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Magistrates Court of Fiji |
IN THE MAGISTRATE'S COURT OF NASINU
Criminal Case No. 126/2010
DPP
-v-
PAULA TUKANA
Ms. Luisa Latu for the State [DPP]
Mr. David Toganivalu for the accused
Judgment
[1] The accused is charged with the following offence. The charge read as follows;
CHARGE:
Statement of Offence [a]
RAPE: Contrary to Section 149 and 150 of the Penal Code, Act 17.
Particulars of Offence [b]
PAULA TUKANA, between the 23rd day of December, 2009 and 24th day of December, 2009 at Nasinu in the Central Division, had carnal knowledge of Arieta Navukivuki without her consent.
[2] The Accused pleaded not guilty to the charge and at the pre trial conference, the parties have agreed the following facts and documents, which have been accepted by this court are as follows;
(1) That the complainant in this matter is Arieta Navukivuki. She was 25 years old in 2009.
(2) That between the 23rd and 24th of December 2009, the complainant was employed as an Information Technology Officer at the Public Works Department, Nasilivata House, Samabula.
(3) That the complainant resides at Qaranivalu Road, Kalabu.
(4) That the accused in this matter is Paula Tukana.
(5) That between the 23rd and 24th of December 2009, the accused also resides at the same area at Kalabu.
(6) That between the 23rd and 24th of December 2009, the accused was 45 years if age,
(7) That at the time of the alleged incident, the accused was also an employee of the Public Works Department, Nasilivata House, Samabula.
(8) That on the 23rd of December 2009, there was a Christmas Party at the Public Works Department Office at Nasilivata House, Samabula.
(9) That on the 23rd of December 2009, the complainant and the accused attended the Christmas Party at Nasilivata House, Samabula.
(10) That the Christmas Party started at 3pm on the 23rd of December 2009.
(11) That the Christmas Party ended at 10pm on the 23rd of December 2009.
(12) That the accused was the last person seen with the complainant leaving Nasilivata House in a taxi before the time of the alleged incident.
(13) That the complainant was medically examined on the 25th of December 2009.
(14) That the accused was interviewed under caution by the Police at the Conference Room, Nasinu Police Station on the 14/1/2010.
(15) That the accused was formally charged by the Police on the 14th of January 2010.
AGREED STATEMENTS TO TENDER BY CONSENT:
(1) Record of Interview.
(2) Medical Report of the Complainant.
[3] The issue to be decided by this court is:
Summary of evidence
[4] At the trial, prosecution called following witnesses.
[5] PW1: Arieta Navukivuki: She is the victim of this case. In her evidence she adduced that she worked in Fiji Department of National Roads as IT officer in 2007 to 2010. On 23rd December 2009 they had their Christmas party at her work place. It started around 3pm. They had lunch and after that they had drinking party till late afternoon with her workmates. She said the accused; Paula Tukana had sexual intercourse without her consent. He raped her. In her evidence in chief the witness said that she can recollect what happened on that night. "When I regained the consciousness, I was behind the Kalabu Fijian School. There was a man pulling me towards a class room. From his voice I could tell that was Paula Tukana. He pulled me into the class room. There was blanket on the floor. He put me down blanket to sit. After which he pushed me to the floor. Then he lifted my dress up. At the same time I was not telling not to do it. I was telling him since he was my uncle not to do it. I was shocked at the same time. ...I was trying to push him out. But he was forcing with one hand. He pushed me down with other hand... He said never mind it was just suppose to between two of us. He took of his pants then he inserted his penis into my vagina several times. I could not recall how long it took. I was crying in front of him, trying to push him out. I did not consent to any act that night. I was trying to push him off, but I was very weak...my legs were wet, then he walked to the road, I could not stand, I was still in shock." Then, she walked with the accused to her house. It was about 2am early morning. Her daddy was awake and he asked where she was that whole night. But she did not answer him and told what happened to her. The witness said that her father thought that she was having affair with somebody, when she did not answer him, he slapped her. Next morning she went to work. She met Ani and she told her what Paula did to her last night. There were in the car park. She said she was really embarrassed because the accused was his uncle. She wanted secluded place and what she do next. When she shared the incident with Ani, she told her to go and report it to the police. Then she went to her other friend Mere and told what happened to her last night. Mere also instructed her to lodge a police report. She then reported the matter to Samabula Police. As incident occurred in Nasinu Police area she was referred to Nasinu Police station which they carried the investigation. She was medically examined by a doctor. In her evidence in chief she said that she did not know how she came to Kalabu Fijian School. Her last recollection was that she was with her friends in a drinking party and the Accused Paula was also present in that party. After this incident the witness said that she was shocked, she felt shame, she felt that she was abused and degraded.
