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State v Natuitagalua - Judgment [2016] FJHC 938; HAC111.2012 (7 October 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA
CRIMINAL CASE: HAC 111 OF 2012

STATE

v

APISAI NATUITAGALUA
EPELI SAUKURU

Counsel : Mr A. Singh for State
Ms L. Tabuakuro for the First Accused
Mr T. Ravuniwa for the Second Accused

Date of Hearing : 30^th August 2016 to 31^st August 2016
1^st September 2016 to 5^th September 2016
15^th September 2016 to 23^rd September 2016
Date of Closing Submissions : 26^th September 2016
Date of Summing Up : 3^rd October 2016
Date of Judgment : 7^th October 2016

1. The first and second accused persons are being charged with three counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree and two counts of Assault with Intent to Commit Rape, contrary to Section 209 of the Crimes Decree. The particulars of the offences are that;
   

Count 1

“Apisai Natuitagalua on the 25^th of August 2012, at Nadi in the Western Division inserted his penis into the vagina of ROSALIA TINANISOKULA without her consent”

Count 2

“Epeli Saukuru on the 25^th of August 2012 at Nadi in the Western Division inserted his penis into the vagina of ROSALIA TINANISOKULA without her consent”

Count 3

“Apisai Natuitagalua on an occasion other than that referred to in Count 1 on the 25^th of August 2012 at Nadi in the Western Division inserted his penis into the vagina of ROSALIA TINANISOKULA without her consent”.

Count 4

“Apisai Natuitagalua on the 25^th of August 2012, at Nadi in the Western Division assaulted ROSALIA TINANISOKULA with intent to rape her”

Count 5

“Epeli Saukuru on the 25^th of August 2012 at Nadi in the Western Division assaulted ROSALIA TINANISOKULA with intent to rape her”

2. Both of the accused persons pleaded not guilty for these offences. Hence, the case was proceeded to hearing. The hearing was commenced on the 30th of August 2016 and concluded on the 26th of September 2016. The prosecution presented the evidence of five witnesses. The first accused person gave evidence on oath and called two witnesses for his defence. The second accused person also gave evidence on oath and called three witnesses for his defence. Subsequently, the learned counsel for the prosecution and the defence made their respective closing submissions. I then delivered my summing up.
3. The three assessors returned with split opinion. Two assessors found the two accused persons are guilty for all the counts as charged in the information. However, one assessor found the first accused is not guilty for the first count of rape and count of assault with intent to commit rape. The assessor found the first accused guilty for the third count of rape. The same assessor found the second accused is not guilty for any of the charges that he was charged. The assessors’ opinion was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
4. Having carefully considered the evidence adduced during the hearing, the closing submissions of the counsel and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
5. I first draw my attention to the defence case. The first and the second accused persons gave evidence on oath. They also called five defence witnesses, two witnesses for the defence of the first accused and three witnesses for the defence of the second accused. The accused persons are not obliged to present evidence as they are not required to prove their innocence. However, if the accused decided to adduced evidence for the defence, the court is required to consider the evidence adduced by the defence in order to determine whether the evidence presented by the defence is true or may reasonably true.
6. The applicable principle in evaluating the evidence adduced by the defence has been discussed in Abramovitch ( 1914) 84 L.J.K.B. 397) where Lord Reading CJ has observed that:

"If an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".

