State v Koli [2015] FJHC 636; HAC142.2014 (1 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 142 OF 2014

STATE

vs

TUI MATEO KOLI

Counsels: Ms S Navia and Ms U Tamanikaiyaroi for the State
Ms T Kean for the Accused
Dates of Trial: 24-28 August 2015
Summing Up: 31 August 2015
Judgment: 1 September 2015

JUDGMENT

[1] The accused is charged with the following count:

Statement of offence

Rape– Contrary to Section 207(1) and (2)(b) of the Crimes Decree No. 44 of 2009

Particulars of the Offence

Tui Mateo Kolion the 26thday of September 2013at Naboro, Lamiin the Central Division, penetrated the vagina of Qalo Mocelolo with his finger, without her consent.

[2] His trial proceeded before three assessors, who delivered their unanimous opinion at the conclusion of the trial that the accused is guilty to the charge of Rape.

[3] I direct myself with the summing up delivered to the assessors and embark on an evaluation of the body of evidence placed before Court in its entirety. I am mindful of the principles enunciated by the Supreme Court in Praveen Ram v State [2002] FJSC 12, cited with approval in Vulaca v State [2012] 2 FLR 232 at 233, of the role of the trial judge in relation to the statutory provisions contained in Section 237(2) of the Criminal Procedure Decree 2009. Having evaluated the evidence in light of the principles contained in the judgments of the apex Court, I pronounce reasons for my judgment as follows.

[4] The prosecution called three witnesses and also produced the caution interview of the accused, in support of their case. These three witnesses were the complainant, the Doctor who has examined her and tendered a report and the police officer who acted as arresting, investigating and interviewing officer.

[5] In her evidence, the complainant Qalo Mocelolo stated that the accused, having offered her a lift on the morning of 26th September 2014, to FNU where she read for a degree programme, had made her to drink Rum mixed with Coke. Thereafter, he had driven his car along a road which ran into the interior and taken her to a lonely place. The accused had stopped his car and came up to the complainant who was occupying the back seat all this while and dragged her out. He had then placed her on the ground and, while holding her to the ground by placing one hand on her chest, had penetrated her vagina with other hand. It was her evidence that the accused continued with his act for about 5 to 10 minutes while she struggled and pleaded with him to stop it.

[6] Thereafter, the accused had brought the complainant, who was still crying, in his vehicle to Lami town but did not stop when a Policeman signalled. The complainant, having seen a Water Authority truck coming behind the car, threw her bag out of the moving car in order to attract their attention and jumped out.

[7] She was picked up by the truck and having learnt what she had undergone, they took her to Lami Police Station, where she had made a complaint alleging rape.

[8] The complainant was produced before the Doctor only 8 days after the incident and the reason for delay is a doctor and a police woman instructed her to return for examination when her menses is over.

[9] Dr.L Taleniwesi, a Senior Lecturer of Obstetrics and Gynaecology attached to Faculty of Medicine at FNU, examined the complainant on 3rd October 2013 at 1.40 pm. Having recorded the history, he had conducted a thorough examination and came to the following specific medical findings:

a. No evidence of recent penetration.

b. No evidence of trauma.

c. Hymen is still intact.

[10] In his evidence, Dr. Taleniwesi clarified the term "recent penetration". According to him, it meant "... a penetration occurred 2/4 hours prior to his examination". He opined a laceration in the vagina might heal within a period of one to two weeks and a scar might be left. But the nature of the injuries would be dependent on the force used, and also on the object of penetration. He noted the complainant is not a sexually active woman.

[11] Other witness called by the prosecution is D.C. 4282 Joji Dakuwaqa attached to CID of Lami Police Station. He had arrested the accused on 12th January 2014 and had proceeded to record his statement the same afternoon. He had not assaulted, threatened or induced the accused to make an admission of the allegation put to him.

[12] The accused opted to give evidence and he admitted offering a lift to the complainant. He admitted that he did not disclose the fact that he is going to town where he bought Rum and Coke. He says it was the complainant who mixed the bottles. They had consumed the mixture and when he had parked his car along the main road, the complainant invited him to have sex with her. He refused. Then the complainant had put the left hand of the accused in her pants and closed her thighs. The accused then pulled out his hand. She had dragged him by his neck and sucked his tongue and then the accused pushed her.