[6] The witness was cross examined at length. In answering she said that the accused is her step father's cousin and also related to her mother. She said that she had 5 glasses of Red Wine and she did not know how many glasses she took after that. She admitted that people of the party were drinking and dancing, but she could not recall that she told Paula to carry/lift her and dance with her. She further said she could not recall she asked Paula to go with her. She could not recall the she was kissing and hugging Tukana in the taxi. She further said that she could not recall in the taxi she took off her panty and bra put it to her bag. She could not recall she took Paula's hand and put it against her vagina. She said she was at drinking party from 3pm to 10pm and after that she cannot recall what happened. She said that she cannot recall a security guard in the school and she vomited in the school. She said that she regained the conscious at the back of the class room. She said she cannot recall that the accused asked her to have sex in the class room but she can recall he pushed her down and have sexual intercourse forcefully. She was cross examined as follows;
"Q: I put it to you that he had asked you to have sex? No, I did not.
Q: Then, Why did not you scream? There was an engine going on. I though no one would come and help me. He was big and well built; I thought he would do something to me.
Q: Do you recall after he lifted your dress up, he began to lick your vagina? No, He didn't.
Q: Do you recall you were hugging and licking each other? He did not do it. He did not help me to go back to the home. I could not walk; my knees were not working properly. My father saw both of us, because of that my father slapped me. "
[7] In re examination the victim said that she could not recall everything that Paula did to her.
[8] PW2: Ani Balawa: She said that she can recall 24th December 2009. She came to work at 8am and Arieta called her. Arieta wanted to say something to her. So, they went to the car park. She said at the car park, the victim said what happened in previous night. The victim was so drunk, consuming wine and she did not know what she was doing. Victim said she got into a taxi with Tukana, when she got into the taxi, she was unconscious. They went to Kalabu School and she was forced to have sexual intercourse. She adduced "From there, Tukana forced for them to have sexual intercourse. When she told this, she was crying. I felt sorry for her. I believed what Arieta was telling, because she was crying and she was telling the story. She said that Tukana told her relax and keep it between them. Arieta told him that you can't do this to me since you are my uncle, but Tukana kept on forcing her. I told her to forgive Paula Tukana, to reconcile with Tukana. I did not give any advice". The witness said that the victim to that Tukana dropped her at her home and her daddy hit her with a broom. The State Counsel questioned the witness as follows:
"Q: According to Arieta, she said that she could not recall that she was getting down to the taxi, how did you know this story? Arieta told me on 24th December 2009."
[9] In the cross examination that she told that Arieta is a good friend of her and she told what had happened to her on 24-1202009.
[10] PW3: Epeli Tuisese: The witness said that he has 3 kids but he is not the biological father of three kids and kids are from his wife's previous marriage, but he treats them as own. He said he can recall 23rd December 2009. He said the victim; his daughter came late from work. It was festive season he was worried where his daughter was until mid night. He said when she got late he called her work place. They said she left at 10pm. The witness said she reached home about 3-4am early morning. She said where his daughter was after 3am she came home. He was standing at the porch, she was coming along the drive way. When she reached he was asking where she was till early hours, but she was not answering and looked confused. She smelt of liquor. The witness said that "She look confused, she smelt of liquor, she was not answering the questions. I told her to go and have a bath and have some rest, because it was early morning she had go to work. When I questioned her she was confusing. Next day ... her mother called me around 2pm and told the incident.... I did not believe what they told It was my cousin who they mentioned that did that to her"
[11] PW3 was cross examined and told to the court that the accused is related to him as a cousin. He did not see Paula Tukana was walking with her on that night. He admitted that he inquired her why she was late and slapped her left arm.
