State v Vuanibaka [2022] FJHC 149; HAC57.2018 (29 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 57 of 2018

STATE

V

JOSEFA VUANIBAKA

Counsel : Mr. T. Tuenuku and Mr. J. Nasa for the State.
: Ms. V. Diroiroi for the Accused.


Dates of Hearing : 23, 24, 25 March, 2022
Closing Speeches : 28 March, 2022
Date of Judgment : 29 March, 2022

JUDGMENT

(The name of the complainant is suppressed she will be referred to as “J.Q”)

1. The Director of Public Prosecutions charged the accused by filing the following information:
   

Statement of Offence

RAPE: Contrary to section 207 (1) and 2(c) and (3) of the Crimes Act, 2009.

Particulars of Offence

JOSEFA VUANIBAKA on the 1^st day of March, 2018 at Rakiraki in the Western Division, penetrated the mouth of “J.Q”, aged 4 years and 2 months, with his penis.

2. In this trial, the prosecution called four witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
   

ELEMENTS OF THE OFFENCE

4. To prove the above count the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:
   
   • (a) The accused;
     
   • (b) penetrated the mouth of the complainant “J.Q” with his penis;
     
   • (c) “J.Q” was below the age of 13 years.
     
5. The slightest of penetration of the complainant’s mouth by the accused’s penis is sufficient to satisfy the act of penetration. As a matter of law a person under the age of 13 years does not have the capacity to consent. In this case, the complainant was 4 years and 2 months at the time of the alleged offending and therefore the consent of the complainant is not an issue in this case.
   
6. The first element of the offence is concerned with the identity of the person who allegedly committed the offence.
   
7. The second element is the act of penetration of the complainant’s mouth with the penis.
   
8. The final element of the offence is the age of the complainant. It is an undisputed fact that the complainant was 4 years and 2 months in 2018 (date of birth 28^th December, 2013) which establishes that she was below the age of 13 years at the time of the alleged incident.
   
9. In this trial, the accused denied committing the offence of rape he is charged with. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the mouth of the complainant with his penis.
   
10. This court must be satisfied that the prosecution has proved all the elements of the offence of rape beyond reasonable doubt in order for this court to find the accused guilty. If on the other hand, this court has a reasonable doubt with regard to any of those elements concerning the offence, then this court must find the accused not guilty.
    
11. Furthermore, the law also provides that when a person is charged with an offence and the court is of the opinion that he is not guilty of that offence but guilty of a lesser offence, the court may find the accused guilty of that lesser offence. In this regard, I have directed myself that if the accused is not guilty of the offence of rape then I should consider the lesser offence of sexual assault.
    

12. The offence of sexual assault has the following elements:

1. The accused;
   
2. Unlawfully and indecently;
   

c) Assaulted the complainant “JQ” by putting his penis on her lips.

13. The first element of the offence of sexual assault is concerned with the identity of the person who allegedly committed the offence.
    
14. The words “unlawfully” and “indecently” in respect of the second element of the offence of sexual assault means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such conduct indecent.
    
15. The final element of assault is the unlawful use of force by putting the penis on the lips of the complainant. In this regard the court has to ask itself:
    
    1. whether the force used in putting the penis on the lips of the complainant was sexual in nature; and
       

b) if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, was in fact sexual in nature.

16. If this court is satisfied beyond reasonable doubt that all the elements of sexual assault as explained above has been satisfied then this court must find the accused person guilty of the lesser offence of sexual assault. If on the other hand, there a reasonable doubt with regard to any of those elements concerning the offence of sexual assault, then this court must find the accused person not guilty.
    
17. As a matter of law, I have to direct myself that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means, if this court is satisfied with the evidence given by the complainant and accepts it as reliable and truthful then this court is not required to look for any other evidence to support the account given by the complainant.
    

ADMITTED FACTS

18. In this trial, the prosecution and the defence have agreed to certain facts titled as admitted facts and additional admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
19. I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.
    

PROSECUTION CASE

20. The complainant informed the court that she was at the house of the accused, after sometime the accused told her that he has to take lollies to the toilet. He got the complainant to follow him to the toilet.
    
21. In the toilet, the accused closed the door, put down the toilet seat, blind-folded the complainant with a white vest. After this, the accused put his ball (meaning penis) inside her mouth (demonstrating) and then he “pee” (meaning urinated). The complainant cried so the accused said it’s finished, and then opened the door. The complainant left and went home.
    