[13] Then the complainant threatened him that she would complain to Police that he raped her and if he agrees to have sex with her she would keep quiet. This compromise too was rejected by the accused and he had thereafter drove on. He had taken a right turn after passing Prison and had gone to a place with a forest cover and plantation. He admitted there were no houses in the vicinity. He had stopped the car there. But he consistently denied he had penetrated vagina of the complainant with hand.

[14] I will now proceed to consider the truthfulness and reliability of the complainant's evidence, as she is the only witness to the alleged act of digital rape. She is a final year university student and her evidence should be evaluated in consideration of that fact. It transpired from her evidence she had narrated her ordeal to the first person she met after the incident. He was the Water Authority truck driver. What the complainant told him could not be verified as he is not a witness. However, within a short time she was brought to Lami Police by this person, where she made a detailed and formal complaint. This goes to show she made a prompt complaint and it is relevant consideration as the accused maintained her allegation is a fabrication.

[15] Her evidence is consistent and there were no inconsistencies with her statement to Police, except to the words "jumped" and "rushed". This apparent inconsistency arose when the complainant in her evidence stated that she had jumped from the moving car having thrown her school bag out first. But in her statement she had used the word rushed from the car. When one considers the situation and the context in which she had used these descriptions to highlight the fact that she made a hurried exit from the car, it is my considered view that her evidence should be regarded as consistent narration of her version of sequence of events.

[16] When her evidence is considered on the basis of probability of the version, it must be noted that the sequence of events as narrated by her, is a highly probable one. It is better to describe her conduct throughout the incident under this test of credibility:

a. There is no dispute that it was on the accused's invitation she got into his car as her university was just 15 minutes if she walked to it. Once in the car she had no control of her destination as accused had admitted in his cross examination. She had to patiently endure the conduct of the accused going to a supermarket and buying liquor. She could not offend the accused by refusing to his request to take a drink, which she frankly admitted. Refusal by her when the accused offered drinks for the second time supports this view. It is probable that she tolerated all this so that the accused would drop her at the university as promised;

b. When the accused turned to a by-lane passing the Prisons and went along this road to an area devoid of human habitation and surrounded by the forest, under the pretext of going to her school, she became alert. This is indicative when one considers the fact that she had observed the accused letting pass a tractor that had following them on that by-road. When the accused stopped the car she thought he wants to relieve himself. This is relevant as the accused was after consuming substantial amount of liquid. Thereafter, when the accused came to her door she was alarmed and had the presence of mind to lock it. The accused in his evidence has admitted up to this point. However, the accused managed to get hold of her and had allegedly committed digital rape on her. This is a narration presented by the complainant in which no artificial support was given by resorting to highly improbable assertions. Simply put, the accused had taken her to a lonely spot and had allegedly committed digital rape;

c. Then her conduct during the incident of rape must be considered. She had cried and pleaded with the accused to stop. She did not attempt to run. The area was unfamiliar and far from the main road. Even if she did, she would have been easily caught. Instead she pleaded with him seeking sympathy;

d. Her subsequent conduct since the incident is also highly probable. When they reached Lami town a Policeman signalled the accused to stop but he didn't. According to the accused, the Policeman signalled him to slow down. Then the complainant had seen the Water Authority vehicle coming behind them. She had threw her school bag away to attract truck driver's attention and rushed out or jumped out of the car. When her conduct is considered it is probable as she was waiting for an opportunity to escape from the accused. She could not do that earlier as the accused was speeding. With the Policeman's intervention the accused had slowed down giving her a window of opportunity. The accused too admits that the complainant had got into a three tonne van.

[17] However, the accused sought to challenge her credibility on the following points;

i) that medical evidence does not support her assertion that she was digitally raped for 5 to 10 minutes as there were no injuries in her genitalia;

i). she fabricated this entire episode being hurt by the refusal of her demand for sexual gratification from the accused.