7. Accordingly, the test of evaluating the evidence presented by the defence is to determine whether the evidence is either true or reasonably true. The defence does not need to prove their defence beyond reasonable doubt. It is sufficient to adduce evidence to create any reasonable doubt in the prosecution case. Irrespective of the evidence adduced by the defence, the prosecution is still required to prove the charges against the accused beyond reasonable doubt with their own evidence.
8. The first accused person in his defence denied the first count of rape altogether. He said that he never had a sexual intercourse with Rosa, the victim near the mango tree at the Nawaka River bank. However, he admitted that he engaged in a sexual intercourse with the victim at Emori, on their way back to his house after the drinking party at the mango tree. He claims that the victim consented, rather she initiated and willingly participated in the said sexual intercourse.
9. The second accused person in his defence stated that he actually had a sexual intercourse with the victim near the mango tree with her consent. Both of the accused persons adduced evidence to establish that the victim had shown interest in them and indicated that she wanted them during the drinking party at the house of Joji. They claimed that Rosa kissed Apisai on his lips in front of others, which led to an argument between Apisai and his girlfriend Koto. Epeli, the second accused in his evidence stated that Rosa kissed him twice near the toilet of Joji’s house.
10. In contrast, Rosa in her evidence stated that she was not happy at the drinking party. She wanted to go, but her boyfriend Ratu told her wait and he will drop her back. She admitted that there was an argument and fight between Apisai and his girlfriend, but that was not because of kissing Apisai. She neither kissed Apisai nor Epeli during the drinking party. She did not know the reason for the fight between Apisai and his girlfriend.
11. The defence adduced evidence of Leba, Wainisi and Sitiveni in order to establish that Rosa kissed Apisai. However, it was revealed during their respective cross examinations, none of them have stated about such an incident of kissing in their respective statements made to the police during the investigation of this matter.
12. Wainisi in her evidence stated that she was not aware of this allegation made by Rosa, when she was questioned by IP Maciu about Apisai on the 26th of August 2012. However, during the cross examination, Wainisi said that IP Maciu told her about this case and Apisai was in cell. Thereafter her statement was recorded. Accordingly, it appears that she knew about the allegation, when she made her statement to the police. Hence, I do not accept the explanation that she has given in her evidence about the inconsistent nature of her evidence with the statement she made to the police. I accordingly find the evidence given by Wainisi is unreliable and do not accept it.
13. Leba, also has not stated in her statement made to the police that Rosa kissed Apisai and eventually it led to an argument between Apisai and Koto. Leba admitted during the cross examination that she should have told everything, but she said that she only answered for what the police officer asked from her. I do not find the explanation given by Leba is acceptable. Hence, I do not find her evidence given in court is reliable and credible. I accordingly refuse to accept the evidence given by Leba.
14. The evidence of Sitiveni is also not reliable and credible. Sitiveni admitted that the evidence he gave in court is completely different to the statement he made to the police during the investigation. In his statement made to the police, he has stated that Apisai and Epeli committed these offences on Rosa near the Mango tree. He was the one who assisted Rosa and resisted with the two accused persons. However, in his evidence in court he presented a completely different version of event, where he concurred with the evidence given by the two accused, stating that Epeli had a consensual sexual intercourse with Rosa and Apisai never had such a sexual intercourse with her near the mango tree.
15. Sitiveni in his evidence explained that he was forced and threatened by the police officers that if he does not admit the version given by Rosa, he will also be charged. Sitiveni was also initially considered as one of the suspects for this alleged incident. He admitted in his evidence, that it was Rosa, who stated in her statement to the police, that Sitiveni actually helped her, while other two men committed these alleged offences. Hence, it appears that there was no possibility for the police to charge Sitiveni for this alleged offence, as the victim herself in her statement has exonerated Sitiveni from the allegation. Therefore, I do not find the explanation given by Sitiveni, that he was threatened by the police officer to make a false statement is true and credible.
16. Moreover, Sitiveni admitted in his evidence that he is very close to Epeli and Apisai and known them from his childhood. If he was forced by the police officers to make such statement, incriminating two close persons in his life, he would have definitely reported it to some competence authority about the alleged conduct of the police. He admitted in his evidence that he did not make any complaint about the conduct of the police until he gave evidence in court. In view of these reasons, I find the inconsistent nature of the evidence given by Sitiveni and his statement made to the police is fundamentally affects the credibility and reliability of his evidence. The explanation given by Sitiveni for the inconsistent nature is not probable, thus could not be accepted. Hence, I refuse to accept the evidence given by Sitiveni for the defence.
17. Epeli in his evidence stated Rosa kissed him twice during the drinking party at Joji’s house. First occasion, she kissed him at the passage which goes towards the toilet. Second time near the door close to the toilet. Epeli in his evidence stated that Rosa was smiling and looking at him. While he was coming back from the toilet, he met her at the passage which goes towards the toilet. She kissed him there. Leba saw it and told them to go back. In a while Rosa came and sat beside Epeli and started to cry, staying that she was hurt that Ratu, her boyfriend has a child with her elder sister. Epeli comforted her and she kept her head on his chest. She then asked him to go out, which he obliged and went out. At the door, close to the toilet, she came and kissed him again. Once again Leba saw them and told them to go back to the drinking party.
18. Meanwhile, Sitiveni in his evidence stated that he also saw Epeli was kissing Rosa at the passage that goes towards the toilet. He then told Epeli to go back and drink. Epeli in his evidence did not say Sitiveni came and told him to go back to the party while he was kissing Rosa at the said passage. Moreover, neither Leba nor Sitiveni has stated such incidents of kissing between Rosa and Epeli in their respective statements given to the police.
