State v Domo - Judgment [2015] FJHC 664; HAC158.2012 (11 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 158 OF 2012

STATE

v

1. NACANI DOMO
2. DAMASINO LEVI

Counsel: Mr. S. Nath for the State
Mr. R. Kumar and Ms. Diroiroi for the Accused

Date of Summing up: 09th September, 2015
Date of Judgment: 11th September, 2015

JUDGMENT

1. The Accused were charged with the following Counts and were tried before three Assessors.

First Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NACANI DOMO on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

Second Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

DAMASINO LEVI on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

Third Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NACANI DOMO on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

Fourth Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

DAMASINO LEVI on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

2. Assessors unanimously found both the Accused not guilty of all the Counts.

3. I direct myself in accordance with my own Summing up and review the evidence presented in the trial. I pronounce my judgment as follows.

4. Both Accused had admitted in their cautioned interview statements PE.1 and PE.2 that they had sexual intercourse twice with the Complainant. Giving evidence in Court they maintained and further confirmed their earlier position. It was also agreed, as an agreed fact that the main issue of this case would be whether or not the Complainant had consented in having sexual intercourse with her.

5. The only issue to be decided in this case therefore is whether the prosecution had proved, beyond reasonable doubt, that the sexual intercourse took place without the Complainant's consent.

6. Prosecution called the Complainant and three other witnesses and its case was substantially based upon the evidence of the Complainant.

7. I find that the Complainant's evidence was probable and believable and the Assessors had reasons to believe her. Assessors misconceived the directions I gave and failed to analyse the evidence presented in a proper perspective and apply the same in deciding the issue of consent. I summarize my finding as follows.

8. 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. Submission without physical resistance by a person to an act of another person shall not alone constitute consent. Submission achieved by persistent psychological coercion so that free choice was overborne will not amount to consent freely given. Evidence should be evaluated in light of this legal framework. I find that the Assessors misconceived the directions I gave and failed to analyse evidence in deciding the issue of consent in this legal framework.

9. In the absence of recent complaint evidence, or evidence of relevant injury to the Complainant, or protests heard by others, the Assessors would have been faced with the difficult task of resolving the question whether they are sure the Complainant did not in fact consent. I am, however, convinced that in the circumstances of the present case, Complainant did not possess necessary mental capacity to give such consent and thus the consent was not freely given.

10. Complainant stated in evidence that, under a guava tree, 1st Accused came and sucked her breasts, licked her vagina and inserted his penis into her vagina. She said that she could not react as she was weak. She did not like what he was doing and told him to stop, but he kept on doing. Then the 2nd Accused came and sucked her breasts and licked her vagina. Then he inserted his penis into her vagina. She did not like what he was doing and told him to stop, but he kept on doing. After a short while, both the accused had repeated the same act under a bamboo tree.

11. There is no evidence that the Complainant received any injuries in the encounter. Absence of injuries in an encounter under a bamboo tree was attributed by the Defence Counsel to consensual sexual intercourse. I am unable to agree with the Defence Counsel. The offence of rape may or may not be accompanied by force or the threat of force. It is no part of the Prosecution's obligation to prove that the Accused used force or the threat of force. If the rape is not accompanied by force, absence of evidence of injuries on her body is likely and probable phenomenon.

12. Complainant said that she did not scream or yell for help when she was being raped. During the course of Complainant's evidence it was suggested to her that she could have struggled, shouted or otherwise objected to what the Accused were doing. In his closing argument Defence Counsel has submitted that her failure to protest, demonstrates that she was not telling the truth. This is an argument that should be considered with care. We should not assume that there is any classic or typical response to an unwelcome demand for sexual intercourse. The experience of the Courts is that people who are being subjected to non-consensual sexual activity may respond in variety of different ways.

13. Complainant's explanation for her behaviour was that she was weak and her mouth was closed. She also said that she was threatened not to shout. The incident had happened after midnight in a hilly and remote area. In the first incident under the guava tree, she was surrounded by eight people. In my judgement, she had reasonable cause, in this context, not to resist, scream or yell for help. There are reasons to believe that she would have succumbed to pressure and submitted to the act of the Accused.

14. It is not surprising that Assessors have recourse to personal standards of behaviour and demeanour, or to perceived standard of behaviour and demeanour, by victims of sexual offences when attempting to resolve the conflict in the evidence. General behaviour expected of a woman in a rape case may be different. But in the present case, I observed in the Complainant a naïve and passive woman. Any person who has been raped, will have undergone trauma whether the accused were known to her or not. It is impossible to predict how that individual will react, either in the days following, or when speaking publically about it in Court or at the Police Station. The experience of the Courts is that those who have been victims of rape react differently to the task of speaking about it in evidence.

15. The trial could not be started as scheduled due to the reason that the Complainant was not in a fit and proper condition to give evidence. At the outset, the Prosecution made four applications in the absence of Assessors. For a closed court; a screen to be put up so that the victim can't see the Accused; a bi-dialectal interpreter and name suppression of the victim. In view of the objections raised by the Defence, I had to refuse the second application to ensure a fair trial as there was no evidence at that time before this Court to treat the Complainant as a vulnerable witness. When the Complainant came to give evidence, I could observe her general disposition. She was a naïve and passive woman. In her evidence, she was murmuring and not speaking up; she was seated and hiding her face. She avoided facing others and, was not prompt in her answers.

16. Some rape victims display obvious signs of distress, others will not. The reason for this is that every person has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words demeanour in Court is not necessarily a clue to the truth of the witness's account. It all depends on the character and personality of the individual concern. I watched Complainant giving evidence in Court, observed her demeanour and her general conduct in Court. Fear and shame might well lead to such conduct. I am convinced that the Complainant was telling the truth, nothing but the truth.

17. It has been said on behalf of the Defendant that the fact the Complainant did not report what have happened to her as soon as possible makes it less likely that the complaint she eventually made was true. In fact the Complainant had not complained or reported the incident to anybody soon after the incident. The version of the Prosecution was that the incident happened on 28th of September 2012. Complainant admitted that she first reported the incident to her aunty, Adi Alesi on 2nd of November 2012. She told Adi Alesi only when her other aunties were questioning her about the rumour that was being circulated in the village.

18. Complainant's small aunty, Adi Alesi, confirmed in her evidence that when she visited Complainant on2ndof November 2012, three aunties were already questioning her about an incident. Alesi had asked the Complainant as to why she was crying. Complainant had informed her that some boys from Koroboya had had sexual intercourse with her against her will. Names of the Accused had also been divulged to her. She admitted forgetting to tell the Police everything what the Complainant had told her when she made the statement on 1st February 2013.Despite the details of alleged trivial inconsistencies in her evidence alleged by the Defence Counsel Alesi's evidence was coherent and believable.

19. Complainant's complaint had disclosed evidence of material and relevant unlawful sexual conduct on the Part of the Accused. It is capable of supporting the credibility of the Complainant's evidence. Procedurally for the recent complaint to be admissible, both the Complain at and the witness complained to, must testify as to the terms of the complaint. Kory White v. The Queen [1999] 1AC 210 at p 215 H. This was done here.

20. The question is whether this complaint could be considered as a 'recent' complaint. According to the Prosecution version the incident had happened on 28thSeptember 2012. Defence took up the position that the incident happened on 31st August 2012.

21. Both the Accused had admitted in their cautioned interview statements that the 'Tevutevu' and the alleged incident happened on 28th September 2012. Accused's evidence in Court on that point is contradictory to their earlier version. The reasons adduced for the contradiction are not appealing. Elenoa who was called to fortify the version of the Defence was not an independent witness. She is the sister of the 1st Accused. She told that the purpose of her giving evidence was to protect her relatives.

22. Even if the Court were to believe the version of the Prosecution that the incident happened on 28th September 2012, the Complainant had reported the matter to her aunt a month after the incident. There is a considerable delay in reporting.

23. Whether a complaint is recent or not will depend on the facts and circumstances of the case. See: Cummings [1948] 1All ER 551. In MM [2007] EWCA Crim 1558 the criticism was of a delay of some years, still the complaint was held admissible. Complainant in the present case has given acceptable and legitimate reason for not complaining soon after the incident. Her explanation for the delay was that Accused had threatened to punch her if she were to report the incident to anybody. Accused were related to the Complainant and other boys are also from the same village, Koroboya. Her explanation is not unacceptable.

In State v Volavola [2003] FJHC 72; HAA0106J.2002S (9 April 2003) Madam Justice Shameem noted that:

"However, her silence could easily have been consistent with her shame at the incident, connected with cultural taboos in relation to discussing sexual matters with elders. To say that an absence of recent complaint confirms consent is an error of both fact and law. On the facts of this case, there was nothing to suggest that her silence meant consent to the sexual intercourse".

"evidence of recent complaint is intended to strengthen (and not corroborate) her evidence. Lack of recent complaint should not be taken to show that her evidence is manifestly unreliable"

24. Failure on the part of the Complainant to complain soon after the incident is not necessarily consistent with consensual sexual intercourse. It is only a matter of evaluating consistency of her evidence and credibility.

"In any case evidence of recent complaint was never capable of corroborating the complainant's account: R v. Whitehead (1992) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant's conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v. The StateCrim.App.12 of 1989; Jones v.The Queen (1997) 191 CLR 439; Vasu v.The State Crim.App.AAU0011/2006S. 24TH November 2006."(See: AnandAbhaya Raj v. The StateSpl. Leave to Appeal No. CAV 0003 of 2014)

25. Even if one were to consider the complaint in this case is one that of belated, I don't think the lack of recent complaint evidence to be fatal.

In Kamlesh Prasad Gautam v. The State Crim. App. HAA 033 of 2007 Justice Shameem stated:

"Nor do I consider the lack of recent complaint to be fatal to the case. It is a fallacy to assume where there is no "hue and cry" immediately after a rape, that there was therefore no rape. Not all victims of rape can be assumed to complain of rape immediately after the event. The purpose of the law of recent complaint is to allow for the admission of a previous consistent statement of the complainant to show her consistency and to rebut allegations of recent fabrication. The lack of any recent complaint does not necessarily weaken her evidence. There was no obligation on the Magistrate to direct himself on the issue at all."

