State v Tiqatabua [2013] FJMC 27; Criminal Case 174.2011 (14 January 2013)

IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 174/2011

THE STATE

V

PITA TIQATABUA

Dated: 14th of January 2013
For Prosecution: Ms. Madanavosa for the DPP
For Accused: Mr. Baba for Nawaikula Esquire

JUDGMENT

1. Mr. PITA TIQATABUA the accused is being charged with 4 counts of Attempted Rape contrary to Section 151 of the Penal Code, Cap 17. The particulars of the offences are as follows:
   

Count 1: On the 23rd day of December 2009, at Vatuwaqa in the Central Division, attempted to have carnal knowledge of Ms. T, without her consent.

Count 2: On the 19th day of January 2010, at Vatuwaqa in the Central Division, attempted to have carnal knowledge of Ms. T, without his/her consent.

Count 3: On the 26th day of January 2010, at Vatuwaqa in the Central Division, attempted to have carnal knowledge of Ms. T, without her consent.

Count 4: On the 22nd day of December 2010, at Vatuwaqa in the Central Division, attempted to have carnal knowledge of Ms. T, without her consent.

2. Initially in Count No. 2 & 3 it was stated as "Section 208 of the Crimes Decree No. 44 of 2009" and it was amended to "Section 151 of the Penal Code" with consent of the defence. The amended charge sheet with 4 counts was read to the accused and he pleaded not guilty to the same.
   
3. On 4th of November 2011, soon before the commencement of the Hearing, Prosecution made an application for name suppression in terms of Section 8, 9 and 12 of the Juvenile Act and the same was allowed. Thus herein after the name of the victim is been cited as Ms. T.
   
4. The 1st witness to call from the prosecution was Ms. T. She testified that she was born on 14th of February 1998 and was living with her maternal grandparents for the past 13 years. Exhibit No. 4 tendered to court by prosecution with the consent of the defence was the birth certificate of Ms. T and it confirms the date of birth of Ms. T as 14th February 1998.
   
5. Ms. T recalled 23rd of December 2009 where she first encountered with the alleged sexual act with the accused. Ms. T, her grandfather, grandfather's brother had been engaged in building the house of the accused on that day. While they were engaged with the construction, Ms. T had gone inside the accused's house. Accused had been doing something inside the house while her (Ms. T) grandfather's brother (Mr. Kameli Seduadua) was nailing in the house. Grandfather had gone to Walu Bay. She claimed that the accused took her behind the curtain, laid her down on the floor, took off her pants and after taking his pants off put his penis inside the vagina. Though Ms. T had tried to scream, accused had put a piece of cloth in her mouth in order to stop her from screaming. She said that she was frightened over the incident. Then she had put on her clothes and gone to buy some 'sunpops' with the $2 the accused had given to her. In fact she had taken 10 'sunpops' and returned the balance of $1 back to the accused and gone home.
   
6. Ms. T recalled 19th of January 2010 and said around 11.00am when she was playing cards with the daughter of the accused and some other children in the same settlement at Sekove's house, the accused had signaled her to go to his house. Ms. T had come out with Malani, the daughter of the accused to go to his house. The accused had given some money to Malani to buy some 'sunpops'. When she left for the boutique, the accused had asked her to go inside their house. Assuming that the accused wanted to return the CD's, Ms. T had gone inside and when she was sitting the accused had also come inside the house and locked the door. Then she was laid down on the floor and while touching and kissing her breast the accused had put his penis inside her vagina after removing her clothes. She said that she did not like it and was frightened because the accused had threatened her if the incident is told to anyone she will be killed.
   
7. Then Ms. T narrated the incident took place on 26th of January 2010 in this manner. She had come back from school and was playing with other kids in the afternoon including the daughter of the accused inside his house. The accused had called her to his house. Though she tried to run away, she got frightened as the accused was calling her in a very angry manner. When Ms. T went inside the accused's house, the accused had also followed her and after removing her clothes and of himself, he had inserted his penis into her vagina. She claimed that she did not like that act. "He was not doing it very hard. He was doing it very slowly". After the act she had put on her clothes and gone back to her house. She said that nobody was at the accused's house and her house at the time of the incident.
   