22. At home, she told her aunt Sala that “Jo put his ball in my mouth and blind-folded my eyes”. According to the complainant Sala did not say anything so when her mother came home from work, the complainant told her mother the accused had blind-folded her and put his ball inside and he urinated. The complainant recognized and pointed to the accused.
    
23. In cross examination, the complainant denied the accused had only put his penis on her lips and not inside her mouth. She also stated that she had tasted the accused urine. Upon further questioning, the complainant maintained the accused had put his penis inside her mouth.
    
24. In re-examination, the complainant stated that the accused had put his penis inside her mouth.
    
25. The complainant’s aunt Kinisela Naituku informed the court that in 2018, she was living with her eldest sister Lavenia Lagimirimiri and her children at Quarters 54, Katudrau Place, Rakiraki. The complainant was the daughter of Lavenia.
    
26. On 1^st March, 2018 at around 2.00 pm, the witness was at home with the children. After lunch she slept and when she woke up the complainant was not in the house. When the witness went outside, she saw the complainant leave the house of the accused.
    
27. The complainant came to the witness and told her that the accused had put his penis in her mouth and urinated. Upon hearing this, the witness did not do anything but waited for the complainant’s mother to come home so that she could tell her. Before the complainant’s mother entered the house, the complainant ran outside and told her about the incident.
    
28. In cross examination, the witness agreed that the complainant had told her that the accused had put his penis in her mouth and urinated. The witness was referred to her police statement dated 2^nd March, 2018 to page 1, line 15 which was read as follows:
    

“Saw “J” coming out of Dan’s house so I went to her and brought her home whilst running at home “J” then told me that Jo urinate on her mouth”.

29. When it was put to the witness that on the next day of the alleged incident she had told the police officer writing her statement that the complainant had told her the accused had urinated on her mouth. The witness did not agree and stated that she had told the police officer the accused had urinated in the complainant’s mouth.
    
30. The witness maintained that she had told the police officer the complainant had told her that the accused had put his penis in her mouth and urinated.
    

PREVIOUS INCONSISTENT STATEMENT

31. This court directs its mind to the fact that the defence counsel during cross examination of Kinisela had questioned this witness about some inconsistency in her police statement which she had given to the police when facts were fresh in her mind with her evidence in court.
    
32. This court is allowed to take into consideration the inconsistency between what this witness told the court and her police statement when considering whether this witness is believable and credible. However, the police statement is not evidence of the truth of its contents.
    
33. It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
    
34. If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witness. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
    
35. In re-examination, the witness stated that she told the police officer that the accused had put his penis inside the complainant’s mouth and urinated.
    
36. The mother of the complainant Lavenia Lagimirimiri informed the court that on 1^st March, 2018 at around 5.00 pm before she could enter her house, the complainant told her that the accused had “pee” inside her mouth. When she heard this she was shocked and angry. The witness questioned the complainant how the accused had “pee” inside her mouth. The complainant explained to her the accused had taken out his penis and put it inside her mouth and “pee”.
    
37. Upon hearing this, the witness went to the house of the accused, she asked him to accompany her home. At home she asked the accused why he had done that act to her daughter. The accused apologized and said, “I am sorry, I was high”.
    
38. The accused further stated she could do whatever she wanted such as assault him but not to report him to the police. The witness then chased the accused out of her house. After this, she reported the matter to the police.
    
39. In cross examination, the witness stated that she told the accused what the complainant had told her and then she asked him why he had acted that way towards her daughter. When questioned that the accused did not say anything about the incident but had apologized, the witness stated that the accused had said he was sorry and he was high and also she can do anything to him such as punch him but not to report him to the police.
    

RECENT COMPLAINT DIRECTION

40. Complainant’s of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
    
41. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight is to be given to the fact that the complainant told her aunt Kinisela and her mother Lavenia that the accused had put his penis inside her mouth and had urinated.
    
42. This is commonly known as recent complaint evidence. The evidence given by Kinisela and Lavenia is not evidence of what actually happened between the complainant and the accused since they were not present and they did not see what had happened between the two.
    
43. This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told Kinisela her aunt immediately after the alleged incident about what the accused had done to her.
    
44. Furthermore, the prosecution also says the complainant told her mother as soon as she arrived home about what the accused had done. The prosecution submits that this 4 year old child had given her aunt and her mother sufficient information about what she had been through which was enough to alert these witnesses that something had happened to the complainant.
    
45. Moreover, considering the age of the complainant she was consistent in what she told her aunt and her mother. The prosecution is asking this court to consider that the complainant did relay relevant and important information to her aunt and her mother about what the accused had done to her. It was the complainant who had on her own told her aunt and then her mother when she came home about what had happened and therefore she is more likely to be truthful.
    
