DPP v Wainimoce [2006] FJMC 9; Criminal Case No 1230 of 2004 (26 May 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1230 of 2004

D P P

V

SEVANAIA WAINIMOCE

Prosecution: Ms L Lagilevu
Defence: In person.

JUDGMENT

The accused has been charged with two counts namely – rape and unnatural offence under S149 and 175 of the Penal Code.

Particulars are:

Rape:

Sevanaia Wainimoce between 26 December 2000 and 31 December 2000 had unlawful carnal knowledge of [complainant] without her consent.

Unnatural Offence:

Savenaia Wainimoce between 26th December 2000 and 31st December 2000 had carnal knowledge of [complainant] against the order of nature.

I have found this case to have peculiar facts in the sense that there were two different offenders who had committed similar offences on different dates and the medical report of both was given at one and the same time. The report was also delayed by 2 years. The reason for this was that the complaint was only taken in July 2002 when an inquiry was made by police for the first offence. The charges were laid in 2004.

EVIDENCE:

During 2000 when the victim was about 12 years old she used to reside at Jittu Estate with her grand parents. Sometimes during Christmas time, the accused lived as a neighour to the complainant. The accused called the complainant into his house and had sexual intercourse with her. He also had anal sex with the complainant. The complainant remained silent on her grandmother’s instructions. On interview for another rape complaint the interviewing police officer asked complainant if she had been raped on any other incident. She then made the present complaint. She was examined by doctor who examined her for both the reports and included it on the one medical report.

The mother of complainant confirmed her daughter’s age as 12 years at the time of the incident.

The head of Department, Hospital gave evidence. He explained the findings of the examining doctor Bently. The examination revealed ‘there was no injuries to the vagina or rectum and that the hymen was not intact. In his opinion she would have had sexual intercourse before.

ANALYSIS:

The accused denies the rape. He says he was on his Island at the material time and not at Jittu Estate. He called his wife as witness who said he was at the village at the time and not staying near the complainant.

The incident took place in year 2000 and the complaint was in 2002. There is no corroborative evidence except for the evidence of the complainant.

The medical report also incorporates evidence of another rape which happened prior to the present one and the extent of injury could well be from the first rape. There is no evidence for this court to determine that and come to any fair conclusion.

The Prosecution relies heavily on the decision of Seremaia Balelala a FCA decision which does away with the need for corroborations in sexual cases. It was sufficient to prove credibility of complainant and secure a conviction.

I accept the FCA has abrogated the corroboration rule in such a case. However considering the whole of the evidence in this case I am not convinced beyond reasonable doubt that the prosecution has proved case.

There has been substantial delay in making of this compliant by a complainant of tender age. She was unsure of her dates and times which is understandable in such cases but it’s crucial when the accused alleges he was not at the scene. There has been no evidence to rebut his alibi. Further complication arises when there were two incidents with two different persons and the medical report has one examination for both the incidents.

The complaint and reports were done after substantial delay. Due to the tender age of the complainant, she found it difficult to recall the precise details although she was a good witness now that she is about 16 years of age.

Although I find that the complainant to be credible, however due to the reasons given above I find the evidence unreliable. It would be unfair to convict the accused in the circumstances of this case.

I cannot say beyond reasonable doubt that the accused has committed the offences charged.

The accused is therefore acquitted.

Dated this 26th day of May 2006

Ajmal G Khan
RESIDENT MAGISTRATE