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State v Navavia [2022] FJHC 84; HAC093.2020S (3 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 093 OF 2020S

STATE

vs

PITA NAVAVIA

Counsels : Ms. P. Ram and Ms. A. Vavadakua for State
Ms. A. Veretawatini for Accused
Hearings : 28 February and 1 March, 2022.
Judgment : 3 March, 2022.

JUDGMENT

1. On 28 February 2022, the following information was read over and explained to the accused, in the presence of his counsel:
   

“Statement of Offence

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

Particulars of Offence

PITA NAVAVIA on the 10^th day of October, 2019 at Nasavu Rara, Naitasiri, in the Eastern Division, had carnal knowledge of RK without her consent.”

2. Mr. Pita Navavia said, he understood the charge, and pleaded not guilty to the same. The prosecution then called the complainant (PW1) as their first witness. Next, the prosecution called the complainant’s mother (PW2) as their second witness. The prosecution then closed their case. The parties had also submitted an “Admitted Facts”, dated 28 February 2022, pursuant to section 135 of the Criminal Procedure Act 2009. It had 13 paragraphs of agreed facts. The defence then made a submission that there was no case to answer. They said, the evidence did show that the complainant (PW1) consented to having sexual intercourse with the accused, at the material time. The prosecution submitted there was a case to answer by the accused. They said, the complainant’s evidence did reveal she did not consent to sex with the accused, at the material time. She said, the “admitted facts” showed that the accused’s penis penetrated the complainant’s vagina, at the material time. The court ruled that there was a case to answer and called upon the defence to make their defence.
   
3. The defence called the accused as their sole witness (DW1). He admitted, he was at the crime scene at the material time. He admitted he had sexual intercourse with the complainant, at the material time, that is, his penis penetrated the complainant’s vagina. However, he said, the complainant, at the material time, consented to having sexual intercourse with him. He said, he was therefore not guilty as charged.
   
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. 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. The court will now examine the prosecution’s case. In the “Admitted Facts”, dated 28 February 2022, the parties agreed to the following facts. The complainant (PW1) was 17 years old on 10 October 2019, the date of the alleged rape. She was a student at Nabua Secondary School. At the time of the offence, she was at Nasavu Village Rara, Naitasiri. The accused was 21 years old on 10 October 2019. There was a 4 years age gap between the two. The accused was a carpenter of Nasavu Village Rara, Naitasiri. The complainant and the accused had known each other since childhood. The accused is the complainant’s paternal uncle.
   
10. The “Admitted Facts” said, that on 10 October 2019, the complainant was at her parent’s house at Nasavu Village Rara, Naitasiri. At about 10 pm, she was alone in the house. The accused went to the complainant’s house at the time. According to the complainant, the accused, and two cousins (Tunidau and Mosese) came to her house at 10 pm on 10 October 2019. She said, they came to listen to a music box, which belonged to her mother. She said, her parents were, at the time, at her grandmother’s house, looking after her. She said, at about 11 pm, she told the three boys that she wanted to sleep and for them to go. They left. The complainant said, she later closed all the doors and windows in the house and went to sleep. She said, there were two tube lights in the house, one in the sitting room.
    
11. The complainant said that at about 2 am, the accused came into the house by opening a door. The complainant said she could smell liquor on him. The complainant said, the accused woke her up by touching her shoulder. She said, she asked him what he was doing inside the house and she asked him to go outside. She said, the accused told her to take off her clothes. She said, she pushed the accused back and told him to go away. She said, the accused however pushed her to the bed and took off her shorts and panty. She said, he later took off his sulu and inserted his penis into her vagina. She said, she raised the alarm by shouting. She demonstrated the same in court (shouting). She said, some boys were drinking liquor near the house. She said, no one came to assist her. She said, the accused closed her mouth by putting his sulu in her mouth. She said, the accused had sex with her until he ejaculated. She said, after having sex with her, he put on his sulu and pants, and left the house without saying anything.
    
12. The complainant said, she did not tell anyone about the incident as she was afraid and ashamed. She said, she didn’t even tell her closest friend about the incident. In cross examination, she said in January 2020, three months after the alleged incident, her aunty asked her to see her breast. She said, she did so and discovered she was pregnant. Three days thereafter, she said, her aunty told her parents. She said, she then told her parents what allegedly occurred above. She said, her parents then decided to refer the matter to police. In re-examination, the complainant said, she kept the matter to herself for 3 months because she was afraid of her parents. She said, she did not consent to sex with the accused, at the material time.
    
13. The prosecution next called the complainant’s mother as their next witness. She said, her knowledge about the alleged rape came from the complainant. She said, when cross examined, that she did not see the incident with her own eyes. In my view, therefore, the complainant’s mother’s evidence does not assist at all, in deciding whether or not the alleged rape occurred.
    
14. The accused next gave evidence. He said, he had been talking to the complainant prior to the alleged incident. He said, he asked her to be his companion. He said, she agreed. He said, at the material time, he asked her if he could have sex with her. He said, she appeared to agree to have sex with him. He said, they later went to her house. He said, she opened the door. He said, he then went into her house. He said, they later went to her bed. He said, he then removed his clothes. He said, at the time, the complainant was lying in bed naked. He said, he went onto the bed and kissed her mouth. He said, he then inserted his penis into her vagina and they had sex for the next 5 minutes. He said, he ejaculated. He said, he then stood up and put on his clothes. He said, the complainant also stood up and wore her clothes. He said, he then left. That was the case for the defence.
    
15. As highlighted in paragraph 4 hereof, the law required the prosecution to prove the accused’s guilt beyond a reasonable doubt. The court had heard the complainant’s evidence and version of events. The court had also heard the accused’s evidence and version of events. The prosecution’s case was based entirely on the complainant’s verbal evidence given in court on 28 February 2022. The court had carefully considered her verbal evidence and also carefully considered her demeanour. The complainant was asked in court, during cross examination, how she shouted, to raise the alarm, at the time the accused was allegedly raping her. Her shout, as demonstrated in court, did not convince me, it was not the shout of a female who was not consenting to sex, at the time. Furthermore, she did not report the alleged rape to her closest friend, teachers, parents or police, for 3 months after the alleged incident. The rape allegation came out of her when she was confronted by her aunt and parents in January 2020. Furthermore, the accused’s evidence and version of events, appear to thrown more doubt on the prosecution’s case. The accused said, the complainant was his companion and he asked her for sex, at the material time. He said, she appeared to agree and her actions to him that night made him believe she was consenting to sex with him, at the material time.
    
16. Because of the above, after hearing the totality of the evidence, that is, from the prosecution, the “Admitted Facts” and the defence, the court is thrown into a reasonable doubt as to the guilt or otherwise of the accused. The law demands that if the court had a reasonable doubt on the guilt or otherwise of the accused, the benefit of that doubt must go to the accused. Because of the above, I find the accused not guilty as charged and I acquit him accordingly. You are free to go home.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Veretawatini Lawyers, Suva.