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State v Vakasoqo [2010] FJMC 88; Criminal Case 367 of 2007 (19 April 2010)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 367 of 2007

STATE

V

MANASA VAKASOQO

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Inspector Ali
Accused: Present + Counsel - Ms M. Savou (Legal Aid)

Judgment

Introduction

The accused is charged with Rape, Contrary to Section 149 and 150 of the Penal Code (Cap 17). It is alleged that Manasa Vakasoqo on the 29th day of june 2007 at Visama, Nausori in the Central Division had unlawful carnal knowledge of a girl namely, K. Q [initials to protect the identity of the complainant] without her consent.

The Prosecution Case

The prosecution in this case called three witnesses. The 1st Prosecution witness was the Doctor (PW-1), Dr. Romano Turaganiwai. He gave sworn evidence.

In his Examination-in-chief, PW-1, stated the following:

“- Based at CWM.

- 14 years at CWM.
- Medical officer.
- 1995 – Started as a medical officer.
- Examined victim of rape- K. Q.
- Examination took place in gyno-clinic.
- I handed in report to the police.
- Examination did not reveal anything conclusive.
- The victim was brought with a report had sexual intercourse before that.
- I could not conclude anything. Victim had sex with boyfriend an hour before that and victim had 18 month old baby before that.”

Witness was shown the medical report and he identified the report. Part 10 – history as related by the person to be examined – read by witness. Witness told the Court that he signed the form. Medical report tendered as PE-1. Defence had no objection to tendering of the report and told the court that they have a copy.

In cross-examination, PW-1’s response was as follows:

“ - Section 10 was a combination of what the police and the victim told me.

- I could not determine anything physical.
- Could not make firm conclusion that victim was raped.”

There was no re-examination of PW-1.

The 2nd Prosecution witness was the victim, K. Q (PW-2). In her examination in chief, she stated as follows:

“ - in 2007 had boyfriend – S. V.

- Something unusual happened in 2007.
- 28th June 2007 came to Nausori Town with boyfriend.
- It was Thursday 28th June 2007 at 10am came with boy-friend. We came to withdraw money from ATM. So I could take son to CWM for medical check-up.
- As we came up to Nausori. We were picked by a passing vehicle – a private car dropped us at Nausori.
- At a taxi stand – from there we got a taxi to take us to the ATM. Later to take us home at Waituri at the time.
- As he took us to Waituri, boyfriend paid him. We asked him to come to pick me at 4am next morning to take me to my mother’s house in Vuci South where my son was.
- After he dropped us at Waituri, was with boyfriend. We had sex then.
- At about 4am I heard a horn in front of house. It was the taxi. It waited for me outside. I did not wake boyfriend. He had to go to work at 7 am.
- I came out and got into the taxi. I sat in the front seat. Before we left my boyfriend looked out. I told him it was ok. I could go alone. We left the house.
- The accused picked me (witness pointed to the accused in the accused box).
- The same taxi driver had dropped me. The same man.
- As we were leaving. I described to him where to go. Vuci South.
- We were to come along Bau Road. As we driving along Bau Road. He asked me questions. He asked me about an incident in our area.
- As we got to Vuci South, he told me that he had to go and see a friend of his before he dropped me.
- I asked him where about he was taking me. He said just Visama Road.
- From then I started panicking. I asked him to drop me. He insisted that he had to see his friend first. He was in a rush.
- I kept begging him until he went past our road. He went past Vuci South Road.
- I took of my shoes and socks. I was staring at him. I was thinking to myself if I could get out of this alive.
- As we entered Visama Road he drove fast. He reached a cross section and he entered the left side into a dark road. He parked in the middle of the dark road and turned the lights of.
- I tried to open my door, it was locked. He asked me if it was locked. I said yes. He got out of his side and came around to my side to open my door and I immediately jumped out of his door. I jumped out of his door and started running. As I was running I screamed on top of my voice.
- About 50 – 100m he caught me. He grabbed me. He pulled me. He pulled me to the side of the road.
- He took my underwear of and he told me to give him oral sex. He told me to suck his penis. Before we fuck.
- I performed oral sex. I was crying. I was afraid I was peeing. So I sucked him. He dragged me to the grass. He told me to lie down. He came on top of me. He lifted my legs and put his penis inside.
- He put his penis inside my vagina. He raped me for about 5 minutes. Then he stood up. He shifted his pants and walked to the car.
- When I saw him turn his back and walk away. I got up, pulled my shoes and pants. I ran.
- I ran. I was still in Visama Road when I reached a house. I saw the light of the car shoot by. The car was coming out of that road.
- I ran to one driveway. It was dark. I jumped into a drain and I hid there. It was deep. He was driving slowly looking for me. He went past.
- After his car went past me. I got up and went to the road. Up to the main road – Bau road. When I reached the main road whenever I saw one car come I hid. I kept on doing that when I reached Vuci Road.
- When I went into Vuci Road. I saw his car go past. I went home. Inside the home I laid down beside my son. I was crying until my eldest sister woke up. I then asked what I did that this happened to me.
- I told her everything that happened at about 7-8am she told me to go to Womens Crisis Centre (WCC). I went to WCC. I told them what happened. They then called the police. I was taken to hospital.
- I had a medical examination.
- My statement was recorded in Nabua. I gave full story. After few days I visited Nausori Police Station.
- Police called me. I was at work. I came to station. I met Sgt Eroni. I talked to him. They asked me to ID the man for them. Within the week, the morning. I was in front of my office, I saw a familiar white taxi speed past my door. As I saw it come I recognized the taxi and the man driving – as he was sitting. Everything about the taxi. It was familiar to me. It was the same taxi. I reported to the police. I noted the number plate and colour and make of the car. I gave details to police.
- I was called to the station on the details. After few days they told me they had the man and I was to see him.
- Early morning I came to the Station. I was at an office while process was on inside.
- Few minutes later they called me to a bure and they made group of man stand in front of me. They asked me to ID the man.
- I, ID the man after I looked at the group. I noticed the taxi driver.
- That man is in Court today. (Witness pointed to accused in the accused box)
- White taxi – that time it was LT 3401.
- Medical report was prepared.”