[12] PW4- Torika Rogosau: This witness said that she married to Nika Rogosau for 8 years. She said in 2009 she worked for Department of Land and Roads. She can recall 23-12-2009. That was a Wednesday and there was a party. The Victim Arieta was there. There were some drinking in the food area. There was section at the back they were drinking after drinking, including Arieta. She said that some of the staff took alcohol; they were Siva, Mosese, Epeli, Salote, Ben, Vuniceva, Arieta, Paula, Mai and herself. The witness said that Arieta was drinking Wine and Beer. She was drunk and she wanted Paula Tukana to carry her. The witness said that "She was drunk; she wanted Paula Tukana to carry her. While we were drinking, she was sticking close to Paula; she said that she will go with Paula Tukana. I told her she is drunk I should take her to my house, but she refused to go with me. She wanted Tukana to take her home. She was not that much drunk, because she knows what's happening. She asked her bag and purse. Party ended after 10pm. We came down to drop her home.... she was hugging Tukana for them to go with her." The witness said then she asked her husband to take a taxi for Arieta and Tukana. She said that her husband came with a taxi and got off. Then Arieta and Tukana went with the Taxi, last person with Arieta was Tukana and it was 10.20pm.
[13] In cross examination the witness said that Arieta was drinking when party started. She was drinking wine. Paula was drinking with them. Party started around 3.30pm and went till 10.00pm. The witness said the victim came to the accused and asked him to carry her. They dance together and the victim was not that much drunk and she asked her bag and wallet. The victim was able to walk down with the witness. They were hugging each other before they got in to taxi.
[14] PW5-Niko Rogosau: This witness said that PW4, Torika is his wife. On 23-12-2009, he was at home. His wife went to a party at her work place. About 10 pm, his wife called him and asked him to bring a taxi to her work place. There was 5, 10 minutes walking distance to her workplace. He then took a taxi to her place. When he got off the accused and Arieta got in to the taxi.
[15] In cross examination, the witness said when he reached the work place, the accused, Paula and Arieta were hugging each other. They sat behind driver's seat.
[16] PW6-Edward Sharma Prasad: This witness was the security guard of Public Works Department. He said on that date there was party in his work place. He reported to the work at 5pm and knocked off at 7am 24-12-2013. The party ended at 10pm, everybody went out and he put their names in the log. He checked whether anyone was inside. He said he can recall Torika, Epeli, Arieta, Paula and some others were at the party. They were drunk but not that much. At 1am Arieta's mother rang and asked about Arieta. He told that they have left around 9.30pm. The mother said that she had not returned home.
[17] In cross examination, the witness said all were not that much drunk and able to walk without any assistance.
[18] PW7: Nemani Turaga: He is the security guard of Kababu Primary and Secondary school. On 23-12-2009 he was at work. He was at front gate then heard some sound at the back. When he came to see, he saw a girl was vomiting and man beside her. When he approached them the man told he was his girl friend. The man is his cousin Paula. So, he left them and went to front gate. He did not identify the girl as it was dark.
[19] In cross examination he said when he heard the noise he went back. After that he did not hear any noise from the school.