46. On the other hand, defence says the complainant had given one version to her aunt and then another version to her mother. This court should consider that Kinisela had told the police officer writing her police statement that the complainant had told her the accused had put his penis on her mouth. The police statement was given the next day of the allegation by Kinisela when facts were fresh in her mind.
    
47. In the police statement Kinisela had mentioned the complainant had told her the accused had put his penis on her mouth hence this court should consider the fact that the complainant did not tell Kinisela that the accused had penetrated the mouth of the complainant.
    
48. Furthermore, the complainant’s mother Lavenia the second recent complaint witness was told about the incident after a lapse of a few hours, considering the age of the complainant there is a likelihood that this child may have been confused about what had actually happened.
    
49. Defence further says the complainant did not give a complete account of what had happened to her in effect she gave two different versions one version to her aunt as per the police statement of Kinisela and another to her mother and therefore she should not be believed.
    
50. It is for this court to decide whether the evidence of recent complaint helps this court to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. It is for this court to decide whether the complainant is reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
    
51. D/Sgt. 3033 Nacanieli Dralivi informed the court that he was the investigating as well as the interviewing officer in this case. The witness had interviewed the accused on 9^th March, 2018 at the Crime Office of the Rakiraki Police Station in the English language. The interview commenced at 4.45 pm, the accused did not make any complaints before the interview commenced. The witnessing officer was Toma Chet, the witness had signed all the pages of the interview after the accused and the witnessing officer had signed. The interview was conducted for two days, that is on the 9^th and 10^th.
    
52. The interview was handwritten and later the witness had typed the interview. The accused had understood the questions asked and he had acknowledged the same by signing the interview. The accused was given breaks and time to rest. The record of interview of the accused (handwritten) was marked and tendered as prosecution exhibit no. 1 and the typed copy was marked and tendered as prosecution exhibit no.1 (A).
    
53. The witness also confirmed that he drew the sketch plan showing the location of the accused and the complainant’s house and the rough sketch of the house where the alleged offending took place. The rough sketch plan of the accused and the complainant’s house dated 2^nd March, 2018 was marked and tendered as prosecution exhibit no. 2 and the rough sketch plan of the alleged offending at Quarters 61 dated 2^nd March, 2018 was marked and tendered as prosecution exhibit no. 2 (A).
    
54. In cross examination the witness agreed that he had conducted the investigation before interviewing the accused. The witness was referred to question and answer 74 of the accused caution interview which was read as:
    

Q: It is alleged that “J” bit your penis. What can you say?

Ans: That is false.

55. When questioned how he came to know that “J” had bitten the penis of the accused. The witness said that he believed it was from the complainant’s police statement. The witness was again referred to the caution interview:
    

Q.71: Did you put your penis inside her mouth?

Ans: No.

Q.72: It is alleged by “J” that you put your penis inside her mouth. What can you say?

Ans: That is false.

56. The witness agreed that throughout his caution interview and prior to the scene reconstruction, the accused had maintained that he did not put his penis inside “J’s” mouth.
    
57. The witness was referred to caution interview question 81 in particular to the noting at 15:34 hours which was:
    

“At the scene, suspect Josefa showed where he was standing inside the toilet before putting his penis in the mouth of “J”.

58. The witness agreed the above was written on the basis of what the accused had said during the scene reconstruction. When questioned where in the caution interview the accused had stated that he had put his penis inside the complainant’s mouth. The witness said in answer to question 70.
    
59. Question 70 was read as follows:

Q: After that then what did you do?
Ans: I then put my erected penis on her lips.

60. The witness agreed that the answer given to question 70 is different from what he had written at entry 15:34 hrs. Upon further questioning, the witness stated that the accused had not stated during his caution interview that he had put his penis inside the mouth of “J” and therefore the entry at 15:34 hours was incorrect.
    
61. In re-examination, the witness clarified that the entry at 15:34 hours of the caution interview should be the accused had put his penis on the mouth of the complainant and not inside the mouth. This answer was in line with what the accused had stated in answer to question 70.
    

CAUTION INTERVEIW

62. The caution interview of the accused is before this court, the answers are for consideration as evidence and not the questions asked. Before this court accepts the answers, this court must be satisfied that the answers were given by the accused and they are the truth. It is entirely a matter for me to accept or reject the answers given in the caution interview.
    
