State v Basecala [2011] FJMC 23; Criminal Case 1797 of 2008 (22 February 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1797 of 2008

STATE

v.

VENUSI BASECALA

For Prosecution: Ms. Tabuakuro L. (DPP Office)
For Accused: Mr. Sharma N. (Legal Aid)
Date of Judgment – 22nd February 2011

JUDGMENT

1. Accused in this case is charged for 01 count of "Rape" an offence punishable under Sec. 149 and 150 of the Penal Code Cap 17.
   
2. According to the particulars of the offence, on 12th October 2008 accused have had unlawful carnal knowledge of Merelita Marama, without her consent.
   
3. Prosecution called three witnesses to testify and accused opted to remain in 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. Prosecution sought to mark Medical report of the complainant without calling the doctor under sec. 4 of the Evidence Act. Prosecutor support this application with a decided Judgement Davendra Singh v. The State [1999] FJCA 33, where the President of the Court of Appeal Sir Moti Tikaram held that the admission of the Medical Report under sec. 4 of the Evidence Act by the High Court Judge on a factual basis as evidence of the trial is not wrong in Law.
   
9. Counsel for the accused in written closing submission consented to the admission of the Medical report of the victim to the extent that it contains statement of facts and not the subjective opinion of the doctor.
   

Evidence of the Victim

10. According to the victim, she had been drinking with her friends from the mid-day of 11th October 2008 whilst participating in a school re-union. When she was retuning home at about 12 midnight had received a call from the accused and had decided to meet him at a night club. Accused had been a distant relative of the victim and she had had consumed some more alcohol with him and his friends. Victim said that he decided to meet accused because she trusted him and she wanted to have fun.
    
11. Upon the closure of the night club both accused and victim had decided to walk back home as there were no transport available. During the walk accused had kept on stating that they are going to have sex for which victim did not agree. Victim informed to the court that she told him that she would not sleep with him as the accused was married and both of them are related.
    
12. At one point of time, accused was holding the mobile phone of the victim and both accused and victim were walking at the both sides of the road. Accused had asked victim to come closer to get the phone. When she came, accused had tried to push her and thereafter had tripped her with his leg. When the victim fell she had felt that the accused was on top of her holding both her hands above her head. Victim informed that she went black out at that point.
    
13. Victim recalled accused trying to pull the zipper of her pants and at that point victim again had informed the accused that she was not willing to have sex with him. Victim threatened to tell this incident to the accused person's wife but accused person's reply was that no one would believe the victim.
    
14. When victim regained consciousness, she had found her lower part of the body naked and she was feeling dizzy. Accused was found sitting by the victim. Victim had found the zipper of her pant was broken. Victim then had reported the matter to the police.
    
15. During the cross-examination victim said that she did not know the accused very well. Victim admitted not screaming and not running away from the accused but vehemently denied consenting for sex.
    
16. During re-examination victim said that she did not feel threatened when the accused kept on asking for sex as she trusted him. Victim indicated that she was physically big during the time of the incident.
    

PW-2

17. Witness had recorded the statement of the victim. Witness had been an officer working for Sexual Offences Unit and had been working in the unit for 04 years. According to the opinion of the witness, the victim had subjected to a harsh experience and she had come to the conclusion by observing the condition of the victim.
    

PW-3

18. Witness had recorded the cautioned interview of the accused and the counsel for the accused did not have any objection for marking the document.
    

Analysis

19. In this present case there is no question about accused having a sexual intercourse with the victim on 12th October 2008. Question is whether the victim had consented to have sexual intercourse with the accused person.
    
20. Accused person sought to establish that behaviour of the victim made him to believe that the victim was consenting to have sex with him. It is interesting to note that in no occasion accused person indicated that the victim had clearly expressed her consent for sex.
    
21. Victim whilst giving evidence said in Court that she refused to have sex with the accused and she had in several occasions had told the accused that she was not going to sleep with him as they are related and accused is married. This express denial had never challenged by the accused.
    
22. In this present situation it is proved beyond reasonable doubt that the victim had consumed a substantial amount of alcohol over a period of more than 12 hours at a stretch. Therefore, there cannot be any doubt as to the state of mind of the victim at the time of the offence and her mental capacity which directly affected to her behaviour.
    
23. Nonetheless, there is evidence to show that the victim had conveyed her dissent to the accused for the act of intercourse.
    
24. Unless the victim had expressly consented to have sex with accused on her own free will or the victim was in clear state of mind to be responsible for her actions, accused person is not in a position to say that he had sex with the victim with her consent.
    
25. When considering the evidence in whole, I have no reason to doubt the credibility of the victim and whatever the contradictions in victim's statement and the evidence given in court are not so strong enough to create any doubt with regard to the main incident.
    
26. Furthermore, there is no evidence to show that the victim had a reason to frame the accused for such a serious offence. If there had been any witnesses to the alleged sexual intercourse, it is easy to presume that victim was trying to save herself from the blames and embarrassments to follow amongst the family members. In this present incident there is no evidence to that effect and in the event both the accused and victim had sex with consent both of them could have kept the incident between them without having a fear of exposure.
    
27. Another piece of evidence which is against the accused person's version is the promptness of the victim's complaint to the police. There is no evidence to show that the victim had met any of her family members or her friends before she made the complaint to the police and thereby it is clear that the complaint she made had not been coloured by outside influences.
    
28. Therefore, it is clear that the accused person had taken advantage of the situation and has had sex with the victim without her consent.
    
29. For the above-mentioned reasons, I am satisfied that the prosecution had been successful in proving all the elements in the charge beyond reasonable doubt.
    
30. I find accused person guilty as charged and convict accordingly.
    

On this Tuesday the 22nd day of February 2011

Kaweendra Nanayakkara
Resident Magistrat