[20] PW8: Kelere Sakumeni: She is the Medical Doctor who examined the victim. She briefly explained her qualification and medical experience. She said she is giving evidence as medical expert. Her experience and qualifications are not challenged by any party. She identified the victim's medical report. She said on police's request she did the medical examination. She said she examined the victim on 25-12-2009 at 10.30 am. Referring section A, paragraph A(4) the background that victim had said to the doctor and doctor noted "she alleges that she had beed raped by her uncle Paula Tukana on 24-12-2009" . But incident took place 23rd not 24th. In paragraph D(10) the doctor the history as follows: " was drinking at work,got too drunk, "blackout". Allegedly taken in a taxi by her uncle. Says details not clear, but says her uncle took her to a school,, remembers him having sex with her. She was telling him to stop, but he didn't. Work mates said that she was taken at 10pm but did not arrived home until 2am" The witness said there were no external or internal injuries. The doctor said she was given normal prescription for unsafe sex. She said that "There were no injuries but I can't rule of sex". The witness also said that if there is a injury it would be visible till 72 hours from the incident. The medical tendered as EX-1.
[21] The witness, in cross examination, said the victim's impression was clam. If the victim got bleeding bruises, it should be visible within 72 hours and she examined her well within 72 hours.
[22] In re examination she admitted the visibility of wounds depends on severity of the injuries and the victim stated that she did not resist the assailant.
[23] PW9: Epeli Qio: the witness said he recorded the caution interview of the accused on 14-01-2010 and all rights were given to him. The caution interview tendered as Ex-2 and charge statement was tendered as EX-3.
[24] In cross examination the witness said that he drew a sketch plan of the crime scene. In the caution interview the accused has said that he will explain that the allegation that was put to him in the court.
[25] 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.
[26] DW1- Paula Tukana -the accused: The accused said that he is single works in department of national roads for more than 20 years as technical officer. On 23-12-2-009, he went to work. In the evening they had their Christmas party. They were having beer, wine and some snack food. He said he cannot remember how many glasses he had. He was having wine. He knew Arieta for 3 years as he was working her. She was the IT officer of the department, but they are not blood related. He said that The Prosecution witness Torika is correct as the victim asked him to hug her and carry her. It happened more than 5 times during the party. He was not drunk. The accused said after the party boys (men) were planning to go to the town. But Arieta wanted to come with him. She persuaded to come with him. The accused in his evidence said that "I knew what Arieta wanted. She wanted to lift her, hug her... at dance were kissing, she wanted me that night. After that we came down, we waited for taxi." He said that he can't go to her house her father of strict pastor of 7th day Adventist. She asked him to take anywhere. They were hugging and kissing each other, therefore no taxi stopped. Torika called his husband to bring a taxi down. He said inside the taxi Arieta started kissing him. He said in his evidence in chief that "We both kissed each other, she said she is hot. She took off her bra and she told me put it inside the bag. Then, she asked me to touch her breast. Taxi driver was watching at us so I did not want to do. Then, she said I am a "Pufta", I can't do men's job. Then, I touched her breast and sucked her breast. When I was sucking, I felt that she was taking off her panty too. She told me to put her panty in the bag and said she is feeling hot. Then, she holds my hand and put it on her vagina. After that I touched her vagina, keep on sucking her breast. She asked me if she can hold my penis. I told her it doesn't matter. It's up to her, whether she like it or not. Arieta was awake. She knew what we were doing. She was kissing me and touching inside. Taxi took us to a vacate building at Kalabu. I told her I will take her to my place, Arieta said you take me to a place nobody can see us. Then we got off at the school. I paid the taxi fare. I went inside the building, Arieta was following me. Then, Arieta told me that she wants to vomit., while she was vomiting the watchman came around. ...We went inside the vacate building. She said she is getting cold. Inside the class room, she said cold, she wanted rug. He sat down on it. Then, she hugged me. We started kissing each other. We made oral sex. We kissed and touched each other's genital parts. Then, I sucked her breast again. After sucking of her breast then I went down and licked her vagina, after licking of vagina we kissed each other. Then, I asked her if we can have sexual intercourse. She said "I have already told you, I am yours tonight". That night, I asked her 3 times, that we