63. The counsel for the accused during the cross examination of the interviewing officer had put the allegation that the admission noted at question 81, 15:34 hours in the caution interview was a fabrication by the police officer and was not given by the accused.
    
64. This means the defence counsel was putting to the interviewing officer that the admission attributed to the accused at question 81 in his caution interview was made up by the officer and not mentioned by the accused and therefore this court should disregard that admission.
    
65. It is for this court to decide whether the accused made that admission in the caution interview and whether that admission was the truth. If I am not sure whether the accused made that admission in his caution interview then I will disregard it. If I am sure that the admission was made by the accused, then I should consider whether the admission is the truth. What weight I choose to give to that admission is a matter entirely for me.

66. This was the prosecution case.
    

DEFENCE CASE

67. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination. This court must also consider his evidence and give such weight as is appropriate.
    
68. The accused informed the court that on 1^st March, 2018 he was at home with his two younger brothers. The complainant was at his home playing with his brothers in the living room. The accused was in his bedroom and he called the complainant and asked her if she wanted some lollies.
    
69. When the complainant came he took her to the kitchen, blindfolded her and then took her to the toilet and closed the door. In the toilet he made her sit on the toilet seat, pulled down his pants, took out his penis and put it in her lips. The complainant cried so he opened the door and let her go.
    
70. The accused said the complainant did not tell the truth when she said he had put his penis inside her mouth. When reference was made to the caution interview where he told the interviewing officer that he had put his penis on her lips and now he was saying in her lips the accused said, he had put his penis on the lips of the complainant. When he did this, the complainant was shocked and started crying.
    
71. The accused also stated that the mother of the complainant had asked him “why did you do such a thing to my child?” The accused also told the complainant’s mother “you can do anything to me but don’t report to the police”. The accused also said that the complainant’s mother did not explain to him anything about what was done to her daughter, she just asked why? The accused denied putting his penis inside the complainant’s mouth and urinating.
    
72. In cross examination, the accused agreed that when he had seen the complainant in the living room playing with his brothers, he called the complainant saying that he was going to give her some lollies but he did not have any with him. He agreed that he had deceived the complainant who he knew was 4 years of age at the time.
    
73. In the kitchen, he blindfolded the complainant by tying a cloth over both her eyes. The reason for blindfolding her was he did not want the complainant to see what he was going to do to her. He knew it was wrong of him to do this, but he continued. He took the complainant to the toilet in such a way that his brothers did not see them.
    
74. The reason why he had made the complainant sit on the toilet seat blindfolded was because it will be easier for him to put his penis inside her mouth. The accused agreed the reason why he took out his penis and put it inside the complainant’s mouth was because he wanted her to suck his penis and have oral sex.
    
75. The accused agreed he knew what he was doing to the complainant and when she cried, he realized that she was scared and she did not like what he had done. The accused had apologized to the complainant’s mother because he knew what he had done to the complainant was wrong.
    
76. In re-examination, the accused stated that by the time he had his penis on the complainant’s lips, she started crying and then he stopped and let her go. The accused further clarified that he had apologized to the complainant’s mother because of the wrong thing he did to the complainant which was to put his penis on her lips.
    
77. This was the defence case.
    

ANALYSIS

78. The prosecution alleges that on 1^st March, 2018 the accused lured the 4 year old complainant into the toilet of his house by deceiving her that he will give her lollies. The accused knew what he was doing, he first took the complainant into the kitchen blindfolded her so that she does not see what was happening. The accused then took the complainant into the toilet away from the attention of his two younger brothers who were playing in the living room.
    
79. After closing the toilet door the accused made the complainant sit on the toilet seat took out his penis and penetrated her mouth. To make things worse he urinated inside the mouth of the complainant. The accused expected the complainant to have oral sex by sucking his penis but this did not happen. The complainant did not like what the accused had done to her and she started to cry. The accused quickly opened the door and let the complainant out.
    
80. The complainant left the house of the accused went home and immediately told her aunt Kinisela about what the accused had done to her. Thereafter, she told her mother about what the accused had done to her after she came home from work. The mother of the complainant confronted the accused and asked him why he had done that act to her daughter. The accused apologized and asked the complainant’s mother not to report the matter to the police.
    
81. On the other hand, the defence says the allegation does not make sense. The complainant is mistaken about what actually happened. The accused did not penetrate her mouth with his penis. As soon as the accused had put his penis on the complainant’s mouth particularly her lips she started to cry and it was during this time the accused stopped, opened the door and let her go.
    