In cross examination PW-2’s response was as follows:

“ – I had conversation in taxi with driver.

- He insisted to go and see a friend.
- When accused drove past Vuci South I took shoes of. I was wearing a black slip on shoes with red stripes. I had socks on.
- I was scared when he drove past Vuci South.
- When car stopped I could not get out. Door was locked. The door could not unlock. Window was closed.
- I followed accused outside when he stood up.
- It was 4.30 on the taxi’s time. It was lit.
- Accused came to my side. I ran away, accused caught up with me.
- Ran for 50-100m.
- Accused took my underwear of.
- I urinated when accused caught me. I had underwear on that time. Accused asked to perform oral sex.
- I noticed hard object like a stone or a marble in his penis.
- Oral sex went on for 1min or less.
- I was scared.
- If I was thinking straight I would have bitten his penis off. I could have bitten his penis of. Accused had marble in his penis. Accused dragged me and told me to lie down.
- Accused did not push me. I lay down gently. I could see houses. They were quite far. About 100m away (from here to crest chicken – nearest house)
- Where we were was totally dark.
- As accused left I was relieved. In my mind I wanted to go home. I grabbed my things before going home.
- My things were at my feet. The door was locked. I knocked on the window. My uncle opened. I did not tell my uncle. I did not tell because of the relationship.
- I gave statement to police on 29/6/2007 another on 5/7/2007. (Page 5 of 29/6/07 read in Court by the witness)
- The statement I gave today is correct. It was my uncle who opened the door
- I did not wake my aunt. I told my sister.
- Went to WCC on 29/6/07. Went to work then to WCC.
- I wanted to go straight to WCC. I left home at about 8.00 at work at 8.15. They dropped me at 10.00am. I got to WCC at about 12 to 2pm. Office is in Nausori.
- I had few things for the office. I did not go straight to WCC. We had 2 stops on the way.
- I noticed taxi in Nausori. It was the same taxi. It was white. I saw the taxi in broad daylight. 1st time I saw, I saw in broad daylight.
- Everything was familiar. 29th June – car white. At the incident that the colour I saw at night.
- The taxi faced my house when he came to pick me. His car lights were on. I got into the car
- 1st time I noted plate # when I saw it in broad daylight. Marble in accused’s penis (line 25 – Page 5).

