State v LT - Juvenile [2016] FJMC 216; Juvenile Case 478.2014 (24 October 2016)

IN THE MAGISTRATE'S COURT
AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS
Juvenile Case No: 478/14, HAC 262/2014

State

.V.

L T - Juvenile

Prosecution : DPP – Mr. Taitusi Tuenuku

Accused : Present - Mr R. Kumar (Legal Aid)

Judgment

___________________________________________________

Introduction

The Juvenile in this case is charged as follows:

Rape, contrary to Section 207 of the Crimes Decree of 2009

Particulars of offence (b)

LT on the 4^th day of January 2014, at Waitolu Village in the Central Division, had carnal knowledge of SR without her consent.

The High Court has extended the jurisdiction of the Magistrate’s Court to deal with the matter.

The Law

The Crimes Decree provisions relating to rape, read as follows:

"207. — (1) Any person who rapes another person commits an indictable offence.

Penalty — Imprisonment for life.

(2) A person rapes anotheron if —

(a) the person has carnalledge with or of the other ther person without the other person's consent; or

(b) the person penetrates the vulva, vagr anus of the other person rson to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

(3) for this section, a child under the age of 13 years is incapable of giving consent".

The Elements of the Offence of Rape

The ele of s of the offence of Rape are laid down in Section 207 of the Crimes Decree. To prove a charge of rape the prosecution must pbeyonbeyond reasonablet that the juvenile penetrated the complainant's vagina wita with his penis, on the given date. The slightest penetration is sufficie satihis element.

The other important element oent of thef the offence of rape is consent. It must be proven that the juvenile either knew that the complainant did not consent or was reckless as to whether she consented. The Juvenile was reckless as to whether the complainant consented for the alleged act if the accused realised there was a risk that she was not consenting but carried on anyway when the circumstances known to him it was unreasonable to do so. Determination of this issue is dependent upon who the Court believes, whilst bearing in mind that it is the prosecution who must prove it beyond reasonable doubt.

A child over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was over 13 years of age and therefore, she had the capacity to consent.

Apart from the above-noted elements of the offence, the identity of the person who is alleged to have committed the offence must also be proved by the prosecution. What it means is that it was this Juvenile and none other had penetrated the complainant's vagina on that date and time. There must be positive evidence as to the identification of the juvenile.

Under the Crimes Decree no corroboration is needed to prove an allegation of sexual offence and Rape is a sexual offence.

Burden and Standard of Proof

In Woolmington v DPP (1935) AC 462 held that “no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem (as she was then) told the assessors in the summing up;

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. Thins thas that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether ccused persons committed thed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt athe uilt of the accused."

Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed b themout any reasonable doubt, then charge has been pren proved oved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings.

The Evidence

Pw-1 – Dr Nitik Ram

Pw-2 – S R (Complainant)

Pw-3 – Etuate Josefa

The caution interview, charge sheet and statement of accused were tendered by consent (between Prosecution and Defence).

Dw-1 – L T (Juvenile)

Dw – 2 – Lavenia Veimeketi

The Evidence in the case

The evidence of the victim, PW-2 was that she remembered what happened to her on 29^th December 2013. She recalled being home with both grand-parents and Lavenia. At 10 pm some body knocked at their house door. She opened and saw LT. He was alone. LT told the victim he wanted to tell her something. They had a personal relationship. They are cousins. According to the victim they were boyfriend and girlfriend. According to SR after that LT wanted to have sex with SR and she said “no”. He kept asking her and she said no. later he forced her. In her room no-one else was there. He took off her clothes and placed his penis in her vagina. He had held her strongly and she tried to shout for help. He closed her mouth using his hands. She tried to get away from him but he held her. He had his penis in her vagina until the grandmother called. He then put his clothes and left. She then went to sleep in the room where Lavenia was. She sat with Lavenia before sleeping. In the morning she told Lavenia.

In cross-examination she told the Court that in 2013, Lavenia was 13 years old and they were close friends. The incident came to light after a condom was found in the house. When questioned by her father she did not say anything about the condom. After that the father of the complainant took her to the Doctor to be checked and then to the police. I tried to shout. He used his hands and used his feet to hold my legs. Put palm on my mouth. SR also blamed one Tucake that he did something to her. However he did not insert his penis into her vagina. She also told the Court that she did not cry and went to sleep beside Lavenia.