can have sex....she postured herself. I knelt down. She already pulled her dress up, Then, I unzipped and unbutton my trouser and I laid on top of her. I then inserted my penis into her vagina. Arieta was awake, when I inserted the vagina was wet, she kept on telling me not to stop, she was shaking her hips at a point and i felt her legs were grabbing my hips. She grabbed my hips she hold my head down to her mouth and put a love bite on my neck. After that she was rubbing my back and telling "I am about to come, Oh...I am coming. I hear her scream and she reached her climax. After few minutes I reached my climax too. We then lie down for a few minutes, we hugged, kissed each other again....When we were having sexual intercourse, she did not refuse at any stage. Arieta did not complain that she was hurting. I think she liked it because she kept on telling not to stop it." The accused said then he dressed up. He gave her bra and panty on her request. She dressed up and they hugged and kissed each other. Then they walked up to her house. She said she is cold so he put his shirt her around. He carried her hand bag. They walked around half a kilometre (500 metres). He took her home. At the drive way she gave his shirt and he gave her hand bag. He then straight away went home. The accused further said "Next morning, as normal, I went to work. I met Mary at tea. I also met Torika, Arieta, we joke as normal." He worked till 8am to 5pm. When he knocked off, one of his friend, Avenai called him and told that Police came to the office in search of him on Arieta's rape complaint. He was on his way to spend the Christmas. So, he proceeded to spend Christmas holidays. After on his friend's instructions, he got law firms advise. He was advised to stay away from the scene by solicitors. Then he was interviewed on 14-01-2010 by the police. He told to the Police that he will answer all questions in the court. The accused further said that "the allegation of rape is wrong. At the moment, I feel shy, people are joking at me. They say I am a criminal, rapist, I feel down at every time".
[27] In cross examination the accused admitted that he gave statement to the police on 14th January 2010, 20 days after the incident. The accused said he did not evade the police but on his solicitor's instructions he stayed away from the police. The counsel for the prosecution then suggested series of questions implicating that the accused raped the Complainant-Arieta. But the accused categorically denied that he raped her, but they had sex on that morning with consent. He said he is not lying to the court and he did not take the advantage of the vulnerability of the victim.
[28] The court questioned the accused as follows;
"Q: What is the 20 days delay to give caution interview? They have reported to Ready Action Unit Police. Since PW1's step father and Commander of Ready Action unit, Emori Tuisesse is related and lawyer advice me that they will make an appointment to Nasinu Police station to get the interview".
[29] The accused thereafter closed his case. Both parties were given to file closing submissions. Both filed the closing submission which I have carefully considered. The states referred one of my judgment, DPP v Veresa [2012] FJMC 167; Criminal Case 1560.2007 (17 July 2012), which I have considered the credibility of witness in detail.
The Law
[30] 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
[31] The elements of rape are;
a) Any person
b) Who has unlawful carnal knowledge (penetration)
c) Of a woman or girl
d) Without her consent
[32] In State v Josefa Tukai HAC 12/03S and Anetikini Kuruvoli [2006] HAA 22/06S 15 June 2006 Madam Justice Shameem 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
[33] 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.
[34] 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 rable doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused ps before you express an opinion that they are guilty. If you have any reasonable doubt as t 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 reasonablet about the the guilt of the accused."
[35] As Lord Devlin mentioned evidentiary burden of proof in the Privy Council in Jayasena v. The Queen (19 618)reported in 72 Ne72 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.
[36] 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
[37] 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. In this case the accused admitted that he had sex in day in question. He said that it was consensual sex.
[38] 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
[39]The identity of the accused has never been disputed and therefore person means the accused, Paula and woman or girl means the Arieta, the victim. These elements were proved without dispute
b) Had unlawful carnal knowledge and d) Without her consent;
[40] In respect of these elements the accused admits the act of sex. The court to decide whether that act was unlawful. The consent element is very vital for a rape case as the consent is complete defence for a rape charge. If the act was complete with the consent the charge fails then and there.
