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State v Nairogorogo [2015] FJHC 676; HAC14.2013 (21 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.HAC 14 OF 2013

STATE

V

MANOA NAIROGOROGO
JOSEFA RAUTO
KAMELI SAUDUADUA
ABARAMA SIRI

Counsel: Ms. K. Semisi for the State
Mr. A. Rayawa for all accused

Dates of trial: 7,8, 11, 14, 16 and 17 September 2015
Date of Judgment: 21 September 2015

JUDGMENT

Manoa Nairogorogo, JosefaRauto, KameliSauduadua and AbaramaSiri, you have been charged with the following offences:

FIRST COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Manoa Nairogorogo on the 16th day of December 2012 at Navua in the Central Division had carnal knowledge of (name suppressed), without her consent.

SECOND COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JosefaRauto on the 16th day of December 2012 at Navua in the Central Division had carnal knowledge of (name suppressed), without her consent.

THIRD COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Kameli Sauduadua on the 16th day of December 2012 at Navua in the Central Division had carnal knowledge of (name suppressed), without her consent.

FOURTH COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Kameli Sauduadua on the 16th day of December 2012 at Navua in the Central Division penetrated the mouth of (name suppressed), without her consent.

FIFTH COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Abarama Siri on the 16th day of December 2012 at Navua in the Central Division had carnal knowledge of (name suppressed), without her consent.

Three assessors have returned with unanimous opinions of guilty on each count.

[2] The victim in this case told of drinking all day at the Navua Club. At 1.00am (closing time) she went downstairs. The first accused was talking to her downstairs and then punched her. She fell to the ground and he pulled her lower garments off and he raped her. She saw 4 or 5 faces hovering over her and was then raped by at least three other men. She knew the men and was able to name them. The third accused even forced his penis into her mouth.

[3] In cross-examination the victim admitted that she had subsequently signed a statutory declaration and made a police statement in which she had stated that she did not wish to pursue the case against these men. She even stated that she was not raped by any of them. She had made these statements at the request of the boys' mothers, and out of pity for the boys. She did not want to see them prosecuted.

[4] In re-examination she did however admit that she had been raped that night.

[5] I find that she was raped and that she was raped by each of the four accused. Her out of court statements were merely mitigatory and merciful.

[6] An eyewitness, Prashneel had been observing the events along with his friend Ameniasi who was the first accused's brother. Prashneel saw the first accused punch and rape the victim and he saw the second accused follow on. He then called the Police who came and arrested the 2nd, 3rd and 4th accused at the scene. The first accused was arrested later that day at his home.

[7] All four accused made admissions under caution. In earlier proceedings I had found all four records to have been voluntarily generated. The only question at trial was a factual question as to whether they made the admissions and if so if they were truthful.

[8] All four renewed their allegations of assault at trial. As in the voir dire, their allegations were not supported by the medical evidence. And I did not believe them. Their admissions are spontaneous and could not be fabricated and I accept them to have been made and to be truthful.

[9] The first, third and fourth accused all called witnesses. The first accused called his brother who gave evidence directly contradictory to that of his "friend" Prashneel (see para 5 supra). I did not believe him. The third accused's parents both gave evidence as to the injuries they saw on their son. In some respects they contradicted each other and the medical report did not bear out their testimony. I did not believe them. The fourth accused's father also gave evidence which was inconsistent with the medical report. I did not believe him

[10] The victim having given evidence of being raped by four men and these accused having made voluntary and truthful admissions of rape, I find that the State has proved the case against each and everyone of the four beyond reasonable doubt.

[11] There was never one suggestion at trial that there was any degree of consent; the defence was that they were either not there (1st and 2nd) or "passed out" (3rd and 4th). It was obvious that there was a distinct lack of consent: evidenced by the initial punch to the victim to force her to comply.

[12] In respect of the second accused the issue of penetration arises. The witness said he saw the 2nd accused "go on top" and the accused himself says on interview that he "had sex" with her. Without formal proof, it becomes a factual issue for the assessors. They had been directed clearly on the necessity to find penetration before they can find him guilty and this they did.

[13] I have directed myself on my own summing up and I have no doubt whatsoever that these accused are guilty of each of the charges they face.

[14] I agree with the assessor's opinions. I convict each accused on each charge he faces.

[15] That is the judgment of the Court.

P.K. Madigan
Judge

At Suva
21September, 2015