State v Dau [1996] FJHC 36; Haa0013j.95 (13 August 1996)

Fiji Islands - The State v Dau - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO. 0013 OF 1995

STATE

v.

1. APOLOSI DAU
2. TALE WAQABACA

RAPE: Contrary to Section 149 of
the Penal Code, Cap. 17

Mr. W.W. Clarke for the prosecution
First Accused in person
Mr. T. Fa for the Second Acc/span>

JUDGMENT

The two accused persons APOLOSI DAU (referred to as 'APOLOSI') and TALE WAQABACA (referred to as 'TALE') are charged with the offence of rape contrary to section 149 of the Penal Code.

The Particulars of Offence are that APOLOSI and TALE "on the 14th day of February, 1995 at Rifle Range Nabua in the Central Division, had carnal knowledge of TEMALESI BOGINISOKO without her consent".

The assessors are unanimous in their opinions that APOLOSI and TALE are guilty of rape as charged.

I have directed myself in terms of my Summing Up and have taken cognizance of the evidence adduced.

I find myself in complete agreement with the unanimous opinions of the assessors as far as APOLOSI is concerned.

In APOLOSI'S case I found the prosecution witnesses to be witnesses of truth and I do not see that any of them were shaken in cross-examination. In fact APOLOSI asked very few questions in cross-examination and those that he did ask were not relevant to the determination of the issue before the Court. In his unsworn statement APOLOSI did not question the correctness of his statements to the Police except to say that he does not admit the "allegation". In his statements to Police there are clear admissions that he punched TEMALESI and had sexual intercourse with her by force.

There is overwhelming evidence against APOLOSI and these are sufficiently outlined in my Summing Up.

I am satisfied beyond reasonable doubt of APOLOSI'S guilt in that the prosecution has established that the accused APOLOSI had carnal knowledge of TEMALESI BOGINISOKO without consent as charged.

The accused APOLOSI is found guilty of the offence of rape contrary to s.149 of the Penal Code as charged and he is accordingly convicted.

Now I shall consider the unanimous opinion of guilty as far as the second accused TALE WAQABACA is concerned. I completely disagree with their opinions in this case.

I have reviewed the whole of the evidence very carefully in relation to TALE in the light of my Summing Up to the assessors.

Apparently, the assessors have regarded TALE'S statement in the cautioned interview and in the charge statement as an admission that he raped TEMALESI. There was no reason for them to do so for the reasons hereafter appearing.

There was no corroboration of TEMALESI'S evidence in regard to rape on TALE'S part. It has emerged clearly from the evidence and I reiterate briefly what I said in my Summing Up regarding TALE'S part in this whole incident. From Chequers Night Club right up to Golf Course he did not touch her and there is no doubt about that. In fact while they were drinking APOLOSI threatened her with a broken beer bottle and wanted to have sexual intercourse with her by force. TALE could not see this happening to TEMALESI so twice TALE and APOLOSI had a fist fight. All this fact is admitted by TEMALESI in the cross-examination of her by Mr. Fa. She admitted that TALE fought for her protection. Then afterwards APOLOSI drags her a short distance away from where they were drinking and had sexual intercourse with her without her consent. By this time NETANI and a girl who were in the group left the scene and hence NETANI who testified on behalf of TALE did not see him having sexual intercourse with TEMALESI. So his evidence does not assist the Court as to the circumstances in which there was sexual intercourse between TALE and TEMALESI.

Apart from TEMALESI'S evidence there is no other evidence establishing that TALE raped her. In fact for a person who has been allegedly raped not a word is mentioned to the doctor who examined her that she is a victim of alleged rape. The doctor was requested to ascertain, among other things, if she was a virgin. Even to the first Police Officer to whom she first complained about being robbed she did not say anything about being raped. Why she did not complain immediately about being raped has never been explained.