[18] The first ground should be considered in comparison with medical evidence. The expert evidence is that any injury in her genitalia might heal within a week or two. It is therefore not an absolute impossibility that her injuries could have healed before an examination which took over a week since the incident.

[19] Another relevant consideration would be that the accuracy of the time period. The complainant, being exposed to a highly tormenting situation could not be expected to keep accurate timing of the incident. It may have lasted a shorter interval which the complainant perceived as a longer interval due to the mental and physical trauma she had to endure. The fact that there was no injury to her hymen is not an accurate indication of the extent of penetration that is required to constitute Rape.

[20] Since, no corroboration is required to substantiate her claim, and in view of the above considerations, it is my firm view that the medical evidence though not supportive, cannot be utilised to make a dent in the credibility of her evidence.

[21] I have carefully observed her manner of giving evidence. She displayed a confident attitude in the witness box and was frank when cross examined on difficult areas. She, without vacillation, admitted that she had consumed four glasses of Rum mixed with Coke and though had opportunity to walkout, did not. When it was suggested to her that she demanded sex from the accused, she answered it with a definite "No" both in tone and expression.

[22] In contrast, the accused's evidence is teeming with improbabilities and therefore ought to be rejected for the following reasons:

1. The accused say she had mixed the two bottles on her own whereas the complainant says it was the accused who had mixed it. The complainant knew the accused had bought liquor when he came to the vehicle with bottles. She had not wanted to consume alcohol but was pressurised by the accused. In the circumstances, it is highly improbable that she would voluntarily undertake this exercise.

2. The complainant had demanded sexual gratification from the accused. According to the accused she demanded sex from the accused when he had parked his vehicle along a main road. The complainant was on her way to school and her lectures to start at 10.00 am. They have already spent considerable time on road on the accused's account. The fact that she wanted to attend her lectures is admitted by the accused when he turned to the by-road. This incident took place prior to that. When she is worried about getting late to her lectures it is not a plausible to think she was overtaken by sexual desire to suggest to have sexual relations with her relation's husband who lived in the same compound.

3. The accused states that she had taken his hand and put it in her pants and closed her legs. According to the accused, her explanation is then only she could complaint to Police that he has raped her. Then she offered a compromise. If he agrees to have sex, no complaint and if he didn't she complains. It sounds that she was dying for sex with the accused at that time. She was even prepared to falsely implicate an innocent man to satisfy her raging carnal desire. But the complainant is not a sexually active woman. If at all this would be her maiden experiment on the subject. Why she would select a busy road side for this experiment? No plausible explanation was advanced by the accused.

4. The accused knew that the complainant is going to implicate him with an allegation of rape. What is his conduct when the complainant indicates her mind that she is going to lodge a complaint? He takes the complainant along a lonely road and at an isolated location stops his vehicle and goes to the complainant. Is this a conduct of a person who knew that he would be falsely implicated for committing an act of rape as a result of which he might have to go to jail?

5. Even after the complainant had found refuge in the Water Authority vehicle the accused did not think of the looming threat of accusation but was happy to drive straight home and wait till the Police appear at his door in January of 2014.

[23] The demeanour of the accused too was carefully observed. In examination in chief he answered directly to the question posed by his Counsel. However, in cross examination, he was evasive and offered long answers with little relevance to the question. To more intrusive suggestions, he took some time to think about it. Many a times, the Prosecutor had to advise him to answer in short "Yes" or "No", whilst constantly reminding him that he would be afforded an opportunity in re-examination to offer all the explanations he would like the assessors and Court to consider.

[24] These considerations were placed before the assessors for their consideration. I concur with their unanimous opinion that the charge of Rape against the accused was proved by the prosecution beyond a reasonable doubt. I am convinced that the assessors are justified in forming their opinion as to the guilt of the accused. It was open for them to reach such finding on consideration of the body of evidence placed before its entirety and their opinion therefore is not perverse.

[25] In the circumstances, I accept the opinion of the assessors and convict the accused on the charge of Rape.

[26] This is the judgment of this Court.

ACHALA WENGAPPULI
JUDGE

Solicitors for the State: Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused: Legal Aid Commission, Suva.