8. Finally, she recalled the incident on 22nd of December 2010 and said that incident took place during her school holidays around 3pm after she returned from her bath. A person/child called Eparama had come to her house asking for some ice water, when she returned after bath. When giving the bottle of water to Eparama, she wanted him to bring the bottle back as it belonged to her grandfather. After Eparama left her house she had gone inside to put on her clothes. While she was changing to her pants from the towel the accused had come inside her house and closed the front door without locking it. Then the accused had laid down Ms. T on her grandfathers' bed and pulled down her pants and her panty. After the accused got himself undressed, he had put his penis inside the vagina. She reiterated that she did not like that and wanted him to stop it but he continued on his act. She again said "he did not do it hard but did it slowly". Describing the establishment of her house, she said it is only a curtain that separates the sleeping area and the sitting area and the grandfathers' bed that the alleged incident took place was behind this curtain. When the accused was performing the said act, she had heard Eparama calling from outside, and as soon as Eparama's voice was heard the accused as well as Ms. T stood up from the bed and tried to pull their pants up. But, she said, when Eparama came inside the house after opening the door, they were still in the process of pulling up the pants. Then the accused had left the house and told Ms. T, to tell, if anybody asks, that he came looking for some CD's. Though Ms. T requested Eparama not to tell what he saw to anyone and tried to give a packet of noodles and $2, Eparama had not agreed with her suggestion and told her that he will tell what he saw to her grandfather.
   
9. According to Ms. T, one Ms. Lepani, another girl who was staying with her in her grandfather's house had asked her what 'Pita' did to her and in-fact beaten her. That was on 24th of December 2010. Ms. T and Ms. Lepani had gone to her village to spend their school holidays on 16th of January 2011. Her grandfather had come to the village on Sunday and queried her as to what took place and Ms. T had told him everything from the 1st to the last incident. Then her grandfather had taken her back to Suva and reported the matter to Nabua Police Station on 24th of January 2011.
   
10. In cross-examination Ms. T was questioned at length about the sequence of events and the way those events took place. She admitted that the accused is related to her and while she and her grandparents occupied room No. 1 of the settlement, the accused was in room No. 3. It was revealed that the accused is married with 4 children. It was confirmed during the cross-examination that in the course of the said incidents, the accused used to touch her breasts, vagina and kissed her as well.
    
11. It was highlighted in cross-examination while referring to the 1st incident that the accused inserted his penis into her vagina and the "penis was not hard". Ms. T agreed with the defence counsel that the matters would have been reported to the Police somewhere in 2009 and 2010. The defence counsel suggested that it was not reported to Police because such an act did not take place. Ms. T refusing the suggestion that she's lying to court, reiterated that she's telling the truth.
    
12. When the defence counsel referred to the 2nd incident, Ms. T confirmed that the accused inserted his penis into her vagina and it was 'high' at the time. Ms. T went on to clarify what she meant by 'hard' saying that "when I said hard, I meant he was rubbing his penis on my vagina".
    
13. When the cross-examination was focused on the 3rd incident, 26th of January 2010, Ms. T said though she could have run away when the accused called her to his house, she did not and in-fact she told the accused to stop such acts, but he kept on forcing her to participate in such acts.
    
14. When she was confronted with the alleged incident on 22nd of December 2010 she said that "he was not doing it hard, but doing it slowly". Ms. T further said that when Eparama came inside the house looking for her she was still trying to pull up her pants and the accused had already pulled his pants. Ms. T revealed that she was rather forced to relate the story to Lepani as Lepani got to know it from Eparama's brother. She said that she did not want to reveal the story to Lepani as she was frightened of her grandfather. She stressed that on 16th of January 2011, her grandfather came to Malabi from Suva and just asked her wisely as to what took place where she disclosed everything to him.
    
15. In re-examination it was confirmed that Ms. T had gone to the Sexual Offences Unit of the CID Headquarters on 17th of January 2011 and 1st statement was recorded by a lady Police Officer. Referring to the 3rd incident alleged to have taken place on 26th of January 2010, Ms. T said when she says that the penis of the accused was not hard, what she meant was that "he was not doing it hard".
    
