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State v Balemaira [2010] FJHC 522; HAC116.2010 (4 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL NO: HAC 116 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

KALIOVA VUKI BALEMAIRA
ACCUSED

Counsel: State - Ms. S. Puamau
Accused - Ms. B. Malimali

Date of Hearing: 5/10/2010 – 28/10/2010.
Date of Judgment: 4th November, 2010.

JUDGMENT

The accused was charged on 2 Counts of Rape.

After deliberating for 3 hours Assessors returned, and expressed their unanimous opinion that the accused is guilty of Count No.2. They expressed 2-1 majority opinion that the accused is not guilty of the 1st Count.

I have reviewed the evidence called at the Trial, and I have directed myself in accordance with my Summing Up. I concur with the unanimous opinion of the Assessors in relation to Count No.2. Therefore I find the accused guilty of Count No.2 and convict him of the same.

In relation to Count No.1, I consider the evidence to see whether the majority opinion of not guilty is consistent with the evidence in the case.

The accused admits, having sexual intercourse with the complainant Marjorie Parr. The complainant says that she did not consent to intercourse. Therefore the issue for this court is to see whether the prosecution has proved its case beyond reasonable doubt on the element of consent. Whether the act of sexual intercourse mentioned in Count No.1 was without the consent of the complainant and whether the accused knew or believed that she was not consenting or didn't care if she was not consenting.

It is evident that the four men including the accused and the 4 women including the complainant were having a party and had drinks together. The version of the complainant is that while she was sleeping in the room, she was woken up by somebody pulling her legs. She felt someone grabbing her breasts. She realized that she had no bottoms on, no pants on. She heard a voice, telling her to keep still and to keep quiet. She realized what was happening. Accused was with no clothes on. She felt his hands going up. She tried to put his hand down and said 'No'. She was on the bed facing up and she felt her leg pinned up. It was his torso, upper part of his legs, his groin, pinned her up she said. She could feel his penis going inside her. She had told him that she had her period, she was married and that she had a son. Accused had said I don't care, I don't mind. She said that, he kept going and he stopped and she felt that he finished. That was her evidence on the 1st Count.

Then on the 2nd Count of Rape her evidence was, that thereafter he pulled up her shoulders and turned her over, then she was face down and he tried to insert the penis from behind. He separated her knees and legs, and he managed to put his penis inside her vagina. She then pushed him off and escaped. Then she left the room for the living room and told her friends Talei and Taraima. Then she called her husband and called the Police.

This indicates that there had been no consent for the act of intercourse in the 2nd instance.

On this evidence, on the 1st Count, accused had sexual intercourse until he ejaculated keeping her face up position. She said that she said No. Thereafter on the 2nd Count of Rape her evidence was when the accused inserted his penis in to her vagina, when she was turned face down, she managed to push the accused and escape.

When you analyse the evidence of the complainant herself, on the issue of consent at the time of the 1st intercourse, where the accused continued until he ejaculated, a reasonable doubt exists as to whether she consented to the 1st act of intercourse. Whereas at the time of the 2nd intercourse where she pushed him and escaped.

Therefore I find when considering the evidence of the complainant, the Assessors majority verdict of not guilty on Count No.1 is consistent with the evidence placed in Court.

In my opinion Assessors were therefore entitle to reach their majority opinions of not guilty in relation to Count No.1. This conclusion of Assessors is based on a highly contested question of fact. Therefore I am not inclined to interfere with that conclusion for the above reasons.

Hence I accept the majority verdict of the Assessors that the accused is not guilty of Count No.1.

In the above premise I acquit the accused on Count No.1 and convict him on Count No.2.

Priyantha Fernando
Puisne Judge

At Suva
4th November, 2010.