[41] The victim says that she had been raped by the accused. This is direct evidence. How strong these direct evidence (positive evidence) and risk of admitting direct evidence was discussed in centuries ago. In Commonwealth v Webster (1850) 5 Cushing (Mass) 295, remarks of Chief Justice Shaw are particularly instructive to this, that is;
"The advantage of positive evidence is that it is the direct testimony of a witness to the fact to be proved, who, he speaks the truth, saw it done; and the only question is whether he is entitled to belief. The disadvantage is that the witness may be false and corrupt and that the case may not afford the means of detecting his falsehood"(Emphasis is mine)
[42] In this matter the victim says that she did not consent to the act of sex. The accused said she did consent to the act. This fact is directly related to the mens rea (Guilty mind) of the offence. The consent, rape in real sense, reasonable belief or honest belief are to be considered succinctly to decide whether the victim consented to the act of sex. There are galaxies of common law superior courts decisions in this regard, which I consider now.
[43] In the case of Sweet v. Parsley [1969] UKHL 1; [1970] A.C. 132, the English Court, Lord Reid held at 148-149:
". . . there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea. . . . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.'(Emphasis is added)"
[44] In Sweet v. Parsley (supra) 163, Lord Diplock referred to a general principle of construction of statutes creating criminal offences;
"a general principle of construction of any enactment, which creates a criminal offence, [is] that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent."
[45] The accused said that the victim fully supported to the sexual act and he was reasonable belief and honest belief that she gave consent. In The Queen v. Tolson [1889] UKLawRpKQB 85; (1889) 23 Q.B.D. 168, 181, Cave J. observed:
"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim 'actus non facit reum, nisi mens sit rea'. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. . . . So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication." (Emphasis is mine)
[46] In Bank of New South Wales v. Piper [[1897] UKLawRpAC 21; 1897] A.C. 383, 389-390, the Privy Council articulated the 'reasonable belief' approach;
"the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent."
[47] In the judgment of Lord Lane C.J. in Regina v. Williams (Gladstone) [1983] EWCA Crim 4; (1983) 78 Cr.App. R. 276, 281:
"The reasonableness or unreasonableness of the defendant's belief is material to question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting . . . and so on."
"If then a genuine belief, albeit without\ reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully."
[48] Sir Owen Dixon, in Thomas v The King [1937] HCA 83; (1937) 59 C.L.R. 279, 309, observes the standard of proof;
"The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code."
[49] The House of Lords' judgment in Director of Public Prosecutions v Morgan5 [1975] UKHL 3; [1976] A.C. 182, is widely regarded as the locus classicus regarding the defence of mistaken belief in consent. The facts, in brief, were that Morgan had invited three strangers to have sexual intercourse with his estranged wife. He told them that any resistance offered by his wife should be seen as nothing more than a manner of sexual stimulation on her part: she was 'kinky' and only pretended to resist. On a charge of rape, the accused relied on the defence of mistaken belief in consent. The House of Lords held that there could be no conviction on a charge of rape where a man honestly believed that a woman consented to sexual intercourse, however unreasonable this belief may have been. The House of Lords further enunciated that the intent to commit rape involves an intention to have intercourse without the woman's consent or with a reckless indifference to whether she consents or not. It would be inconsistent with this definition if an honest belief that she did consent led to an acquittal only when it was based on reasonable grounds.
