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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 084 OF 2009S
STATE
vs
VILIAME VODO
Counsels : Ms. J. Cokanasiga for the State Ms. S. Vaniqi for the Accused
Hearing : 17th, 19th, 21st and 24th May, 2010
Summing Up : 27th May, 2010
SUMMING UP
7. The accused, Viliame Vodo, was charged with six counts. On count No. 1, he was charged with "indecent assault", contrary to section 154(1) of the Penal Code, Chapter 17. On count No. 2 and 3, he was charged with "rape", contrary to section 149 and 150 of the Penal Code. On counts No. 4, 5 and 6, he was charged with "incest", contrary to section 178(1) of the Penal Code.
8. On count No.1, it was alleged that the accused, between the 26th and 27th January 2006, at 39 Wailea Street Vatuwaqa in the Central Division, indecently assaulted his 9 years 3 months old daughter, Seruwaia Mafi. On count No. 2, it was alleged that the accused, between the 11th and 18th February 2006, at Lot 7 Vusavusa Road Vatuwaqa in the Central Division, raped his daughter, Seruwaia Mafi. On count No.3, it was alleged that the accused, between 19th and 28th February 2006, at 140 Fletcher Road Vatuwaqa, raped his daughter, Seruwaia Mafi. On count No.4, it was alleged that the accused, between 1st and 31st March 2006, at 140 Fletcher Road Vatuwaqa had unlawful sexual intercourse with his daughter, Seruwaia Mafi. On count No.5, it was alleged that the accused, between 1st and 30th April 2006, at 140 Fletcher Road Vatuwaqa, had unlawful sexual intercourse with his daughter, Seruwaia Mafi. On the last count, ie. count No.6, it was alleged that the accused, between 1st and 31st May 2006 at Namara Settlement Newtown, had unlawful sexual intercourse with his daughter, Seruwaia Mafi.
D. THE MAIN ISSUE
9. Because the accused had pleaded guilty to count No.1 on the first day of trial, ie. 17th May 2010, you will not be required to decide on this count, because the accused had admitted it. However, you will be required, to determine the following questions, on the remaining counts:
(i) Count No.2: Did the accused, between the 11th and 18th February 2006, at Lot 7 Vusavusa Road Vatuwaqa, rape Seruwaia Mafi?
(ii) Count No.3: Did the accused, between 19th and 28th February 2006, at 140 Fletcher Road Vatuwaqa, rape Seruwaia Mafi?
(iii) Count No.4: Did the accused, between the 1st and 31st March 2006, had unlawful sexual intercourse with his daughter, Seruwaia Mafi?
(iv) Count No.5: Did the accused, between the 1st and 30th April 2006, had unlawful sexual intercourse with his daughter, Seruwaia Mafi?
(v) Count No.6: Did the accused, between the 1st and 31st May 2006, had unlawful sexual intercourse with his daughter, Seruwaia Mafi?
E. THE OFFENCES AND THEIR ELEMENTS
10. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused intentionally had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;
(ii) without the complainant's consent; and
(iii) he knew the complainant was not consenting to sex, at the time.
In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether the accused ejaculated or not. In this case, Seruwaia Mafi was 9 years 4 months old at the time of the alleged rapes in count No.2 and 3. As a matter of law, I must direct you that, when a child is aged 13 years old and under, she is deemed incapable of giving consent to sex, because she is deemed to have insufficient understanding and knowledge to consent or resist such a thing. So, in element (ii) above, the child is deemed to have not consented. It follows that in element (iii) above, an accused is presumed to know that a child is incapable of consenting to sex. It follows that proof of element (i) is sufficient to constitute the rape of a child under 13 years of age.
11. For the accused to be found guilty of "incest", the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina; and
(ii) at the time, the accused knew the complainant was his daughter.
In this type of cases, the question of whether or not the complainant consented, is immaterial.
F. THE PROSECUTION'S CASE
12. The prosecution's case was simple. On 9th November 1995, the accused married Mele Duribalavu. On 15th October 1996, Mele gave birth to Seruwaia Mafi, the couple's first child. Later the couple had two more daughters, Nancy Rosi Talei and Mary Lee Gloria. The family lived together as a unit, until the couple separated in 2005. The accused had custody of the three girls, while their mother moved to Toorak.
13. In late January 2006, the accused and his three girls resided at 39 Wailea Street, Vatuwaqa. According to the prosecution, the accused started to sexually abuse his eldest daughter, Seruwaia Mafi at this address. She was aged 9 years 3 months at the time. In one incident, the prosecution said, the accused kissed Seruwaia, touched her breast and fondled her vagina. In his evidence, the accused agreed to this.
