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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 156 of 2020
STATE
V
JOJI MANASA VOUNIA
Counsel : Ms. Unaisi Tamanikayaroi for the State
Mr. Isireli Romanu for the Accused
Dates of Trial : 1, 3 and 8 November 2021
Closing Submissions : 18 November 2021
Judgment : 17 December 2021
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “MUN”.
JUDGMENT
[1] As per the Amended Information filed the Director of Public Prosecutions (DPP) has charged the accused, Joji Manasa Vounia, with the following offences:
Count 1
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
Particulars of Offence
JOJI MANASA VOUNIA, between the 7th day of May 2020, at Suva, in the Central Division, penetrated the anus of MUN, a child under the age of 13 years, with his finger.
Count 2
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
Particulars of Offence
JOJI MANASA VOUNIA, between the 7th day of May 2020, at Suva, in the Central Division, penetrated the vulva of MUN, a child under the age of 13 years, with his finger.
Count 3
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
Particulars of Offence
JOJI MANASA VOUNIA, between the 7th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 1, penetrated the anus of MUN, a child under the age of 13 years, with his finger.
Count 4
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
Particulars of Offence
JOJI MANASA VOUNIA, between the 7th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 2, penetrated the vulva of MUN, a child under the age of 13 years, with his finger.
Count 5
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
Particulars of Offence
JOJI MANASA VOUNIA, between the 7th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 1 & Count 3, penetrated the anus of MUN, a child under the age of 13 years, with his finger.
Count 6
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
Particulars of Offence
JOJI MANASA VOUNIA, between the 7th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 2 & Count 4, penetrated the vulva of MUN, a child under the age of 13 years, with his finger.
[2] The accused pleaded not guilty to the charges and the ensuing trial was held over 3 days. Thereafter, the Learned Counsel for the State and Defence made their closing submissions.
The Burden of Proof and the Standard of Proof
[3] Section 57 of the Crimes Act No. 44 of 2009 (Crimes Act) provides that the prosecution bears a legal burden of proving every element of an offence. The Section reads as follows:
(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
(3) In this Decree (Act)—
"legal burden", in relation to a matter, means the burden of proving the existence of the matter.
[4] Section 58 (1) of the Crimes Act stipulates that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
Legal Provisions and the Elements of the Offences
[5] As could be observed the accused is charged with 6 counts of Rape, contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
[6] Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
[7] Section 207(2) of the Crimes Act is reproduced below:
(2) A person rapes another person if —
(a) the person has carnal knowledge with or of the other person without the other person’s consent; or
(b) the person penetrates the vulva, vagina or anus of the other person 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.
[8] Section 207 (2) (b) makes reference to a person penetrating the vulva, vagina or anus of the other person 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.
[9] Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.”
[10] Therefore, in order to prove the first count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) The accused;
(ii) On the specified day (In this case 7 May 2020);
(iii) At Suva, in the Central Division;
(iv) Penetrated the anus of the complainant MUN, with his finger;
(v) At the time the complainant MUN was a child under the age of 13 years.
[11] In order to prove the second count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) The accused;
(ii) On the specified day (In this case 7 May 2020);
(iii) At Suva, in the Central Division;
(iv) Penetrated the vulva of the complainant MUN, with his finger;
(v) At the time the complainant MUN was a child under the age of 13 years.
[12] In order to prove the third count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) The accused;
(ii) On the specified day (In this case 7 May 2020), but on an occasion other than that mentioned in Count 1;
(iii) At Suva, in the Central Division;
(iv) Penetrated the anus of the complainant MUN, with his finger;
(v) At the time the complainant MUN was a child under the age of 13 years.
[13] In order to prove the fourth count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) The accused;
(ii) On the specified day (In this case 7 May 2020), but on an occasion other than that mentioned in Count 2;
(iii) At Suva, in the Central Division;
(iv) Penetrated the vulva of the complainant MUN, with his finger;
(v) At the time the complainant MUN was a child under the age of 13 years.
