State v Kaci - Judgment [2015] FJHC 748; HAC084.2014 (6 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 084 OF 2014

BETWEEN:

STATE

AND:

SIRELI KACI

Counsel : Mr. J. Niudamu for State
Mr. R. Kumar for the Accused

Date of Hearing : 01st of October 2015
Date of Summing Up : 5th of October 2015
Date of Judgment : 6th of October 2015

JUDGMENT

The accused person is charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009. The particulars of the offence are that;

"Sireli Kaci on the 2nd of November 2012, at Lautoka in the Western Division, had carnal knowledge of Ilisabeta Lewa without her consent".

2. The accused person pleaded not guilty for this offence; hence the hearing of this action took place on 01st of October 2015. The prosecution called one witness during the course of the hearing. At the conclusion of the prosecution case, the accused person gave evidence on oath and called two other witnesses for the defence. Subsequently, the learned counsel for the defence and the prosecution made their respective closing submissions. I then delivered my summing up to the assessors.
3. The three assessors returned with unanimous guilty verdict against the accused person. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
   
4. Having considered the evidence presented during the hearing, respective closing submissions of the prosecution and the defence, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
5. Sections 207 (1) and 207 (2) (a) states that;
   

"Any person who rapes another person commits an indictable offence.

A person rapes another person if-

(a) the person has carnal knowledge with or of the other person without the other person's consent,

6. Accordingly, the main elements of the offence of rape are that;
   
   1. The accused,
      
   2. Inserted his penis into the vagina of the victim,
      
   3. Without the consent of the victim, and
      
   4. The accused knew the victim was not consenting for him to insert his penis in that manner.
      

7. In view of the evidence adduced during the course of the hearing, it appears that the main contentious issue of this instant case is the consent of the victim for this alleged sexual intercourse.

8. A person consents only if he/she agrees by choice, and at the relevant time has the freedom and capacity to make that choice. To prove that the complainant did not consent, the prosecution must make sure on all the evidence that the complainant did not give her consent by an exercise of free choice.
   
9. The prosecution and the defence presented conflicting versions with regard to the event that took place between the complainant and the accused in private. The complainant stated in her evidence that the Accused was waiting for her at the Lautoka Club, when she was going home after work around 10 p.m. on the 2nd of November 2012. He was drunk and wanted to talk with her. She refused to talk with him. He then pulled her down and assaulted her. He kicked her and fractured her left hand. He then took a broken bottle of beer and threatened her with it. He then removed her clothes and has had sexual intercourse with her. It took about 15 to 20 minutes.
   
10. The Accused had then put on her undergarments and had taken her to the road, where he got a taxi. He took the complainant in the taxi and dropped her few meters away from her home. When she went home, her brother, who was staying with her, saw the troubles she had undergone and took her to the police station. At the police station, she did not report the incident of rape but reported only that the accused assaulted her. She was referred to a medical examination. The prosecution tendered the medical report of the victim with the consent of the defence as an additional agreed fact.
    
11. On the 14th of March 2014, she reported the police that she was raped by the accused. She explained that she did not report the rape in 2012, as the accused had been assaulting her whenever she met him. She was scared of his assaulting.
    
12. During the cross examination by the learned counsel of the defence, the complainant denied that the accused was talking with the security officer of the Lautoka Club, when she met him in the compound of the Club on the night of 2nd of November 2012. She further denied that there was no argument erupted between her and the accused over a loan of $50 given to her by the accused. She denied that she performed oral sex on him and then consented to have sexual intercourse with him. She stated that sometimes she had sexual intercourse with the accused in the compound of Lautoka Club prior to this incident.
    
13. The Accused in his evidence stated that he went to Lautoka club upon the request of the complainant as she wanted to work overtime on that day. He waited at the car park, where he consumed beer with the boys who were drinking there. He then went inside the compound and was talking with the security officer of the club when the complainant came to him. She was angry with him for talking to the security officer. They had an argument over this issue. They then went near the bushes inside the compound of the club and had a conversation. Then they started to kiss each other and she performed oral sex for him. She refused to have a sexual intercourse as she had not taken a bath and was dirty. However, she later consented to have sexual intercourse with the accused. They then had sexual intercourse inside the compound of the Lautoka Club.
    
