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State v Mateiwai [2019] FJHC 431; HAC80.2018 (9 May 2019)

IN THE HIGH COURT OF FIJI

AT LABASA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 80 OF 2018

STATE

v

VILIMONE MATEIWAI

Counsel: Ms A. Vavadakua for State

Mr J. Korotini for Accused

Date of Summing Up: 8 May 2019

Date of Judgment : 9 May 2019

JUDGMENT

1. The accused is charged with two counts of rape and tried before three assessors. The information reads as follows:
   

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

VILIMONE MATEIWAI on 22^nd day of August, 2018, at Labasa in the Northern Division, penetrated the vagina of TAVENISA DRUMA with his fingers without her consent.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

VILIMONE MATEIWAI on 22^nd day of August, 2018, at Labasa in the Northern Division, penetrated the vagina of TAVENISA DRUMA with his penis without her consent.

2. The assessors unanimously found the accused not guilty of Rape as charged on each count. They also found the accused not guilty of Sexual Assault, the lesser offence put to them for consideration. They have basically rejected the version of the Prosecution.
   
3. I direct myself in accordance with my own Summing Up and review evidence led in trial. I pronounce my judgment as follows.
   
4. To find the accused guilty of rape on the first count, the Prosecution must prove that the accused on the 22^nd August, 2018, penetrated the vagina of the complainant with his finger without her consent. On the second count, the Prosecution must prove that accused on the 22^nd August, 2018, penetrated the vagina of the complainant with his penis without her consent.
   
5. The Prosecution called two witnesses and based its case substantially on the evidence of the complainant. To support complainant’s version, Prosecution relies on evidence of complainant’s subsequent conduct, recent complaint and the alleged admission made by the accused soon after the alleged incident.
   
6. The case for Defence is that of complete denial. The Defence says that these offences have never occurred and the complainant has fabricated this allegation. The accused exercised his right to remain silent and did not call any witnesses.
   
7. Firstly, the Prosecution must prove beyond reasonable doubt that it was the accused and nobody else that had committed the alleged offences. The complainant admitted that she was heavily drunk and was unconscious and that she did not see the accused coming into or going out of her house at the material time. She however insisted that it was the accused and nobody else that had committed theses offences. She did not describe how he managed to recognize the perpetrator in the condition she was in.
   
8. There is no direct evidence on the issue of identity of the accused. Therefore, I directed the assessors to consider all the circumstantial evidence and draw reasonable inferences to see if the identity of the accused had been established beyond a reasonable doubt so that the accused could be held responsible for the alleged sexual acts. The assessors unanimously rejected the version if the complainant.
   
9. The alleged incident had occurred during day break at around 5.30 am inside complainant’s house when the complainant was in a state of heavy drunkenness. The accused is the cousin of her husband and an immediate neigbour. He is well known to the complainant prior to the alleged incident. They had been drinking alcohol at a nearby house an hour ago prior to the alleged incident. The accused had left the drinking party at around 4 am.
   
10. The complainant said that she heard the accused calling her twice prior to the alleged incident when somebody broke into her house. She said that she is blaming only the accused and nobody else. She also said that she confronted the accused on the same day when she became sober and the accused apologized and told her that he will not repeat what he had done to her.
    
11. Under cross- examination, the complainant admitted that she was knocked out and fully unconscious and was not able to figure out anything. She admitted that she could not see the person who entered the house and feel what was happening to her.
    
12. The complainant was evasive when she was being repeatedly questioned by the State Counsel as to how she managed to recognise the accused. She did not explain how she recognised the voice of the accused in a state of the intoxication. Even if she was sure that it was the accused who was calling her, it is possible that somebody else had entered the house to commit the alleged acts. Under re-examination, she explained why she is blaming the accused. She said that about two months before the alleged incident, the accused had come to her house in night asking for some Fijian tobacco and, on that occasion, he did the same thing to her. She said that she is just blaming the accused.
    
13. It appears that the complainant was just blaming the accused based on her previous experience. There is no credible and acceptable evidence for this court to be satisfied that it was the accused that had entered the house and committed the alleged offences. In view of complainant’s weak evidence, the assessors are not unjustified in rejecting the evidence of the complainant. The court could not rule out the possibility of mistaken identity.
    
14. It is possible that the complainant would have made the complaint to her husband, based on a mistaken identity. It is also possible that the complainant would have confronted the accused after the incident based on the same mistaken identity. It is also possible that she made the dock identification based on the same mistaken identity. Therefore it is not safe to act upon her evidence and convict the accused.
    
15. The complainant said that after her husband, Kelei, came home, the accused came with her family members to apologies to her and that he told her that he will not repeat ‘what he did to her’. She also said that Ema (accused’s wife) came and shouted at her because they had a quarrel. The complainant further said that she had told Ema to tell her husband what he did to her, she did not like.
    
16. Under cross examination, the complainant admitted that the accused and his family members came to seek forgiveness because accused’s wife Ema had sworn at her. The complainant’s husband, Kelei who was present at this occasion confirmed in his evidence that the accused came to his house with his sister-in-law and other family members and created a ‘nuisance’. On the following day, the accused and his sister Diana had come with a bar of soap to apologized for the ‘accident’ that had happened inside the house. Kelei did not describe what the accident that took place inside the house.
    
17. In light of the vague evidence adduced, it is not quite clear for what purpose the apology was tendered. Therefore, it is reasonable for the assessors to reject the evidence of the complainant on the so called admission by the accused.
    
18. Secondly, the assessors and the court must be satisfied that the accused had penetrated complainant’s vagina, on the first count, with his finger and, on the second count, with his penis. The complainant said that ‘he’ opened her wrap around sulu, removed her panty and started touching her. ‘He’ was touching her female private part. ‘He’ was touching her private part and was using his finger in her. She described female private part as vagina. She said that he gave his male private part inside her private part and had sex with her. She described the male private part as the ‘part they used to reproduce’. Under cross-examination and re-examination, the complainant admitted that she was really drunk at that time and in this state of drunkenness, she was not able to figure out what was going on and feel anything being done to her.
    
19. The complainant did not say that the accused did all these acts. She did not say that the accused inserted his penis into her vagina. She did not say that the accused put or inserted his finger or fingers into her vagina. She was evasive and did not give straight forward answers. The State Counsel and the Court were struggling to get the words clarified amidst her evasiveness. The complainant is not a child. She is a mother of two children. Still she could not describe intelligibly the sexual organs or sexual acts even in her own dialect. Under these circumstances, it is not safe to convict the accused for the alleged offences.
    
20. I accept the unanimous opinion of the assessors and find the accused not guilty of rape on each count.
    
21. The accused is acquitted and discharged accordingly
    
22. That is the judgment of this court.
    

Aruna Aluthge
Judge

AT LABASA
9^th May, 2019

Solicitors: Office of the Director of Public Prosecution for State

Legal Aid Commission for Accused