State v Sauleqaraki - Judgment [2015] FJHC 935; HAC104.2013 (30 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 104 of 2013

STATE

V

SAKEASI SAULEQARAKI

Counsel : Ms. S. Puamau with Ms. S. Serukai for State
Ms. P. Chand for Accused
Dates of Hearing : 23rd–26thNovember 2015
Date of Summing Up: 27thNovember 2015
Date of Judgment : 30thNovember 2015

JUDGMENT

1. The accused is charged with the following counts;
   

COUNT ONE
Statement of offence

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

Particulars of offence

SAKEASI SAULEQARAKI on the 14th day of January 2013 on Gau Island in the Eastern Division had carnal knowledge with ARIETA RADINIDRAVUWALU in that he penetrated the vagina of the said ARIETA RADINIDRAVUWALU, without her consent.

COUNT TWO
Statement of offence

Rape: Contrary to Section 207 (1) and (2)(b) of the Crimes Decree, 2009.

Particulars of offence

SAKEASI SAULEQARAKI on the 14th day of January 2013 on Gau Island in the Eastern Division penetrated the vagina of the said ARIETA RADINIDRAVUWALU with his fingers, without the said ARIETA RADINIDRAVUWALU's consent.

2. The assessors have returned with a unanimous opinion that the accused is guilty of both counts.
   
3. I direct myself in accordance with the summing up delivered to the assessors on the27thNovember 2015 and the evidence adduced during the trial.
   
4. In brief, the complainant in this case was 18 years old at the time of the incident. The accused is her father's younger brother and in December 2012, the complainant was staying with the accused and his family at Nawaikama in Gau Island. Complainant went to her father's elder brother's house at Somosomoon 09th January 2013. On 14th January 2013, the accused visited Somosomo with other villagers and he and the complainant left for Nawaikama around 9.00pm that night by foot. The complainant says that on their way, at Delainaniu, the accused penetrated her vagina with his penis without her consent and she also says that at Nakobua, the accused penetrated her vagina with his fingers without her consent. The accused says that he penetrated the complainant's vagina with his penis at Delainaniu with her consent. He denies penetrating her vagina at Nakobua.
   
5. To prove the first count, the prosecution must prove the following elements beyond reasonable doubt;
   

-the accused

-had carnal knowledge of Arieta Radinidravuwalu

-without her consent

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

6. It is an admitted fact in this case that 'the accused inserted his penis into the vagina of the complainant on the night of 14th January 2013'.
   
7. Therefore, with regard to the first count, there is no dispute with regard to the identity of the accused and with regard to accused having carnal knowledge of the complainant.
   
8. The issue to be decided in respect of the first count is whether;
   
   1. The penetration was done without the complainant's consent
   2. The accused -knew or believed that she was not consenting, or
      

-was reckless as to whether or not she was consenting

9. With regard to the first count, the prosecution says that the accused inserted his penis without the complainant's consent. The defence says that the complainant consented and that the accused perceived that the complainant was consenting due to her responses.
   
10. The complainant said in her evidence that she did not consent for what the accused did to her. However, she said that the accused asked her whether she 'like' what he is doing to her after touching her breast and she did not say anything apart from saying "mmm" as she was scared. According to the accused he asked the complainant thrice whether she like what he is doing, before he inserted his penis into her vagina and he said that he construed the complainant's "mmm" as the complainant giving her consent.
    
11. It is not disputed that the accused asked the complainant while he was touching the complainant's breast but before he inserted his penis into her vagina, whether the complainant 'like what he is doing' and the complainant responded by saying "mmm". Complainant herself admits in her evidence that the accused was not in a position to interpret her response"mmm" properly, because it was dark and it was her evidence that the accused could have 'taken as she was consenting' given her conduct. There was no evidence of any circumstances which shows that the accused knew that the complainant is not consenting or he did not care whether she was consenting.
    
12. The complainant herself creates a reasonable doubt in my mind on whether the accused knew or believed that she was not consenting and on whether the accused was reckless as to whether she was consenting.
    
13. Therefore, I am not satisfied that the prosecution has proved the first count beyond reasonable doubt. Accordingly, I find that the accused is not guilty of the first count.
    
14. To prove the second count, the prosecution must prove the following elements beyond reasonable doubt;
    

-the accused

-penetrated the vulva or vagina of Arieta Radinidravuwalu with his fingers

-without her consent

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

15. The accused denies penetration in this count. Therefore, what is not in disputein regard to this count is only the accused's identity. The prosecution should prove all the other elements beyond reasonable doubt.
    
16. The complainant says that the accused inserted his fingers into her vagina without her consent at Nakobua and the accused says he did not insert his fingers. He says, he only fondled the complainant's vagina when she was trying to get his penis to erect. It was also the complainant's evidence that when she told the accused at this point that she was in pain, the accused told her that they should then leave and they did leave that place accordingly.
    
17. With regard to this second count, though he denies that he penetrated the complainant's vagina with his fingers, the accused admits that he fondled complainant's vagina. Hence, it is probable that his fingers may have penetrated the complainant's vagina as the complainant testified.I accept the complainant's evidence when she said that the accused penetrated her vagina with his fingers at Nakobua.
    
18. However, considering the totality of the evidence, I am not satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting or that the accused was reckless as to whether or not she was consenting. Among others, the fact that the accused decided to leave the moment he was told that the complainant is in pain does not support the contention that he engaged with his actions knowing that the complainant did not consent for what he was doing or that he did not care whether she was consenting or not.
    
19. Therefore, I am not satisfied that the prosecution has proved the second count beyond reasonable doubt. Accordingly, I find the accused not guilty of the second count.
    
20. I consider it appropriate to highlight that this court does not in any way condone the conduct of the accused as revealed in the evidencehim being the complainant's uncle. It is pertinent to remember that this trial was not about whether the accused's conduct was morally right or wrong. Blindfolded Lady Justice which is the generally accepted symbol of 'justice' signifies that justice is blind to emotions, bias or prejudices. The decision whether an accused is guilty or not guilty should be arrived at objectively.
    
21. At this point, the following excerpt from the judgment in the case of Priyani Soyza V. Rienzie Arsecularatne [2001] 2 SLR 293 comes to my mind as a rule of prudence;
    

"... as in the eloquent words of Edmund Burke, expressed many years ago, "Next to love, sympathy is the divinest passion of the human heart." However, sympathy is not the valid basis for determination of the important issues in this case and as judges it is our responsibility to do justice between the parties according to law."

22. I can understand the displeasure of the society over the conduct of the accused in this case, echoed in the mous opinion of the assessosessors that the he is guiltyof the offences as charged. However, given the above reasons, I am compelled to overturn the opinion of the assessors and to hold that the accused is not guilty of both counts.
    
23. In the circumstances, I hereby acquit the accused of both charges.
    

Vinsent S. Perera
JUDGE

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