State v Koroi [2011] FJHC 402; HAC150.2010 (18 July 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 150 OF 2010

BETWEEN:

THE STATE

AND:

1. METUISELA KOROI
2. ISOA NAULUMATUA
3. SAVENACA VAKANAVUE

Counsels: Mr. K. Waqavonovono for the State
Mr. J.Rabuku for all Accused persons

Date of Hearing: 11th to 18th July 2011

Date of Judgment: 18th July 2011

JUDGMENT

1. 1st Accused Metuisela Koroi is charged with 2 Counts of Rape. 1st Count under
sections 149 and 150 of the Penal code and the 2nd Count was under section 207 (1) (2) (a) of the Crimes Decree.

2. The 2nd Accused Isoa Naulumatua is charged with one Count of Rape under section 207 (1) (2) (a) of the Crimes Decree.

3. The 3rd Accused Savenaca Vakanavue is charged with one Count of Rape under
Section 207 (1) (2) (a) of the Crimes Decree.

4. Trial commenced on 11th July 2011 and concluded on 18th July 2011.

5. At the conclusion of the summing up the Assessors have returned with unanimous verdict of not guilty against all 3 Accused persons.

6. Considering the evidence of virtual complainant Salome Dimasa Ratuba, she had made two statements. One on 24th July 2010 and the other was on 30th July 2010. In the 1st statement she said only about an incident alleged to have happened on the 20th March 2010. In that incident only the 3rd Accused was implicated.

7. In the 2nd statement made by the virtual complainant, she was speaking about two incidents. First in August and other was in February. Considering the evidence before the Court, the Court makes following observation.

a) According to the 1st Count in the charge, the date mentioned was "between 1st April 2009 to 31st December 2009". But the evidence is clearly states that some incident had happened in August 2009. (A Thursday night during the Hibiscus festival). Since the day and the duration is clear, prosecution invoking such a long duration shows that even they are not sure of the incident, which in turn raises a doubt in the minds of the Court.

b) The virtual complainant submits that she had an affair with the 1st Accused and had several sexual encounters before and after the 1st incident. She said that the incident happened in August was her 1st sexual encounter but in her evidence she says she had an affair since April and they were involved in sex. Further she admitted in court that she had told the police that her sexual encounter with the 3rd Accused on 20th march2010 was her first experience This creates a serious doubt.

c) In the 2nd incident the virtual complainant had gone with the 1st Accused at 10 o'clock, in the night to the toilet of the church and involved in sexual intercourse. Considering the way it had happened, and conduct of the virtual complainant raises doubt in the mind of the Court.

d) Prosecution witnesses seriously contradict each other on 1st and 2nd incidents.

e) The paramount question before the Court is whether to accept evidence of the virtual complainant or not. Considering the nature of her evidence, her previous and subsequent conducts raises serious doubt of her credibility.

8. I have reviewed the evidence called in the trial and I have directed myself with my summing up I gave the assessors today. I find that the verdict of the assessors was not perverse. It was open to them to reach such a conclusion on the evidence. I accept the verdict.

9. The Court wishes to make a note of the demenour of the virtual complainant. It appears that she knows what she has done and the consequences of her act. She conveniently avoided certain questions and tried to receive sympathy of the Court by crying and making facial expressions. But on a careful observation it appears she compelled herself to make such expression.

10. Considering the nature of the evidence before the Court this Court is convinced that there is no case proved against the Accused persons beyond reasonable doubt.

11. Considering all, this Court find the 1st Accused Metuisela Koroi, 2nd Accused Isoa Naulumatua and 3rd Accused Savenaca Vakanavue not guilty as charged. Therefore all three Accused persons are acquitted from all charges.

Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Law Solution for all Accused persons