The victim was asked by the accused’s counsel whether “Man with big belly and fat is in court today”. The victims response was “No I did not see one.” The next question was “when incident happened at the time 4.30, my client was sleeping at home, after grog session; man you described is not my client? The victim responded “no”.

In re-examination of PW-2’s response was – “same taxi driver dropped and picked me. He wore the same clothes and had same face when he dropped me and picked me. It was the same taxi driver who picked me who had sex without my consent”.

The 3rd Prosecution witness was S. V (PW-3). In his examination in chief, he stated as follows:

“- had K.Q as girlfriend in 2007. We are husband and wife now. In 2007 stayed in Waituri. We rented. In 2007, girlfriend went to withdraw money.

- We were looking for a taxi at the bowser in town. We got a taxi there I sat in front, girlfriend in back seat. Asked driver to go so we can withdraw some money from ATM. I saw the driver. I got off at the ATM withdrew and went home.
- It’s been a long time I do not recall the date.
- I asked the driver to come back and pick my girlfriend to take her to family home. At 4am same driver came, same car, same number plate and picked girlfriend.
- I knew the driver. I came out of the house. Taxi # LT3401. I recall the driver (witness pointed to accused in accused box)
- Same person who dropped us and same person who picked my wife.
- I was called to ID someone to see if it was the same driver. It was a parade.
- I, ID the person at the police station.
- It was a parade. I was made to ID the person. Without doubt I pointed to the police. A Fijian police conducted the parade.

In cross examination PW-3’s response was as follows:

“- at 4am girlfriend was picked up by the driver. Car parked in front of house. I came right out of door. I was outside the house.

-the driver faced me. The taxi lights were on. House lights were on. Porch is on top. She sat in front. She said bye and left.

-I do not know all taxi drivers in the area. I know some. If I know someone well I would say is a friend. I do not know accused well. I talked to the driver that day. I talked to him whole time. I could tell he had a tooth missing.

- I am not mistaken as to the accused.”

There was no re-examination of PW-3.

The defence consented to the prosecution tendering the the parade interview (marked PE-2).

The 4th Prosecution witness was Eroni Soqo (PW-4). In his examination in chief, he stated as follows:

“- years back police officer. 20 years as CID. Interviewing officer of the accused. Interview inside the crime office. Interviewed in Fijian Language. Gave rights to the accused and cautioned him.

- Interview read back to the accused.
- Accused denied the offence. Caution Interview and Charge sheet marked PE 3 and 4 respectively.

In cross examination PW-4’s response was as follows:

“- question 18 of caution interview, accused was not taken for examination accused admitted he had marble. We took his words. Accused did not receive medical examination.”

This was the prosecution case. The Defence Counsel made a submission for no case to answer.

At the close of the prosecution case the court ruled that the accused had a case to answer.

Defence Case

The accused (D-1), Manasa Vakasoqo, took oath on Bible in Fijian. D-1, stated the following in Court:

“ – work for Ministry of Agriculture for 2 weeks. Before a taxi driver for 1 year. In middle of 2008 and 2009.

- In 2007 was a part-time taxi driver.
- Remember 29/06/2007 was taken to police station. Started work that day at 7am brought wife to work that day and I started work.
- I finished work that day at 7pm.
- I cannot recall last drop.
- When I finished work I went to my friends place – Vunivaivai (Crest Farm). Went with Fijian boy in the village. (Court notes that witness is shifty and evasive in his response – demeanor)
- Went to drink kava start at 8pm. Finish at 12 midnight.
- After grog session went home. Went back with Fijian boy who came with me.
- Reached home at 12.30 am.
- I had dinner and went to sleep.
- I woke up at 6 am, my wife was at home. I have covered start to end of day.
- Nothing unusual happened. Donot remember dropping the victim. Do not remember going to Vuci South (Court notes that witness is shifty and evasive in his response – demeanor)
- Have all teeth intact.
- I did not take victim to Vuci South and raped her. I did not rape her. I did not force her to perform oral sex. I was not at Vuci Road at 4am that day. Donot wish to state anything else.”

In cross examination D-1’s response was as follows:

“- got license in 2007. I did not operate illegal taxis previously.