14. Between 11th February to 18th February 2006, the accused and his three girls changed residence. They moved to Lot 7, Vusavusa Road, Vatuwaqa, and shared a small two bedroom house with relatives. They had 1 bedroom, while the other bedroom was occupied by their relatives. According to the prosecution, one night Seruwaia was sleeping on a bed. The accused came, woke her up, and told her to sleep on the floor. He then told her to take off her clothes. She did so. He took off his clothes, kissed her and fondled her breast. He then inserted his erected penis into her vagina, and had sex with her, until he ejaculated. According to prosecution, Seruwaia did nothing and said nothing. She was aged 9 years 4 months at the time.
15. From 19th to 28th February 2006, the accused and his three girls shifted residence again. They moved to 140 Fletcher Road Vatuwaqa. According to the prosecution, the accused forced himself on his eldest daughter, Seruwaia Mafi, in the bathroom. The prosecution said, the accused bathed Seruwaia and then forcefully inserted his erected penis into Seruwaia's vagina. He went on for about 3 minutes. Seruwaia complained it was hurting her. He said, he knew what he was doing. Seruwaia repeated her complains, and then the accused stopped, bathed himself, and went out of the bathroom.
16. The prosecution further alleged that the accused had sexual intercourse with Seruwaia twice in the month of March and April 2006, well knowing she was his daughter. These occurred at 140 Fletcher Road, Vatuwaqa.
17. From the 1st May to 31st May 2006, the accused and his three girls again changed residence. They moved in with a pastor at Namara Settlement, Newtown. They slept in a bedroom. The girls shared a bed while the accused slept on the floor. According to the prosecution, in one incident, the accused told Seruwaia to take off her pants, he then massaged his penis with oil and inserted the same into her vagina. He went on until "white substance came out of him". Seruwaia was 9 years 7 months old at the time.
18. In 2006, Seruwaia briefly referred the above incidents to her mother. Her mother was confused and confronted the accused with Seruwaia's complains. He didn't deny it. In fact, he admitted it. But nothing further was done about it, until it surfaced in Seruwaia's school last year. Seruwaia told her teacher that her father raped her twice. The matter was reported to police. An investigation was carried out. The accused was later charged for the present offences. That was the case for the prosecution.
G. THE ACCUSED'S CASE
15. The accused's case was simple. He gave evidence on oath. He said, he only admitted indecently assaulting his daughter, Seruwaia Mafi, between 26th and 27th January 2006, at 39 Wailea Street, Vatuwaqa. He admitted kissing her on the mouth, touching her breast and fondling her vagina. However, he denied raping her and committing incest on her. He denied all the allegations against him, except the indecent assault charge against him. That was the case for the defence.
H. ANALYSIS OF THE EVIDENCE
16. Viliame Vodo, in count No.1, has admitted indecently assaulting his 9 years 3 months old daughter, Seruwaia Mafi, between the 26th and 27th January 2006, at 39 Wailea Street Vatuwaqa. He admitted that he kissed her on the mouth, touched her breast and fondled her vagina. On the remaining counts ie. counts No. 2 to 6, the accused denied all the allegations against him.
17. So in a sense, as assessors and judges of fact, this case is really about whether or not you accept Seruwaia Mafi's evidence, or Viliame Vodo's evidence. However, you must not forget that it is for the prosecution to prove beyond reasonable doubt the guilt of the accused on the remaining counts, and that burden stays with them throughout the trial. It never shifts to the accused. The accused is not required to prove his innocence.
Seruwaia Mafi's Evidence
18. In her evidence, Seruwaia said, "...I have 2 sisters ie. Nancy Rose and Mary Lee Gloria. Rose is 11 years old and Gloria is 8 years old. I am the eldest. My father is Viliame Vodo. My mother's name is Mele Duribalavu. I am now living with my mum. In the first term of 2006, I was living with my dad at Vatuwaqa. I also lived with my grandmother and grandfather and some younger boys. I was living with my father and my two sisters. My mother was renting at another place. My parents were separated. I was in Class 4 at the time and I can't recall how old I was..."