16. Answering the specific question of court "when you say that "it was not hard" what do you mean, Ms. T said "he was just rubbing it on my vagina and he was not doing it hard".
    
17. Second witness to call from the Prosecution was one 13 years old Eparama Tawake. He testified that he had been living at Wailea Settlement in Vatuwaqa for 2 years with his parents. After identifying his statement made to the Police in January 2011, Eparama said that on 22nd of December 2010, around 3pm "Buna" (Ms. T) had told him to return the bottle which he took from her as it belonged to her father. When Eparama wanted to return the bottle, he had called Buna from outside the house before entering inside. As Buna did not respond, Eparama had pushed the door and gone inside the house. After he left the bottle on the sink, he had moved backwards to the door where he had seen accused and Buna in the sleeping area of Buna's family. By the time Eparama saw them "Buna was standing, bracing herself on the bed, with shorts and undergarments down. Pita was standing behind her". Eparama was very much reluctant to say what Pita was doing to Buna when he saw them. But, at last he told that "Pita was inserting his penis to Buna's vagina". According to Eparama, he had run away from that place as he was ashamed. But Buna had followed him and offered a packet of noodles and a $1 coin where Eparama had refused to accept it and told her that he will tell what he saw to her father. Eparama said that he informed what he saw to one Akanisi, a sister of Buna, when she was coming back from school.
    
18. In cross-examination, Eparama told that it took about one minute for him to return the bottle which he took from Buna and the door was "open" when he wants to give the bottle back. When Eparama confirmed that when he went inside the house he saw
    

Ms. T was bending down and the accused was putting his penis to her vagina. The defence counsel suggested that Eparama is lying to court.

19. The third witness of the Prosecution was Ms. Akanisi Delai. She is a student of the Fiji National University now. After confirming that she made a statement to the Police about this incident, she said that Ms. T is a niece of hers who is living with them for the last 13 years. She said that on 22nd of December 2010, around 3.15pm when she was returning from school, she met Eparama who appeared to be frightened and told her that he saw Buna and Pita with their pants down. After thanking Eparama and gone home and confronted Ms. T what Eparama had told her. Ms. Akanisi said that Ms. T started crying and kept on crying and then told her what took place between her and Pita. Ms. T had told that Pita had told her to take off her pants. After hearing Buna's version, Ms. Akanisi had told her to have a rest and after Ms. T went out for a sleep, she had come out to prepare dinner. Ms. Akanisi testified to the effect that she did not tell this incident to her parents as they were very busy at that time.
    
20. In cross-examination she said that, she only heard the story and she does not know whether it is true or not. She said that there was nobody at home when she asked this from Ms. T and she did not force her to tell anything. Ms. Akanisi confirmed that she did not tell this story to anybody else. In answering to a question put by the counsel that it is a risk for not reporting this matter especially to parents being a very serious case, she said "I did not tell my parents. At the same time I was waiting for Buna to be confident and then to tell the story to my parents".
    
21. The 4th witness of the Prosecution was DC/3502 Vishwa Nair. According to DC/Vishwa, he was attached to Nabua Police Station in December 2010 and received a report on 24th of December 2010 around 10 o'clock from a person called Amania Delaitabua to the effect that a person called Peni had indecently annoyed his granddaughter, Ms. T, by touching her body. It had been recorded in the report book complaint register under 5307/10.
    
22. The relevant portion was tendered to court marked as Prosecution Exhibit P1/the exact report is as follows:
    

"It was on the 24th of December 2010 at about 2205 hrs Amania Delaitabua of Wailea Settlement called in and reported that one Pita of the same settlement annoyed his granddaughter, namely, Ms. T, 12 years by touching her body and also forcefully entered the house".

23. In cross-examination DC/Vishwa was asked whether Amania came to the Police Station with another person to lodge the complaint. The witness said that he could not recall as it is very hard to remember and determine as to how many people came and went from the Police Station.
    
