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State v P [2005] FJHC 381; HAC0016J.2005S (7 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Case HAC0016.2005S

THE STATE

V

P

Fiji High Court, Suva
7 December 2005
Gates J

JUDGMENT

Mr A. Ravindra Singh with Ms Tuiteci for the State
Mr Raman Singh for the Accused

[1] As I said in my Summing up I should be weighing carefully the considered opinions of the assessors. This I have done overnight. After this reflection and analysis however I have arrived at a different opinion on the case. I have done so for three reasons.

[2] First, the complainant herself admitted she had lied to the Magistrate. To him she had said that she had gone with the Accused to the court to get married. But before the High Court now she said that statement was a lie. Why was this lie told? She was unable to account for it.

[3] Second, in view of that unreliability, there is a need for caution in approaching other issues of credibility in her evidence. There is a need for confirmation of her account of non-consent.

[4] There is none; that is, none that provides support incontrovertibly for non-consent.

[5] Third, there is the question of what happened during the 3 hours following the departure of her brother from outside her flat. The complainant and the Accused were together. On the complainant’s account, a rape at knifepoint had been interrupted. The complainant was unable to account for the period that followed in any convincing way. Why would the rapist remain if he was no longer determined to carry out his plan? What was said? What happened? There was no plausible account given by the complainant of this lengthy and relevant time together.

[6] The Accused on the other hand said they resumed kissing. But when he took her to the bed and asked her if he could do it again, she had said no. She was really in pain he said. He did not try to penetrate her again.

[7] This first experience must have been an overwhelming and shocking one for this young complainant. That much is clear from her evidence. The Accused did not deny the difficulty for her. On her evidence too he had withdrawn after the connection had proved so painful.

[8] The lack of explanation of what had happened during the 3 hours throws considerable doubt upon the nature of what had preceded it. Of the two witnesses, only the Accused sought to fill that gap, and his account was plausible and capable of belief and acceptance.

[9] In the circumstances the State has failed to remove a reasonable doubt concerning the trial issue of consent. In law the Accused is entitled to be given the benefit of it. For these reasons I find it proper to acquit the Accused of the charge.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused : Messrs Kohli & Singh, Suva