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State v Waininima - Judgment [2015] FJHC 854; HAC124 (6 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 124 OF 2013

STATE

V

WAISAKE WAININIMA

Counsel: Mr. J. Niudamu for the State
Mr. W. Rosa for the Accused

Date of Summing Up: 3rd November, 2015
Date of Judgment: 6thNovember, 2015

(Name of the Complainant is suppressed. She is referred to as BT)

JUDGMENT

1. The Accused was charge with the following Count and was tried before three Assessors.

Statement of Offence

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

Particulars of Offence

WAISAKE WAININIMA between 1st day of August, 2012 and 30th day of September, 2012 at Nadugu Settlement, Rakiraki in the Western Division penetrated vagina of BT with his penis, without her consent.

2. On 3rd November, 2015, Assessors unanimously found the Accused guilty of Rape as charged.

3. I direct myself in accordance with my own Summing up and review the evidence called in the trial. I pronounce my judgment as follows.

4. The Prosecution based its case substantially on the evidence of the Complainant, BT, and the cautioned interview statement of the Accused that was marked P.1.

5. I find Complainant's evidence improbable, inconsistent and unbelievable. It is unjust and unlawful to convict a person on such evidence. I give my reasons as follows.

6. There is no rule in Fiji to look for corroboration of Complainant's story to bring home an opinion of guilty in a case of sexual nature. However, given the inconsistencies and improbabilities of the version of the Prosecution it is not safe to act upon the testimony of the Complainant alone without supporting evidence. Assessors are justified in coming to an opinion of not guilty.

Identity of the Accused

7. There is no issue in this case with regard to the identity of the Accused. It was agreed by the parties at the commencement of the trial that the Accused in this case is Waisake Waininima and that he accompanied the Complainant to church on the date of the alleged incident.

Credibility of the Complainant's evidence

Improbabilities

8. Complainant said that Accused forced her to go with him and finally went together to Nadovi church. Accused had come all the way from Korowaqa to FSC compound to take her to church. When he arrived at her place, she had refused to go with him. Complainant's aunty also had told her not to go with him. But her big uncle had allowed. It is unbelievable that Complainant forcibly took her to church unless she had agreed to go with him.

9. Complainant said that after the rape incident, she was really in pain. Nevertheless, she had followed the Accused to the church and participated in the Pathfinder meeting with him until she left around 3 p.m. After a rape incident, her behaviour is highly improbable.

10. When the Complainant was allegedly being raped, she had shouted loudly. But no one had come to her rescue. The incident had taken place during lunch time. Police Officer who went for reconstruction of the scene said there are houses around the alleged crime scene.

11. Complainant said that Accused was holding both her hands with one of his hands and pulled down her panty using the other hand and then penetrated.

Inconsistencies

12. Complainant had not informed or complained promptly about the incident of rape to Laisiana, her aunty, uncle or anybody else. She had reported the matter to Police in June 2013, nearly ten months after the alleged incident. Complainant failed to give any acceptable and legitimate reason for not complaining either to Police or to anybody for ten months.

13. Her explanation was that she was scared of her police officer father. Therefore she had not informed the incident to her father or anybody and kept it a top secret until she came to court to give evidence. However she had complained in June 2013 to Rakiraki Police Station where, to her knowledge, his father used to go for official duties.

14. She was evasive and refrained from answering when she was asked why she made a belated complaint to Police ten months after the incident.

15. Complainant in her statement to police had stated that 'we went together'. Her previous statement is not consistent with what she told in Court that she was forced by the Accused to go with him. That contradiction is material and significant so as to affect the credibility in a case where consent is an issue.

Cautioned Interview

16. In the cautioned interview (P.1), accused had admitted the allegation of sexual intercourse. However he had maintained that it was consensual. He says that he was compelled to give such a statement and part of which was fabricated by Police.

17. His charge statement (P.2) is an admitted document. In that he has admitted having had sex with the Complainant. However, Accused had never used the term 'sexual intercourse' or penetration of the penis but the word 'sex'. 'Sex' is a word with a general meaning that can mean any form of sex, not necessarily mean sexual intercourse or penetrating penis into the vagina.

18. He had only admitted consensual sex (in Charge statement) and consensual sexual intercourse (in cautioned interview). They are not admissions of sexual intercourse without Complainant's consent. Crucial ingredient of the offence of Rape, namely, 'without her consent' had not been admitted.

Demeanour

19. I watched Complainant giving evidence in Court and observed her demeanour. She was evasive and not frank. She took time and did not give prompt answers.

20. In regard to issue of penetration, medical evidence in this case is of little help. There was considerable time gap between the alleged incident of rape and the medical examination. Prosecution failed to establish that absence of hymen in Complainant's vagina is a result of penetration with Accused's penis.

21. Evidence given by the Accused is not acceptable. However weakness of the Defence case can't bolster the Prosecution Case. Accused had nothing to prove in this case.

Conclusion

22. I am satisfied that the Assessors had reasons to disbelieve the Prosecution version. The opinion of the Assessors is not perverse. It is open for the Assessors to reach such a conclusion on the evidence led in the trial.

23. Prosecution has failed to prove the case beyond reasonable doubt. I Acquit the Accused of Rape charge accordingly.

24. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
On 6th November, 2015

Solicitors: Office of the Director of Public Prosecution for State
Mr. W. Rosa for Accused