IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 008 OF 2011L

BETWEEN:

STATE

AND:

1. SERESIO DRAUNIMASI
2. TEVITA KORO

Counsel : S. Kiran for State
Mr Kumar for 1st Accused
Mr Nand with Mr Sharma for 2nd Accused

Date of Hearing : 17th, 18th, 19th and 23rd February 2015
Date of Judgment : 25th of February 2015

JUDGMENT

1.	The first accused Mr. Seresio Braunimasi is charged with one count of Rape 
contrary to section 207 (1) and (2) (a) of the Crimes Decree and the second accused Mr. Tevita Koro is charged with one count of Rape contrary to section 45(1) and section 207 (1) (2) (a) of the Crimes Decree, one count of Indecently Insulting or Annoying a person contrary to section 213 (1) of the Crimes Decree, and one count of Indecent Assault contrary to section 212 (1) of the Crimes Decree. 

2.	The both accused pleaded not guilty for these four counts, wherefore, this 
action was set down for hearing on 17th, 18th, 19th 20th and 23rd of February 2015. The prosecution called four witnesses including the complainant and tendered the copy of the medical report of the complainant as prosecution exhibits during the cause of this hearing. At the conclusion of prosecution case the count of Indecently Insulting or Annoying a person and count of Indecent Assault were dismissed pursuant to section 231 (1) of the Criminal Procedure Decree and acquit the second accused accordingly.

3.	The first accused gave evidence on oaths and called two witnesses for the 
defence. The second accused gave evidence on oaths, but did not call any other witness. Subsequently the learned counsel for the defence and the prosecution made their respective closing submissions. I then delivered by summing up to the assessors. 

4.	The three assessors have returned with a unanimous not guilty verdict 
against the two accused persons for the two counts of rape as charged in the amended information. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing. 

5.	In view of the agreed facts filed by the parties, it appears that the first and the 
second accused persons have admitted that the complainant came to the second accused Tevita Koro's house on 25th of December 2010 to purchase cigarettes for her grandfather. Both accused persons have admitted that both of them were in the house when she arrived. Moreover, the first accused, Seresio has admitted that he had a sexual intercourse with the complainant at the house of Tevita Koro on 25th of December 2010. 

6.	Accordingly, the issue to be decided in this hearing is that whether the 
complainant consented to the first accused person, Seresio to have sexual intercourse with her. If I am satisfied that she did not give her consent for the sexual intercourse, I then have to decide that whether the second accused person, Tevita Koro aided and abetted the first accused person to commit the offence of rape by preventing the complainant from escaping prior to the sexual intercourse. 

7.	In this instant case, the complainant admitted in her evidence that she did not 
inform anyone about this incident until she was confronted after two weeks of the incident by her sister-in-law about the rumours that she had sex with Seresio. She told in her evidence that she felt embarrassed when she was confronted. She did not explain or specify the reason why she felt embarrassed when confronted. She told her sister-in-law that she was raped when she was confronted about the rumours. She did not give any reason for the delay of making the complaint. 

8.	Moreover, it appears that the complainant changed her position which she 
took during her evidence in chief, where she stated that she did not know Tevita at that time. However, in her cross examination she admitted that he is a cousin of her sister-in-law and knew him at that time. The complainant stated in her evidence that she tried to push Seresio because Sikeli was sleeping on the next bed and heard the noise. Apart from that she was in a hurry to go back as her grandfather was waiting for cigarettes. However, she later stated that she did not like what Seresio did and did not allow him to do it. 

9.	In view of the evidence given by the Complainant, it appears that she is not 
consistence with her evidence. I am mindful of the fact that recent evidence is 
never capable of corroborating the complainant's account, but it is relevant to the question of consistency or inconsistency in the complainant's conduct and as such is a matter going to her credibility and reliability as a witness. ( Hon C.J Gates in Anand Abhay Raj v The State ( 2014) FJSC12; CAV0003.2014 (20 August 2014). 

10.	She did not give any explanation for not reporting the incident until she was 
confronted by her sister-in-law about the rumours that she had sex with Seresio. She did not specify or explain the reason why she felt embarrassed when she was confronted by her sister-in-law about the rumours. She only stated that "I felt embarrassed when confronted and then told my sister-in-law that I was raped". It creates reasonable doubt about the truthfulness and the credibility of the evidence of the complainant. Moreover, her sister-in-law denied that she confronted her in her evidence, which in fact contradicts and inconsistence with the complainant's evidence. 

11.	Bearing in mind the inconsistence and contradictory nature of the evidence of 
the complainant and her sister-in-law in respect of reporting this incident, I now turn to the evidence presented by the defence. 

12.	The first accused admitted that he had a sexual intercourse with the 
complainant, but with her consent. The second accused denied the allegation and said he just informed the complainant that cigarettes were finished and went back to sleep. Sikeli saw the complainant was hugging and enjoying having sexual intercourse with Seresio. The investigation officer admitted that Sikeli would have been an important material witness for the case and expressed her apology for not having his statement recorded. 

13.	Apart from the issue of consent, the first accused's and Sikeli's evidence are in 
consistence with the evidence of the complainant regarding this alleged 
sexual intercourse. However, the inconsistence nature and the lack of clarity in the complainant's evidence in respect of her conduct prior to and subsequent to the incident have created a reasonable doubt about the reliability and credibility of the complainant's evidence. 

14.	Having considered the summing up, which I delivered and the reasons I set 
out above, I do not find any cogent reason to disagree with the unanimous verdict of the assessors. 

15.	I accordingly find the first accused person is not guilty for the offence of rape 
contrary to section 207 (1) and (2) (a) of the Crimes Decree 2009 and acquit the first accused accordingly. I further find that the second accused person is not guilty for the offence of rape contrary to section 45(1) and section 207 (1) (2) (a) of the Crimes Decree 2009 and acquit the second accused accordingly.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
25th February 2015

Solicitors : Office of the Director of Public Prosecutions for Respondent
Office of the Legal Aide Commission, 
Mr Nand