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State v Leva [2022] FJHC 120; HAC287.2019S (18 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 287 OF 2019S

STATE

vs

SEMI LEVA

Counsels : Ms. M. Shankar and Ms. S. Sharma for State
Ms. L. Filipe and Ms. L. Ratidara for Accused
Hearings : 14, 15 and 16 March, 2022.
Judgment : 18 March, 2022.

JUDGMENT

1. On 14 March 2022, the following information was read over and explained to the accused, in the presence of his counsels:
   

“Count One

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SEMI LEVA on the 5^th day of April 2019 at Wainikavula, Korovou in the Eastern Division, penetrated the vagina of LITIANA ROKOWATI with his penis, without her consent.

Count Two

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SEMI LEVA on the 6^th day of April 2019 at Wainikavula, Korovou in the Eastern Division, penetrated the vagina of LITIANA ROKOWATI with his penis, without her consent.

Count Three

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SEMI LEVA on the 7^th day of April 2019 at Wainikavula, Korovou in the Eastern Division, penetrated the vagina of LITIANA ROKOWATI with his penis, without her consent.

Count Four

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SEMI LEVA on the 5^th day of August 2019 at Wainikavula, Korovou in the Eastern Division, penetrated the vagina of LITIANA ROKOWATI with his penis, without her consent.

Count Five

Statement of Offence

BREACHING DOMESTIC VIOLENCE RESTRAINING ORDER: Contrary to Section 77 (1) of the Domestic Violence Act 2009.

Particulars of Offence

SEMI LEVA on the 9^th day of August 2019 at Wainikavula, Korovou in the Eastern Division, being a person notified of a Domestic Violence Restraining Order No. 154/17, by which he was bound, without reasonable excuse, contravened part of the order by:

1. Physically assaulting the protected person named LITIANA ROKOWATI.
2. Damaging property belonging to the protected person.”
   

2. Mr. Semi Leva said, he understood the charge, and pleaded not guilty to all the counts, in the information. The prosecutor then briefly opened her case. She then called her only witness, the complainant (PW1) herself). She gave evidence on 14 and 15 March 2022. The parties had already submitted an “Agreed Facts”, dated 5 June 2020, pursuant to section 135 of the Criminal Procedure Act 2009. It had five paragraphs of “Agreed Facts”. The prosecution tendered two exhibits. Prosecution Exhibit No. 1 was a “Booklet of Photos”. Prosecution Exhibit No. 2 was a “Domestic Violence Restraining Order”, dated 27 November 2017, taken out against the accused by the complainant. When the complainant was cross-examined, her two medical reports, both dated 9 August 2019, were tendered as Defence Exhibit No. 1 and 2.
   
3. At the end of the prosecution’s case, both the defence and prosecution agreed that, on the evidence so far laid before the court, there was a prima facie case against the accused. The court agreed with the parties and ruled accordingly. The standard options were then given to the accused. Through his counsel, the accused said he would give sworn evidence, in his defence. He said, he does not wish to call any other witness. In his evidence, the accused basically denied all the allegations against him.
   
4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty. The prosecution must prove the accused’s guilt, beyond reasonable doubt. If there is a reasonable doubt, so that the court was not sure of the accused’s guilt, he must be found not guilty as charged and acquitted accordingly.
   
5. Count No. 1, 2, 3 and 4 involved the offence of rape. For the accused to be found guilty of rape, the prosecution must prove beyond reasonable doubt, the following elements:
   • (i) the accused
   • (ii) penetrated the complainant’s vagina with his penis,
   • (iii) without her consent, and
   • (iv) he knew she was not consenting to 5 (ii) at the time.
     
6. The slightest penetration of the complainant’s vagina by the accused’s penis is sufficient to satisfy element 5 (ii) above. Whether or not he ejaculated, is irrelevant.
   
7. “Consent” is to agree freely and voluntarily and out of her own freewill. If consent was obtained by force, threat, intimidation or by fear of bodily harm to herself or by exercise of authority over her, that “consent” is deemed to be no consent. The consent must be freely and voluntarily given by the complainant.
   
8. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting, at the time. The court will have to look at the parties’ conduct at the time, and the surrounding circumstances, to decide this issue.
   
9. Count No. 5 involved the accused allegedly breaching the Domestic Violence Restraining Order, issued against him on 27 November 2017. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt that he, on 9 August 2019:
   
   • (i) assaulted the complainant, and/or
   • (ii) damaged the complainant’s property.
     