26. It would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others would react with shame, or fear or shock or confusion, do not complain or go to Police or any other authority for some time. It takes a while for self confidence to re-assert itself. There is, in other words no classic or typical response. A late complaint does not necessarily signify a false complaint.

27. Complainant was telling a story on the same lines without significant variations or contradictions with her previous statements. She is not shown to have given a materially different version elsewhere. Defence Counsel questioned about certain omissions in previous statement she had given to Police. I find that omissions in relation to previous statements are not material and significant so as to affect the credibility her evidence.

28. When recording statements, Police officers can't be expected to cross examine a victim to the extent Counsels do in Court. Courts can figure out the situation at a Police station when a rape victim is giving a statement surrounded by Police officers. Complainant gave evidence in Court after a passage of more than three years. Evidence comes from human beings. They cannot have photographic or video graphic memory.

29. Merely because there is a difference, variation contradiction or an omission in the evidence on a particular point would not make witness a liar. Having considered the overall evidence of the Complainant, and her demeanour, I am of the view that the Complainant was telling the truth.

30. Ratuniu Kaukilagi was called by the Prosecution as an eye witness. He said that Complainant was pulled; her cloths removed and raped forcibly. He admitted that he also had sexual intercourse with the Complainant even though he was not charged for rape. He conceded his participation in the commission of the crime.

31. The law says it is dangerous to convict an accused on the evidence of an accomplice alone, and without corroboration from other sources. Corroboration is some independent evidence, which implicate the accused in the commission of the offence.

32. Ratuniu's evidence was corroborated by the Complainant's evidence. Even if the Court were to reject his evidence, the Complainant's evidence alone is sufficient to bring about a conviction in this case. A rape case can stand or fall on the testimony of the victim. However, in some cases a court may warn itself about the inherent dangers of convicting on the unsupported evidence of a particular witness. I do not consider the Complainant to be one such witness. Despite the details of alleged trivial inconsistencies in her evidence alleged by the Defence counsel her evidence was coherent and believable.

33. Version of the Defence was that the Complainant had made up a story of rape to protect her name when a rumour was being circulated about her having sex with boys. I am not inclined to believe that the Complainant should have implicated eight people; some of them are her own relatives to protect her name.

34. When the Accused elected to give evidence they assumed no onus of proof. That remained on the Prosecution throughout. Their evidence must be considered along with all the other evidence adduced in the trial. I find that both the accused gave an innocent explanation to escape criminal liability. Version of the Defence is unbelievable and unreliable, and not sufficient to establish a reasonable doubt in the Prosecution case.

35. Esira Vuda and Dominiko Tuitusi, two witnesses called by the Defence were not independent witnesses. They had also participated in committing the act with the Accused. They are not trustworthy witnesses.

36. Esira, Dominiko and the Accused themselves told Court that the Complainant did not resist and she did agree to have sexual intercourse. According to them Complainant had given her consent to the two Accused and six other people to have sexual intercourse. All of them had taken turns and have had sexual intercourse with her. After having had sexual intercourse repeatedly with so many people, Complainant had given her consent to the Accused to have sexual intercourse again under a bamboo tree after a short while.

37. According to the version of the Defence the Complainant had given her consent to eight people that night to have sexual intercourse with her. By the time the Accused took their turn, five people had already finished. It is unrealistic and highly unbelievable that a woman would agree to have sexual intercourse like that. It is unbelievable that by the time the two accused penetrated her, Complainant realistically was in possession of necessary mental capacity to give such consent.

38. Evidence of Dominiko Taitusi, even if believed, (which I reproduce below), implies that the Complainant had not given an explicit consent
. Her consent was not manifested in her conduct. Mere silence could not be considered as consent.

Q: You stated in your examination in chief that she agreed to have sex, is that correct?

A: Yes, my Lord.

Q: Now what did she actually say, to agree?

A: Yes, my Lord when I was looking she was not refusing, my Lord.

Q: So she did not say anything?

A: No, my Lord.

Q: I put it to you that she did not agree of having sex with those people?

A: She agreed to it my Lord.

Q: But you say that she did not say anything?

A: Yes, my Lord she did not say anything.

39. I considered evidence presented by both parties to ascertain the truth. I find that the evidence presented by the Prosecution is credible, reliable and, sufficient to prove the charges against the accused beyond reasonable doubt. I accept the version of the Prosecution. I reject the version of the Defence. Version of the defence is not credible and has failed to create any doubt in the Prosecution case.

40. I am satisfied that the opinion of the Assessors is perverse. As per the directions given in my Summing up, they were not justified in coming to an opinion of not guilty to the Counts of Rape. I reject the opinion of the Assessors.

41. I hold that the Prosecution has proved all the four Counts of rape beyond reasonable doubt. Both the Accused are convicted on all the four Counts of Rape as charged.

42. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
On 11thSeptember 2015

Solicitors: Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused