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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 146 OF 2012
STATE
-v-
PENISONI WAQANILIVA RAVUTUBANANITU
Counsel: Ms. L. Latu for the State
Ms. S. Nasedra for the Accused
Dates of Trial: 3rd August 2015 - 04th August 2015
Date of Summing up : 6th August 2015
Date of Judgment : 7th August 2015
JUDGMENT
First Count
Statement of Offence
RAPE: Contrary to Sections 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
PENISONI WAQANILIVA RAVUTUBANANITU between the 1st of October 2012 to the 31st of October 2012 at Tavua in the Western Division penetrated the vagina of Lusiana Qionicolo with his penis without the consent of the said Lusiana Qionicolo.
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
PENISONI WAQANILIVA RAVUTUBANANITU on the 21st day of October 2012 at Tavua in the Western Division penetrated the vagina of Lusiana Qionicolo with his penis without the consent of the said Lusiana Qionicolo.
2. On 6th August 2015, two Assessors found the Accused guilty on the 1st Count while the other Assessor found the Accused guilty on the 2nd Count.
3. I direct myself in accordance with my own Summing up and review the evidence called in the trial. I pronounce my judgment as follows.
4. The Accused had admitted in his cautioned interview statement, PE.2 and the Charge Statement, PE.3 that he penetrated the vagina of Lusiana with his penis. Those documents were not challenged by the Defence.
5. The Prosecution alleges that the sexual intercourse happened without Lusiana's consent. Accused says it happened with her consent. The only issue to be decided in this case therefore was whether the prosecution had proved, beyond reasonable doubt, that the sexual intercourse took place without Lusiana's consent.
6. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent.
7. Prosecution case was substantially based upon the evidence of the Complainant, Lusiana and on the medical report, PE.1.
8. I directed the Assessors as follows.
..."there is no rule in Fiji for you to look for corroboration of victim's story to bring home an opinion of guilt in a rape case. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence''...
9. I find that Complainant's evidence was probable, consistent and believable and the Assessors had ample reasons to believe her.
10. I summarize my finding as follows.
11. I find that Lusiana did not have any motive or reason to fabricate this type of an allegation against the Accused. Lusiana was only sixteen years of age and a Form 3 student at the time of the alleged incident. She had met the Accused for the first time at a church, the day before the incident. The Accused had come to Fiji a few days before the incident, having spent five years in New Zealand. They were not known to each other when they first met at the church. There was no dispute about that.
12. Version of the Defence was that Lusiana made up this case as an excuse for her running away from home. I am unable to agree with the version of the Defence. It was not the first time Lusiana had run away from home. Her mother apparently had accepted her on previous such occasions. According to her mother, she is the good girl in the family. When Lusiana came late from school on 20th October 2012, her mother did not reprimand her. It was mother's counseling she disliked and that was the reason for her to run away from home. In such a scenario, why should she need excuses to return home? Why make up a case of such a grave nature against the Accused?
13. Lusiana said that she did not scream or yell for help when she was being taken by the Accused to his aunt's kitchen and also when she was being raped. One might wonder why she did not scream or yell if she was taken forcibly and raped without her consent.
14. I asked the Assessors to be cautious there. I warned them against making comparisons and coming to conclusions on the basis of general behavior expected of a woman in such a situation. I asked the Assessors to analyze evidence presented in this case deeply in light of Section 206 of the Crimes Decree and asked them to consider whether she had given her consent freely and voluntarily and whether she possessed necessary mental capacity to give such consent at that time.
In coming to conclusion, I suggested the Assessors to consider:
a. her vulnerability as far as her age was concerned.
b. her vulnerability as a complete stranger to Tavua on that night.
c. her bargaining power vis-a-vis the Accused.
d. whether she was in a fear psychosis at that time.
e. the expert opinion of the doctor.
15. Lusiana was in Tavua for the first time. She was a complete stranger to the place where she was. She did not have any relative in Tavua. Both Seruwaia in whom Lusiana finally sought refuge and Alumita whose house she visited that night were closely related to the Accused. It was in his aunt Tarusila's kitchen that everything had happened. Surrounding environment was his. Even she braved to scream or yell it was of little help to her.
16. According to Lusiana's evidence, he was stronger and holding both her hands. He smelled liquor. She was worried that he might do something to her. She was scared that he might kill her inside the kitchen. She did not want Penisoni to know that she reported the matter to Police. She was such a sensitive and naive girl that she could not bear up even her mother's counseling. In my opinion she had reasonable cause not to resist, scream or complain. She had to submit to him involuntarily.
17. Lusiana had not complained either to Seruwaia or Alumita soon after the incident. She had not complained even to her mother about the rape incident when she came back home. She told her mother only when the father of the Accused made a call to her mother three days after her return home. Is her failure to complain consistent with consensual sexual intercourse? Had she offered acceptable, legitimate reason not to complain? I threw those two questions to Assessors.
