State v Tavutu [2019] FJHC 441; HAC186.2018 (17 May 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 186 of 2018

[CRIMINAL JURISDICTION]

STATE

V

MOSESE TAVUTU

Counsel : Mr. M. Vosawale for State

Ms. M. Ratidara for Accused

Hearing on : 07 – 14 May 2019
Summing up on : 15 May 2019
Judgment on : 17 May 2019

[The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “TA”]

JUDGMENT

1. The accused is charged with the following offence;
   

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of Offence

MOSESE TAVUTU, between the 1^st of November 2017 to the 31^st of November 2017 at Kadavu in the Southern Division, penetrated the vagina of TA a child under the age of 13 years, with his penis.

2. The assessors have returned with the unanimous opinion that the accused is guilty as charged.
3. I direct myself in accordance with the summing up delivered to the assessors on 15^th May 2019 and the evidence adduced during the trial.
   
4. The prosecution called five witnesses including the complainant. The accused gave evidence in his defence and called two other witnesses.
   
5. In this case, there was no dispute that the complainant was living with her adoptive parents and the accused was staying in the same house at the material time. There was no dispute that the complainant had initially mentioned the name ‘Jonati’ as the name of her assailant. The prosecution case was that the complainant was raped by the accused, but the complainant’s adoptive mother had influenced the complainant to implicate Jonati instead of the accused because the accused is related to the said adoptive mother and the adoptive parents wanted to protect the accused.
   
6. According to the evidence presented;
   1. The alleged incident takes place in the month of November 2017;
   2. The medical examination was conducted on 04/12/17 and the officer who conducted the examination was informed that one Jonati Bale sexually assaulted the complainant 3 weeks ago. (However, the police medical form was filled on 26/12/17); and
   100. The complainant informs PW2 on 26/12/17 that it was the accused (Mosese) who forced onto her.
        
7. PW4 said in her evidence that she arrived at the village with a police team on 29/12/17 to investigate the report lodged by the Turaga-ni-koro where the allegation was against one Jonati. However, she said that she collected the medical report [PE2] on the same day and according to the medical report it was issued on 26/12/17. PW4 is the police officer who has requested the medical examination. Therefore, it appears that PW4 had in fact arrived at the village on 26/12/17.
   
8. According the evidence presented, the complainant had come out with the accused’s name as the name of her assailant for the first time when PW2 questioned her. However, the complainant in her evidence did not mention about having any conversation with PW2. Therefore, as far as the complainant’s evidence is concerned, she does not explain the reason she initially made the allegation against Jonati and the reason which prompted her to change that version and make the allegation against the accused.
   
9. During cross-examination the defence counsel referring the complainant to the statement she had made to the police on 29/12/17 asked the complainant whether the reason for her not to mention the accused’s name [during the medical examination] was because her mother had asked her not to do so and the complainant answered that question in the affirmative.
   
10. Given the line of questioning, it is clear that the aforementioned question was one of the series of questions the defence counsel asked in an attempt to highlight the fact that the complainant had told the police that the mother was informed by her about the alleged incident on the same night and that she had also told the police that the mother told her not to name the accused; whereas the complainant’s evidence in court was that she never informed the mother about what the accused did to her. It was to highlight that the complainant was not consistent with regard to what happened to her.
    
11. The relevant questions and answers are as follows;

Q: Do you recall that when the complaint was first made you have [mentioned] a different person namely Jonati?

A: Yes.

Q: After you had complained about Jonati, when you were medically examined you have said Jonati’s name?

A: Yes.

Q: You agree that on 29/12 you gave a 2^nd statement to police?

A: Yes.

Q: Is it correct that in the statement on 29/12, you had mentioned Mosese’s name?

A: Yes.

Q: On your same statement, is it correct that the reason you did not say Mosese’s name is because your mother had asked you not to?

A: Yes.

Q: When your statement was taken on 27/12 you had informed the police that on the same night you informed your mother of what Mosese did to you?

A: Yes.

Q: You told us, that on that day, you did not tell your mother about what Mosese did to you?

A: Yes.

Q: Would you agree what you informed the court today that you never informed your mother of what Mosese did to you is the truth?

A: Yes.

12. Even during re-examination the complainant maintained that she did not inform her mother about what the accused did to her though she did say “I don’t know” when the prosecutor asked her the reason her mother told her not to mention the accused’s name.
    
13. All in all, the case theory of the prosecution that the complainant was influenced by the adoptive mother to initially make a false allegation against Jonati remained a theory and it was not clearly established by evidence.
    