19. Seruwaia continued, "...On 26th and 27th day of January 2006, I was residing at 39 Wailea Street Vatuwaqa. I recall, at night, my father came and slept beside me and kissed me by pushing his tongue into my mouth. I also recall the 11th and 18th February 2006, at Lot 7 Vusavusa Road, Vatuwaqa, where my dad, myself and my sisters lived. The house belonged to an Indian man. The house contained 1 bedroom. No relatives lived with us. At night, we were sleeping, he came and told me to come down and we to sleep together. After that, he kissed me and touched my breast (pointed at her breast). He then told me to remove my pants and he took off his pants. He moved closer to me. He then inserted his penis into me. He inserted his penis into my vagina. I did not do anything. I didn't say anything. It was for a short while. He stopped when something white came from him. This occurred while I was at Lot 7, Vusavusa Road, Vatuwaqa..."
20. Seruwaia then said, "...I recall the 19th to 31st February 2006, when I was living at 140 Fletcher Road, Vatuwaqa, with my dad and 2 sisters. I recall something in the bathroom. My dad bathed me and placed a chair at the door. He told me to sit on the chair. He then sat on me and inserted his penis into my vagina. It hurt. I told him it was hurting. He told me to keep quiet as he knows what he's doing. It took about 3 minutes. When I told him it hurts, he then stopped. It really hurts. I remained sitting on the chair for a while. I later bathed myself and put on my clothes. This was between 19th to 31st February, 2006..."
21. On counts No. 4 and 5, Seruwaia said, "...Between 1st and 31st March 2006, while at 140 Fletcher Road, Vatuwaqa, nothing occurred to me. Between 1st to 31st April 2006, at the same address, nothing occurred to me..."
22. On count No.6, Seruwaia said, "...I recall the 1st to 31st May 2006, I was living at Namara Settlement with my father and 2 sisters. We slept in the bedroom ie. myself and my 2 sisters slept with me. My father slept on the floor. Something happened to me. He told me to take off my pants. He then massaged his penis with oil. He then inserted his penis into my vagina. He did this until the white substance came out of him..."
23. Seruwaia then said, "... At Vusavusa Road, when dad told me to take my clothes off, I didn't say anything to him because I was afraid. He told me afterwards not to tell my mother. I didn't tell anyone about the incidents. I later told my mother about the incidents when I was in Class 4. [PW1 points at accused in the dock]] [PW1 pointed at accused first and then turned away again]. I didn't tell anyone else about the incidents..." When cross-examined, Seruwaia said, she went to a doctor for a medical examination.
Mele Duribalavu's Evidence
24. The prosecution next called Seruwaia's mother [Mele Duribalavu] as their second witness. She confirmed she was married to the
accused. Seruwaia's birth certificate, tendered as Prosecution Exhibit No.1, confirmed the two were married on 9th November 1995.
They had 3 daughters. Seruwaia was the eldest, followed by Nancy Rosi Talei and the youngest was Mary Lee Gloria. The couple separated
in 2005, and according to Mele, the accused was given custody of the girls. According to Mele, the accused and the girls lived in
Wailea, then Vusavusa Road, Fletcher Road and then Namara Settlement in Newtown. She had weekend access to the children.
25. On one occasion she said, "...Mafi told me about the father. She said, "mum whatever dad used to do to you he did to me." Then I asked her, "what was that?" She said, "until the white thing come out!" When I questioned her again, she just told me "Nothing!" She told me the above in 2006. I was a bit confused because I did not really know what she meant. After one month, I met her dad. I told him, Mafi told me something. He didn't deny anything. He said, I did it because you have left. I didn't say anything because I didn't know what really happened..."
26. Mele said the matter came to the attention of the police in 2009. She said, Seruwaia was talking about what happened to her in school. She said, the school called her and asked her what was happening to Seruwaia. She said, in August 2006 she took Seruwaia away from her father.
Teacher Mei Takirua's Evidence
27. The next prosecution's witness was Seruwaia's teacher, Mei Takirua. She taught Seruwaia at John Wesley Primary School in Raiwaqa.
In her evidence, she said, "...I was told about PW1's problems. She later told me that her father raped her twice. I was shocked.
I explained to her what rape was and she told me, she understood. She told me about 3 incidents, when she was in Class 3, 4 and 5.
When she told me about the incident, she was hesitant. When she described the incident, she cried when it came to her explaining
she took off her clothes. She said, at one incident her father woke her up at night, took off her clothes and kissed her. She told
me her father inserted his private part into her ie. his penis. She told me, her father inserted his penis into her vagina..."
Doctor Litia Narube's Evidence
28. Doctor Litia Narube was the 5th prosecution witness. She examined Seruwaia Mafi on 12th June 2009 at CWM Hospital. She recorded
her observations in a medical report, which was tendered as Prosecution Exhibit No.3. At the time of the medical examination, Seruwaia
was 12 years 8 months old. Regarding Seruwaia's allegation against his father, Doctor Narube recorded the history related by Seruwaia
as follows, "...Father penetrated her vagina with his penis until he ejaculates. This happened 4 times when she was in Class 4..."