82. This is what the accused told the court in his evidence which coincides with what Kinisela told the police on the next day of the incident when facts were fresh in her mind. The defence is asking this court to disregard what Kinisela told the court in her evidence but to accept the content of her police statement as mentioned in court.
    
83. The version mentioned in the police statement of Kinisela not only supports what the accused told the court but also what he told the police in his caution interview. The admission attributed to the accused at question 81, 15:34 hours is fabricated by the interviewing officer which is not supported by the answers given by the accused in his caution interview.
    
84. The apologies by the accused to the complainant’s mother is to be disregarded by this court because she had not explained to the accused about the act she was referring to but had put a general question about why he had done that act on her daughter without specifying the act. The accused had apologized on the basis that he had put his penis on the lips of the complainant.

85. The defence is asking this court to disregard the evidence of penetration of the penis into the mouth of the complainant but to accept the defence version that the accused had put his penis on the lips of the complainant.
    

DETERMINATION

86. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
    
87. After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. She gave a comprehensive account of what the accused had done to her, she was also able to withstand cross examination and was not discredited.
    
88. The complainant was forthright and not evasive. I have no doubt in my mind that the complainant told the truth in court her demeanour was consistent with her honesty. The complainant was consistent in her evidence and was able to recall what the accused had done to her.
    
89. The complainant did inform Kinisela and her mother about what the accused had done to her to alert them that something had happened. In my view this was a natural reaction by the complainant to confide in someone she was close to. The complainant was consistent in what she told her aunt and her mother.
    
90. Kinisela and Lavenia the mother of the complainant were also truthful witnesses both these witnesses had clearly narrated what the complainant had told her. I note that in Kinisela’s police statement she had mentioned the complainant had told her the accused had put his penis on her mouth but in her evidence she maintained that she had told the police officer writing her police statement that the accused had put his penis into her mouth and urinated.
    
91. Although Kinisela was referred to her police statement and then compared with her evidence in court for an inconsistency or omission, in my view the inconsistency was not significant to affect her credibility. The police statement was written by someone else. This witness in her evidence maintained that she had told the police officer writing the police statement that the complainant had told her the accused had put his penis into her mouth and urinated. The defence did not suggest any motivation on the part of this witness not to tell the truth in court. I accept the explanation given by this witness about the inconsistency between her evidence in court and her police statement as truthful.
    
92. Even if I do not accept the evidence of Kinisela in respect of the penetration of the complainant’s mouth still the evidence of Lavenia the complainant’s mother is unfaltering in what the complainant had told her.
    
93. The complainant’s mother promptly acted upon her daughter’s complaint by confronting the accused. In my view, it does not matter whether Lavenia had narrated everything the complainant had told her to the accused. The apology from the accused was enough to prompt Lavenia to immediately report the matter to the police. The accused in his evidence agreed that he had apologized to Lavenia for his wrong doing.
    
94. In respect of the caution interview of the accused the interviewing officer was honest in admitting that he had incorrectly asserted at question 81, the noting at 15:34 hours that the accused had pointed to where he had put his penis in the mouth of the complainant. This court does not give any weight to this assertion by the interviewing officer.
    
95. On the other hand, the accused did not tell the truth he gave a version of events particularly about putting his penis on the lips of the complainant as untenable or implausible on the totality of the evidence. It is difficult to accept that the accused had only put his penis on the lips of the complainant and nothing else happened as unworthy of belief. The demeanour of the accused was not consistent with his honesty he was deliberately not telling the truth when he said he did not penetrate the mouth of the complainant with his penis.
    
96. I have also noted that the accused had lost his credibility during cross examination he made admissions on oath which points to his culpability and complicity in the allegation raised by the complainant.
    
97. I have also reviewed the evidence in respect of the lesser offence of sexual assault, upon the totality of the evidence this court is not satisfied beyond reasonable doubt that the accused had put his penis on the lips of the complainant.
    
98. This court is satisfied that the complainant, and the two recent complaint witnesses are reliable and credible and they told the truth in court. They were not discredited in cross examination to adversely affect the core version of their testimonies and this court gives weight to their evidence.
    

CONCLUSION

99. This court is satisfied beyond reasonable doubt that the accused on 1^st March, 2018 had penetrated the mouth of the complainant aged 4 years and 2 months with his penis.
    
100. The defence has not been able to create a reasonable doubt in the prosecution case.
     
101. In view of the above, I find the accused guilty of one count of rape as charged and I convict him accordingly.
102. This is the judgment of the court.
     

Sunil Sharma

Judge

At Lautoka
29 March, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.