One other piece of TEMALESI'S evidence which throws doubts on her credibility is a very serious allegation in her evidence in chief that TALE held her hands and massaged her thighs while APOLOSI had sex which allegation she said is not true when she answered to Mr. Fa in cross-examination that Tale had 'no part' in it. If anything, she answered to Mr. Fa that TALE was protective of her right up to the time when Apolosi dragged her away from the place where they were drinking.

I highlight these pieces of evidence to show that as far as TALE is concerned TEMALESI has lied in a material particular about his involvement with her for reasons best known to her which gives the Court the clear impression that in her allegation to the effect that he had sexual intercourse without her consent she has not told the whole truth in this regard. The Court is left in great doubts on this aspect of the case implicating TALE.

It was only after APOLOSI had finished having sexual intercourse with TEMALESI that TALE said that he approached her and she consented to having sexual intercourse with her.

Now, one has to look at TALE'S involvement in the sexual intercourse in this whole context. The question that arises is, and it was raised by the State, would she have consented to sexual intercourse in the circumstances she was in and looking at what TALE did to her? Both possibilities are open namely, she could have and she could not have consented. The State's argument is that she could not have consented after what APOLOSI had done to her.

Here we are not dealing with a case as to what could have happened. Here the State is assuming that TALE forced her to have sexual intercourse. One cannot convict a person on assumption or suspicion alone in a criminal case. One has to be satisfied beyond reasonable doubt that she did not consent. On the evidence before this Court one is left in grave doubts as to what actually happened. To my mind, as already stated by me TEMALESI told lies to Court implicating TALE in relation to her allegation of his holding her hand while APOLOSI had sexual intercourse for reasons best known to her. Another piece of statement to Police that is beyond comprehension is when she said to Police that three Fijian boys raped her when there was no third person there apart from NETANI against whom she has not alleged anything. Why would she say this, is anybody's guess. It appears that these are wild allegations. Therefore in all the circumstances of this case the possibility of her lying about TALE having sexual intercourse without her consent is also false.

That being the situation as I find it to be, it lends credence to TALE'S defence that he had sexual intercourse with her by consent. That possibility cannot be ruled out altogether. There is no indication of any force having been used by him in his statement to police. He asserts that the use of certain Fijian words used in the cautioned interview and when charged did merely suggest that he had done 'wrong' and not that he committed 'rape'. I have dealt with this in my Summing Up. There is no doubt that the questions could have been more explicit in a case of rape. Had questions been asked to the effect as to whether there was consent or not one of the essential ingredients of the offences would have been brought home to the accused. That is why I have noticed that in the decisions of the East African Courts it has been emphasized by appeals Court that the essential ingredients of certain offence with which an accused is being charged should be brought to his attention for quite often one deals with people who are young and uneducated and do not know what are essential elements of an offence. May be that these guidelines in the East African cases could be borne in mind by police officers here when interviewing an accused person in

Having considered the whole of the evidence in this case along the lines stated hereaboveabove, I am satisfied that it could not properly be said that the prosecution has established beyond all reasonable doubt that the accused TALE had committed the offence of rape as charged.

It is fundamental to our system of criminal justice that the onus of proof rests throughout on the prosecution and it never shifts.

In this case I find that the prosecution has not discharged the burden of proof. I am left in great doubts that TEMALESI did not consent to TALE having sexual intercourse with her and that doubt must be resolved in favour of the accused TALE.

In these circumstances I am constrained though most reluctantly to take a different view of the case from the assessors. No doubt the assessors found it difficult to appreciate the facts and apply them to the law applicable in the circumstances of this case in so far as the accused TALE is concerned.

It is appreciated that the assessors were asked to carry a heavy responsibility. I must say that they have performed their duty remarkably well in what perhaps was a difficult legal and factual situation but in the circumstances

unfortunately I am unable to accept their unanimous opinions in this case as far as the second accused TALE is concerned.

For these reasons I find the accused TALE not guilty of the offence of rape and he is therefore acquitted and set free forthwith.

Delivered in Open Court this 13th day of August, 1996

D. Pathik
Judge

Haa0013j.95