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State v Ali [2006] FJMC 27; Criminal Case No 1651 of 2005 (12 October 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1651 of 2005

STATE

V

YASIN ALI s/o Ashik Ali

Prosecution: Mr A Singh (DPP)
Accused: In Person

JUDGMENT

The accused has been charged with Rape Contrary to Section 149 & 150 of the Penal Code.

Particulars are on 1st September 2005 at Suva Yasin Ali s/o Ashik Ali had unlawful carnal knowledge of a girl ‘A’ without her consent.

The accused was initially represented by counsel but at hearing he chose to represent himself. Due to the age of the complainant I have ordered her to be called by alphabet ‘A’ to conceal publication.

The Prosecution evidence is complainant accompanied her girlfriend Sageeta to the Makoi Health Centre on 1st September 2005. A van driven by accused pulled over and the driver talked to the girls. He was known as Rocky. The complainant didn’t know him well. The complainant was pushed inside the van from the back by her girlfriend and the driver pulled her left hand from inside.

He drove towards Suva. Complainant was in the van when the driver went out to buy fish and chips by himself. They went towards Tamavua where they had lunch. It was getting dark when they left Tamavua and came to Pender Court apartment in city. The driver paid for a room to a Fijian security man at the Motel.

The complainant refused to go inside the room. Complainant noticed it had room 18 printed on the door. She was taken in by force by Rocky. He pushed her on the bed from behind. The room was dark.

He asked for sex. She refused. He started to take her clothes off. He was on top of her as she lay on her back. She tried to push him off her but he was too heavy. She resisted in getting naked but he took her clothes off. He penetrated her vagina. She felt painful. He was going in and out of her vagina for about 10 minutes. He made love bites on her breasts. She noticed these deep bruises the next day.

Rocky’s boss called him on the mobile at this time. Rocky answered saying he was taking a job to Samabula. They went back and Rocky paid her $4.00 to take a taxi home. Meanwhile, the friend of complainant had told her parents and complainant’s parents were looking for her. They made a report at the police Station.

Complainant told her mother who asked her whereabouts. Complainant’s mother had gone to the police station after the friend Sageeta had told her she went out with Rocky in his van.

When the mother asked complainant what happened. Complainant said she had gone out with a school mate.

The mother was later told about the days happenings. She asked complainant to open up to the constable. On 2/9/05 the mother took photos of her breasts marks.

The security guard in evidence said he saw accused at Pender Court apartments. He was paid by accused and both went into Room 18. He also saw them leave after an hour. They followed each other out. He said they went inside the room together after paying for the room. He did not hear any noise from the room. He was about 40-50 m away from there.

Sgt. Malti took complainant to CWM for medical on 2/9/05. She took complainant’s statement and visited the Pender apartment. Photos were taken as tendered in evidence.

Another constable Marica was told the story by the complainant. She got a report of mother around 11pm of a girl missing.

She later met complainant at the station. The complainant told her she was with Rocky. She said they went to a motel; he removed her clothes and had sex. She reported it to the sexual offences unit.

Lui Tubuna, forensic officer gave evidence. He had found some blood stains and hair samples in underpants, shirt and singlet of accused and in complainant's panty and white bra. However, he could not say where it came from of whose blood it was.

Doctor O’Conner gave evidence. He said hymen was not intact. There was sexual penetration. He noticed love bites on breast but said its suction of skin not made by any force.

She was sexually active and because abrasion on vagina walls said could mean forceful sexual intercourse. He ruled out any assault in absence of any other injury. He also said there were no raw edges or bleeding on vaginal wall so hymen was broken before.

Defective constable Seinitiki recorded the caution interview of accused. The accused denied it was sex without consent. But in Q 44 he was asked "Do you admit forcefully having sexual intercourse with the Fijian girl.?"
A: Yes.

The accused explained him saying his answer was because he was shown the medical report and asked this question. He said yes because the medical report showed, "forced sexual penetration".

The final prosecution witness charged the accused.

In his defence the accused gave sworn evidence. He said she was a consenting partner. He also changed his statement saying he was about to have sex but phone rang so he didn’t. He then concluded by saying he didn’t have sex without her consent. I accept that accused did have sexual intercourse with the complainant.

The Prosecution has to prove that "the accused on 1st September 2005 had unlawful carnal knowledge of the complainant without her consent."

Upon evidence before court I am satisfied that the accused and the complainant went to the Pender Court apartments on 1st September 2005 and had sexual intercourse. This is also admitted by accused. The only issue before court is whether the sexual intercourse was without the complainant’s consent?

The complainant in her evidence said she refused to go for a ride in the van driven by accused but her friend Sangeeta opened the door and pushed her in from the back. Rocky assisted by pulling her inside van by her left hand; Rocky set in front seat.

She came through the van’s sliding door at the rear. It was before 1 pm. They drove around town and went to Pender Court when it was dark around 7.30 pm. She said "I refused to go into the room. I was taken in by force by Rocky." He pushed me on the bed from my behind.

He told me he wanted to have sex and I refused. He started to take off my clothes. He pushed me down and tried to get on top of me. "He was on top of me. I tried to push him off but he was too heavy." "He told me to be quiet. "He was drunk."

The mother of the complainant and the police officer’s at station gave evidence of complainant’s distressed condition. At first she lied to her mother ‘that she was out with a school mate.’ Upon being prompted by her mother she said ‘don’t get wild’ and told her what had happened.

After due consideration of whole of the evidence in this case I do not think this was a case of sexual intercourse without consent of the complainant. It was also not a case of consent under duress.

The evidence does not show any physical resistance by complainant or that in her understanding and knowledge was such that she was not in a position to decide whether to resist or consent. She was under no fear or duress as shown by the facts and her conduct.

If she was forcefully pushed inside the van, from the sliding door she could have got off the van as the accused was in front drivers seat. They went around Tamavua and city area from 1.30 pm till dark. She was alone in the van when accused went out to buy lunch. She did not go out or yell for help. She explained in cross-examination that she had no money to go home so chose to be in the van alone.

This explanation from someone who has been forcefully pushed inside a van against her will and left alone while the van is on a busy city street seems far fetched. When at the motel they got off the van and the accused paid the security guard for the room. She did not seek any assistance or complain.

Inside the room, she didn’t yell, shout or call anyone. It was within the hearing of the guard if she had resisted. The security guard saw them going inside the room and coming out of it. He said they were inside for about an hour and "left by following each other."

She wore 5 pieces of clothes that day. Including a top and a vest made of very fine and thin material easily torn under resistance.

They were Exhibit 1 (a-e) in evidence. There is no appearance of any forceful undoing on them. As described by complainant there would have been some visual evidence. Complainant took a taxi from Valelevu to her place. She didn’t tell anything to the taxi driver.

She also told her mother she was at her friend's house when asked. She later said ‘don’t get wild’ and then said ‘sorry’ and told her she was with Rocky and he took her to a motel where he had sex with her.

The evidence of complainant’s mother in court was highly emotional. She described her daughter’s distressed condition and physical appearance as ‘I knew something was wrong.’

The facts and evidence of prosecution witness appeared to me to be more feigned rather than the actual event. I am inclined to attach little weight to them. I got the impression that the complainant had a good day out with the accused whom she knew from before but not very closely. They ended up at Pender Court where they had sex and spent an hour. Due to the phone calls received by accused they realized they were been pursued. Accused paid the taxi fare for complainant to go home from Valelevu. The complainant tried to conceal the events of the day but seeing everyone was at station and her mother and police officers had full knowledge of her whereabouts for the day, she made the allegations of rape against the accused.

The medical evidence says the complainant was sexually active. Doctor also explained "abrasion – was consistent with forceful sexual penetration." However, he explained in absence of any evidence of assault laceration could be by having forceful sex.

Corroboration is by practice required in sexual cases. However in Balele’s case F.C. Appeal considers such may not be necessary. However in cases of conflicting evidence a warning depending on the circumstances of each fact is still recommended. I consider a high degree of warning is required on the facts of this case to avoid a conviction on the evidence of the complainant alone. Her state and condition as described by her mother and Sgt. Malti who said "she looked emotional and distressed". "From experience I could tell she was sobbing and scared to talk."

Her distressed condition if accepted could also be explained by her trying to ‘save face’ and the fear of being at whole day in a van without the parents knowledge. Furthermore, the fear that whole settlement had knowledge and were at the police station.

The complainant lying to her mother at first approach to hide the identity of who she was with that day. Her reluctance to tell what happened that day and her non action to escape from the van whilst she was free to do so or to yell or make noise to make others aware of her company against her will suggests more towards the fact that she was a consenting party. Her mother’s evidence also shows complainant did not tell her anything but talked to the police officers. Her mother was told by the police officer that defendant had sex with complainant that day.

The complainant saying ‘sorry’ and ‘don’t get wild’ before talking to mother also suggests she knew what ever she had to say was going to be disapproved by her mother. Complainant stated he was drunk but no other witnesses mentioned it. In light of the above, I attach little weight to the complainant's evidence about being pushed into the van against her will and kept there whole day and later resistance at the motel. She explained she could not run out of van as she had no money for transport. This could hardly be a reason to spend the balance half of the day and going into the Motel at night in view of the security guard.

The medical doctor said fresh laceration showed force used. He said in absence of assault or other injury laceration could be by forceful sexual intercourse. He couldn’t say such would not be the case in consensual sex.

The medical evidence tends to show sexual intercourse did occur that night but it does not prove or corroborate that it was "without the consent of the complainant" in view of the doctors findings. In case of Colin Raymond Hayford –v- R 20 F L R 11 Grant (Atg C.J.) said

"The Doctors evidence and the medical report were only capable of confirming the complainants testimony that sexual intercourse had occurred, but not that such intercourse was without her consent or that the appellant had committed it."

Rape being a serious offence I have given full consideration to the evidence led by prosecution. Even if she may have agreed to be in the van for a cruise as described still she had a right to refuse to go to motel and resist sex. Her conduct and actions in total do not show that she resisted. The physique, height, size of complainant and the accused appear to be compatible and the complainant could have been successful if she forcefully resisted.

Her attitude in box showed she was intelligent and vocal. She looked mature in speech and demeanor. Certainly, if she had resisted, she wouldn’t have followed the accused quietly back to the van in the sight of the security guard who saw them go into and leave the room.

I cannot conclude without reasonable doubt that the act of sexual intercourse was non consensual.

Despite a well presented Prosecution case, I am not satisfied beyond reasonable doubt that accused had sex without consent of complainant.

I find the accused not guilty and acquit him of the charge.

Dated this 12th day of October 2006.

Ajmal G Khan
RESIDENT MAGISTRATE