State v Nalawa [2005] FJMC 16; Criminal Case No 18 of 2003 (25 November 2005)

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Date of Hearing: 27/10/05, 28/10/05, 02/11/05, 14/11/05
Date of Judgment: 25/11/05

TEVITA NALAWA, between January and June 2001 at Lautoka in the Western Division unlawfully had carnal knowledge of [complainant] without her consent.

TEVITA NALAWA, on the 2nd day of January 2003 at Lautoka in the Western Division unlawfully had carnal knowledge of [complainant] without her consent.

The prosecution bears the burden of prove which is beyond all reasonable doubt. The prosecution has to prove that the accused had carnal knowledge or sexual intercourse with the complainant [complainant] without her consent. The prosecution has to prove the following-

The accused is 39 years old and is married to the [complainant]’s mother KTN (Karen) and they have four children through their marriage. Karen had two children before she got married to the accused their names are D (18 years) and [Complainant] (16 years). The accused is alleged to have raped [Complainant] who was born on 30th June 1989. Karen gave [complainant] to her aunt and uncle when she was two weeks old and as such she did not know that Karen was her real mother. In 2001 they were getting to know each other.

The prosecution alleges that the three incidents of rape took place in 2001 and 2003. It is alleged that the first incident took place between January to June 2001 and the last one on 02/01/03.

According to the evidence of [complainant] no one knew about these incidents and she did not tell anyone as she was frightened of the accused. She said that she feared that he would do something to her.

These incidents came to light on 02/01/03. On that day the accused took [complainant] her cousin IT (who was in class 3) and his children Miliana (7 years) Keleni (8 years) and Junior and Sisa (baby) for a swim to a river in Saru.

They left for Saru at about 12 noon in a carrier and returned at about 4 p.m. They had a swim in a pond at Saru. Tevita was looking after the baby whilst the rest of the children were swimming and later on he asked Miliana to look after the baby and he took [complainant] into the bush to look for some guavas and lemon.

Upon their return from the swim Karen made tea for all of them and they all had tea. Karen wanted [complainant] and IT to go to their home but the accused wanted them to stay back for the night and they eventually agreed to stay back. They had dinner and were watching television when at around 9.00 p.m. Miliana told Karen that the accused had taken [complainant] into the bush to look for lemon and guavas and she was asked by the accused to look after the baby whilst the rest of the children were swimming.

Karen then asked [complainant] to come outside and she spoke to her. She asked her as to whether they went into the bush and [complainant] did not reply and she asked her three times when she started to cry. She then consoled her and told her that she could confide in her as she was her real mother and she told her that the accused took her into the bush and made her lean against a mango tree and took off her underpants and his undergarments and then he put his penis into her vagina and ejaculated outside. She saw the sperm and she also told her about the incidents in 2001 but she did not give details about the incident in 2001 except to say that it took place twice.

Karen subsequently called the accused outside and all the children remained in the house. She asked him as to what happened and he just kept quite. She told him that she will report the matter to the police and thereafter she went back into the house and watched television until the children went off to sleep. She reported the matter to the police the following morning (03/01/03).

On 03/01/03 [complainant] was medically examined by Doctor J. Taria at Lautoka Hospital upon the request of the police and Karen had consented to her medical examination. The medical report has two parts. Firstly Part A is a request by the police to the medical officer to conduct a medical examination and this part was completed by Detective Constable Sainiana Lewaicei and the request reads as follows:

You are requested to conduct a medical examination of the above patient and to complete the questions and paragraphs in Part B (and if necessary, Part C). The brief circumstances of the incident according to the patient were: She stated that sometimes in 2001 her step father had inserted his penis inside her vagina and ejaculated outside on two occasions which she could not remember the date and again on 02/01/03 at Saru her step father again took her in the bush and removed her panty and told her to stand beside the mango tree and inserted his penis inside her vagina".

"Been sexually molested by step father. Last episode was yesterday (02/01/03). Claims the perpetrator usually rubs his penis against her private parts and also inserts it into the vagina. Does not know if he ejaculates or not. No anal nor oral intercourse practiced. Patient still yet to have menses (Pre-Menarche)".

Vagina -.	Normal external genitalia
	Hymeneal membrane irregular and open, consistent with loss of virginity
	No sign of recent tear, laceration
	Vaginal vault moist. No significant fluid collection noted.
Anus -	Normal"

"No bruises. Vaginal findings consistent with loss of virginity but no conclusive sign of recent vaginal intercourse, pending sperm analysis".