[14] Similarly, in order to prove the fifth count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) The accused;
(ii) On the specified day (In this case 7 May 2020), but on an occasion other than that mentioned in Count 1 & Count 3;
(iii) At Suva, in the Central Division;
(iv) Penetrated the anus of the complainant MUN, with his finger;
(v) At the time the complainant MUN was a child under the age of 13 years.
[15] And similarly, in order to prove the sixth count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) The accused;
(ii) On the specified day (In this case 7 May 2020), but on an occasion other than that mentioned in Count 2 & Count 4;
(iii) At Suva, in the Central Division;
(iv) Penetrated the vulva of the complainant MUN, with his finger;
(v) At the time the complainant MUN was a child under the age of 13 years.
[16] To further elaborate upon these elements in respect of the counts of Rape. The first element is concerned with the identity of the person who committed the offences. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offences.
[17] The second element relates to the specific date on which the offences were committed. The third element relates to the place at which the offences were committed. The prosecution should prove these elements beyond reasonable doubt.
[18] The fourth element involves the penetration of the complainant’s anus (In respect of counts 1, 3 and 5) and the penetration of the complainant’s vulva (in respect of counts 2, 4 and 6), with the accused’s finger. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the anus and vulva of the complainant with his finger to any extent, in respect of the said charges.
[19] It may be important at this stage to distinguish between the vulva and the vagina of a female. 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 fleshtuberance sice situated over the pubic bones that becomes covereh with hair during puberty), labia majora (outer , labnora (inner lips), clitoris, and the external openings of the urethra and vagina.gina. Peop People often confuse the vulva with the v. Thena, also known aswn as the the birth canal, is inside the body. Only the opening of the vagina (vaginal introitus i.e.&#he opening thag that leads to the vaginal canal) can be seen from outside. The hymen is a&#embrane that surt surr or partially covers the external vaginal ng. Ims prms part of thehe vulv;vuor external genl genitalia, and islar iucturthe vagina. Therefore, it is clear one one has thas to necessarily penetrate the vulva befa before penetrating the vagina.
[20>The elems t is that
Case for the Prosecution
[21] The prosecution, in support of their case, called the complainant (MUN), and her aunt, Latileta Liauselala. The prosecution also tendered the Birth Certificate of the complainant as Prosecution Exhibit PE1.
[22] Evidence of the complainant MUN
(i) During the recording of the complainant’s evidence a screen was placed so that the complainant could not see the accused and her evidence was recorded in a closed court.
(ii) The complainant testified that her date of birth was 2 February 2010. However, when her birth certificate was shown to her it is depicted that her date of birth is 24 February 2010. Thus, she is currently 11 years old. A copy of her birth certificate was tendered to Court as Prosecution Exhibit PE 1.
(iii) She is residing at Wailoku and currently schooling at St Johns Primary School and is in Class 6. She said that together with her she has a total of 7 siblings, and she is the youngest.
(iv) The witness said that in Wailoku she is staying in a village named Vataleka. She has been staying there since birth. “From our village there are 5 other villages further inside the same road. Our village is the 5th village in Wailoku.” The names of the other 4 villages are Wai, Bali, Marata, and Koio.
(v) The complainant testified that she has visited Koio Village when she came to know of her relatives there. She said her aunty Latieta and her uncle Akuila Talemaitoga reside in Koio Village. Her aunty and uncle’s children are her cousins. She named them as Kalo, Teresia, Mereseini, Timaima, Milika and Una (Unaisi).
(vi) When asked whether she has visited any other house in the said village apart from her aunty’s home, the witness said Sai’s house (pointing towards the Accused Dock). She explained further that Sai was Joji Manasa’s brother’s wife. She said she has been to Sai’s house. Sai, her husband and the children live in Sai’s house. The complainant said apart from them another male relative was also staying in the house.
(vii) When asked how she knows Joji Manasa (the accused), the witness said that they are related from her father’s side. When asked how they are related she said : “We are brothers and sisters”. The accused is also referred to as Junior. She usually calls the accused ‘Ju’.
(viii) When asked how long she has known the accused the witness said: “When I start going to my aunty’s place – then my aunty told me about it” (about the family relationship – how they are related).
(ix) The complainant said that she started going to her aunt’s place from 2018 up until this year 2021.
