IN THE MAGISTRATE'S COURT OF NASINU

Criminal Case No. 944/09

DPP

-v-

ILAI NAVAKI

Ms. Leba Koto for the State [DPP]
The accused appeared in person

Judgment

[1] The accused is charged with the following offence. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

RAPE: Contrary to Section 149 and 150 of the Penal Code Act 17.

Particulars of Offence [b]

ILAI NAVAKI, between the 1st day of January to the 31st day of December, 2001 at Nasinu in the Central Division, had unlawfully carnal knowledge of Viti Marama without her consent.

[2] The Accused pleaded not guilty to the charge on 22-06-2010 and Ms E Raitauata appeared on behalf of the accused by the Legal Aid Commission. That was the last date that legal aid appeared for this accused. At the trial the accused did not indicate that he was represented by the legal Aid. This matter was initially handled by Mr. Lacanivalu, Ms Hamza, Mr. Filimone, Ms. George and finally Ms Koto for the DPP. Nor DPP counsel mentioned that the accused was represented by the Legal Aid Commission earlier. This led for non representation for this accused. If they mentioned court could have inquired from the Legal Aid whether they still represent the accused. It is to be noted the counsels are officers of court. They were given authority by the Supreme Court and the Chief Registrar to assist the courts. But at this moment I can clearly see that the court was not assisted by them. Section 51 of the Legal Practitioners Decree 2009 says;

"Every person practising as a practitioner and being the holder of a current practising certificate shall be deemed to be an officer of the Court". I therefore show my displeasure of their conduct of handling this case. 

[3] Before I proceed to consider my judgment, I consider whether there had been any miscarriage of justice because of non representation of the accused by the legal aid.
[4] The section 165 of the Criminal; Procedure Decree gives the Right to defend cases. I reproduced it for clarity. 

"Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this Decree in any court, may of right be defended by a lawyer".

[5]In Eliki Mototabua V The State (CAV 004 of 2005S) held Right to counsel is not an absolute right. In Seremaia Balela V The State (Criminal appeals No AAU003 of 2004) court held Absence of Counsel is not necessarily fatal, if trial is fairly conducted. In Samuela Ledua V The State (Criminal appeal CAV004 of 2007) court enunciated the question is whether the trial miscarriages a results of unrepresented. Why I so concern this question is this court was not enlightened that there was a legal Aid representation before the trial. I might think of cancel the proceedings. I know this is appealable ground and otherwise my exercise will be nugatory. Had the Legal Aid withdrawn from the case is unclear. The Legal Aid appeared only once. They did not follow up. So many occasions the accused had appeared alone. But the accused did not inform that he has legal aid counsel and it is therefore deemed that he had waived right to counsel. The incident occurred in 2001 and case cannot be prolonged forever. Whatever, the both parties had indicated they are ready for trial and the rights of the accused had been given throughout the trial. I hold there is no miscarriage of justice, thus I proceed to consider my judgment. 

Summary of evidence

[4] At the trial, prosecution called following witnesses.

[5] PW1: Viti Marawa: She is the victim of this case. She gave evidence and accused was screened and it was a close court. In her evidence she is in form 4. She has two brothers. They are Peni and Apisai. Her mother is Karalaini Take. She said she was raped in 2001 by the accused Ilai Navaki, she was in class 4. She said she was staying with her mother and step father in 2011. The accused is the step father. She said she was six years old when she was raped by the step father. "I was in the kitchen, He had returned somewhere. He came into the kitchen to hang his shirt. He then went to the room, and then he started to call me come inside to the room. No one was in the room, only he was there.Then he asked me to come in and not to tell anyone that he was going to do. I was cooking in the kitchen; I went to the room to see what he wanted. When I went to the room the room he told me to undressed myself and not to cry. He threatened to me. I was scared, so I did what he told. When I undress myself, he laid me down and started to fondle me. Then he raped me. He removed my under garments. He inserted his penis to my vagina. He raped me on the floor, when he inserted his penis, it was very painful. He was pushing his penis into my vagina about 20 minutes. No one was inside the home." The witness said she notice white fluid and blood in her clothes. Those were coming from her vagina. She said that day and following day she was doing her job, she was cooking, cleaning washing. She did not look him directly. She did not talk to him. She did not go the school. She said the accused raped her for second time when they went to fetch the fire woods after breakfast. At that time she said that they went her two brothers. She said "He told me my two brothers to go to bushes and fetch for fire woods, but he told me to remain with him. After they had left he had cleared small place on the ground, then he called me and warned me to not to tell anyone. Then he laid me down. He undressed me. Then he raped me. He had done what he had done to me earlier by inserting his penis to my vagina" The victim said that she was threatened by the accused not to tell anyone if so he would kill whole family. The victim said he did not ever consent to Ilai to these things. She said "I did not like what he did to me". She said after this she was scared to the accused step father and she hated him. She said her mother had told this incident to her auntie and her auntie had told this to the mother's elder sister. Mother's elder sister had reported this matter to the police. She said after this incident they, mother with two brothers moved to the village. The accused physically abused her mother over this incident. She said after revealing this incident she gave a police statement and he was medically examined. Medical was tendered as EX-1. The victim identified the accused as the perpetrator and pointed out in open court.

