State v Nawaqarua [2023] FJHC 481; HAC005.2021 (21 July 2023)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 005 OF 2021

STATE

V

NOA NAWAQARUA

Counsel: Ms W Elo for the State

Ms A Sharma for the Accused

Date of Hearing: 24 May 2023
Date of Judgment: 21 July 2023

JUDGMENT

[1] Charge

The accused is charged with rape contrary to section 207 (1) and 2 (a) of the Crimes Act. The particulars read that the accused on 26 December 2019 at Nadonumai settlement, Lami, had carnal knowledge of SR, without her consent.

[2] Burden and Standard of Proof
The burden is on the prosecution to prove the charge beyond a reasonable doubt.

[3] The accused chose to remain silent. He does not carry any burden to prove or disprove anything. The burden remains on the prosecution to prove his guilt beyond a reasonable doubt.

[4] Rape - Elements
Section 207 (2) (a) of the Crimes Act reads:

A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person’s consent;...

[5] Carnal knowledge means sexual intercourse, that is, penetration of vagina with penis. It is not necessary to prove full penetration or ejaculation. Slight penetration is sufficient.

[6] Section 206 (1) of the Crimes Act defines consent as follows:

The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

[6] The prosecution is required not only to prove lack of consent but that the accused knew the complainant did not consent. In this case, there is no suggestion that the accused mistakenly believed that the complainant consented to sexual intercourse. That is not an issue in this case.

[7] The litigation issues are:

Whether the accused had sexual intercourse with the complainant as alleged in the charge.

Whether the complainant consented to sexual intercourse with the accused.

Whether the accused knew that the complainant did not consent.

[8] Admitted Facts

Few facts are not in dispute in this case. The identity and the age of the accused and the complainant are not in dispute. Both are adults. He is in his early forties. She is in her mid-twenties. It is not in dispute that on 25 December 2019, at around midnight, the accused accompanied another person to a drinking party that took place at the complainant’s residence in Nadonumai settlement, Lami. These facts are taken as true.

[9] The Prosecution Case

To prove the charge, the prosecution led evidence from the complainant (PW1) and the complainant’s brother (PW2) and his girlfriend (PW3) who were present inside the house when the incident allegedly took place.

[10] PW1’s evidence is that she knew the accused. He is her aunt’s partner. She held a party in her house on Christmas Eve of 2019. The accused attended the party with some other youths from Nadonumai. They drank alcohol from Christmas Eve till the morning of 26 December 2019. While they were drinking, the accused kept touching her but she ignored him and continued drinking. In the morning of 26 December 2019, she knocked out. All she could recall was that she knocked out in the living room of the bottom flat which at the time was being occupied by her brother and his girlfriend. She recalls that when her brother and his girlfriend woke her up, she was upstairs inside her bedroom and her bottom clothes below her hip were half way down to her knees. When she learnt from her brother and his girlfriend of what had happened to her, she started crying.

[11] In cross-examination, the complainant accepted that on 23 March 2021 she personally visited the DPP’s office to deliver a withdrawal of complaint letter signed by her. She explained that the letter was prepared by her aunt, the accused’s partner and that her aunt made her deliver the letter to the DPP’s office.

[12] PW2 gave evidence that the complainant came down to his flat in the morning after drinking the whole day and night starting from Christmas Eve. The complainant was very drunk, staggering and couldn’t hold on to herself. The complainant slept in the living room while the brother lied down in his bedroom with his girlfriend. While he was in his bedroom he saw the accused came and peeped into their bedroom and then left. When his girlfriend heard a sound of something hitting the bed coming from the top flat he went upstairs to inquire with his girlfriend. When he went upstairs he saw the door was closed with a nail. He pushed the nail and opened the door. When he went inside he saw his sister lying knocked out and the accused on top of her having sexual intercourse with her. He saw his sister’s pants was pulled down and the accused penis was inside his sister’s vagina. When the accused saw the brother, he stood up, pulled up his shorts and walked away with a smile saying ‘la na mateni’ meaning ‘yeah being drunk’.

[13] PW3 gave evidence that when the complainant was drinking with the accused she noticed that the accused was too ‘clingy’ to the complainant like touching her and making her sit beside him all the time. In the morning she was in her bedroom with her boyfriend when the accused came and peeped inside the room and then left. The complainant was lying down in their siting room at the time. After about 15 minutes she heard a loud bang sound coming from the complainant’s upstairs room. She accompanied her boyfriend to upstairs to inquire. She saw the complainant asleep with her pants down and the accused on top of her. She saw the accused penetrating the complainant’s vagina with his penis. He did not have his pants on. When she saw this she ran downstairs to inform the complainant’s dad.

[14] That is a summary of the prosecution case.

[15] The Defence Case

The accused chose not to give evidence. That is perfectly his right. I draw no adverse inference against him for not giving evidence. The defence case is that the prosecution has failed to prove the charge beyond a reasonable doubt.

[16] Analysis

I approach the evidence dispassionately, without sympathy or value-laden rules regarding how women and men should conduct themselves.

[17] In deciding the facts in this case, it is my duty to decide which testimony to believe and which testimony not to believe. It is entirely up to me whether to believe everything a witness says, or part of it, or none of it. In considering the testimony of witnesses, I have taken into account:

The witness’s opportunity and ability to see or hear or know the things testified to;

The witness’s memory;

The witness’s manner while testifying;

The witness’s interest in the outcome of the case, if any;

The witness’s bias or prejudice, if any;

Whether other evidence contradicted the witness’s testimony; and

The reasonableness of the witness’s testimony in light of all the evidence.

[18] The weight of the evidence as to the fact does not necessarily depend on the number of witnesses who testify about it. What is important is how believable the witnesses are, and how much weight I think their testimony deserves.

[19] Identity is not an issue in this case as the accused admits being at the complainant’s house on the day of the alleged incident. There was no suggestion made in cross-examination that the prosecution witnesses (PW2 & PW 3) were mistaken in their identification of the accused when they saw the accused on top of the complainant penetrating her vagina with his penis while she was asleep after consuming alcohol. The identification was made during daytime and from a close proximity without any obstruction. The accused spoke to PW2 when PW2 confronted him.

[20] There is convincing evidence that the complainant consumed substantial alcohol before she fell asleep. She has no recollection of how she ended up in her bedroom where the alleged incident took place. She did not have a capacity to freely and voluntarily consent to sexual intercourse due to her state of intoxication.

[21] Both PW2 and PW3 gave a consistent account of what they had witnessed. When the accused realized he had been caught he passed a comment to PW2 blaming alcohol for his conduct. If there are inconsistencies in the evidence of the prosecution witnesses as suggested by the defence, they are peripheral and not relevant.

[22] The prosecution witnesses struck me as honest witnesses. They gave a truthful account of the alleged incident.

[23] I believe the evidence of PW2 and PW3 that they caught the accused in the act of sexual intercourse with the complainant while she was drunk and asleep. The complainant did not freely withdraw her complaint. She acted under pressure from her aunt to sign a prewritten withdrawal letter and deliver it to the DPP’s office. That letter does not affect the veracity of the evidence of PW2 and PW3. I feel sure that the accused penetrated the vagina of the complainant with his penis. I feel sure that the complainant did not consent as she was intoxicated and asleep at the time. I feel sure that the accused knew that the complainant did not consent.

[24] The prosecution has proved the charge beyond a reasonable doubt.

[25] Verdict
I find the accused guilty of rape as charged and convict him accordingly.

.............................................................
Hon. Mr Justice Daniel Goundar

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