(x) The witness testified that (when she is at Koio village) she sees the accused some days. When asked where she sees him, she said “When he comes out or when I enter their house (the house that he is staying in)”. She explained further that the accused’s house is different to the house where Sai stays. However, on some days whilst the witness was in Sai’s house, the accused would come to that house.
(xi) The complainant further testified that her relationship with the accused was good (set). When the accused comes to Sai’s house whilst the complainant is there he would greet her. On occasions where she sees the accused she would talk to him if he asks her something.
(xii) When the complainant was asked whether the relationship with the accused was good up till now she said: “No. Because of what he had done to me.”
(xiii) The witness was then asked to explain what the accused did to her. She provided a detailed explanation as follows:
“On a particular day, Una’s mother (my aunt) had told us to cook dhal. Then she told us to go and get dhania leaves. Then we went and got dhania – then we asked for the dhania – a person who owned the dhania plant allowed us to get the dhania and we were picking the dhania. Then I told Unaisi that amount of dhania was enough and for us to come back. Then I told Unaisi to go and say thank you to the owner of the dhania plant. Then we were returning and Unaisi was ahead of me. She was holding on to some dhania and I was also holding on to some dhania.
After that then Unaisi ran ahead of us. And I was coming from behind. Una and I had crossed Sai’s house. Joji Manasa was staying in Sai’s house since Sai and the children had gone to Delainavesi and her husband had gone for work.
When I reached Sai’s sink area – the sink was inside of the house and I was outside – when I reached that place Joji Manasa called me. Then I went there and I entered the house. I looked down and saw that my feet was muddy. Then I told him wait I am going to wash my leg.
He said no you come and he told me after that to get firewood from outside. Then I brought it and gave it to him. Then he told me to come. Then we went into Sai’s room where he would lie down.
Then he told me that he was to carry me so I can reach for the nails (to get the nails) from the top of the shelf. Then he touched underneath me. I told him there are no nails here. Then he told me to touch the place properly, there must be a nail up there. Then he was touching this place (the witness showed and pointed between her thighs). Then he put me down.
Then he told me to go into the living room. And then he carried me again – to touch for the nails above the door. Then he touched again here (the witness points in between her thighs). Then he told me to touch for the nails again – he repeated. Then I told him that there were no nails. And then he put me down again.
Then he carried me again. Then he told me to touch for the nails again – to search for it. Then he again touched the same place he was touching before (the witness points in between her thighs). Then I told him that there were no nails. Then he placed me down again.
Then he took me to the children’s room. Then he lifted me again. And he told me to reach above the door of the room. He again touched the same place he was touching me (the witness indicated between her thighs). And I told him no there is no nails here. Then he put me down again.
Then he took me back to the room that we first started in. Then he laid down on the mattress. Then he turned to face downwards on the mattress. Then he told me to step on his back. Then I was stepping on his back. Then he told me that it’s set (good).
After that he turned to face up again. Then he told me to massage his stomach. Then I was massaging (his stomach). When I was massaging his stomach he told me to move my hand down. Then it was moving towards his balls. Then he told me to massage that place – his balls. That’s when I told him no I can’t.
Then he told me to massage it – to look away while massaging it. Then he told me when you massage it don’t tell your uncle and aunty. Then I told him no. Then I ran to the kitchen. Then I went there and was shouting there and I was crying. Then he wanted to give me his phone. Then I told him no. Then he pointed towards the door and I ran outside and then I ran up to my aunty.
When I was running to my aunty’s house, I was shouting. Then she came and hugged me. That’s when Joji Manasa followed me up to my aunty’s house.
Then my aunty told me to explain to Joji Manasa what he had done. And I told her no. After that Joji Manasa went back to his house. After that we went to the house. Then I was sitting at my aunt’s house. Then my uncle returned from work. Then my aunty told my uncle that I had run up to her shouting and saying that Joji Manasa might have done something (to me).
And then my aunty told me to explain to my uncle what Joji Manasa had done to me. Then my aunty told my uncle for us to look for transportation fare for us to go to the Police Station. Then my uncle said: ‘Yes you two go’.