24. The last witness (5) of the Prosecution was DC/3659 Inoke Tui. He recalled 24th of January 2011 around 8.20am and said he lodged a report to Nabua Police Station regarding a Sexual Offence case in respect of a person called Ms. T. He said he was not aware that another report had already been lodged at Nabua Police Station by the victims' grandfather. Referring to report number 300/11 dated 24th of January 2011, DC/Inoke said his supervising officers report was "Corporal/Inoke of Major Crime called and reported on behalf of one Ms. T of Wailea Settlement that one Pita Tiqatabua of the same settlement attempted to rape her". It was tendered to court as Exhibit No. 2 with the consent of the defence counsel. Further, the Medical Report of Ms. T was also tendered to court as Prosecution Exhibit No. 3 with the consent of the defence. The original birth certificate of Ms. T was tendered to court as Prosecution Exhibit No. 4.
    
25. In cross-examination DC/Inoke was confronted with "double reporting" and he replied that he was not aware that a report was already been lodged by the victims grandfather at Nabua Police Station.
    
26. After calling the above 5 witnesses Prosecution closed their case. Since the court was of the opinion that a Prima Facie case is been made out against the accused person sufficient to require the making of a defence, court acted in terms of Section 179(1) of the Criminal Procedure Decree. After explaining the substance of the charges again to the accused [179(1)(a)] the accused was informed his rights under Section 179(b)(c)(d) and his right to remain silent. Accused opted to give evidence from the witness box.
    
27. Offering evidence from the witness box, accused said that he was working at a security company before he moved to Wailea Settlement. He is married with 2 sons and 2 daughters. The accused jointly and separately denied the 4 instances where he was charged for attempting to rape Ms. T. Answering a specific question from his counsel as to why these charges are being raised against him, he said there is no reason for such a thing. Referring to the second charge, the accused told that he was at home with his 2 daughters during the day time. Accused admitted that on 26th of January 2010 (referring to 3rd charge) he was at home with his daughters and one son, watching a movie with them. Even the last occasion, 22nd of December 2010, he claimed to be with his 3 children as 1 child had gone to the village. Further, he said that he was engaged with cleaning the house and other household work when he was at home during the alleged days.
    
28. In cross-examination the accused admitted that on 23rd December 2009, Ms. T and her grandfather came to assist him in "touch-up jobs" of his barrack. But he did not admit that after Kameli (grandfather) left his barrack to get a hammer it was only himself and Ms. T were available at his house and took the advantage of them being alone to have inserted his penis into her vagina. Accused denied the suggestions of putting a piece of cloth in her mouth, threatening Ms. T not to tell this to anybody and giving Ms. T any money.
    
29. He admitted that on 19th of January 2010, he was at home with his 2 daughters, but refused to admit that Ms. T was playing cards with his daughter, Malani. It was suggested in cross-examination that the accused cannot give any reason for a false implication if these are false allegations because these allegations are true. It was further suggested by Prosecution that Eparama caught the accused and the complainant at Ms. T's house when the accused was naked with the complainant. The final suggestion of the Prosecution was that the accused is lying to the court because he does not want anybody to know what he was doing to the complainant and he's ashamed as to what he did to Ms. T being a friend of Malani, his daughter.
    
30. Then the parties were invited by the court to submit their written submissions. Prosecution submitted a comprehensive written submission, analyzing the evidence and law pertaining to this case and submitted that they have proved their case beyond reasonable doubt. The written submission of the accused appeared to have been written by Mr. Nawaikula Esquires. It is not been signed by him. It has cited a decision alleged to have been delivered by Resident Magistrate Prem Chandra of Nasinu Magistrates Court without stating as to what the exact point he is trying to elicit out of that citation. Nevertheless, I would like to highlight that there are 2 citations in the defence written submissions which were never stated in court by the complainant while giving evidence. It was never discussed in court whether the vagina of Mr. T was wet or not in the course of these alleged incidents and it was never asked from the victim if there was any blood in the process of the alleged acts, though these were stated in page No. 3 of the defence submissions. Thus, I do ignore those portions. The main concern of the defence is the version of Ms. T to the status of the penis of the accused, whether it was hard or not and whether the accused rubbed his penis on her vagina or inserted his penis to her vagina. The submission concludes that "the hymen is a delicate substance in the female vagina that always breaks when a female has her 1st sexual intercourse" and with the intact hymen, according to the Medical Report a reasonable doubt emerges out of the Prosecution case.
    