19. The defence claims that Rosa never complained about anything during the drinking party. She was happy and freely conversed with others. However, Epeli in his evidence stated that Rosa cried and complained that Ratu has a child with her elder sister and that hurts her. She then put her head on his chest and Epeli comforted her. Epeli then told her that he will drop her back, after the drinking party. The second accused person never put this proposition to Rosa to make any comment on this issue, when she gave evidence.
20. It is a rule of evidence that if one party is going to present a different version of events from the other, witness of the opposing party who are in a position to comment on that version should be given an opportunity to comment on them. (Browne v. Dunn [1893] 6R 67). If the party, who did not provide the opposing party an opportunity to comment on the version that he relies on, failed to provide any reasonable explanation for such failure, the court may make adverse inference about the credibility of the evidence adduced by the party in regard to the different version.
21. In this instant case, the second accused did not provide any explanation for his failure to give the victim an opportunity to make her comments about the incident that she cried and kept her head on Epeli’s chest. Therefore, I find the evidence given by the second accused is not credible and reliable to that extent.
22. I now draw my attention to the incidents that have taken place at the mango tree at Nabitu. Apisai denied that he assaulted the victim and forcefully had sexual intercourse with her near the mango tree. As stated above, Epeli admitted that he had a sexual intercourse with her consent and she willing participated for it.
23. Apisai in his evidence stated that when he came back to the mango tree after answering the nature’s call, Epeli and Rosa had gone up. When they returned, Rosa complained to him about the sexual intercourse she had with Epeli. He then slapped her, saying that she already has her bus fare and why she was still with them. He saw injuries around her stomach area. Apisai was not consistence in his evidence in this regards. In his evidence in chief he said Rosa complained to him about the sexual intercourse. During the cross examination, he said that she did not say anything, but her face appeared as she was about to cry.
24. In contrast, Epeli has not seen any injuries on Rosa’s stomach area while they were drinking at the mango tree. According to his evidence, she was naked and was on top of him when they had sexual intercourse. If she had any injuries as Apisai claimed, Epeli should have seen them when he had sexual intercourse with her. When they came back to the mango tree, Rosa was about to cry and complained that she was hurt as her boyfriend Ratu has a child with her elder sister. Epeli did not say that Rosa cried and complained about the sexual intercourse.
25. In respect of the third incident, Apisai in his evidence stated that he asked Rosa to come with him. He wanted to take her to his house and give her a sulu. Then she can wear it when she was crossing the village. However, during the cross examination, he admitted that if she wanted to go to the main road and find a transport to go back, it would be more easier to walk through the feeder road than going to his house and cross the village. If then, she was not required to walk across the village. If Apisai really wanted to send her back home safely, was there a reasonable ground for him to still take her to his house, rather than taking her to the main road and send her back. I do not find the evidence given by Apisai in this regards is probable and credible. Hence, I refused to accept the evidence given by Apisai in respect of the third count of rape.
26. Having considered the above discuss reasons, I hold that the evidence adduced by the defence is not true and/ or reasonably true. Hence, I do not accept them. Moreover, I find that the evidence presented by the defence failed to create any reasonable doubt about the prosecution case.
27. As discussed above, even though I refused to accept the evidence adduced by the defence and found it failed to create any reasonable doubt, still it is the onus of the prosecution to prove beyond reasonable doubt that the two accused persons are guilty for the offences as charged in the information.
28. I now draw my attention to discuss the prosecution case in order to determine whether the evidence presented by the prosecution is consistence, credible and reliable.
29. It has been recorded under A4 of the medical report of the victim, that she alleged that she was raped by three Fijian boys at Legalega, Nadi. Rosa in her evidence denied of giving such a statement. She recalls that there was a women police officer in the night when she was admitted to the hospital. She claims that WPC Grace has made a mistake. Dr. Anareta in her evidence said that normally the information in the first page of the medical report is filled by the police. D.C. Gupta in his evidence stated that he was present when WPC Grace filled the first page of the medical report. She was informed by one of the staff nurses about the background information of the victim. WPC Grace then wrote it down in the medical report. He said that the victim was heavily drunk and disturbed both physically and mentally when he first visited her in the night of the 25th of August 2012. The victim was not in a position to answer any questions. Hence, D.C. Gupta and WPC Grace went back to the police station leaving her to get some rest. WPC Grace was not called by the prosecution to give evidence. Under such circumstances, the court has to rely on the evidence of DC Gupta. Having observed the manner and the demeanor of DC Gupta when he presented his evidence, I accept D.C. Gupta as an independent and reliable witness. Therefore, I am satisfied that WPC Grace has filled the first page of the medical report from the information she obtained through a staff nurse, and not from the victim.
30. Furthermore, it has been recorded under D10 of the medical report that the victim was abducted by two Fijian boys by putting a sack on her head. She then found herself near the bank of Nawaka River. Three boys raped her while another one tried to stop them. The history related by the victim as recorded in the medical report is inconsistence with the evidence presented by the victim during the hearing. Rosa in her evidence stated that she was really drunk and that was the reason she gave a wrong statement. She did not deny giving the said information to the doctor. Doctor Anareta stated that as documented in the medical report the victim herself might have related the history. Hence, the history related by the victim to the doctor could be considered as evidence of recent complaint as it was the first time the victim has informed someone about the incident that she went through.
31. His Lordship Chief Justice Gates in Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) has discussed the purpose and the scope of the evidence of recent complaint, where His Lordship held that;