When we were getting dressed to go that’s when Joji Manasa came (to my aunty’s house). When I saw Joji Manasa I hid. And then they were talking together – Joji Manasa, my uncle and my aunty. Then Joji Manasa went back. After that we got dressed and went to report at the Police Station. We went to the Samabula Police Station. They might have told for us to go to the Totogo Police Station. After that we boarded the police vehicle and we went to the Totogo Police Station. After my statement was taken down then Maria said for us to go to the hospital.
After that we boarded the police vehicle again and we went to the hospital where I could be checked. After that we came out of the examination room. After that Maria was talking to the nurse. After that Maria came and told my mother and my aunty what the nurse had said. Then Maria called my mother and told her that nobody should wake me up – that I will wake up on my own. From the hospital then we boarded the police vehicle and then we came home.”
(xiv) The complainant testified that the said incident happened in the year 2020. However, she cannot recall the month or date. The incident had happened around 3.00 p.m. on the said day. At the time of the incident she had been wearing one trousers and one top. She had been wearing nothing inside the top. She said the length of the trousers were by her thighs (witness showed the length of the trousers with her hands).
(xv) She testified further that if she was to walk from aunty Latieta’s house to Sai’s house it would take about 7 seconds. From aunty Latieta’s house you can see Sai’s house. When asked to provide a distance between the two houses the witness said from the witness box (aunty’s house) to the Criminal Registry (Sai’s house).
(xvi) Inside Sai’s room the accused had used both his hands to carry her. He had touched her thighs and lifted her – the witness demonstrated as to how this had happened. When asked to explain what she meant by touched, the witness said: “He grabbed hold of my thighs and he lifted me.” He had held her from behind/back upper region of her thighs and lifted her.
(xvii) After the accused had carried her up she was standing on a luggage. After she stood on the luggage then the accused had been touching between her thighs. When asked if she knows a name to describe that area the witness said she did not. However, when she was asked what she usually uses that area for she said: “The place where a female would urinate”.
(xviii) The complainant explained further that the accused had used his left hand to touch her in that area. When asked which part of the hand she said the middle finger (the witness demonstrated by showing the middle finger of her left hand). She said the accused was rubbing that area. She had felt afraid and also felt pain at the place he was touching. She said: “In the middle of me”. She again said that it was the place from where females urinate from. When asked for how long the accused was touching her or rubbing her in that area she said about 7 seconds.
(xix) The witness was asked whether the accused touched any other part of her body whilst inside Sai’s room and she answered no.
(xx) The complainant was asked to explain further the manner in which the accused touched her in the living room (the door in the living room). She said that the accused had carried her in the same way he had done on the first occasion. In this instance too the accused had touched her between her thighs at the place where females urinate from. The accused had used the middle finger of his right hand to touch her. When asked if the accused’s hand was over her trousers or inside her trousers she said inside her trousers [even in Sai’s room when the accused had touched her his hands had been inside her trousers].
(xxi) The witness said that she had again felt pain at the place where the accused was rubbing her – the place where females urinate from. When asked how long the accused was doing this for she said 7 seconds.
(xxii) The witness was asked whether the accused touched any other part of her body whilst in the living room and she answered no.
(xxiii) The complainant was next asked to explain further the manner in which the accused had touched her in the children’s room. She said the accused had touched her with his left middle finger. In the children’s room he had told her to reach above the door of the room. On the corner of the door there was a shelf where the witness had stood on. The accused had lifted her so as to enable her to stand on the shelf. He had used both his hands to carry/lift her. The accused had used his left middle finger to touch her at the time the complainant was standing on the shelf (not while lifting her). He had touched her for 7 seconds. He touched her in the place where females urinate from. She had again felt pain in that part of her body where he had been rubbing his finger.
(xxiv) The witness further explained that after she had returned to her aunty Latieta’s house, her aunt had enquired from her as to what had happened. She had told her aunty that the accused had touched the place where females urinate from. She had also told her aunt that the accused had told her not to tell her aunt or uncle about it.
(xxv) The witness was asked again whether apart from the 3 incidents she had narrated in Court if the accused had touched any other part of her body. The witness said no.