18. In my analysis, answer to the former is - No. Answer to the latter is -yes. In coming to my conclusion I considered the following;
19. Circumstances under which Lusiana made the complaint to Police were not clear in evidence. Both the Counsel failed to elicit evidence to explain to Court as to how the Police came about soon after the incident to pick Lusiana in that village.
20. Defence Counsel put the following question to Lusiana;
Q. You would agree with me that if the Police did not come to collect you, you would not have complained about this alleged incident?
A. I didn't want Penisoni to know that I reported the matter to the Police.
21. This question is clearly hypothetical question which the law of Evidence would never allow. It was raised without any objection from the Prosecution. It is the duty of the trial judge to prevent such questions being put. Assessors should have been warned about its illegality. However, it is not too late to correct the mistake at this stage and disregard the question.
22. Trial Judge or the Assessors can't speculate and come to the conclusion that if the Police did not come to collect her, she would not have complained about this alleged incident. What is in fact present before this court is a recent complaint made by the victim to Police soon after the incident. It certainly bolstered the consistency of the victim's evidence and the version of the Prosecution.
23. There are smart ladies who would resist and complain of the slightest injustice caused to them. On the other hand, there are ignorant, naïve, passive and powerless women who would not bear to complain. Having observed Lusiana giving evidence in Court, I put her in the latter category.
24. I observed demeanor of Lusiana and her mother carefully. They were not evasive. They were straightforward. Assessors had no reason to disbelieve their evidence.
25. Doctor's evidence was crucially important in deciding the issue of consent. Doctor opined that the intercourse had taken place forcefully. Assessors were not bound to accept his opinion. However they had ample reasons to rely on Doctor's evidence. Doctor had examined the patient within 24 hours of the incident. Referring to PE.1, the Doctor said that the patient was in a distressed and depressed condition at the time of examination. Patient had told the Doctor that she was raped twice by a Fijian youth. All injuries were of recent origin caused less than 24 hours of examination. Injuries and the history related by the patient were consistent with his medical findings.
26. In view of distressed condition of the patient, fresh lacerations seen on upper vaginal wall, multiple bruises around the neck, pulling of large amount of blood in vagina, the Doctor opined that the intercourse had taken place forcibly. He had formed that opinion rationally considering all necessary matters scientifically. Doctor's reasons were convincing and acceptable. His evidence was compatible with the rest of the evidence led in the trial.
27. Defence Counsel questioned about previous statements made by Lusiana and her mother to Police. Lusiana's statement had been recorded on 22nd October 2012, soon after the incident. According to Doctor's evidence, she was in a 'distressed' and 'depressed' condition during that period. It is not difficult to imagine the trauma of a victim of a dual rape incident in a sleepless night. She must have missed to tell the Police that she smelled liquor on him that night. Such omissions or contradictions are not material and significant so as to affect the credibility of a witness.
28. Accused had nothing to prove in this case. He was not under any obligation to prove his innocence. Burden to prove his guilt was on the Prosecution right throughout. However, had he presented acceptable evidence, it would have created a reasonable doubt in the Prosecution case. Accused's evidence was totally unacceptable. His version was not sufficient to establish a reasonable doubt in the prosecution case.
29. Position taken up by the accused in giving evidence was different from the Defences' position taken up at the time of cross examination of prosecution witnesses. In other words, his version was inconsistent. He had never told Police the fact that he was in a conversation with Lusiana on the previous day at the church and in that conversation, Lusiana told that she liked him. Defence Counsel never put his position when she cross-examined Lusiana.
30. According to Accused's evidence, hugging and kissing started in front of his cousin, Alumita. Alumita would have been an ideal witness to corroborate Accused's version. Defence failed to call neither Alumita nor Seruwaia. Accused knew nothing about his cousin's whereabouts. That was his explanation not to call Alumita.
31. According to Accused, he left Lusiana on Sunday after the incident, assuring that he would come back on Monday to see her. He had not come back until he was arrested on Tuesday. His conduct after the incident did not support his defence.
32. I'm convinced that the Accused knew of Lusiana's vulnerability as a running away girl from home and her vulnerability in Tavua. He visited her that night for a specific purpose. He exploited her vulnerability.
32. I am satisfied that the Assessors had reasons to believe the Prosecution version and to reject that of the Defence. Their opinion was not perverse. It is open for them to reach such a conclusion on the evidence led in the trial. Majority comprised iTaukei people. They were in a better position to judge their own people than me. They were justified in coming to an opinion of guilt to the representative Count of Rape. I prefer to accept the majority opinion as the alleged incident started on 21st and continued into 22nd. The First Count covered that period.
33. I am therefore of the view that the Prosecution has proved Count 1 beyond reasonable doubt. I accept the opinions of the Assessors and the Accused is convicted on the 1st Count of Rape.
34. That is the judgment of this Court.
Aruna Aluthge
JUDGE
AT LAUTOKA
On 07th August 2015
Solicitors: Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused
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