[33] In any case evidence of recent complaint was never capable of corroborating the complainant’s account: R v. Whitehead (1929) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant’s conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v. The State Crim. App. 12 of 1989; Jones v. The Queen [1997] HCA 12; (1997) 191 CLR 439; Vasu v. The State Crim. App. AAU0011/2006S, 24th November 2006.statement recorded in the first page of the medical report was not

[39] The complaint need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the unlawful sexual conduct, provided it is capable of supporting the credibility of the complainant’s evidence. The judge should point out inconsistencies. These he referred to in an earlier paragraph.

32. The victim explained that she was drunk and that was the reasons she gave this wrong information. It was revealed that she had been drinking since the night of 24th of August 2012 till the evening of 25th of August 2012. The Doctor and D.C. Gupta in their respective evidence confirmed that she was drunk at the time they first visited her at the Nadi Hospital. In order to consider whether the inconsistencies found in the history that was given to the doctor by the victim and her evidence given in court, has adversely affected the credibility of the evidence given by the victim, the court much consider whole of the evidence adduced during the course of the hearing.
33. According to the specific medical findings found by Dr. Anareta during the medical examination, there was no visible vaginal injury in and around the vaginal area of the victim. Dr. Anareta explained that the causing of injuries to the vaginal area mainly depend on the level of force and aggressiveness of the penetration. If the victim resisted and struggled, a more force and aggressiveness is needed to effect the penetration. Hence the absence of any visible injuries does not necessarily confirm that there was no forceful penetration.
34. The victim in her evidence stated that she was drunk, weak and helpless when these three forceful sexual intercourses took place. She said that she only pushed the accused away, but did not punch, scratch or kick. Hence, I am satisfied that there was no forceful resistance or struggle from the victim when these three forceful penetrations effected on her.
35. Having considered the old blood that was found around perineum and vaginal vault, Dr. Anareta said that she could not specifically confirm whether the victim had sustained any micro injuries, which were not visible to the naked eye or not
36. In respect of the foreign objects inserted in the penis of the first accused person, Dr. Anareta stated that such foreign objects alone could not make any injuries as the purpose of such objects is to increase the pleasure of sexual intercourse and not to cause any injuries. It again depends on the force and aggressiveness of the penetration, but not on the impact of foreign object alone.
37. In contrast, the wife of Apisai in her evidence stated that whenever she has sexual intercourse with her husband, she sustains vaginal injuries due to these foreign objects. Apisai did not dispute that he had a consensual sexual intercourse with the victim on that day. If the court accepted the version of the accused and his wife about the impact of foreign objects in sexual intercourse, then there is a greater possibility that the old blood that was found in the vagina of the victim was due to the micro injuries that the victim sustained during the alleged sexual encounter with Apisai.
38. The victim was dressed in a vest and a Sulu with dirt when she was admitted to the hospital. She had no undergarment. If she engaged in consensual sexual intercourse with the two accused persons as they claimed, it would not be probable that she left the place, leaving her cloths and undergarments. According to the professional opinion of the Doctor Anareta, the lacerations and abrasions found in her body could have caused by dragging on a surface or a blunt trauma. That opinion is consistence with the evidence given by the victim.
39. Having considered the reasons discussed above, I find the evidence given by the victim is reliable, credible and probable. Hence I accept the evidence of the victim. Therefore, I hold that the prosecution has proven all the charges against the two accused persons beyond reasonable doubt. Accordingly, I do not find any cogent reasons to disagree with the majority opinion of the assessors.
40. In conclusion, I hold that the first accused Mr. Apisai Natuitagalua is guilty for two counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree and one count of Assault with Intent to commit Rape contrary to Section 209 of the Crimes Decree and convict him for the said offences accordingly.
41. Moreover, I hold the second accused Mr. Epeli Saukuru is guilty for one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree and one count of Assault with Intent to commit Rape contrary to Section 209 of the Crimes Decree and convict him for the said offences accordingly.
    

R. D. R. Thushara Rajasinghe

Judge

Solicitors : Office of the Director of Public Prosecutions

Messrs K Law for the First Accused person

Messrs MIQ Lawyers for the Second Accused person