(xxvi) The complainant identified the accused in the dock as the accused Joji Manasa.
(xxvii) The complainant was cross examined at length by the defence.
(xxviii) She was questioned extensively about the statement made by her at the Totogo Police Station and the manner in which the statement was recorded. The witness said that she was accompanied to the police by her mother and her aunty Latieta. However, at the time her statement was being recorded they were sitting in another room. Only Police Officer Maria and the witness were present in the room at the time her statement was being recorded. She said that Police Officer Maria had been questioning her in the iTaukei language as well and that she had been answering the questions in the iTaukei language. She admitted that she had signed her statement. However, she said she was unaware as to whose signature was below hers.
(xxix) The witness reiterated that after giving her statement to the Police in May last year, she was seeing her statement for the first time in Court. It was suggested to the witness that she was not telling the truth in this regard. However, the witness denied this position and said she was telling the truth.
(xxx) The complainant was also questioned about the time frame of ‘7 seconds’ that she adverted to in her evidence- firstly to depict the distance between Sai’s house and aunty Latieta’s house and thereafter to indicate the time the accused inserted his finger in her private part. She was asked: “So who came up with the 7 seconds-was it you or somebody else?” She replied: “My own thinking.”
(xxxi) The complainant said that at the time of the alleged incidents she had been wearing blue and white striped shorts (short trousers). She said she was not wearing panties inside. When asked why she was not wearing panties that day she answered: “I did not know that the incident Manasa did that day will happen”.
(xxxii) The witness said that the pants (trousers) she was wearing had elastic (around its waist). It did not have zips in front. As to the type of clothing, she was asked whether it was elastic and stretchable or made of cotton. She said it was stretchable. The witness also said that she often wears this trouser.
(xxxiii) The following questions were then asked from the witness and she answered as follows:
- These 3 occasions when you were trying to look for the nails, you informed
Court that the Accused was touching you from front with his middle finger
to (at) the place where you urinate from?
(xxxiv) The Defence highlighted certain inconsistencies and omissions in the testimony given in Court by the witness vis a vis her statement made to the Police on 8 May 2020:
- In her testimony in Court, the witness said that during the first incident which happened in Sai’s room the accused had grabbed hold of her thighs and lifted her up and then she had been standing on a luggage. She did not mention that she had fallen at any time while standing on the luggage.
However, in her statement made to the Police, it is recorded as follows: “I fell forward on the suitcase in front of me and so I got up and stood on the suitcase but he tried pushing me up while on the suitcase.”
The complainant agreed that what she had said in her Police Statement was correct.
However, in her statement made to the Police it is recorded as follows:
“I was wearing pink short pants and pink top.”
The complainant said that what she had testified in Court was correct and that Police Officer Maria (Woman Sergeant) had wrongly written pink short pants in the statement.
(xxxv) In re-examination the witness clarified that the pants she was wearing that day had elastic around the waist and that the bottom part of the pants was a little bit loose.
[23] Evidence of Latileta Liauselala
(i) The witness testified that she is residing at Koio Village in Wailoku. She has been residing there for 26 years. She is married and has 6 children. Her youngest child is Unaisi Baleiono (Una).
(ii) The witness said that she knows the complainant MUN. The complainant is related to her husband and lives in Vataleka Village. The witness also knows the accused Joji who is also called Junior. The witness said when she got married in Koio, the accused was 4 years old. She further said: “Joji is like a son to me. I can trust my girls with him. I meet him almost every day in one week.”
(iii) The witness said that in the year 2020, the complainant was residing in Vataleka. But most of the time she used to come and stay at the witness’s residence at Koio Village. The complainant refers to her as aunty (Nei).
(iv) Witness Latileta testified that she can recall the 7 May 2020. That afternoon she was at home. The complainant had been at her place. After lunch that day she had been resting at home with her children and the complainant.
(v) The witness said that the complainant and Unaisi were looking forward to preparing dinner. After they cooked dhal they turned the stove off and she had told them to watch TV with her. They had been watching a movie on the phone when the witness had fallen asleep, in the living room. Prior to falling asleep she had heard the complainant and Unaisi saying that they wanted to pick some dhania from a woman’s house in the neighborhood. However, she did not see them leaving the house.
