State v Ali [2010] FJMC 35; Criminal Case 1902.2006 (8 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1902 of 2006

STATE

v

REHAN ALI s/o Hasmat Ali

For Prosecution: Ms. Segran (DPP Office)
For Accused: Ms. Ligabalavu

Date of Judgment – 08th September 2010

JUDGMENT

1. Accused in this case is charged for 03 counts of "Rape" an offence punishable under Sec. 149 and 150 of the Penal Code Cap 17.
   
2. According to the particulars of the offences, on 05th July 2006, 12th August 2006 and 02nd September 2006, accused have had unlawful carnal knowledge of Makareta Tabaleka, without her consent.
   
3. Prosecution called five witnesses to testify and accused called 03 witnesses on his behalf but accused opted to remain silent.
   

Elements of the charge

4. Prosecution is under obligation to prove following elements.
   
   1. The Accused;
      
   2. Had unlawful carnal knowledge of a woman or girl without her consent, or with her consent if that consent is obtained by:
      
      • - force, threats or intimidation,
        
      • - fear of bodily harm,
        
      • - false representations as to the nature of the act; or
        
      • - personating her husband in the case of a married woman.
        
5. Prosecution is under obligation to prove all the elements of the offence beyond reasonable doubt. However, if the accused had been successful in establishing a reasonable doubt then the prosecution has failed. Accused has to establish his defence to the satisfaction of the Court on the balance of probabilities.
   

Carnal Knowledge

6. According to Winter J in Thomas McCoskar v. State [2005] FJHC 500; [2005] HAA85 & 86/05L on 26th August 2005, "The word carnal derives from the Latin carnalis for 'fleshy' and the definition in sec. 183 of the penal code requires proof of penetration and not emission of seed".
   
7. Sec. 183 of the Penal Code defines the 'carnal knowledge' as follows.
   

"Whenever, upon the trial for any offence punishable under this Code, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only".

Prosecution's case

8. According to the Doctor, victim's hymen is not intact and there is evidence of a recent intercourse when the victim was examined on 05th September 2006. Witness informed that he is unable to vouch for any other sexual activities that victim had before.
   

Evidence of the Victim

9. According to the victim, accused was her neighbour and had been her sister's friend. As her sister was living abroad victim had been using her sister's mobile phone and on 05th July 2006, accused had called her on that phone.
   
10. Accused had insisted that he wants to see her to tell her something important and had come close to her window. Upon accused person's request victim had allowed him to enter into her room.
    
11. However, according to the victim, accused had entered into her room despite of the fact she had asked him not to enter and thereafter had started kissing the victim.
    
12. Victim was just 15 years old at that time and accused had forcefully inserted his penis into her vagina. Victim described the experience as painful and her mother was in the house during this incident.
    
13. Victim re-iterated the fact that the accused had threaten to kill her and her family in the event if she reveals the incident to anyone.
    
14. After the first day incident, victim had witnessed blood on her thighs and according to the victim, she felt different and she was not herself.
    
15. On the second time on 12th August 2006, again accused had come to her window and asked her to open the window threatening to harm her and her family. Victim had requested not to do any harm and that day again accused had intercourse with her against her will. On that day victim's whole family was in the house but she had not called anyone as she was frightened.
    
16. Third incident had happened on 02nd September 2006 in the victim's brother's room and her brother was sleeping in the living room. According to the victim, accused had threaten her before inserting his penis into her vagina and asked her to keep quite.
    
17. After the third incident both accused and victim had both fell asleep and both were awaken when the victim's mother was knocking on the door. Accused had fled from the room through the window and victim's mother had witnessed him going out.
    
18. Thereafter victim had revealed the whole incident to her mother and according to the victim she had never consented to the intercourse in all three occasions.
    
19. During the cross-examination victim said that she would not lie to her family unless she had threatened and she loves her family a lot. According to the victim on the first occasion, she had to open the window because accused had been knocking onto the window and accused had insisted that he had something important to tell.
    
20. Victim did not have any hesitation as to the identification of the accused person.
    
21. Victim facing cross-examination repeatedly informed the court that she did not reveal the incident due to the threats made by the accused and she had feared any dander to her family as threatened by the accused.
    
22. Victim refused the suggestion that she was falsely implicating the accused and informed the court that her mother had found them in one occasion. When questioned as to why she answered the phone when accused was calling after the first incident, victim informed that she wanted to tell him to leave her alone and she never liked him.
    
23. After the incident, accused had got her to write a letter threatening to kill her family starting from her father.
    
24. Victim admitted writing a letter to the DPP, and informed the Court that accused had brought a letter written by a lawyer and asked her to copy the letter in her hand writing. Victim informed that she was not capable enough to write such a letter and she had written out of fear.
    

Evidence of Victim's mother

25. According to the victim's mother, in the early morning on 03rd September 2006, she had been checking where the victim was sleeping and had tried to open the door of her son's bed room and had found it to be locked.
    