The evidence of Dr Ram was that the medical examination took place on 20^th January 2014. It showed bottom hymen tear. It was sexual penetration injury. He could not comment how old the injury could be. In cross-examination Dr Ram told the Court it was possible that sex was before 4^th January.

The third witness for Prosecution was Etuate Josefa. He was told by his wife that a condom was found at his mother’s place. He asked his daughter about it as she was staying with his mother. His daughter argued with Lavenia about it and neither owned up anything about it. Etuate took his daughter to Naqali Health Center but was referred to the police. He was told by one Suasan that his daughter slept with 2 boys, LT and Tucake.

In cross-examination Etuate told the Court that Tucake was charged by police and that his daughter was still friends with Lavenia.

The juvenile in his evidence denied the allegation of rape and told the Court that on that day he visited his cousin, Seva in that house. He further told the court that he did not talk to SR in the house. He also told the Court that SR had relationship with Tucake.

In cross-examination the Juvenile told the Court that he did not tell the police during the interview and investigation that Seva was there. He also told the Court in cross-examination that the police forced him to give the statement. He had complained to the lawyer and parents. He denied he had a relationship with the victim.

The second witness for the defence was Lavenia Veimeketi. She told the Court that she recalled 4^th January 2014. She stayed with the victim and the grandparents. No one else resided in the house. She knew Seva but he did not stay there overnight. Seva was there that night but not at 10pm. LT came that night but she did not know the purpose. The victim opened the door. They talked at the door. She was in the bedroom. 2 bedrooms. One for the grandparents and one for them. According to Lavenia, SR occasionally met with LT and Tucake. According to Lavenia LT met SR outside the house.

In cross-examination Lavenia told the Court that on 4^th January 2014 when LT visited SR, Seva was not inside the house. At that time she (SR) was going out with LT. Lavenia was in her room. She did not open the door. She did not see them go into another room. It was not long when the door closed.

Evaluation of the Evidence in relation to the Charge

This Court has noted all the evidence that was given in Court. In this case the Victim, SR told the Court that she talked with LT in a room. It was her room. No one else was in the room. The juvenile held her in this room, took off her clothes and raped her. Had sex without her consent. The evidence of Lavenia is that she was in her room. She shared the room with SR. According to Lavenia, SR met LT outside and that she had relationships with both LT and Tucake. The evidence of Lavenia and SR does not match. As they had 2 bedrooms in the house and according to SR she was raped in her room. One bedroom was occupied by the grandparents and the other by Lavenia and SR. According to Lavenia, SR and LT did not come to their room. This inconsistency is stark and irreconcilable.

As to the evidence of the Juvenile his evidence in Court is to protect himself. In the police interview he totally denied sex with SR. In Court he is blaming the police that they forced him. The interview of the Juvenile was conducted in the presence of his uncle. He did not tell the police anytime when questioned about the allegation that he had gone to visit one, Seva.

The evidences of the Juvenile, the victim and Lavenia clearly shows that the Juvenile had relationship with SR. They had been meeting secretly for some time. The discovery of the condom brought to light that something was happening in the house. Upon police report and medical the juvenile’s name came up. The juvenile has done his best to deny the offence and has not been truthful about certain things like the reason he went to see Lavenia. He brought about the alibi of Seva but this is not supported by other evidence in Court. A witness called on his behalf, Lavenia told the Court that Seva was not even in the house.

From the evidence in Court this Court finds that the victim is not truthful she said the juvenile raped her in her room. There are two bedrooms in the house. One for the grandparents and other for SR and Lavenia, which is shared by them. According to Lavenia, SR met the boys outside. On 4^th January 2014 it seems from the evidence SR and the Juvenile had consensual sex somewhere in the house. But each is giving different versions. The different versions are to protect themselves.

From the evidence in Court this Court finds that there had been casual and consensual sex between the juvenile and SR. The lies by LT, the juvenile is to cover up the secret meetings between him and SR. Similarly, SR has made up stories of rape to cover her secret meeting and casual sex with LT. Once the condom was found the story of rape by LT was concocted by SR. The Juvenile and SR had consensual sex on the date as per the charge. In order to protect herself she made up that she was raped

For the foregoing reasons this court finds the Juvenile not guilty of rape and acquits him of the charge of rape. Right to appeal.

Chaitanya Lakshman
Resident Magistrate
24^th October 2016