(vi) Whilst she was asleep she was awakened by someone screaming. When she woke up she had seen Una outside the shed of the house. She had asked Una where the complainant was. Una had said that the complainant was following/ was coming.
(vii) She had got up and was interested to find out what that scream was about – because the scream was like someone being chased or threatened with a cane knife. It was like someone was trying to do bad to someone.
(viii) After hearing the scream she had walked towards the front door. She saw the complainant running up, looking scared and frightened and looking like she needed help. At that time she had also seen the accused Joji about 2 or 3 steps away from the complainant. “Joji was running after MUN and MUN was running away from Joji.
(ix) At this stage the witness had come out of the house and held the complainant. She said: “At the time MUN was frightened. She was trembling and she buried her face on my chest. I could even feel her heartbeat because she was scared.”
(x) At the time she was holding on to the complainant. The witness said that Joji kept coming to ask forgiveness from the complainant. The accused had said that he had asked the complainant to get him the nails. At the time, the accused was red in his face and looked frightened.
(xi) Thereafter, the witness had taken the complainant into the house. The complainant had stopped crying and had looked normal again (she had calmed down). The complainant had then told the witness what had happened to her. The accused had been calling the complainant from the neighbour’s house to come and help him to look for nails. The complainant had said: “Aunty when he lifted me up his hands went beyond her panty and went right inside to touch her inside her body”.
- (xii) The witness identified the accused in the dock as Joji Manasa.
(xiii) In cross-examination the witness was referred to the statement made by her to the police on 12 May 2020. The Defence highlighted the fact that no mention has been made by the witness in that statement made to the police about the accused’s hand going inside the complainant’s body. However, the witness explained as follows: “I took her to SOU for her (complainant) to give the story. Because if I had said it someone may think that I have made it up.”
[24] At the end of the prosecution case this Court decided that there was no relevant or admissible evidence to establish that the accused had committed the offences he is charged with in Counts 1, 3 and 5. Accordingly, the accused was found not guilty and acquitted of the said charges. The reasons for this decision will be further elaborated upon later in this judgment.
[25] However, this Court decided to call for the defence in respect of Counts 2, 4 and 6. The accused was then explained his legal rights. I explained to him that he could address Court by himself or his Counsel. He could also give sworn evidence from the witness box and/or call witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. I explained to the accused that he need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.
[26] The accused decided to testify on his own behalf.
Case for the Defence
[27] Evidence of Joji Manasa Vounia
(i) The witness testified that he is 28 years old. He is currently residing at Vunisea, Toga, Rewa. He is currently unemployed.
(ii) The witness said that he has graduated with a BSC Degree from the University of the South Pacific in 2018. He is engaged to Sera Wati.
(iii) The witness testified that he remembers the month of May 2020. During this month he was at Koio Village. On that particular day he had been at his brother’s house watching movies the whole day.
(iv) The witness said that he knows the complainant in this case. He remembers meeting the complainant around 4.00 in the evening that particular day. When the complainant and Una had approached his brother’s house he had been inside his brother’s bedroom, going over the toolbox looking for nails.
(v) The witness said: “Because early that morning I met my uncle on my way to my brother’s house and he asked if I could find nails to nail the bathroom door.”
(vi) When he heard the two girls approaching he had called Unaisi. The complainant had replied and told that Unaisi had taken the lead. Then the witness had asked the complainant to come around the kitchen door at the back. For her to fetch a burning firewood so that he could light a cigarette. The complainant had come with the firewood, but he had noticed that it wasn’t lit. At the time the complainant came into the house the witness was still inside his brother’s bedroom – sitting beside the toolbox looking for nails.
(vii) The witness said: “So I got up, I came close to her and I noticed the firewood wasn’t lit. I then put the firewood aside and I kindly asked her if she could foot massage my back”. This had happened in the sitting room. The witness said he was confident to ask the complainant to do so because the complainant’s elder sister and mother used to come over to massage his mum.
