State v AP [2017] FJHC 714; HAC342.2016 (28 September 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 342 of 2016

STATE

v.

AP

Counsel: Mr. M. Vosawale with Ms. S. Sharma for State
Mr J. Reddy for Accused
Hearing: 25^th, 26^th September 2017
Summing Up: 27^th September 2017
Judgment: 28^th September 2017

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JUDGMENT

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1. The accused is charged with one count of Rape, contrary to Section 207 (1), (2) (b) and (3) of the Crimes Act and one alternative count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act. The particulars of the offence are that:
   

COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AP on the 3^rd day of September 2016 at Suva, in the Central Division, penetrated the vagina of PT a child under the age of 13 years with his finger.

ALTERNATIVE COUNT

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

AP on the 3^rd day of September 2016 at Suva, in the Central Division, unlawfully and indecently assaulted PT by touching her vagina.

2. The accused pleaded not guilty for this offence. Accordingly the matter proceeded to hearing. The hearing commenced on the 25th of September 2017 and concluded on the 26th of September 2017. The prosecution adduced the evidence of three witnesses, including the complainant. The defence did not call any witness. Subsequently, the learned counsel for the prosecution and the defence made their respective closing addresses. I then delivered the summing up.
   
3. The three assessors in their unanimous opinions, found the accused guilty for this offence of Rape.
   
4. Having carefully considered the evidence presented during the course of the hearing, the respective closing addresses of the counsel, the summing up and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
5. The prosecution alleges that the accused pulled the complainant who was nine years old at that time into the room while she was coming out from the toilet. He then locked the door and removed her undergarment. Thereafter, he put his fingers into the vagina of the complainant.
   
6. The prosecution adduced the evidence of the father of the complainant as the person to whom the complainant first related this incident. However, it was revealed from his evidence that he actually heard about this matter in details, firstly from one of his nieces, and then from his cousin sister and brother-in-law. He was briefly told by the complainant before he went and reported the matter to the Police. However, the complainant in her evidence did not say that she told her father about this incident.
   
7. Taking into consideration, that the evidence of recent complaint only assists the court in order to determine the credibility and reliability of the evidence given by the complainant, I find that the evidence given by the father of the complainant has failed support the version of the account given by the complainant in her evidence.
   
8. According to the evidence given by the complainant, she was asked by one of her aunties to go and wake up the accused, who was sleeping in his room. She had then went into the room and woke up the accused. The complainant had poured water on him and then tapped on his shoulders to wake him up. Once the accused woke up, he lifted the complainant with his hands and threw her on the bed. He did it as he wanted to play with her. His fingers went into her vagina when he lifted her with his hands. The complainant in her evidence specifically stated that the fingers of the accused accidentally went into her vagina when he lifted her with his hands. She did not feel any pain when it happened. According to her evidence, the accused neither intended nor meant to put his fingers into her vagina. The complainant further said that one Sulu and one of her aunties forced her asking what the accused did to her inside his room. She had to say that the accused inserted his fingers into her vagina due to the force inflicted on her by them.
   
9. According to the evidence given by the complainant, the fingers of the accused had accidentally gone into her vagina while he lifted her up. Hence, the main issue in this case is to determine whether an accidental entry of the fingers into the vagina of the complainant constitutes the element of penetration as stipulated under Section 207 of the Crimes Act.
   
10. Section 13 of the Crimes Act states that:
    
    1. An offence consists of physical elements and fault elements.
    2. However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
    3. The law that creates the offence may provide different fault elements for different physical elements.
       
11. According to Section 13 (1) of the Crimes Act, an offence consists of physical elements and fault elements. In order to find a person guilty for an offence, both the physical elements and the fault elements must be proved beyond reasonable doubt (vide Section 14 of the Crimes Act).
    
12. Section 15 of the Crimes Act has defined the physical element of an offence, where it states that a physical element encompasses conduct, result of a conduct, or a circumstance in which conduct or result of conduct occurs. Section 15 (2) of the Crimes Act has further defined that the conduct means an act, or an omission to perform an act or a state of affairs.
    
13. A conduct becomes a physical element of an offence, if it is performed or carried out voluntarily. It means the conduct must be a product of the will of the person who performed or carried out the said conduct (vide Section 16 (1) and (2) of the Crimes Act).
    
14. Section 16 (3) of the Crimes Act stipulates that a conduct produced under following circumstances are not considered as voluntarily produced conduct, they are:
    
    1. A spasm, convulsion or other unwilled bodily movement;
    2. An act performed during sleep or unconsciousness;
    3. An act performed during impaired consciousness depriving the person of the will to act.
       
15. Accordingly, a conduct does not become a physical element of an offence, if that conduct took place due to a spasm, convulsion or other unwilling bodily movement.
16. In view of the Section 16 of the Crimes Act, it is clear that the act of penetration must be a product of willing and voluntarily conduct of the accused. Hence, if the fingers of the accused entered into the vagina accidentally and unwillingly while he moved his hands to lift the complainant, that does not constitute the penetration as defined under Section 207 of the Crimes Act.
    
17. The only evidence presented by the prosecution in respect of this alleged incident is the evidence given by the complainant, where she said that the fingers of the accused went into her vagina accidentally and unwillingly when he lifted her with his hands.
    
18. Having considered the above discussed reasons, I find that the prosecution has failed to prove that the accused penetrated the vagina of the complainant with his fingers as defined under Section 207 (1) (2) (b) of the Crimes Act. I accordingly find there is a cogent reason for me to disregard the unanimous opinions of guilt given by the three assessors.
    
19. I accordingly hold that the prosecution has failed to prove beyond reasonable doubt that the accused is guilty for this offence of rape as charged. Hence, I find the accused is not guilty for this offence of Rape, contrary to Section 207 (1) (2) (b) and (3) of the Crimes Act.
    
20. In respect of the alternative count of Sexual Assault, I hold that the prosecution has failed to prove beyond reasonable doubt that the accused is guilty for Sexual Assault as charged. I accordingly find the accused is not guilty for the offence of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act.
    
21. The orders of the Court are:
    
    1. The accused is not guilty for the offence of Rape, contrary to Section 207 (1) (2) (b) and (3) of the Crimes Act and acquit him from the same accordingly,
    2. The accused is not guilty for the alternative count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, and acquit him from the same accordingly.
22. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Suva
28^th September 2017

Solicitors
Office of the Director of Public Prosecutions for the State
Jiten Reddy Lawyers for Accused