26. When she tried to open the door, victim had said 'mommy wait' and pushed the door back. Witness had suspected that there is someone inside the room and had run through her bedroom and had jumped out the window to have a proper look on the person leaving the house.
    
27. Witness had seen accused walking away and by the time she had come out, accused had been walking away and had been almost passing the last bed room of the house. Accused was wearing a blue t-shirt and had been walking towards his house. Witness had seen the back of the accused and when she saw the accused he had been walking quickly towards his home.
    
28. According to the witness, she had called the accused but had failed to reach him because of the slope in between. Witness had gone to the accused person's house and had met the accused person's brother who informed her that he did not see the accused.
    
29. Accused person's father had been kind enough to take the witness to the accused person's bedroom where she had found the accused on the bed pretending to be asleep. Victim had noticed the blue t-shirt she had seen him wearing had been taken out and hanging near the bed.
    
30. Witness had flatly denied the suggestion that she had been wrong about identifying the t-shirt. According to the witness, victim's demeanour had been considerably changed after the incident and victim had tried to commit suicide.
    
31. According to the interviewing officer accused had totally denied the allegation and had totally denied forcing the victim to write a letter.
    
32. At the end of the prosecution's case accused person opted to remain silent. However, before I consider the defence version of the case, it is essential to see whether the prosecution had been successful in proving all the elements of the charge beyond reasonable doubt.
    

Analysis of evidence

33. After analysing the prosecution's evidence, (despite of the fact that the accused person's total denial) I am satisfied that the accused person had sexual intercourse with the victim.
    
34. Prosecution did not lead any evidence to establish the fact that the victim was incapable of giving her consent.
    
35. However, the next question is whether the accused had forced the victim to have sex with him without her consent or the accused had obtained consent by force, threats, intimidation or fear of bodily harm.
    
36. According to the victim, accused had threatened to kill her family and that threat had made her not to mention those incidents to anyone.
    
37. On 05th July 2006, victim had allowed the accused to enter into her bedroom through the window and there is no evidence to establish the fact that she had raised alarm when accused forcing her to have sex with her.
    
38. If I am to believe that victim had allowed the accused to enter into her bed room for innocent reasons as the victim mentioned in the Court, I am at a loss to understand as to why the victim failed to raise alarm when the accused was raping her.
    
39. If I am to believe that the victim did not raise alarm out of fear of threats, I am again at a loss to understand as to why the victim allowed the accused to enter into her bedroom for the second time through the bed room window.
    
40. If the victim had genuinely been scared of the threats made by the accused, what she should have done was to stay away from the accused as much as it is practicable and according to the victim, every member of her family was present in the house during the second incident.
    
41. Oddly enough on the third occasion victim was keeping her bed room door locked from inside preventing the other members of her family coming to know that she was suffering due to the threats of the accused and allowing the accused to have rape her against her will just to prevent her family members getting killed by the accused.
    
42. According to the victim, she had kept on answering the accused person's calls every time, just to let the accused know that she preferred to be left alone. According to the victim she had allowed the accused to enter into her room just to convince the accused that she did not like him.
    
43. According to the evidence of victim's mother, on 03rd September 2006 when she tried to open the door of the room where the victim was sleeping, victim had pushed back the door preventing her entering into the room.
    
44. After mother had returned home from the accused person's home, victim had hugged the victim and had said "sorry". Question is, whether this behaviour to be expected from a victim of a rape or is this a behaviour of a daughter who is guilty of her actions? According to my view any reasonable person would answer in affirmative to the latter.
    
45. It is important to note that victim had not trusted her mother to reveal her worst fears and those alleged threats made by the accused.
    
46. According to the victim's mother, victim's behaviour had been considerably changed after the incident and victim had tried to commit suicide. However, it is important to note that the mother of the victim had not witnessed any change in the victim's demeanour prior to the third incident on 03rd September 2009.
    
47. Again the question is how the victim was behaving normally if she had been under pressure fearing for the safety of lives of her beloved family members?
    
48. Could a reasonable person expect a victim of rape who had been subjected to threats to behave normally after she had been traumatized by the accused?
    
49. Why the victim's behaviour started to change only after she had been found out by her mother? Could it be because of her trauma or because she had been guilty of her actions?
    

CONCLUSION

50. After analysing the evidence of the prosecution, it was inevitable for me to come to following conclusions.
    
    1. Victim and accused had intercourse.
       
    2. Accused had approached the victim with her consent.
       
    3. Victim has consented to the action on her own free will.
       
    4. Victim had lied to the Court about the threats and her consent to the action had not obtained by any threat or intimidation.
       
51. Even though the accused opted to bring up 'total denial' as his defence, it is the duty of the prosecution to prove all the elements of the charges beyond any reasonable doubt.
    
52. When analysing the evidence of the victim, I could not help having a serious doubt about the victim's version of the incident and thereby extending the benefit of doubt I proceed to acquit the accused from all three charges against him.
    
53. 28 days to Appeal.
    
54. On this Wednesday the 08th day of September 2010
    

Kaweendra Nanayakkara
Resident Magistrate