- I did not pick victim in taxi in town that day.
- 4am did not pick victim from Waituri.
- I was in ID parade – agree.
- Was pointed out by the victim that day.
- She went past once and when she came back she ID me.
- Went past all 10 and then back and ID me.
- About 6 police officers were there.
- Was interviewed by police.
- Q.19 – agreed with parade.
- Parade was not conducted properly. As I went in the victim saw me go in.
- They were standing at the police station.
- Was at Crest farm. Did not tell the police I was there.
- They never asked me this question.
- LT 3401 I was driving that taxi. I finished at 8pm that night.
- No-one else drove that taxi. It was in my possession was parked where I was.

In re-examination of D-1’s response was – “the 2 complainants saw me as I was coming out of Crime Office. I was escorted. Before the parade. It was first time I saw them. 2nd time I saw them was when I came to court. Just I was there when I was escorted by the police. When I came in they were already in the parade. We were similar. We were all same height. No one could have taken my taxi as I slept.”

There was no other defence witness. This was the defence case.

Following the Defence case both the prosecution and the Defence counsels made closing submissions. The Court has considered the submissions.

The Law and the Analysis of the Evidence
Section 149 and 150 of the Penal Code (Cap 17) read as follows respectively:

Definition of rape - 149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.

Punishment of rape - 150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment.

The Elements

The elements of the offence that the prosecution is required to prove beyond reasonable doubt in order to prove its case are the following:

(a) Manasa Vakasoqo, (the person in the charge and appearing in court – identification)
(b) Had unlawful carnal knowledge of K. Q (the complainant), and
(c) without K. Q's consent.

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

Corroboration

The Court in this case notes the ruling of the Supreme Court in Eliki Mototabua –v- The State, Criminal Appeal No. CAV0004 of 2005S (Date of Judgment 29th February 2008) where Mason, Handley and Weinberg JJ stated (In paragraph 39):

" ... First, it has never been the law that actual corroboration is required in cases involving sexual offence. There was only a requirement, at common law, that a warning be given of the dangers of convicting on the uncorroborated evidence of complainant. Second, it has been held by the Court of Appeal that that rule of practice no longer exists in Fiji: See: Sereima Balelala –v- The State at p.19."

This Court takes notes of and heed of the comments by the Supreme Court Justices with regards to corroboration in sexual cases.

Identification and the Parade
The Courts notes identification guidelines, as set out in R v Turnbull & Anor [1976] 3 All ER 549 (CA).

This court notes the guidelines set in Turnbull and in particular the following questions: (a) How long did the witness have the accused under observation? (b) At what distance? (c) In what light? (d) Was the observation impeded in any way, as for example by passing traffic or a press of people?) (e)Had the witness ever seen the accused before? (f) How often? (g) If only occasionally, had he/she any special reason for remembering the accused? (h) How long elapsed between the original observation and the subsequent identification to the police? (i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(a) How long did the witness have the accused under observation? The complainant in her evidence told the court that they hired the accused's taxi and they went to an ATM to withdraw money. The accused later dropped the complainant and her boyfriend at her home. They asked the accused to pick her up at 4am. She was picked up by the accused at 4am. She also explicitly gave evidence on where the accused took her, asked her to perform oral sex and raped her. For all this time the complainant was with the accused. This is a considerable period of time.

The Court here notes from the evidence of the complainant that these events occurred for some time and this is in the view of the Court gave the complainant adequate time to observe the accused. She firstly saw him in the day time when he drove them home and she later saw him when he picked her up. She sat in the front passenger seat next to the accused who was the driver.

(b) At what distance? The complainant in the morning was in the taxi. Later at 4am she sat in the front seat of the taxi. The distance between the complainant and the accused was proximate.

(c) In what light? The complainant saw the accused in day time. She saw him again from the light of her house which was lit in the porch. The complainant saw the accused in both occasions in good light.

(d) Was the observation impeded in any way, as for example by passing traffic or a press of people? No. according to the complainant the accused was next to her in the taxi at 4am. He was the driver; she was in the passenger seat and within her view.

(e) Had the witness ever seen the accused before? The complainant had seen the accused before the time of the rape, which was day time. Later they asked the accused to pick her up at 4am.

(f) How often? The complainant saw the accused as he drove her to her house before the incident in the day time. She also saw him in the morning from her porch light when he came to pick her up.