(viii) The witness further testified as follows: “She foot-massaged my back for about a minute – almost 2 minutes – and then I kindly asked her if she could also massage my stomach. So I turned over for her to massage my stomach.....As I pulled out my shirt I saw a strange look on her face. She massaged me for just a few seconds – 8 to 9 seconds. Then I asked her to stop when I saw a frightened look on her face. From then I asked her if she could help me look for the nails. I explained the different places the nails might be and since we were in the sitting room she started on top of the door connecting the sitting room to the kitchen. So she got up and she was looking for the nearest place – near to the place she was massaging me. She started trying to climb up. Her leg was on the logging of the door – on the way up she slipped and that’s when I suddenly stood up to support her from the buttocks with my two hands to lift her up. My sudden reaction terrified her and made her scream. I put her down and then she ran to the kitchen. I came over to the kitchen to try and comfort her and asked her what was the problem and she screamed some more.”
(ix) The following questions were then asked from the witness and he answered as follows:
- While you were lifting her up with your hands there is an allegation that you touched her private part (the part she urinates from). Explain to Court what do you have to say to this?
- When I stood up I was in a rush to help support her up and maybe when I pushed her up from her buttocks I may have unintentionally touched somewhere to discomfort her.
Q. You said she slipped from the logging and you went to help her up?
A. Yes.
Q. Can you describe how you lifted her up?
Q. How long did you support her like this?
A. 3 to 4 seconds.
Q. Did she manage to find nails?
A. No.
Q. Did she tell you that you were touching her private part?
A. No. The time I touched her buttocks to lift her up then she screamed.
Q. Did you ask her why she screamed?
A. No. Not at the time she screamed. But when she reached the kitchen that is the time I came over to her...... When she reached the kitchen I came over to her to try and ask her what was the matter. I tried to comfort her but then she screamed some more and then she ran out of the kitchen door at the back – she ran out of the house.
(x) The witness further testified that after the complainant had run out of the house he had spent 2 to 3 minutes thinking of what had happened. From his brother’s house the complainant had run to her aunt Latileta’s house – who is his aunt also. Thereafter, he had followed the complainant to aunt Latileta’s house and tried to explain himself. He said: “Aunty La told me that she will not take anything into consideration until the child has spoken to the police.”
(xi) The witness was asked to explain the allegations made by the complainant that he placed his finger 3 times in the place she urinates from. The witness said: “I clearly remember that I lifted her only once. As I had already stated I was in a rush to support her and I may have unintentionally touched her in a manner so as to cause discomfort to her. And that happened in the sitting room.”
(xii) The witness denied that he had lifted the complainant in Sai’s bedroom and in the children’s room. However, he said that he had informed the complainant that in those two places she may find nails too.
(xiii) The accused was cross examined at length by the prosecution. Several suggestions were also put to him regarding the prosecution’s version of the events.
Analysis
[28] As stated before, the prosecution, in support of their case, called the complainant (MUN), and the complainant’s aunt, Latileta Liauselala. The prosecution also tendered the Birth Certificate of the complainant as Prosecution Exhibit PE1.
[29] The accused testified on his own behalf.
[30] As I have stated earlier, the burden of proving each ingredient of every charge rests entirely and exclusively on the prosecution and the burden of proof is beyond a reasonable doubt. Therefore, it is incumbent on the prosecution to prove the elements of all the charges beyond reasonable doubt.
[31] I have summarized the evidence of all the witnesses led during the trial.
[32] During her evidence the complainant consistently referred to the fact that that the accused had touched her or inserted his middle finger at the place where females urinate from, on three occasions. She was specifically asked whether the accused had touched any other part of her body. However, she categorically said no. In the circumstances, at the end of the prosecution case, this Court decided that there was no relevant or admissible evidence to establish that the accused had committed the offences he is charged with in Counts 1, 3 and 5. Accordingly, the accused was found not guilty and acquitted of the said charges. What remains are the charges in Counts 2, 4 and 6.
[33] To prove these charges the prosecution has to establish beyond reasonable doubt the accused, on 7 May 2020, at Suva, penetrated the vulva of the complainant MUN with his finger, and at the time that the complainant was a child under the age of 13 years.