10. The court will now examine the prosecution’s case. The complainant (PW1) said, she and the accused were married on 16 August 1999. As of today, they are still legally married. They had been married for 22 years. During the 22 years, they had four children, aged 20 years, 18 years, 12 years and 7 years old. At the time of the alleged offences in counts 1, 2, 3, 4 and 5, the complainant said, she was living with the accused at Korovou, Tailevu. Their four children were also living with them. The complainant said, she was 40 years old at the time, while the accused was 47 years old. Their residence was shown in Photos No. 2, 3, 4, 5 and 6 in the Booklet of Photos (Prosecution Exhibit no. 1).
    
11. Both the complainant and the accused were working at the time of the alleged offences. The complainant worked as a process worker at Walu Bay, while the accused worked for the China Railways at Nausori. Because of the customary traffic jam between Suva and Nausori, the couple often reached their residence in Korovou between 9 pm to 10.30 pm. The complainant said, she recalled the 5 April 2019 (count no. 1). The couple had returned from work. She said, they had dinner. She said, their children went to sleep. She said, sometime thereafter, the accused spoke harshly to her and forced himself on her. She said, he inserted his penis into her vagina for 30 minutes, without her consent, and he knew she was consenting to the same, at the time.
    
12. The complainant said, between 2014 to 2019, the accused often abused her verbally by swearing at her and making rude comments about her. She said, she recalled 6 April 2019 (count no. 2). It was a Saturday. She said, the accused and her were at home around 2 pm. The complainant said, the accused spoke harshly to her and forced himself on her. She said, he inserted his penis into her vagina for 15 to 20 minutes, without her consent, and he knew she was not consenting to the same, at the time. The complainant said, she also recalled the 7 April 2019 (count no. 3). It was a Sunday. She said, their children had gone to her brother’s house to watch movies. She said, she was alone with the accused in their house. She said, the accused began to verbally abuse her by swearing at her. She said, he then forced himself on her by inserting his penis into her vagina for 15 minutes, without her consent, and he knew she was not consenting to the same, at the time. She said, she told the accused she did not want sex, before he forced himself on her. She said, the accused also threatened her.
    
13. The complainant said, she also recalled the 5^th August 2019 (count no. 4). It was a Monday. She said, both of them went to work that day. She said, they returned home after work. She said, she went to their room to lie down. She said, the accused forced himself on her by inserting his penis into her vagina, until he ejaculated. She said, she did not consent to the same, and he knew she was not consenting to the same, at the time. She said, she told the accused, she did not want sex, but he ignored her. The complainant said, she also recalled 9 August 2019 (count no. 5). It was a Friday. She said, she had just had her bath and was wrapped in a towel. She said, the accused came and pulled the towel away and they struggled. She said, as a result she got the marks to her upper front chest. She said, the accused also smashed her phone and broke her gold chain. The above was basically a summary of the prosecution’s case.
    
14. For the defence, there was only one witness, that is, the accused (DW1) himself. On the complainant’s allegations in count no. 1, 2 and 3, the accused agreed that he and his wife, the complainant, had sexual intercourse on those days. He denied forcing his wife to have sex with him. He said, the sex was the normal type they had, in raising their 4 children. He said, he asked his wife for sex, and she agreed to them. He said, at no time did the wife told him to stop, as she appeared to be enjoying the same. He said, in his view, while having sex with his wife, he knew she was consenting to the same. On count no. 4, the accused denied ever having sex with his wife on 5 August 2019. He said, the complainant was mistaken in her allegation on count 5.
    
15. As far as count no. 5 was concerned, the accused said, he did not assault his wife on 9 August 2019. He also denied damaging any of the complainant’s property. He said, the phone he damaged was his, not his wife’s. He said, he did not damage his wife’s golden chain. He denied the complainant’s allegation in count no. 5. That was a summary of the defence’s case.
    
16. The law required the prosecution to prove the guilt of the accused, on all five counts, beyond a reasonable doubt. The court had carefully listened to the complainant and accused’s evidence and version of events. The court had also carefully observed their demeanors, while they were giving evidence. I find both the complainant and the accused are credible witnesses. They had brought 4 young children into this world, and that obviously meant that they loved each other. After 22 years of marriage, it appeared that the complainant wants to move on to a new relationship. When she complained to the police and was later medically examined, her first priority was the alleged assault complaint. The rape complaint in the second medical report appeared to be an afterthought. She said, when cross examined that, she would be happy if the accused was put in prison. She said, she had found a new defacto husband and is living with him in Ba, for the last 2 years.
    
17. Given the above, the court is thrown into a reasonable doubt on all the complainant’s allegations in count no. 1, 2, 3, 4 and 5. The law required the prosecution to prove the allegations against the accused beyond a reasonable doubt. The court had a reasonable doubt. The benefit of that reasonable doubt must go to the accused. Consequently, given the above, I find the accused not guilty as charged on all counts and I acquit him accordingly on all those counts. You are free to go home.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.