^st accused had told her. Then she was asked what the 1^st accused had told her and she said that the 1^st accused told her that he would do something to her or her siblings. Considering the nature of the threat and her demeanour when she gave this evidence, the complainant’s evidence on this purported threat is not convincing.
    
22. The reason she gave for informing her aunt, the third prosecution witness in January 2015 was that she felt safe when she moved to the third prosecution witness’ house in Vatusogosogo. However, it was pointed out by the defence that Waibulu Village and Vatusogosogo Village are situated close to each other and therefore the complainant’s claim that she felt safe at Vatusogosogo Village is improbable.
    
23. The complainant or any other prosecution witness did not give an explanation as to why it took the complainant approximately two more months to report the matter to police after she informed the third prosecution witness about the incidents. Even after she took about two more months to report the matter to police which had apparently given her a reasonable time to recall the incidents, the statements she gave the police in March 2015 are incorrect according to the complainant’s own admission. According to the evidence, it took the complainant about another one year after she gave the first statement, to recall the incidents correctly and to give the final statement to the police which is dated 25/04/16.
    
24. Considering all the circumstances involving the delay in this case in making a complaint, the doubt with regard to what the complainant may have told the third prosecution witness on the issue of consent and the inconsistencies, I am unable to rule out the possibility of the complainant’s evidence being fabricated.
    
25. I have also noted the suggestions made by the prosecution to the 5^th accused during cross-examination to the effect that he knew that there were other boys who had sexual intercourse with the complainant and that is the reason he approached her. During the closing address, the prosecutor said that the complainant was the ‘best rape victim because she kept quiet and that is why they did it’.
    
26. All in all, I am inclined to hold the view that the complainant’s evidence given in this case in respect of each count was not credible and reliable. In addition to that, the evidence adduced on identification on the fourth count is not sufficient to establish the identity of the accused beyond reasonable doubt.
    
27. Therefore, I find that the prosecution had failed to prove the four counts beyond reasonable doubt.
    
28. I must say that the evidence presented in this case suggested that 1^st, 2^nd and the 5^th accused may have had sexual intercourse with the complainant. But because of the unreliability of the complainant’s evidence, it is impossible to discern what really took place between the complainant and the accused persons. The complainant did not give evidence regarding her age at the time of each offence. Therefore, even it appeared that the complainant may have been between the age of 13 years and 16 years and the offence of defilement may have been committed, there was no evidential basis to direct the assessors on the offence of defilement as an alternative offence.
    
29. Though there can be instances where an accused can be found guilty as an aider an abettor to commit an offence where the principal offender is found not guilty, considering the circumstances of this case the 2^nd, 3^rd and 4^th accused cannot be found guilty of aiding abetting the commission of the offence of rape if the 5^th accused is found not guilty of the offence of rape. Therefore, the assessors were directed accordingly.
    
30. For the reasons given above, I cannot agree with the unanimous opinion of the assessors.
    
31. In the circumstances, I find that;
    1. the first accused is not guilty of the first count;
    2. the second accused is not guilty of the second count;
    100. the second, third, fourth and the fifth accused persons are not guilty of the third count; and
    4. the sixth accused is not guilty of the fourth count.
       
32. All six accused persons are acquitted accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Legal Aid Commission, Suva