14. Subsequent to the sexual intercourse, the accused had asked the complainant about the $50 that he had given her as a loan, which led to an argument between them. The security officer, having heard the commotion between the accused and the complainant, chased them out of the compound.
    
15. The accused sated that he then dropped her at her house and went home. The complainant continuously contacted him after he was released from the prison. She has visited his house many times and quarrelled with the accused.
    
16. The Complainant stated in her evidence that the accused kicked her and fractured her hand. Her hand was x-rayed and plastered by the doctor. However, the medical report of the complainant, does not state such treatment. The prosecution did not call the doctor who conducted the medical examination of the complainant. The handwriting of the said doctor is totally illegible and could not be properly understood the conditions which the doctor observed of the complainant. However, it appears that the complainant had sustained some form of injuries as per the medical report.
    
17. The accused in his evidence stated that subsequent to the sexual intercourse, he had an argument with the complainant over $50 loan which he had given her. According to the evidence of the accused, it was only a verbal argument. Accused admitted that he had consensual sexual intercourse with the complainant. He stated in his evidence that she first refused to have sexual intercourse with him as she had not taken her bath and was dirty. She agreed to perform oral sex for him. At that time, the accused was sexually aroused and wanted to have sexual intercourse with her. He had asked her to just have sexual intercourse as he was sexually aroused, as she was performing oral sex for him. She still refused it. However, the complainant finally agreed to have sexual intercourse with him.
    
18. In view of these evidence, it appears that the complainant had not initially consented for the sexual intercourse as per the evidence of the accused. The accused further admitted that he consumed beer at the car park with some boys, who were drinking there. The complainant in her evidence stated that the accused was drunk.
    
19. Accordingly, there is evidence that the accused had consumed beer prior to this alleged incident, that the complainant initially refused to have sexual intercourse with the accused as per the evidence of the accused and she had sustained some form of injuries as per the medical report on the 2nd of November 2012.
    
20. The defence strenuously and extensively cross examined the complainant about the delay of reporting this alleged rape to the Police. The complainant has reported the police on the 2nd of November 2012 that the accused assaulted her and tried to remove her clothes and sexually harassed her. She did not complain about rape. On the 14th of March 2014, nearly a year and five months after this alleged incident, she reported the police that the accused raped her in the night of 2nd of November 2012.
    
21. Hon Chief Justice Gates in Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) held that;
    

"In any case evidence of recent complaint was never capable of corroborating the complainant's account: R v. Whitehead (1929) 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 State Crim. App. 12 of 1989; Jones v. The Queen [1997] HCA 12; (1997) 191 CLR 439; Vasu v. The State Crim. App. AAU0011/2006S, 24th November 2006".

22. Accordingly, the delay of complaining the incident, only affects the issue of consistency and the credibility of the witness. It would be wrong to assume that every victim of a sexual assault or rape must report it as soon as possible. The victims of such crimes react to the trauma differently. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. It is impossible to predict how the victim reacts, on the days following the incident or when speaking publicly about it in court or in the police station. The reason is that every person has his or her own way of coping with such incidents.
    
23. The complainant explained that the delay was due to her fear of the accused, as he had been assaulting her whenever she met him in the town. She reported about an assault of a sexual nature on the same night of 2nd of November 2012. A year and five months later, she reported about this rape.
    
24. Having considered the nature of the evidence presented by the complainant and the accused person regarding this alleged incident that took place in the night of 2nd of November 2012, and the nature of the first and second complaints made by the complainant to the police, it is my opinion that the delay of reporting the incident has not actually affected the credibility and reliability of the complainant's evidence.
    
25. In view of the reasons discussed above, I accept the evidence given by the complainant and hold that the prosecution has successfully proved that the complainant did not give her consent by an exercise of free choice. Accordingly, I do not find any cogent reason to disagree with the unanimous guilty verdict of the assessors.
    

26. I accordingly find the accused is guilty for the offence of rape contrary to section 207(1) and 207 (2) (a) of the Crimes Decree and convict for the same.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
6th of October 2015

Solicitors : Office of the Director of Public Prosecutions
Office of the Legal Aid Commission