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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 318 of 2015
STATE
V
AMINISITAI NAVUNIVESI
Counsel : Ms. Shyamala Alagendra with Ms. Susan Serukai for the State
Mr. Lisiate Qetaki for the Accused
Dates of Trial : 10-14 & 17-20 September 2018
Summing Up : 21 September 2018
Judgment : 25 September 2018
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “MA”.
JUDGMENT
[1] As per the Amended Information, filed in Court on 17 September 2018, the accused Aminisitai Navunivesi is charged with the following
offences:
FIRST COUNT
Representative Count
Statement of Offence
INDECENTLY ANNOYING ANY PERSON: Contrary to Section 213 (1) of the Crimes Act 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, between the 1st day of January 2012 and the 31st day of December 2012, at Naiqarakoka Settlement, Tailevu in the Central Division, with intent to insult the modesty of M.A., exposed his penis.
SECOND COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, had carnal knowledge of M.A., a child under the age of 13 years.
THIRD COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, penetrated the vagina of M.A., a child under the age of 13 years, with his fingers.
FOURTH COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, on an occasion other than that referred to in Count Two, between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, had carnal knowledge of M.A., a child under the age of 13 years.
FIFTH COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, on an occasion other than that referred to in Count Three, between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, penetrated the vagina of M.A., a child under the age of 13 years, with his fingers.
SIXTH COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, penetrated the vagina of M.A., a child under the age of 13 years, with his tongue.
SEVENTH COUNT
Representative Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI, on an occasion other than that referred to in Count Two and Count Four, between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, had carnal knowledge of M.A., a child under the age of 13 years.
EIGHTH COUNT
Representative Count
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) and (1) (a) of the Crimes Act, 2009.
Particulars of Offence
AMINISITAI NAVUNIVESI between the 1st day of June 2015 to the 31st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, unlawfully and indecently assaulted M.A., by forcefully putting her hand on his penis.
[2] The accused pleaded guilty to count six. However, he pleaded not guilty to the remaining 7 counts.
[3] Court was satisfied that the accused fully understood the nature of the charge contained in count six and the consequences of his guilty plea for the said count. Court found that the accused pleaded guilty on his own free will and free from any influence.
[4] Thereafter, the State filed the Summary of Facts in respect of count six. The Summary of Facts were read out and explained to the accused who understood and agreed to the same. Accordingly, Court found his guilty plea to be unequivocal. I found that the facts support all elements of count six in the Amended Information, and found the said count proved on the Summary of Facts agreed by the accused. Accordingly, I found the accused guilty on his own plea and I convicted him on count six as charged.
[5] The ensuing trial in respect of the remaining 7 charges was held over a period of 9 days. At the conclusion of the evidence and after the directions given in the summing up, by a unanimous decision, the three Assessors found the accused guilty of all the remaining 7 charges.
[6] I have carefully examined the evidence presented during the course of the trial. I direct myself in accordance with the law and the evidence which I discussed in my summing up to the Assessors and also the opinions of the Assessors.
[7] During my summing up I explained to the Assessors the provisions of Section 213 of the Crimes Act No. 44 of 2009 (Crimes Act), which deals with the offence of Indecently Annoying Any Person. For the purpose of convenience, the said Section is re-produced below.
(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —
(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or
(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.
[8] Accordingly, I directed the Assessors that in order for the prosecution to prove the first count of Indecently Annoying Any Person, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 January 2012 and the 31 December 2012);
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Exposed his penis, with the intention of insulting the modesty of the complainant, MA.
[9] The above individual elements were further elaborated upon in my summing up.
[10] Furthermore, during my summing up I explained to the Assessors the salient provisions of Section 207 (1), (2) (a), (2) (b) and (3) of the Crimes Act.
[11] The Assessors were directed that in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 June 2015 and the 31 August 2015);
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Penetrated the vagina of MA with his penis; and
(v) At the time MA was a child under 13 years of age.
[12] Similarly, in order for the prosecution to prove the fourth count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 June 2015 and the 31 August 2015), but on an occasion other than that referred to in Count Two;
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Penetrated the vagina of MA with his penis; and
(v) At the time MA was a child under 13 years of age.