[6] The right to cross examination was given. In cross examination she confirmed when she was raped there were only two of them. She said her mother was washing and her two brothers were also with the mother. Answering to the court, the victim said this was happened in 2001 not 2004. She said she did not tell this incident to her mother that day itself because he threatened her. 

[7] PW2- Karalaini Take: She said the accused is her de facto partner. The accused abused her daughter while they were staying together. The accused undressed my daughter and had intercourse with her. She said they were in de facto relationship for 7 years. In 2001 Christmas, the accused constantly abused her daughter. She said that the accused, Ilai had fondled her and had sex with her. Then, she took her to her brother in Tailevu. The accused came after them and he brought her back. She left Viti( Victim) with her brother. But she stayed with him. The accused convinced her to get the victim back to their house. But she refused to go. That resulted that the accused fighting her (the witness). Over this the witness was physically abused by the accused. At this time her elder sister had taken the victim to their house. They reported matter to the police. They witness said the accused is not they biological father of the victim. The witness said when they started relationship she thought that the accused will treat her as a father. The witness told though she knew this incident the accused constantly threatened her to not to report it to the police. He physically abused her saying not to report this matter to the police. So, she did not report matter to the police. The mother of the victim said after this incident the victim lost her weight, did not play and she was not normal. She said when doctor examined her she was present. The doctor told her that her daughter is not a virgin. 

[8] The accused did not cross examine the victim though he was given to cross examine. 

[9] PW3-Beniame Rokoua, Sergeant 224: He said that he was the investigating officer and interviewing officer of this case. He recorded the caution interview of the accused on 23-02-2005. It was not taken forcefully and his rights were given to the accused. The caution interview was tendered as EX-2.

[10]The accused did not cross examine the victim though he was given to cross examine. Answering to the court he said the complaint was belated because victim was fear about the accused. He further said that the accused had threatened them and they were fear of life. 

[11] PW4-Detective Sergeant 1471 Falemaka Momea: He is the charging officer and he tendered the charging statement as EX-3. He said the accused was charged on 06-08-2009 and it took so long to get DPP's advice.

[12] The accused did not cross examine the victim though he was given to cross examine. 

[13] Then, the prosecution closed. Since there was a case to answer the right to call of defence was explained and given. The accused opted to give sworn evidence.

[14] DW1- Ilai Navoki-the accused: The accused said when they stay together with Kara; he did not do anything to the victim. He was employed and there was no time to do this incident. They were all stayed together and it was hard to do this. He further said he had not taken her to the bush. The accused said "I was staying with her mother, she is small there is no reason, If I raped her she would get sick. When mother informed I told her to go and report to the police, but mother said that's enough, it is ok. The reason that I asked that mother to bring the child, I needed to support to the child. It was long time to be taken to charge me". 

[15] In cross examination the accused admitted they all stayed together at the time of incident. At the time he said he was working in a service station. The accused said on that date he was not at home. But later the accused admitted that he was in the home on that day. The accused said he did not know the date and exact time. The accused admitted that the victim is not his biological father and he has no obligation on her. The accused if this happened to his daughter the accused said that he will report matter to the police. The accused denied that he threatened mother not to report this matter to the police. The accused said he loves Viti, then He was questioned "Do you love her enough to do anything to her? He said yes" 

[16] Answering to the court the accused said the victim has no previous enmity or reason for complain against him. He said they stayed 7 years together. After matter was reported to the police all were separated. The accused said he has no idea why she complained against him. 

[17] The accused thereafter closed his case. Both parties were given to file closing submission. Only the DPP filed the closing submission. 

The Law

[18] Sections 149 and 150 of the Penal Code interpret Rape and Punishment as follows:-

"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 of the Offence of rape

[19]	 a) Any person
b) Who has unlawful carnal knowledge
c) Of a woman or girl
d) Without her consent

[20] In State v Josefa Tukai HAC 12/03S and Anetikini Kuruvoli [2006] HAA 22/06S 15 June 2006 Shameem J held that "the offence of rape is made up of two elements. One is carnal knowledge and other is lack of consent". Court note first is "guilty act" which is called as Actus reus and latter is" guilty mind" which is called mens rea. 

Burden and standard of proving

[21] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[22] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused."

[23] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen (1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka), 

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[24] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted. 