The first incident took place when [complainant] was babysitting her step younger brother when mother had gone to town to do some shopping. She said that it was in June 2001 but was unable to remember the exact date. She said the accused went to have a shower and he came out he had a towel wrapped around him and he called her into the bedroom. He told her to lie down on the floor. She said he took off her panty and took off the towel and then got on top of her and inserted his penis into her vagina. She said that he had his penis in there for a few minutes and despite her protest he did not listen to her. When he finally withdrew his penis she saw sperm come out. She said she did not shout as he had told her not to do so.

After that he put his towel around him and she put her clothes on. Her mother arrived some 15 minutes later and she did not tell her anything as she was afraid of the accused. She feared that he might do something to her.

[Complainant] said the second incident took place the following Saturday when the accused went to her aunt’s place which is about two doors away and asked her to go to the shop. This was around midday and she followed him to her mother’s house. She said the accused went in the bedroom and called her in. Her mother was again out shopping. She went into the bedroom and he told her to massage his legs and he his legs were covered with blanket. She said as she was massaging his legs he pulled her hand and put it on his penis. She said that the penis was erected and it was hard and then he told her to lie down. He then took off her panty and came on top of her and covered himself with a blanket and she said that he licked her vagina for a couple of minutes. She said that he inserted his penis into her vagina and was pumping his penis into her vagina for some 10 minutes. She said she told him to stop but he was too strong for her. He then ejaculated on her stomach and he wiped it off with. Then they put on their clothes and he gave her money to buy sun pop from a neighbor’s house and after that she went back to her aunt’s place. She did not tell anyone as she was frightened.

The last incident took place on 02/01/03. This was when the accused had taken [complainant] and other children for a swim to Saru. [complainant] said that the accused asked her to accompany him into the bush to fetch some guavas and lemon and instead of fetching guavas he took her under a mango tree. He took off his pants and her pants as well and they facing each other and he licked her vagina. She was standing straight. She told him to stop but he did not listen. She said that he licked her vagina for three minutes. After licking her vagina he stood up and inserted his penis into her vagina and this was really painful. She said that he had his penis in her vagina for four minutes and he was pumping it into her vagina. He then ejaculated outside and she saw the sperm and he wiped it off and thereafter they got dressed and went back into the pond and swam for half an hour.

The accused in his cross-examination suggested to [complainant] that he never inserted his penis into her vagina. He said that she was lying and she denied that. He asked her whether she ever bled and she said that she did not bleed.

The accused was interviewed by Detective Constable Prem Chandra on 03/01/03. I have already held the record of interview to be admissible in evidence after a trial within a trial. The accused denied the two incidents in 2001 and with respect to the incident in 2003 he agreed that he took her to the guava patch to fetch some guavas and he also said that he took off her panty and his undergarment and he made her sit on his stomach and asked her to rub his penis on her vagina and whilst doing so he ejaculated. He said that he did not insert his penis into her vagina.

[Complainant] is quite adamant that the accused inserted his penis into her vagina on all three occasions and she also was quite adamant that on two occasions he licked her vagina. She said that in 2001 he licked her for a couple of minutes and more importantly in 2003 for three minutes. However when [complainant] related the history to the doctor she said that there was no oral intercourse.

The doctor in his medical report also states that there is "no conclusive sign of recent vaginal intercourse". The doctor’s finding goes against the evidence of [complainant] who said that the accused on 02/01/03 had inserted his penis in her vagina and had sex with her for four minutes and this puts her credibility into issue. If she was telling the truth then the medical report would have supported her version. I believe that [complainant] probably exaggerated the incidents. In light of the doctor’s findings I come to the conclusion that there was no penetration in respect to count three and I am also left in some doubt as to what actually happened with respect to the two earlier incidents and I have to resolve the doubts in favour of the accused. And I therefore acquit the accused on all three counts.

However, there is evidence that the accused indecently assaulted [complainant]. The accused has made an admission and in exercise of the powers under section 169 of the Criminal Procedure Code I find the accused guilty of the lesser charge of indecent assault contrary to section 154 of the Penal Code and I also convict the accused guilty of this charge.

Magistrates Court of Fiji

State v Nalawa [2005] FJMC 16; Criminal Case No 18 of 2003 (25 November 2005)