[50] South African Court in the R v Park [1995] 2 SCR 836; discussed the onus;
"Essentially, for there to be an air of reality to the defence of honest but mistaken belief in consent, the totality of the evidence for the accused must be reasonably and realistically capable of supporting that defence. Although there is not, strictly speaking, a requirement that the defence be corroborated, that evidence must amount to more than a bare assertion. There must be some support for it in the circumstances. The search for support in the whole body of evidence or in the circumstances can complement any insufficiency in legal terms of the accused's testimony. The presence of independent evidence supporting the accused's testimony will only have the effect of improving the chances of the defence (emphasis is mine)"
[51] In line with the above superior courts' guidance, I now analysis the evidence of this case. There are two hypothesizes can be taken as defence in this case. Those are;
[52] With regards to consent, the accused said that the victim induced ad initiated the incident. They were in the party. The victim came to the accused as asked him to lift her and dance together. Torika, a witness for prosecution said they were hugging each other. The Torika confirmed to the court that the victim knew what she was doing and she was not that much drunk. Torika invited the victim to go with her that night, but the victim desperate to go with the accused. Torika then called a taxi. Few minutes before the act, the victim vomited and they met security guard of the school. She had a chance to tell that security guard, Nemani Turaga before or after she was raped that the accused going to raped or the accused raped her, which she did not do. According to the accused the victim was fully sexually arose and they both reached the orgasm. There were no internal or external injuries. According to the accused on the following morning he met the victim at the morning tea, but she did not react. The victim has said that she was raped by the accused to Ani Balawa. It was next day following morning at the car park. The victim illustrated the story how it happened to the witness. The victim had no chance to discuss the previous night experience with anybody. If the victim had no chance to get to know the incident how she stated the story to Ani if she were black out? That means the victim was aware what was happening at that early morning and she consented to the act. Her consent may be due to influence of liquor, whether the accused was misled by this false consent? On the other hand the victim met her father at the home but she did not raise any cry of rape to him and kept silence. If she regained the consciousness before act of rape, this is the first opportunity to disclose her ordeal, even to her mother, but she failed to do so.
[53] The question of that the accused reasonable or honestly believed that the victim was consenting to the sex at the particular time, is to be considered next. The victim said that after taking liquor, she could not recall what happened. In that night, there are witnesses to say that they hugged and dance each other. They are independent witnesses and cannot be easily ignored and they have no reason to concoct a story against the victim, mainly they are female witnesses. In the taxi the victim invited the accused to touch her private parts. When he refused to do so, the victim called him as "Pufta" (eunuch/neuter), that he cannot do men's job. The victim was kissing and hugging the accused. In the class room, they performed 69 action, oral sex, licking, kissing, rubbing and hugging. This is a natural behavior of sexual advance of human beings and the accused can draw of inference that the victim is consenting to the act. Not only that the victim fully cooperated with the sexual act and they got the maximum at the end of the act. Therefore I hold the accused reasonably and honestly believed that victim consented to the act. It may be a mistake of the accused if the court believes the victim had a black out. On the other hand the accused said that he verbally asked the consent of the victim and she said "I am yours tonight". This proves the consent of the victim, if court believes the accused's evidence.
[54] The accused's version and the victim's version are conflicts in testimony. In Attorney General of Hong Kong v Wong Muk Ping (1987) 2 W.L.R. 1033 the Privy Council observed as follows:-
"...... any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability." (Emphasis is mine)
[55] If the court considers all evidence in whole, the doubt creates whether the victim consented to the act and the accused reasonably and honestly believed that the victim was consenting to the sexual act. In this matter the accused qualifies for both defences. When the accused defence is consent, the subjective test to be applied and subjective test is unique for each and every case. Mental states of the accused to be decided in this regard. In this matter we cannot apply objective test, which is reasonable, prudent man's view as the accused took consent as his defence. In attendance circumstances, his defence can be successful as I noted in my judgment.
[56] The only adverse inference can be drawn to the accused that he evaded the police for 20 days after incident. He had a chance to get legal advice and concoct a story. Yet, to get legal advice before law enforcing authority, before giving caution interview is a fundamental right of an accused. Whatever, the burden lies on the prosecution to prove charge beyond reasonable doubt, whatever the defence, weak or unreliable it does not prove prosecution's case or bolster the prosecution's case. The prosecution has to prove its own case beyond reasonable doubt, but in this case the prosecution fails to do so.
Conclusion
[57] The charge against the accused has therefore not been proved beyond reasonable doubt and I return a verdict of not guilty to the charge.
[58] I answer issues in following manner;
[59] As result, the accused is acquitted and discharged.
[60] 28 days to appeal.
On this day 12th February 2013 at Nasinu, Fiji Islands
Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu
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