State v Seru [2015] FJHC 714; HAC064.2013 (16 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 064 of 2013

STATE

V

ELIKI SERU

Counsels : Mr. M. Vosawale with Ms. S. Lodhiafor State
Mr. S.Valenitabua for Accused

Dates of Hearing : 09th – 11th September 2015
Date of Summing Up: 14th September 2015
Date of Judgment : 16th September 2015

JUDGMENT

1. The accused is charged with the following count;
   

Statement of offence

Rape: Contrary to section 207(1) and (2)(a) of the Crimes Decree 2009.

Particulars of offence

Eliki Seru, on the 10th day of January 2013 at Nasilai Village, Nausori in the Eastern Division, had carnal knowledge of Taraivini Qaravi, without her consent.

2. The three assessors have returned with a unanimous opinion that the accused is guilty of the offence as charged.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 14th September 2015 and the evidence adduced during the trial.
   
4. In order to prove the charge, the prosecution should prove beyond reasonable doubt that;
   

- the accused

- had carnal knowledge of Taraivini Qaravi

- without her consent

- accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting

5. In her evidence the complainant, Taraivini Qaravi said that on 10thJanuary 2013, while she was walking together with the accused who is her cousin brother after they had consumed 'homebrew' from 4.00am to 11.00am at the Nasilai cemetery; the accused pushed her on to the ground and then punched heron the left side of her mouth where she became unconscious and when she regained consciousness the accused was on top of her and she felt accused's penis inside her vagina. She said that on their way from the cemetery two others who are also her cousins and who were drinking with them at the cemetery were walking about 30 metres ahead of them.
   
6. Soon after the incident she ran to the Nasilai village headman Mr. Malakai Raoma who was the third prosecution witness and complained to him about the incident and also informed him that she wants to report the matter to the Police. She gave her statement to the Police on the same day.
   
7. The second prosecution witness was Doctor Talei Tabaka who medically examined the complainant and she had observed a swollen left cheek; three love bites on the neck, evidence of previous pregnancy; 1cm tear at 12 o'clock position from the introitus (vaginal opening) and semen like discharge from the introitus.
   
8. The third prosecution witness Mr. Raoma said that on 10th January 2013 when he came home to have his lunch, the complainant came to him crying and complained to him about the incident. He had contacted the Police thereafter. He said he noted that there was a cut on her lip, a swelling on her forehead and that the complainant was drunk as her eyes were red.
   
9. The fourth prosecution witness Corporal 2997 Susana Yaca was called by the prosecution upon the request made by the defence for her to be cross examined. She said during the cross-examination that she misplaced the vaginal swab obtained from the complainant. She also said that she did not obtain the clothes the complainant was wearing during the incident.
   
10. The accused opted to give sworn evidence. He gave evidence denying the allegation and said that the complainant is lying. He admitted that he did consume homebrew with the complainant and the others that day and also said that he did punch her at the Nasilai cemetery during a fight. He said that the complainant did not become unconscious after the punch, he did not walk with her alone from the cemetery and that he did not insert his penis into her vagina.
    
11. The medical report of the complainant, the caution interview and the charge statement of the accused were admitted documents.
    
12. Upon observing the demeanour and deportment of the complainant while she was giving her evidence, and considering the fact that she gave clear and consistent evidence without exaggeration, I accept her as a credible and a reliable witness. She was not evasive during cross-examination. I found that her answers were honest and truthful. The defence was unable to highlight any material and significant inconsistency in her evidence either per se or inter se. She made it a point to run straight to her village headman who was the third prosecution witness and she complained to him right after the incident as confirmed by the said witness.
    
13. Considering the line of cross-examination, the defence attempted to create a doubt based on an alleged negligence on the part of the Police where they have misplaced the vaginal swab and thereby failed to conduct a DNA test to confirm whether or not the accused's DNA was present inside the complainant's vagina.
    
14. Further, after my summing up when I invited counsel to inform court whether they have any points for re-direction, the learned counsel for the defence submitted that a direction should be given to the effect that DNA evidence is not corroborative evidence and alternatively if I consider DNA evidence as corroborative evidence, to direct the assessors that the non-availability of any DNA evidence should affect the credibility of the complainant.
    
15. I declined to make a re-direction accordingly giving my reasons. However, I wish to highlight four major defects in this contention based on DNA profiling which was raised by the defence.
    