[13] Similarly, in order for the prosecution to prove the seventh count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 June 2015 and the 31 August 2015), but on an occasion other than that referred to in Count Two and Count Four;
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Penetrated the vagina of MA with his penis; and
(v) At the time MA was a child under 13 years of age.
[14] The above individual elements, in relation to counts 2, 4 and 7 were further elaborated upon in my summing up.
[15] Furthermore, the Assessors were directed that in order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 June 2015 and the 31 August 2015);
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Penetrated the vagina of MA with his fingers; and
(v) At the time MA was a child under 13 years of age.
[16] Similarly, in order for the prosecution to prove the fifth count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 June 2015 and the 31 August 2015), but on an occasion other than that referred to in Count Three;
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Penetrated the vagina of MA with his fingers; and
(v) At the time MA was a child under 13 years of age.
[17] The above individual elements, in relation to counts 3 & 5 were further elaborated upon in my summing up.
[18] Finally, I explained to the Assessors the salient provisions of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act.
[19] Therefore, the Assessors were directed that in order for the prosecution to prove the eighth count of Sexual Assault, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between the 1 June 2015 and the 31 August 2015);
(iii) At Naiqarakoka Settlement, Tailevu, in the Central Division;
(iv) Unlawfully and indecently assaulted MA, by forcefully putting her hand on his penis.
[20] The above individual elements too were further elaborated upon in my summing up.
[21] The prosecution, in support of their case, called the complainant, MA, and her paternal grandmother, Ane Radovi. The prosecution also tendered the following document as a prosecution exhibit:
Prosecution Exhibit PE1- Birth Certificate of the complainant.
[22] In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts as “Agreed Facts” without placing necessary evidence to prove them:
[23] Since the prosecution and the defence have consented to treat the above facts as “Agreed Facts”, without placing necessary evidence to prove them, these facts are considered as proved beyond reasonable doubt.
[24] The complainant clearly testified in Court of what her grandfather had done to her in the year 2012, when said she was in class 2. She also testified to the events which took place between 1 June 2015 and 31 August 2015.
[25] Ane Radovi, the paternal grandmother of the complainant, testified that in August 2015, on inquiring from the complainant, the complainant had told her about the alleged incidents and what the accused had done to her.
[26] The accused is totally denying all of the allegations against him except for the allegations contained in count six which he had pleaded guilty to.
[27] The Assessors have found the evidence of prosecution as truthful and reliable, as they have by a unanimous decision found the accused guilty of the remaining 7 charges. Therefore, it is clear that they have rejected the version put forward by the accused.
[28] In my view, the Assessor's opinion was justified in respect of all the remaining charges, except for count seven.
[29] During the course of her evidence the complainant made reference to two occasions on which the accused had penetrated her vagina with his penis. These two occasions would correspond to the charges in counts two and four of the Amended Information. Therefore, in my view, the unanimous opinion of the Assessors in finding the accused guilty of count seven was not justified.
[30] Accordingly, I find the accused not guilty of the charge of Rape in count seven and accordingly acquit him of the said charge.
[31] In respect of the remaining charges (counts 1-5 and count 8) it was open for the Assessors to unanimously find the accused guilty on the available evidence. I concur with the unanimous opinion of the Assessors in respect of those charges.
[32] Considering the nature of all the evidence before this Court, it is my considered opinion that the prosecution has proved its case beyond reasonable doubt by adducing truthful and reliable evidence satisfying all elements of the offences set out in counts 1-5 and count 8 with which the accused is charged.
[33] In the circumstances, I find the accused Aminisitai Navunivesi guilty of Indecently Annoying Any Person (count 1), Rape (counts 2-5) and Sexual Assault (count 8) as charged.
[34] Accordingly, I convict the accused for the offences of Indecently Annoying Any Person (count 1), Rape (counts 2-5) and Sexual Assault (count 8) as charged.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 25th Day of September 2018
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Office of the Legal Aid Commission, Suva.
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