The doctor noted the following findings, "...shaved pubic hair. Abrasions over vaginal openings. Very tender over vaginal opening.
Hymen not intact..."
29. When cross-examined, Doctor Narube said the following, "...A 10 year old girl is able to accommodate an erected adult penis... If a 10 year old girl was raped by an adult, she would have bigger tears around the vaginal opening. The vagina would be very tender and there will be a lot of pain. She would have difficulties in walking..." She also said that, her medical findings [ie. hymen not intact] in paragraph D(14) of her medical report, confirmed the history related to her by Seruwaia in paragraph D(10) of the report [ie. Father penetrated her vagina with his penis until he ejaculates].
PC 3683 Solomoni Vorakitaki's Evidence
30. The last prosecution witness was police officer, PC 3683 Solomoni Vorakitaki. He witnessed WPC 3242 Unaisi Galuvakadua caution
interviewing the accused, beginning on 4th July 2009, and ending on 7th July 2009. 171 questions were asked and 171 answers were
given. In answer to questions 163, 164, 165 and 166, the accused said he gave his statements voluntarily and out of his own free
will, during the caution interview, and he was not forced or threatened, by the police. He said, the statements were a true recording
of what he said, during the interview. These statements were confirmed by Solomoni Vorakitaki. He said, he was present throughout
the caution interview. He said, he did not assault, threaten or made any promises to the accused, nor saw anyone assault, threaten
or made any promises to the accused before, during and after his police caution interview.
31. The interview was conducted and recorded in Fijian. It was later translated into English, and tendered as Prosecution Exhibit No. 4(a) and 4(b). Concerning the rape allegation in count No.2, the accused initially denied it [seen Questions 52, 56, 59 and 60 and their answers]. However, as the caution interview continued, the accused fully confessed to the rape allegation in count No.2 [see Questions 61 to 98 and their answers]. On the rape allegation in count No.3, at times, the accused denied it [see Question 119 and answer]. However, at the start and end of the interview on count No.3, the accused made a full confession [see Questions 99 to 118, then Questions 120 to 127, and their answers].
32. On counts No.4 and 5, the accused made full confessions when he was caution interviewed by police [see Questions 128 to 137 and their answers]. On count No.6, the accused also made full confessions when caution interviewed by police [see Questions 141 to 157 and their answers].
The Accused's Evidence
33. In his defence, the accused choose to give sworn evidence. Regarding the allegations against him, he said the following, "...I
admit the first allegation, but I did not admit to the rape allegations...I didn't do the alleged offences I've being charged with.
I told Una I will admit to everything during the interview, and I will tell the truth in Court... The truth is that I admit the first
count, but I am not admitting to the rape charges..."
34. When cross-examined, the accused said, "...In January 2006, I indecently assaulted (Seruwaia). I admit I took off (Seruwaia's) clothes and fondled her private part... I admitted the allegations when questioned by WPC Unaisi. I admitted I had sex with (Seruwaia) from February to May 2006. I admitted I kissed my daughter, fondled her vagina and touched her breast when my daughter was 10 years old... I did not have sexual intercourse with my daughter ... Between 19th and 31st February 2006, I did not have sex with my daughter. I did not have sex with (Seruwaia) in March, April or May 2006. Last year I did not try to persuade (Seruwaia) to change her statements to police ..."
Considering all the evidence together, that is, Seruwaia Mafi's, Mele Duribalavu's, Mei Takirua's, Doctor Litia Narube's, PC 3683
Solomoni Vorakitaki's and the Accused's evidence
35. In this case, the two most important witnesses, were Seruwaia Mafi and her father, the accused. They have both given oral evidence
in Court, and both have stated their positions on each of the six counts. As far as count No.1 was concerned, the accused had already
admitted it, and pleaded guilty to it, at the beginning of the trial. On counts No.2 and 3, that is, the rape charges, Seruwaia was
clear and forthright in her evidence. She recalled two incidents. One was at Lot 7 Vusavusa Road, Vatuwaqa, when her father forcefully
inserted his erected penis into her vagina between the 11th and 18th February 2006. The second incident was at 140 Fletcher Road,
Vatuwaqa, when her father forcefully had sex with her in their bathroom, between 19th and 31st February 2006. The accused, on the
other hand, was not clear cut on counts No.2 and 3. At first, he denied the rape allegations. Then when cross-examined, he admitted
the rape allegation. Later, he denied it again. He was not consistent in his answers. It appeared he was not clear and forthright
in his evidence on counts No. 2 and 3. As assessors and judges of fact, it is up to you to decide which witnesses' evidence or part
of a witnesses' evidence, you would consider reliable and accept, and which one you would consider unreliable and therefore reject.
36. On counts No. 4 and 5, Seruwaia said, in her evidence that, nothing happened to her in March or April 2006. The accused in his evidence denied the allegations on counts No. 4 and 5. On these counts, Seruwaia's evidence was consistent with the accused's denials.
37. On count No.6, the parties positions were somewhat different. Seruwaia recalled an incident at Namara Settlement, Newtown, when her father and sisters were residing with a pastor. She said, one night between the 1st and 31st May 2006, her father told her to take off her pants. She said, her father then massaged his penis with oil, and then inserted his penis into her vagina, until his "white substance came out". The accused at first, denied this allegation. When cross-examined, he said he admitted the allegations when caution interviewed by WPC Unaisi. Then he again denied it. Seruwaia's evidence on count No. 6 was consistent and forthright, while the accused's evidence on the same was inconsistent and evasive. Which version was reliable is a matter for you as assessors and judges of fact.
38. The evidence of Mele Duribalavu and Mei Takirua, regarding Seruwaia's complaining to them about her father's alleged abusive behaviours, are often know as evidence of recent complaint. They were merely telling the Court what Seruwaia told them about her father's alleged abusive behavior. Seruwaia reported the alleged incident to her mother in 2006 – the year of the alleged abuse. However, her mother merely confronted her father, who admitted to her the incident. She did not report the matter to police. However, during classes in her school in 2009, she told her teacher about her father's alleged abusive behavior. This was 3 years after she reported the matter to her mother. Only then was the matter reported to police, and an investigation carried out. The evidence of Mele Duribalavu and Mei Tukana showed the consistency in Seruwaia's conduct in reporting the alleged sexual abuse against her.
39. The evidence of Doctor Litia Narube showed that Seruwaia Mafi, at the age of 12 years 8 months, when she was medically examined on 12th June 2009, was already sexually active. According to Doctor Narube, Seruwaia's hymen was no longer intact, which suggests she was sexually active. Doctor Narube said Seruwaia reported to her that, her father had penetrated her vagina with his penis four times previously. Doctor Narube said, Seruwaia's broken hymen was consistent with her history.
40. The accused's police caution interview statements were tendered as Prosecution Exhibit No. 4(a) and 4(b), through PC 3683 Solomoni Vorakitaki. On counts No. 1, 4, 5, and 6, the accused admitted the offences in his police caution interview statement. On counts No. 2 and 3, at first he denied the rape allegations. Then he made full confessions to the rape allegations. A confession is strong evidence against the person making the confession, provided he confessed voluntarily and out of his own free will. As assessors and judges of fact, you may only accept the accused's confessions in his police caution interview statement, if you are satisfied beyond reasonable doubt and are sure that the accused gave his police statements voluntarily and out of his own free will. Any evidence of assault, threats or undue promise made to the accused before, during or after the interview may negate free will, and you are entitled to disregard the accused's police caution interview statements if you find the above in the evidence. In other words, bearing in mind the above warnings, the acceptance or otherwise of the accused's police caution interview or parts of those statements, are matters for you to decide, as assessors and judges of fact.
41. You must consider all the above evidence together. You have heard the evidence of all the prosecution and defence witnesses. You have heard them give evidence, and you observed their demeanour in the courtroom while they were giving evidence. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? Were they argumentative? How were they dressed to Court? How did they conduct themselves in Court? What was their demeamour like in Court, in general? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of a witness's evidence is reliable and therefore to accept, and which is unreliable and therefore to reject, in your deliberation.
I. SUMMARY
42. In summary, if you accept Seruwaia Mafi's evidence and the prosecution's version of events, and you are satisfied beyond reasonable doubt and are sure of the accused's guilt, you must find him guilty as charged on all counts. If you do not accept Seruwaia Mafi's evidence and the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of the accused's guilt, you must find him not guilty as charged on all counts.
43. Your possible verdicts are as follows:
Count No.2 - Guilty or Not Guilty
Count No.3 - Guilty or Not Guilty
Count No.4 - Guilty or Not Guilty
Count No.5 - Guilty or Not Guilty
Count No.6 - Guilty or Not Guilty
44. You may retire to deliberate. Once you have reached your decisions, please advise our clerks, so that we can reconvene, to receive them.
Salesi Temo
ACTING JUDGE
AT Suva
27th May 2010
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