(g) If only occasionally, had he/she any special reason for remembering the accused? The complainant alleged that the accused raped her. Rape does not take place from a distance. It takes place when a person is proximate to the other. The complainant was taken from her house in the accused's taxi. They drove along together and then he stopped the vehicle at an isolated spot and allegedly sexually assaulted her. The complainant and her boyfriend had earlier travelled in the accused's taxi in the day time. They had asked him to pick the complainant up at 4am. She sat in the taxi next to the driver. Would she not remember the accused? The court finds that the complainant did not have a fleeting glance or would miss recognizing her taxi driver and later her assailant.

(h) How long elapsed between the original observation and the subsequent identification to the police? The complainant was allegedly raped on 29th June 2007. The identification parade was held on 5th July 2007. The identification parade was held 6 days after the alleged rape. This time period is in no way an unreasonable time period based on the clear description given by the complainant of the accused and the time period she observed him, which includes him driving her in the day, picking her up at 4am, taking her to the scene of the alleged rape.

(i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance? There is no material discrepancy.

The Court has answered the above questions with regards to the complainants evidence. Her description and identification of the accused is supported by PW-3 who was with her in the day time and sat next to the accused in the taxi. The PW-3 also saw the accused pick the complainant at 4am on the date of the alleged offence.

The court finds from the statement of the ID conducting officer that the identity parade was properly conducted. Generally witnesses must be kept separate from the parade and escorted by a police officer, who may not discuss the parade with the witness. The suspect may choose where he stands and may object to the way in which the parade is conducted. All this was complied with and at the parade there is no record that the accused objected to the way in which the parade was conducted. The accused who had his interviewed re-commenced after the parade was concluded did not complain about the parade then. The identification by the complainant and PW-3 was clear and a strong one. The Court also finds that the accused was brought in by the police upon report by the complainant having seen the accused driving the taxi in town. Even before the parade the complainant identified the accused and the accused's vehicle.

The Court is satisfied beyond reasonable doubt as to the identity of the accused. The prosecution has adduced evidence to the satisfaction of this Court to prove this element.

Credibility of the Witnesses – Whom the Court Believes

One of the main issues in this case is the credibility of the witnesses and whom the court believes. The defence argued on the medical opinion and stated that it did not confirm rape. The Court takes cognizance of the medical opinion which stated it was "difficult to ascertain whether penetration took place." The Court here reads this with what the complainant told the Doctor that she had "unprotected sexual intercourse with boyfriend 1 hour before the incident." The Court also notes the additional information noted by the Doctor that the complainant has "an 8 month old baby delivered vaginally on 6th October 2006."

The Court notes the Doctors medical opinion and weighs it in light of the complainant having unprotected sexual intercourse with boyfriend 1 hour before the incident and her delivering a baby some 8 months before the alleged incident.

The Court in analyzing the evidence also notes the complainant's evidence that she feared for herself and her safety. She told the Court: "I was thinking to myself if I could get out of this alive.". The complainant told the court she screamed and the accused caught up with her. The Court here notes that she gave up to the accused fearing for her safety. She wanted to come out alive. She did not fight back. This is probably the reason she did not bite the accused's penis. She told the Court she could have bitten it off. This is also probably the reason she does not have bruises and other marks upon medical examination.

The other issue raised by the defence is the complainant stating that her uncle opened the door at home and to the police that it was her aunt. When this inconsistency was put to her she clarified that it was her uncle who opened the door and not her aunt. The Court noted the demeanor of the complainant. She was telling the truth. The Court believes her version. She missed some details, but these were not fatal details. The complainant has not swayed from her version and has not been discredited as to her evidence.

The Court has also considered the issue as to why the complainant took of her shoes. She told the Court she was wearing a slip on shoe. She wanted to run away from the accused. She readied herself to flee from the accused as she found out the accused was taking a longer route and had something else in his mind. Any right minded person in position of danger would respond in the manner the complainant responded. The complainant's actions are consistent with that of person sensing danger and taking appropriate action to avert the danger. She told the Court she wanted to come out alive from the situation.

The Court does not believe the accused. He is not truthful. When answering some questions the accused was shifty and evasive. The Court noted this.

The Court believes the complaint and her version. Her evidence is supported by that of PW-3.

The court finds Manasa Vakasoqo guilty that he on the 29th day of June 2007 at Visama, Nausori in the Central Division had unlawful carnal knowledge of a girl namely, K. Q without her consent.

Chaitanya Lakshman
Resident Magistrate

Nausori
19/04/10