16. Firstly, during the cross-examination, Doctor Tabaka said when it comes to forensic analysis that "As far as I know they look for sperm. Whether they do DNA I'm not sure"
    
17. Secondly, the complainant never said in her evidence that the accused ejaculated inside her vagina. There was no conclusive evidence to the effect that semen was found inside the complainant's vagina. What the Doctor said was that she collected a specimen from the fluid oozing from the complainant's vaginal opening which was suspected to be semen. Further, presence of semen in the vagina is not necessary to prove penetration especially in this case where there is direct evidence from the complainant with regard to penetration. Even if semen was identified in the vaginal swab and the DNA profile found in the said semen did not match with that of the accused, such evidence would not conclusively suggest that the accused did not penetrate complainant's vagina with his penis.
    
18. Thirdly, it is pertinent to note that the conducting of DNA or other tests on the specimen obtained from the complainant is not within her control. Therefore, it would be unfair and also would not be proper to assess her credibility based on the alleged negligence on the part of the Police.
    
19. Fourthly and most importantly it is pertinent to note that, pursuant to section 129 of the Criminal Procedure Decree, no corroboration of the complainant's evidence is required to prove the guilt of the accused in a rape case.

I am unable to agree with the counsel for the defence that DNA evidence in the context of this case is not corroborative evidence.

20. Therefore, the arguments mounted by the defence based on the non-conducting of a DNA test are misconceived and moreover, have not created any reasonable doubt in my mind with regard to the complainant's evidence.
    
21. When I consider the accused's evidence, the accused said that the complainant did not become unconscious and denied that he penetrated the complainant's vagina.
    
22. In the caution interview which was an admitted document, in answer to question 21, the accused had agreed that, when he was walking with the complainant, the other two were ahead of them. In his evidence before this court he said that they all walked together up to the main road from the Nasilai cemetery and from thereon he walked to Drekena alone. He said that he gave the aforementioned answer to the Police because the Police forced him.
    
23. The very first time he came out with the allegation that the Police forced him was when he was cross examined in this court. It is pertinent to note that this particular question seems to be the only question the Police forced him upon. In his caution interview he had not agreed that the complainant was unconscious and had denied the allegation that he raped her. He wants this court to believe that the Police forced him to say 'yes' when he was asked with regard to how they left the Nasilai cemetery, but the Police did not force him with regard to all the other answers he gave especially when he denied the fact that the complainant was unconscious and that he penetrated the complainant's vagina.
    
24. Considering the above together with my observations on the accused's demeanour and deportment when he was giving his evidence, I am unable to accept the Accused's evidence as being credible.
    
25. Now I must consider whether the prosecution has proven all the elements of the offence beyond reasonable doubt.
    
26. The first element is concerning the identity of the accused. In this case there was no issue with regard to any mistaken identity. This was not a case of a fleeting glance. The accused is the complainant's cousin brother who was drinking with her from the previous day. She said that the accused pushed her, the accused punched her on the left side of her mouth and then she became unconscious. Complainant says that when she regained consciousness, accused was on top of her and then the accused stood up, she spoke with the accused, the accused spoke with her, the accused dressed up and then the accused left. She identified the accused in court as the 'Eliki' she was referring to in her evidence. Therefore the only issue to be resolved with regard to identity is whether or not the complainant is telling the truth. As I have decided to accept her evidence as being truthful, I am satisfied that the first element is proved beyond reasonable doubt.
    
27. The next question is whether the prosecution had proved beyond reasonable doubt that the accused penetrated the complainant's vagina with his penis? I accept the complainant's evidence that, when she regained consciousness, the accused was on top of her and she felt accused's penis inside her vagina. Based on that evidence I am satisfied that the prosecution has proved that the accused penetrated the complainant's vagina with his penis. Thus, the prosecution has proved beyond reasonable doubt that the accused had carnal knowledge of the complainant.
    
28. With regard to the question whether or not the complainant consented, it should be noted that consent within the meaning of section 206(1) of the Crimes Decree should be a consent freely and voluntarily given by a person with the necessary mental capacity to give consent. I accept the complainant's evidence that she became unconscious after she was punched and therefore she did not have the freedom and/or the capacity to make a choice. Hence, I am satisfied beyond reasonable doubt that the prosecution has proven that the complainant did not consent.
    
29. On the issue whether or not the accused knew or believed that she was not consenting or whether he was reckless as to whether she was consenting; I am reminded of the evidence of the complainant when she said that the accused was surprised when he realized that the complainant had regained consciousness. Accordingly, accused did know that she was unconscious and therefore did know that she did not consent for him to penetrate her vagina with his penis. He definitely did not care whether the complainant was consenting or not. Therefore, I am satisfied that the prosecution has proved this element beyond reasonable doubt.
    
30. I therefore accept the unanimous opinion of the assessors that the accused is guilty of the offence charged.
    
31. I find the Accused guilty for the offence of rape as charged and convict him accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : S. Valenitabua, Barrister and Solicitor, Suva.