31. In view of the general rule of the Criminal Justice System the accused is presumed to be innocent until otherwise proven by the prosecution and determined by a competent court of law. The proof that a court expects from the prosecution is of the standard of 'beyond reasonable doubt'. There is no onus, burden or responsibility cast upon the accused at any stage of the Hearing, to prove his innocence or otherwise.
    
32. I now turn to see the elements of the offence of attempted rape. Justice Shaneem in the case of David Mukesh Raj v- State HAA 108/2008 (paragraph 25) identified the following elements that have to be proved in a case of attempted rape:
    
    • Lack of consent of the victim
    • Accused belief as to lack of consent and
    • Finally an attempt to have sexual intercourse
      

It says "an attempted rape requires proof of an intent to have sexual intercourse where the victim is not consenting and the perpetrator either knows she's not consenting or does not care whether she consents or not and often overt act which manifests that intention". It is irrelevant whether the completed offence is impossible or whether the perpetrator himself had a change of heart and decided not to proceed with the rape. It was decided in Epironi Levukaiciwa and Alifereti Tokona v- The State (2002) HAA 087/015 that the act of lying on top of the victim by the accused while the intention of having sexual intercourse itself is an overt act sufficient to prove an attempt to rape. Justice Fatiaki in Tiare Bobo v- The State (1999) HAA 0049/99B held that if an accused person undressed himself in front of a victim who was struggling, the only irresistible conclusion to be reached was that he intended to have sexual intercourse with the victim.

33. Having considered the basic concepts of evidential burden on the prosecution in a criminal trial and keeping in mind the essential elements that have to be proved by the Prosecution I now proceed to analyze the evidence led before me by both parties.
    
34. Ms. T, the victim girl refers to 4 different occasions where the alleged attempt to rape took place. Those incidents, commencing from 23rd of December 2009, runs up to 22nd of December 2010, for whole of one year. Upon perusing Exhibit No. 3, the Medical Report of Ms. T, it is apparent that her hymen is intact. This may be the sole reason for the prosecution to rely on charges of attempted rape. The professional opinion of the Medical Report says "no evidence of sexual intercourse, however molestation inconclusive".
    
35. In all the four instances to which the victim refers to she says "that all her clothes were removed by the accused while he himself got undressed and put his penis insider her vagina". The accused in return had taken up a defense of a total denial. He simply denies all the 4 allegations leveled against him. Now the court has to decide whether it is to believe Ms. T or the accused as both have taken up their own ways of narrating the story.
    
36. It is in this context Eparama's evidence comes into light. Apart from the fact that he is living in the same apartment, nothing transpired in court to say that Eparama is an interested or a partisan witness. Eparama stood before the court as an eye witness who saw both Ms. T and the accused without clothes, inside Ms. T's house on 22nd of December 2010 around 3pm. No specific reason was given or highlighted before court as to why this court should not believe Eparama's version. Being an independent witness coupled with the convincing and genuine way Eparama narrated to court what he saw on this specific day though not compatible in toto with Ms. T's version, confirms the most vital and salient factors of the day. Thus, when Ms. T says that she and the accused was seen by Eparama either naked or half naked, Eparama adds more weight with his corroboration. It strengthens more when both Ms. T and Eparama talk about the offer and the refusal of a packet of noodles and a $1 coin.
    
37. At the same time I note, that the accused admits under oath that Ms. T and her grandfather came to give him a helping hand on 24th of December 2009. Further, he admits that on 19th of January 2010 he was at home with his 2 daughters. What Ms. T said was that she went to assist the accused in his house construction with her grandfather and the alleged incident took place when the grandfather went out of the house to bring a hammer. This shows both the accused and Ms. T sail together almost half a distance on the day's events. Accused in cross examination expressly admitted the fact that Ms. T's grandfather left his barrack to get a hammer but did not accept then it was only him and Ms. T were alone in the barrack.
    
38. Referring to 19th of January 2010, Ms. T said that she was playing with Malani, the daughter of the accused, when the accused called her inside his house. Accused in his testimony did confirm that his daughter was there at home on this particular day. Even in this instance both Ms. T and accused sail parallel almost a half way of the day's events. The only disparity between the 2 is the physical act. If Ms. T travels parallel to the accused a half away there should be a great and a serious motive to ignite her to narrate a totally fictitious story. Even the accused in his testimony said that he is not aware as to any reason for such strong allegations being labeled against him by Ms. T.
    
39. It is in this context I have to consider the testimony of Ms. Akanisi. She is a total stranger to the alleged physical acts. Her testimony emerges to corroborate the narration of Eparama. Therefore, it is not only the testimony of Ms. T stands against the accused but both Eparama and Akanisi do strongly corroborate the evidence of Ms. T and of each other. When the evidence of all 3 prosecution witnesses taken together, the court is fully satisfied that the prosecution has proved its case beyond all the reasonable doubts. The only 2 issues which might shake the entire foundation of that decision are first, whether the evidence of Ms. T and Eparama are convincing and acceptable simply because they are children under the interpretation of Juvenile Act and secondly, the intact of the hymen of Ms. T irrespective of her claim of inserting the penis of the accused into her vagina.
    
40. As the Learned Prosecutor cited, State v- AV [2009] FJHC 18; HAC 192. 2008 is a case authority to decide on the evidence of children. Having had the privilege of watching the demeanour and the deportment of Ms. T and Eparama I see no reason to hold a separate inquiry to get satisfied over their competency and intelligence to understand the gravity of the oath. Hence, this court did not proceed to have a separate inquiry to that effect. The way that Ms. T and Eparama confronted the cross examination itself shows that they were confident on their feet to give rational answers in respect of the incidents in issue. Therefore, I have no hesitation at all to negate the 1st issue cited in paragraph 39 in favour of the prosecution by holding that Ms. T and Eparama never failed in court in their testimony under oath and did not leave any loopholes for the defence to create any doubt over their creditworthiness.
    
41. The second issue is the intact hymen of Ms. T. More concern has been paid by the defence as to how it could be possible for the hymen to be intact after the alleged sexual intercourses. No evidence transpired before me to say that Ms. T was getting involved with sexual activities prior or during the period of these incidents. Even according to the defence it confirms that Ms. T couldn't have engaged with a fully penetrative sexual intercourse as her hymen is intact. It is in this context, more precisely, a girl of 12 years of age who hasn't had a previous penetrative sexual experience, the court has to view and analyze her testimony. There is a great possibility for a girl of this background to convincingly believe or presume or rather be mixed up that it was a full penetration though it could be a partial penetration to the vagina or may only be a superficial contact of a penis with the vagina. Therefore, I see no reason to disbelieve Ms. T's testimony over her elaboration of "full penetration". The way she interprets or explains the allged acts in specific terms like "he was not doing it very hard. He was doing it very slowly, he did not do it hard but did it slowly", "penis was not hard" and "when I said hard, I meant he was rubbing his penis on my vagina" itself indicates that she describes her experience in her own way as one could expect from any child of this age. But she repeatedly said that she did not like the act of the accused and was frightened of the accused and of her grandfather to divulge the bitter experience that she was undergoing to anybody else.
    
42. In the light of the above analysis, I conclude that the Prosecution has managed to prove all the elements of all 4 charges beyond any reasonable doubt. I note that either the Learned Counsel for the accused or the testimony of the accused, could not create any "reasonable doubt" in the case of the prosecution. Hence, as analysed at length, the alleged sexual acts performed by the accused were an attempts to rape. Thus, I refuse to admit the version of the accused. Accordingly the accused is convicted for all 4 counts separately.
    

Mr. Janaka P. Bandara
Resident Magistrate, Suva

14th January 2013