Court of Appeal of Fiji

Particulars of Offence

GV on the 10^{th> day ;day of July 2016 at Nasinu in the Central Division unlawfully and indecently assaulted , an eleven year old gild girl, by licking her vagina.}

[3] At the end of the summing-up the majority of sors pined that the aphe appellant was guilty of rape whereas the minority opinion had found thed the appellant not guilty of rape but guilty of ‘attempt to commit rape’. The learned trial judge had agreed with the majority opinion, convicted the appellant of rape and sentenced him on 30 August 2017 to a sentence of 12 years and 10 months imprisonment with a non-parole period of 11 years and 10 months.

[4] The appellant had appealed against conviction and sentence 03 weeks out of time but the state had not objected to the delay and the court had treated the appeal as timely. However, the appellant had applied to abandon the sentence appeal on 04 April 2019 in Form 3 under Rule 39 which can only be considered by the full court. Thereafter, the Legal Aid Commission had tendered amended grounds of appeal against conviction and written submission on 05 January 2021. The state had tendered its written submissions on 30 March 2021. Both parties had consented in writing to this court delivering a ruling at the leave to appeal stage on the written submissions alone without an oral hearing in open court.

[5] In terms of section 21(1)(b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test for leave to appeal against conviction and sentence is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].

[6] Grounds of appeal urged on behalf of the appellant are as follows:

Ground 1

THAT the Learned Trial Judge may have fallen into an error in fact and law to convict the Appellant when the conviction was unreasonable or cannot be supported having regard to the evidence adduced so as to relieve the State of the burden of proving the element of penetration beyond a reasonable doubt.

Ground 2

THAT the Learned Trial Judge may have fallen into an error in fact and law to convict the Appellant after having ‘safely accepted the contents in the caution interview as true and credible evidence’ without considering the totality of evidence to prove beyond a reasonable doubt the element of penetration.

[7] The trial judge had summarized the prosecution and defense evidence as follows in the judgment:

5. The Prosecution alleges that the accused came to the bathroom while the victim was washing her uniform in it. He then pulled her shorts down and licked her vagina. While licking the vagina, he penetrated into the vagina of the victim with his tongue.
   
6. The accused denies the allegation that he penetrated the vagina of the victim with his tongue, though he admitted that he licked the vagina of the victim.
   
7. Accordingly the main issue in this matter is whether the accused penetrated the vagina of the victim with his tongue.
   
8. In order to prove the case, the Prosecution mainly relied on the evidence of the victim and her mother. The victim in her evidence said that the accused licked the place where menstruation blood is coming out. The Doctor, who was called to give evidence for the defence, in her evidence, said that menstruation blood comes out from the vaginal opening. The vaginal opening is covered by labia minora;and labialabia majora. The Doctor further said that it is required to open the labia majora&#16order to apto approach the vaginal opening. According to the evidence given by the doctor I find that the accused has to ope&#16ia majora in60;in order to lick aginaaginal opening with his tongue. According to the the evidence given by the victim, she felt pain, coming from inside the vagina when he licked her vagina.
   
9. The accused in his evidence admitted that the mother of the victim spoke to her when she came to the bathroom. He then heard that the victim was telling her mother that the accused licked her vagina. The accused in his caution interview has made an admission that he licked the “clito" of the vagina. Moreover, the accused during the cross examination admitted that he licked the vagina of the victim. The mother of the victim said that the meaning of the words of piam and;kim&in R;in Rabi Languaanguage is “my vagina”.
   

01^st ground of appeal.

[8] The counsel for the appellant argues that the prosecution had not proved beyond reasonable doubt the element of penetration to constitute rape. According to the summing-up and the judgment the victim had testified to the appellant having licked the vagina or the place where blood during her menstruation comes out and she had felt pain. The doctor had confirmed that blood comes out during menstruation from the vaginal opening covered by labia minora and labia majora. The doctor had further stated that the appellant had to open the labia majora with his tongue in order to access the vaginal opening.

[9] The appellant had admitted in evidence that he licked the top part of the vagina. In his cautioned interview, which is not being challenged, he had admitted that he licked the ‘clito’ of the vagina but taken up the position in his evidence that the word ‘clito’ was suggested by the interviewing officer and he did not know the meaning of it but simply accepted it. Under cross-examination, the appellant had however admitted that he understood and answered question 45 in the cautioned interview in the affirmative. He also had heard the victim complaining to her mother that the appellant had licked her vagina soon after the incident.

[10] The counsel submits that medical evidence is inconclusive as to whether the appellant had to open labia majora with his tongue in order to access the vaginal opening. It is immaterial whether the appellant had opened the victim’s labia majora with his tongue or otherwise as long as he had penetrated her vagina or even vulva with his tongue.

[11] The appellant’s challenge to his admission that he licked the ‘clito’ of the vagina had been rejected by the majority of assessors and the trial judge.

[12] In any event, there appears to be ample evidence of penetration of the vulva, if not vagina, arising from the prosecution case itself which is sufficient to establish the charge of rape. The trial judge had carefully analysed the question whether there had been penetration of the victim’s vagina.

[13] The Court of Appeal recently addressed its mind one again to a similar complaint in Naduva v State [2021]; AAU 125.2015 (27 May 2021) where it reaffirmed that penetration of vagina or vulva is sufficient to constitute the offence of rape.

‘[22] The Court of Appeal dealt with a situation where there was a doubt whether the penetration complained of by the victim was of vagina or vulva, in Volau v State [2017] FJCA 51; AAU0011.2013 (26 May 2017) where it was stated:

‘[13] Before proceeding to consider the grounds of appeal, I feel constrained to make some observations on a matter relevant to this appeal which drew the attention of Court though not specifically taken up at the hearing. There is no medical evidence to confirm that the Appellant's finger had in fact entered the vagina or not. It is well documented in medical literature that first, one will see the vulva i.e. all the external organs one can see outside a female's body. The vulva includes the mons pubis ('pubic mound' i.e. a rounded f protuberance sice situated over the pubic bones that becomes covered with hair during puberty), labia majora (outer l labiora (inner lips), clitoris, and the external openings of the urethra and vagina. ina. PeoplPeople often confuse the vulva with the va The a, also known as n as the bthe birth canal, is inside the body. Only the opening of the vagina (vaginal introitus i.e. the ng thadsleads to the vahe vaginal canal) can be seen from outside. The hymen is a membrane that suds or partially cove covers ters the exhe external vaginal ope0;opening. It f It formsforms part of the vulva, or external genit/a>, and is similar in structure to the vagina.