[34] The identity of the accused person is not in dispute. The complainant said that she knows the accused from before the incident. The accused and she are related. He is also known as Junior and she calls him ‘Ju’.
[35] As to the date of offence, during her evidence in chief, the complainant only referred to the year of offence 2020. She could not recall the month or date of the incident. However, in cross examination, specific reference was made to the police statement given by the complainant on 8 May 2020, which was the day following the incident. In any event, witness Latileta testified that it was on 7 May 2020, that the complainant had come and informed as to what the accused had done to her that day.
[36] There is no dispute with regard to the place of offending.
[37] The fourth element which the prosecution has to prove is that the accused penetrated the vulva of the complainant with his finger, on the three occasions; and the final element that the prosecution has to establish is that at the time of the incident the complainant was a child under the age of 13 years.
[38] With regard to the final element it was led in evidence that the complainant’s date of birth is 24 February 2010. At the time she testified in Court the complainant was 11 years of age. On the day of the alleged incidents, which was on 7 May 2020, she would have been 10 years of age. Therefore, it has been clearly established by the prosecution that at the time of the incident the complainant was a child under the age of 13 years.
[39] Now with regard to the all-important physical element which the prosecution has to prove. That is that the accused penetrated the vulva of the complainant with his finger, on the three occasions.
[40] I have considered the prosecution evidence in relation to the remaining charges. The complainant has clearly testified to the manner in which the accused had touched her or inserted his middle finger at the place where females urinate from, on the three occasions.
[41] As I have stated earlier in this judgment, as per medical science, the vulva of a female includes the mons pubis, labia majora (outer lips), labia minora (inner lips), clitoris, and the external openings of the urethra and vagina.
[42] Although only 11 years of age, the complainant withstood the rigorous cross examination by the defence and remained undeterred. It is my considered opinion that the complainant’s evidence, can be accepted as truthful, credible and reliable.
[43] Immediately after the incident, she had complained to her aunt Latileta about what the accused had done to her. This clearly qualifies as a recent complaint. It is trite law with regard to recent complaint evidence that the complainant need not specifically disclose all of the ingredients of the offences and describe every detail of the incidents, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. I am satisfied that the complainant made a prompt and a proper complaint in this case. Accordingly, I consider that her credibility is strengthened in view of that recent complaint.
[44] I must emphasize that I have borne in mind that the recent complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
[45] It is true that the defence highlighted two inconsistencies and one omission in the complainant’s evidence, and similarly one omission in witness Latileta Liauselala’s evidence, specifically in relation to their police statements. But it is the opinion of this Court that acceptable explanations have been provided by both witnesses to explain those inconsistencies and omissions. As such, I am of the opinion that the reliability and credibility of the said evidence is unaffected.
[46] The accused has testified in Court and totally denies all the charges against him. The accused admits to carrying the complainant on one occasion only, which was in the sitting room. In relation to that he has testified as follows: “I clearly remember that I lifted her only once. As I had already stated I was in a rush to support her and I may have unintentionally touched her in a manner so as to cause discomfort to her. And that happened in the sitting room.”
[47] The accused clearly denies that he had lifted the complainant in Sai’s bedroom and in the children’s room. However, he said that he had informed the complainant that in those two places she may find nails too.
[48] It is clear from the above evidence of the accused himself that he had lifted or carried the complainant. Although he says only on one occasion, the complainant has testified to three occasions. On this one occasion the accused says that he may have unintentionally touched the complainant in a manner so as to cause discomfort to her. The complainant has stated that the accused had inserted his finger into her vulva on all three occasions that he had carried her.
[49] In my opinion, the defence version cannot be accepted as truthful and credible.
[50] 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 charges of Rape with which the accused is charged in Counts 2, 4 and 6.
[51] In the circumstances, I find the accused guilty of the charges of Rape with which he is charged in Counts 2, 4 and 6.
[52] Accordingly, I convict the accused of the charges of Rape, with which he is charged in Counts 2, 4 and 6.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 17th Day of December 2021
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : MIQ Lawyers, Barristers and Solicitors, Suva.
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