14. According to PW 5 who conducted the medical examination on 04/12/17, it was the complainant’s biological mother who brought the complainant for the examination. At this point I would place on record that I have decided to disregard the (medical) opinion given by her taking into account the fact that PW 5 was a Nurse Practitioner but not a medical doctor; the fact that the examination of the complainant in this case was her third medical examination; and above all PW5’s admission when she gave evidence that she is unable to explain the basis of her opinion.
    
15. Nevertheless, PW5’s evidence suggests that the complainant’s biological mother was informed most likely by the complainant before 04/12/17 that Jonati was the assailant. The prosecution did not call the biological mother to give evidence though she may have been the person the complainant made the first complaint about what happened to her. However, the fact remains that, according to the evidence, the complainant’s first complaint appears to be against this person by the name of ‘Jonati’. In fact the complainant did admit during cross examination that when she first complained, she mentioned the name ‘Jonati’. The complainant did not describe in her evidence who she referred to as ‘Jonati’. PW2 said in her evidence that one of her younger brothers is Jonati and this Jonati was 08 years old in 2017 attending class 04 and it was the defence counsel who asserted during cross-examination that ‘Jonati’ the complainant was referring to was this younger brother of PW2.
    
16. PW3 who was one of the police officers involved in the investigation said that he cannot recall whether there was an investigation to find out about the person whom the complainant had referred to as Jonati. Then PW4, who was also involved in the investigation and also the officer who had issued the medical examination form PE2 said that Jonati was a 05 year old child. According to PW4, the doctor who conducted the medical examination had informed her that the assailant should be an adult. It is pertinent to note that PW5 did not mention about such conversation with PW4 and also she did not in her evidence mention about forming such opinion.
    
17. Be that as it may, PW4’s justification for not investigating further about the person the complainant referred to as Jonati was that Jonati she came to know of was 05 years old and that according to the medical opinion she claimed to have received, the perpetrator cannot be a child. PW4 did not explain about any steps taken by her or other police officers to investigate whether the said 05 year old child was the only person in the village who had the name ‘Jonati’. In essence, there was no evidence that an investigation was conducted to identify the person the complainant had initially implicated.
    
18. Moreover, the evidence of the complainant and PW2 during cross examination suggests that the complainant was subjected to extensive questioning by several individuals following her stomachache, finally by PW2 until the complainant had allegedly come out with the accused’s name.
    
19. To further comment on the evidence given by PW2, it was clear that PW2 was not a recent complaint witness. As it was pointed out before, according to the evidence, the first complaint of the complainant whoever it was made to, does not implicate the accused. Therefore, the evidence of PW2 regarding what the complainant told her about the incident implicating the accused cannot be considered as evidence that would boost the complainant’s credibility.
    
20. Given the above infirmities in the evidence presented by the prosecution I was compelled to scrutinize the evidence on identification even though the defence counsel when questioned after the closing addresses, clearly submitted that they do not challenge identification. Hence, my decision not to give directions in line with the much celebrated case of R v Turnbull [1977] 63 Criminal Appeal R 132.
    
21. This was a case of recognition. According to the evidence and also the admitted facts, the accused was living with the complainant and her adoptive parents only for 2 weeks in November 2017. The complainant did not say how long she knew the accused before the alleged incident. The evidence did not disclose whether the alleged incident took place as soon as the accused came to live with them or after being there for some time. With regard to the lighting condition at the time the recognition took place, the complainant did say that there were three solar lights, one in the middle of the house, one in the kitchen and one in the bedroom. But she did not say whether one or more of those lights were switched on during the material time when she recognized the accused. In other words, there was no clear evidence about the lighting condition. All in all, the evidence in this case on identification was not the best.
    
22. In the light of the foregoing, I am not convinced that the charge against the accused is established beyond reasonable doubt.
    
23. Though it is not necessary to comment on defence evidence given the above conclusion, I wish to make one observation regarding the evidence of the third defence witness who was the adoptive father of the victim. In my view, his evidence that a person by the name of Semi Tuikavakava also lived in the house in question in November 2017 which was not challenged by the prosecution during cross-examination further damages the prosecution case as it raises a doubt that the accused may not be the only person who could have committed the alleged offence, especially given the strength of the evidence on identification.
    
24. In the circumstances, I am unable to agree with the unanimous opinion of the assessors. I find the accused not guilty and I hereby acquit him accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors:

Office of the Director of Public Prosecutions for the State

Legal Aid Commission for the Accused