Evaluation of evidence

[21] It is for the court to determine whether there is sufficient evidence adduced in respect of each one element of the offence and beyond reasonable doubt.

[22] This court now altogether analyses whether there is any evidence in respect of each element of the offence.

a) Any person and c) of a woman or girl 

[23]The identity of the accused has never been disputed and PW1, PW2 and all official witnesses identified the accused as the culprit. PW1 was identified as the victim of alleged offence. 

b) Had unlawful carnal knowledge and d) Without her consent;

[24]The evidence of PW1 in respect of these elements is to be analysed. The victim said she was raped by her step father twice. She said she did not consent to the act. She categorically said that the accused inserted his penis into her vagina. This concludes the fulfilment of ingredients for the charge. The accused's defence was total denial of said act. There is no corroboration although corroboration is needed not to prove this charge nowadays. PW2, victim's mother gave evidence but it was a repetition of PW1 one about the sexual act. The principle is repetition is not corroboration. Further it should be noted in Seremaia Balelala v State [2004] AAU 3/04 (appeal from HAM047/03S), 11th November 2004, the Court of Appeal held "there is no express statutory requirement for corroboration in the felony of rape or other sexual offences. It would be a matter for discretion, in accordance with the general law, for a judge to give a warning or caution, wherever there was some particular aspect of the evidence giving rise to a question as to its reliability." (Emphasis is mine). I directed myself to below principles regarding question of victim's testimony. Credibility of victim's evidence relies on following tests.

Test of Spontaneity

[25]The incident was in 2001. It was reported to the police in 2004. The accused was charged in 2009. The incident was so late to report and dates of the incident are unclear. The PW1 and PW2 said that they were threatened by the accused if the reported this matter to the police. They were fear of life. The Principle of common law jurisdiction regarding belated complaint is highlighted as "Just because the witness is a belated witness Court ought not to reject his testimony on that score alone, Court must inquire into the reason for the delay and if the reason for the delay is plausible and justifiable the Court could act on the evidence of a belated witness." (Quoted from Sumanasena V Attorney General, per Justice Ninian Jayasuriya [1999] 3 Sri Lanka Law Report 137) This notion is persuasive to me to reach a conclusion. The reason for belatedness is acceptable. The accused had threatened that victim and even her mother was physically abused by the accused. I note the accused was the sole bread winner of the family and the victim party had to rely on him. This had caused the belatedness and it is understandable. The victim cannot remember the exact date but it did not harm or prejudice the accused as he totally denied the allegation. 

Test of consistency and inconsistency.

[26]It should be noted that the evidence of the prosecution witnesses are in line with other they did not show any contradiction per se or inter se. The accused failed to impeach the prosecution evidence.

Test of probability and improbability. 

[27]The complainant said that she was raped by the accused. The accused said they did not have lonely time the house was always full. But the victim said that when he first raped her mother had gone to washing with her little brothers and she was cooking. Only the accused and she were there. The second time they went to fetch the fire woods. The accused sent her siblings and she was asked to stay with him. This was deliberately done by the accused to get chance to intimate with her. There were nothing to surprise of this behaviours and this story is therefore probable and tenable. 

Test of independency (interest or disinterest) 

[28]Prosecution called two witnesses. PW1 and PW2 are daughter and mother. The accused and PW2 were in de facto relationship. The Victim is step daughter. As I noted the accused was the sole bread winner and they had no intention to put him peril if this story was never happened. Therefore there is no necessity to concoct a story. Further it proves that the accused tried to get back the victim to his shelter. He said he wanted to help the victim. But he is not the biological father. The PW2 said family dispute arose over this issue and she was physically assaulted. The accused eagerly wanted victim to come back home. Why this unacceptable behaviour of the accused if he was not the actual father? Had he really wanted to help her or want to keep the victim for some hidden purpose? It shows that he had ulterior motive behind this action. 

[29] The prosecution case is primarily based on the evidence of PW1. This court accepts that there is no corroboration required in sexual offences cases. But Medical report has proved the victim was not a virgin at the time of examine. Further she had told to the doctor how she had lost her virginity. She had told that the accused raped her one and half years ago. The victim was raped when she was at the age of 8 to 11. The age and dates were not very clear but it does not vitiate the conviction. It strengthens the prosecution version. I hold the victim's evidence is cogent and impressive. In Sumanasena case (Supra) the court observed that "Evidence must not be counted but weighed and the evidence of a single solitary witness if cogent and impressive could be acted upon by a Court of law." I have no hesitation to accept victim's evidence as credible, reliable and truthful. 

Conclusion

[30] Therefore I concede the prosecution has proved the charges beyond reasonable doubt. I convict the accused as charged.

[31] 28 days to appeal.

On this day 02nd April 2012 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu