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DPP v Veresa [2012] FJMC 167; Criminal Case 1560.2007 (17 July 2012)

IN THE MAGISTRATE’S COURT OF NASINU

Criminal Case No. 1560/2007

DPP

-v-

LEONE KOTOBALAVU VERESA

Ms. Luisa Latu for the State [DPP]

Mr. Akuila Naco for the accused

Judgment

[1] The accused is charged with the following offence. The charge read as follows;

CHARGE:

Statement of Offence [a]

RAPE: Contrary to Section 149 and 150 of the Penal Code Act 17.

Particulars of Offence [b]

LEONE KOTOBALAVU VERESA, on the 8th day of December, 2007 at Nasinu in the Central Division had unlawful carnal knowledge of KELERA VERESA without her consent.

[2] The Accused pleaded not guilty to the charge the matter was heard my predecessor His Worship Resident Magistrate Mr. S Temo (as he then was). It went up to the prosecution and at end of the prosecution the accused filed no cast to answer. Before delivering the judgment Mr. Temo was appointed as a High Judge. Then this matter was heard de novo before me. Case began on the 05th of March 2012 and, the prosecution and defence closed their respective cases on 27th March 2012. Written submissions were filed on 08th May 2012.

[3] At the very outset the accused challenged the cautioned interview. Voir Dire inquiry was held on 05th march 2012 and ruling was delivered on 06th March 2012 holding the accused’s cautioned interview is admissible as evidence. I now consider my judgment.

Summary of evidence

[4] At the trial, prosecution called following witnesses. Screening was done when the victim gave evidence.

[5] PW1: Mohammed Iqbal: This officer gave evidence at Voir Dire. He recorded the accused’s cautioned interview. It was held admissible.

[6] PW2: Vinod Chand: this officer charged the accused and these two witnesses’ evidence were led in the Voir Dire inquiry. I therefore do not repeat that evidence which was led in the Voir Dire inquiry. However they were called in the trial proper. I now consider trial proper evidence.

[7] PW3: Kelera Veresa: She is the victim of this case. She said that she has four siblings and 3 of them are brothers and one is sister. Her oldest brother is Leone Veresa (Junior) is the accused of this case. She said she can recall 08th December 2007. She lived in 66 Benu Place Nadawa. She said on that day she was at home, and then the accused called her and inquired younger brother Ronald. But he was not in. Then he asked her to come but she said she cannot come because she was cooking. The Leone called his father and father asked her to go Leone’s house which is 3 minutes walk from her house. When she went there the accused asked her to sit. She said “He said that he wants to talk to me something. I sat down; he said I had painted a bad picture on my family’s name. He had heard stories about myself as Lesbian”. She said she denied then she said the accused threw punches on her face again and again. At this moment the house was crowded accused’s friends were drinking. Then the accused stood up and go to friends and come back and told her “how embarrassing to hear all sort of stories”. Then the accused asked her to go inside the room not to run. She said “As I walked towards the room, my face was sore and I decided to run, I ran on to the road because I was scared ...he ran after me, he punched me on the road. I was so scared and I urinated and toileted (passed stools) on my pants, then he dragged all the way to house, I gripped out the grill of the door, then his wife told me go inside and ease things for us”. The witness said she went in and had a shower. The victim said “I went into the room, it was Leone’s room. He asked me to sit on the bed, he drew the curtains and he locked the door. He sat on the bed and told me that he would do something to me, so he can forget me as Lesbian when he locked the door and drew the curtains, i was scared. He told me to take off all my clothes he touched my breast about two minutes, he stood up, I was he was naked too. He told me to span my legs and he started licking my private parts his tongue actually touched my vagina he licked my vagina for little while , then he asked me to lie down on the bed, i did as he said and he inserted his penis into my vagina. That went for a little while and he was about to come, he sat down on the bed and me to put my mouth on his penis, and I did it while his water came out”. The victim said the accused after this incident asked her to come every evening and he would do the same thing and that would make her forget about Lesbian. The victim said she did not consent to do that. She said she pushed him few times but he was so strong she could not do much. 5 photographs were shown and the victim identified the vicinity. She further said the accused smelt of liquor but he seemed to know what was doing. The victim said it was after dark, 7 or 8pm, she went to her house. First she told this incident to his brother Ronald, but he did not believe her. Then she told her sister, she broke in to tears, and then she told her mother, mother cried, and then victim also cried. The victim said after that Leone and his wife came their home, it was after 5 minutes she came home. The accused said the victim was lying. So, her mum asked her to go for a check up. They all went to CWM Hospital first, but they were referred to Central Police station before examination, from Central Police station, they were sent to Valelevu police station. Then they were sent to CWM Hospital again for medical examination. The victim clearly identified and pointed out the accused on the dock.

[8] The victim, PW3 was cross examined at length. In cross examination she said she gave a statement to the police and that time everything was clear in her mind. In 2007 she was doing certificate of Sport Science in Fiji National University. Her older brother who was in England supported her she taught as private student. She said sometimes she asked money from parents, when they refused she did not take any money from their parent’s purse. The witness admitted the accused on that day raised a question of money missing from mum’s purse and also regarding alleged lesbian relationship. She admitted the she did not mention money missing question in her evidence in chief. The witness admitted that the accused asked about the money missing problem also. The accused phoned her father but father did not mention why the accused phoned. She said “father always relies on him (the accused) regarding discipline of the siblings”. The father asked her to go Leone’s house, but she did not know discipline wise. The victim under cross examination said it was a Saturday, in December she did not know whether that day was hot or humid. The victim said when she got there her sister in law welcomed her and they talked about 15 minutes in the table then the accused joined. But the accused counsel suggested this was not mention in evidence in chief. The witness said the accused threw 5 or 6 punches and she was not slapped. She said she knows the deference between “punching” and “slapping”. When punching was done the dinking party was on few metres away. The punches were done after questioning and it was closed punch. First one was on to the nose and nose was bleeding. But she cannot remember whether the blood were on the clothes, because she changed the clothes. Nose was not medically examined by the doctor because she did not tell it to the doctor. The victim did not get broken nose. The victim categorically said that she was punched not slopped by the accused. The accused’s wife was somewhere around when punching occurred. He victim said she roughly spent two or three hours in the bed room. During that period the room was locked. The accused unlocked the door for few second his wife to take children’s clothes for washing. The victim said this is something new that she had not mentioned in her evidence in chief. She cannot recall how many times her sister in law came to the room, but she said at least once. She said apart from her somebody brought jug of water, but she cannot recall him. She said when the sister in law came, she was sitting on the bed, both were dressed, but she cannot recall whether wife knocked the door or not. The victim said she cannot remember it was before the incident or after the incident when wife came in. But she was fully dressed, not naked or half naked. The victim said she read her police statement at lunch break when she was giving evidence and copy of her statement was attached to her summons. The victim said the accused lock the door by knob not by latch. The accused put to the witness that door cannot be locked from the inside. She said she does not know about that. She further said she did not know that sister in law did the washing. The victim said she saw shadow of the sister in law while she was in the room, hanging clothes outside. Witness agreed that curtain was not thick, someone can look. The accused did not put anything to her mouth stopping from screaming. He said there was embarrassing situation she was punched in front of people. She cannot recall the uncle Seta was in, but somebody came to their room and discussed few minutes with them, she do not recall what they said, but stayed nearly 10 minutes. She cannot it was after or prior to the rape incident. The witness said her face was sore and pain so she decided to run. Then she was caught, punched and dragged into the house. She wet her pants and toileted. Her sister in law gave fresh clothes. He had a bath. She was suggested that she was embarrassed to go out because crow gathered in front of the house. She said she cannot recall. The accused was away from her at that time. After having bath, she went to the room on her own, the accused followed her. She did not see him lock the door. The witness further said in cross examination;

“He summoned me not to scream, he told me not to do any silly things, not to scream, I realised my sister in law was doing laundry outside, I did not call her up. When I was sitting on the bed, I was facing the door, but I was looking down, I did not see what he was doing, all of a sudden, he was standing before me naked.

Question: What was your reaction you saw him naked? I was freighted; I did not look outside whether my sister in law was outside. I looked up and saw him naked.

Question: did you tried to call somebody? No

Question: Did you make any attempt to rush towards the door? He was standing behind the door. I did not make any attempt. After he asked me to spread my legs, I was lying on the bed. He pushed my legs up, so we both fit on the bed. I was lying across the bed, with my head towards a wall, beside a window. After all there, he then started licking my private parts. He knelt down on the floor.

Question: Did you ever make attempt to resist him? I pushed my legs down, I tried closed them up, but he was too strong. It went for a few minutes. I cannot recall the time. It went for a while. Only resisting was I did push my leg down when he licked my vagina. I could not reach the window to knock the window to get attraction ....my head towards the right window. Because I was lying across, my hands could not reach the windows. Then he asked me to lie on the bed length wise. My head towards the door he came on top of me. He inserted his penis to my vagina. It went for a while, it was going for a little while, I can’t recall, it went more than 1/2 hour

Question: Did you make attempt to resist? There was a pillow on my face, I was standing head side, I was able to breathe I did not scream, tried alarm to anybody. During this hours no one came to the room... when he finished he sat down, he told me not to tell anybody about sexual events. He was putting me his penis to my mouth. He was on the bed. He pushed my head towards, he was sitting edge of the bed, he held my head, pushed it towards his penis. Then he asked me to come always at 8pm to have a session with him”

[9] The defence suggested because she was embarrassed in the public she fabricated the rape story which the witness denied it. The accused counsel suggested there was no sexual intercourse between the accused and the witness, butt witness said it happened. She said she did not make any attempt as she was summoned to be quite in the room, and he would beat her up again in that room. She said she is not lying to the court.

[10] In re-examination the witness said here were two issues one was lesbian relationship and other was missing money. The accused asked lesbian relationship longer period to forget being her lesbian he did it. There were 4-5 punches by fist of the accused but nose was not medically examined and only vagina was examined. On that day there were accused‘s wife’s grandfather Mr Hedger, his wife seta or Kali and wife Erika. The accused locked the door, because somebody turned the knob but it did not open. The door was locked whole two or three hours. Because of her life she did not scream or resists. He penetrated her vagina without her consent, therefore she is pursuing this, not that he was embarrassed in the public.

[11] PW4- Doctor Amanda Noovao: parties did not dispute the qualification of the doctor. She obtained her medical degree in 1997 from Fiji School of Medicine as Mater of Medicine in obstetrics and gynaecology in 2005. The witness identified the medical report of Kelera Veresa. Part B was filled by the doctor. In that Part B 12 the doctor noted the history of complain. She noted “was having a conversation with her brother and then he forced her and raped her repeatedly”. She noted mental stated of the victim was “calm, tired“and physical stated as “healthy usually”. The doctor also noted 3 injuries of the victim. Those are;

1) Contusion to lower lip, nose

2) Superficial scratch to upper back

3) Superficial bruising to lower jaw

[12] The doctor also noted these all are recent injuries. Her movement when doctor examined was “slow guarded posture and gait.” The doctor explained this to court when somebody subjected to sexual harassment; they (victims) usually slow guarded posture and gait. The doctor mentioned special features and tattoos of the victim’s body. She found fish design in right lateral leg and “SGS” letters in 2nd finger. Her clothing was damped and noted as “underwear from incident damp otherwise neatly dressed”. The doctor’s diagnosis is given in section 14. She opined “History of recent rape consistent with physical injuries; however given that this lady recently had vaginal delivery no obvious genital injuries noted”. The doctor explained though she did not see any vaginal injuries, still you can have sexual intercourse. The doctor told the injuries depend on how much force used at penetration and the lapse of time to the medical examination. She said since it was a unsafe sex, she prescribed “morning after pill” to prevent any pregnancy. The witness told routine was followed when she was medically examined and part B filled by her. The medical tendered as EX-4.

[13] In cross examination the doctor said she did head to toe medical examination on the victim. If any injury would have seen, it would have been noted. She confirmed that she examined the medical area but she did not find any vaginal penetration, she further said “If I found, I would diagram it as it my usual practice”. She further said “I confirm, I did not find any vaginal penetration to document it”.

[14] PW5-Margaret Veresa: she said she can recall 08th December 2007. She said “around or after 7pm, my sister came home. She was in tears, I ask her why she was crying, the response was her brother Leone had raped her repeatedly. My sister means Kelera Veresa, her brother had assaulted her, threw punches at her face, and performed unnatural acts. Unnatural acts mean Leone licked her private part, and told her to suck his dick, private part means vagina, dick means penis. I was disgusted and angry. Because I could not believe; what she said. It is unbelievable; a man raped his own sister”. The witness repeated the story of victim that the victim was punched, dragged and she wet her pants and soiled herself. Thereafter the victim had a bath and she was taken to the room and raped her. The accused told her to come have same thing every day at 8pm. The witness said after hearing this story, she went to brother’s house and confronted. The witness said Leone admitted hitting her but he denied raping her. She said “I went to brother’s place and confronted him, what Kelera had told me. He denied, he said Kelera is a liar but said he hit her, he did not rape her”. The witness said few minutes later Leone and his wife came home. At that time they were in mother’s bed room and Kelera was explaining to her mum what Leone did to her. The witness said that Kelera said to her that the accused sexually penetrated her vagina. The witness identified the accused in the dock. Since Leone was denying they agreed to go for a check up in the hospital which Kelera also consented. They, witness, Ronald, Leone’s wife Erika, Mother’s Sister Lusia Ranuku and Kelera went to the hospital. She noted Kelera was wearing oversize Leone’s T shirt. The witness observed the Kelera after incident. She said “When Kelera walked in to our house, she was disgusted, she was ashamed, she look like what she claimed to have happened, she looked like mess means she looked untidy, she was not herself. I saw her lip was little bit swollen, body odour coming from her”. At the hospital they were refereed to the police.

[15] In cross examination, the witness said it was nice hot sunny day a typical December weather. The witness admitted that some of things have not recorded in the police statement which she had mentioned in the evidence. The witness admitted that she had not mention that Kelera shitted and wet her pants when Leone hit and she was dragged by Leone. But she denied it was significant omission. The witness told she must have forgotten to tell police. She said those were told at the first instance but she forgot to mention. She said it was early morning in the next date and they were tired. The witness said it was not in the kitchen Kelera told her ordeal, she called her outside. This was mentioned as a contradiction by the defence. The witness said there was a drinking party at Leone’s house she felt smell of liquor from Leone (the accused), she noted when Leone came to her house. There was a cut on her lip but she did not mention in her police statement. She denied that she discussed evidence with somebody before give it.

[16] In the re examination the witness told that omissions were not intentionally done because it was long, tired night.

[17] PW6-Ana Veresa: She said that she can recall 08th December 2007. They were at home. Then, Leone called Kelera to come his home but she refused as she had to cook meals. Then, Leone asked her father to release her so father did. The witness said it was around 3pm. Kelera was excited because her birthday felled on 07th December her brother and sister in law would give surprise to her. The witness said when they were watching T.V at about 7pm Kelera came back. Then, Ronald told her that Kelera wants to me her privately. When she went Margaret and Kelera were outside. She asked what happened. Kelera told that Leone climbed her. The witness told “I did not know how to feel, I did not know why my son can do that to my daughter. She said they had sex not once many times. He had licked her; push his manhood to her mouth. He ordered Kelera to suck his dick... I did not want to believe it at that moment I can feel the odour that Kelera had sexual intercourse. She felt dirty, she felt disgusted, and she was crying all the times”. The witness said that she asked Maggie to go and ask what Leone did. Then, Leone and wife had come home, when she asked him he told the Kelera had lied to him. The witness told that she wanted to get legal action and therefore they went to the hospital.

[18] In cross examination, the witness admitted it was December hot and humid month. The witness told normally children are disciplined by their father sometimes Leone (Jr), the accused. The victim Kelera studied at FIT and was support by her brother who was in England. She admitted that there was money missing from her purse Kelera was suspected, but she told to court that it later transpired one of her cousin stole the money. Leone raised two issues. Other issue was Lesbian relationship that she is having. Money was missing only once. That was $600, was sent from England and it had been discussed with Leone previously. The witness told she told to the police what Kelera had told to her. She said “At that time (police station) my mind was frozen”. The witness admitted everything was not written in her police statement. But she told she was not assisted to give some details in the evidence by her daughters. In cross examination she further said that she saw injuries to the lower lips, scratch marks of man’s hand. She admitted that Leone’s wife insisted to go for a medical.

[19] In the re examination the witness told she did not tell everything to the police because it was embarrassing situation. It was not easy for her to report against her son; shed added.

[20] PW7: Lorini Labaiburu WPC 3714: she said on the instruction of IP Naidu she recorded the victim’s statement. Statement was shown and identified. The victim’s name is Kerera Veresa, when she walked in she was looking pale and tired.

[21] In cross examination she said she gave her statement to the police six months after the incident. The witness admitted the victim’s statement recording started at 3.20am early morning in the 09th December 2009. She reported to work 7pm on 08th December and knocked off 7am on the 09th December 2007. She said that the victim told she had been sexually assaulted by her brother. She cannot recall whether she was medically examined before taking statement.

[22] PW8: Mohammed Iqbal: this witness gave evidence at the voir dire inquiry. This witness said he recorded the accused’s statement at Valalevu Police station. Statement was tendered as EX-1( EX-3 in trial proper). He was on leave but Sgt Naidu called him to record the caution interview. It was commenced at 10.20am and finished at 12.50pm. There was no inducement given or promised made the accused appeared normal. He behaved like natural human being. In question 78 that the accused satisfied the way it held.

[23] The witness, in cross examination, said he had not seen the victim’s statement and medical certificate. Police was busy. There were 12 hours shifts on those days. The witness answered at question 5, in the caution interview that the accused wanted to meet his wife. The witness told that he had not told his wife to go the next room. He said he is not lying and answers were not suggested by him but all were given by the accused. It was question and answer model he recorded 80 questions less that two hours.

[24] In re examination he said he was the only senior investigator that is why he was called to record while on leave. Answering to the court the witness the accused appeared normal.

[25] PW9: Vinod Chand: the witness said he formally charged the accused. He identified the accused. The charge statement was tendered as EX-2 (Ex-4 in trial proper).

[26] In cross examination there were five senior investigators in Valalevu. Answering to the question 6 of the charge statement he said that the accused denied the allegation saying “I did not rape her”.

[27] Then, the prosecution closed. Since there was a case to answer the right to call of defence was explained and given. The accused opted to give sworn evidence.

[28] DW1- Leone Kotobalavu Veresa -the accused: The accused said he is a special police inspector of police. He did not go through any formal training; he was just managing the police gymnasium. He was looking after fitness was recruits. He was the fitness trainer for police rugby team. He said he can recall 07th December 2007. “Sukuna Bowl” was held that Friday. It was a rugby encounter between Fiji Police and RMF. Police won the game; it was his first time to be involved with training of police team. He said “having won the “Sukuna Bowl” I went ahead to celebrate purchasing alcohols, few bottles of Rum, few bottles of Vodka. We celebrated whole night till morning. I came around midday that is Saturday 08th December 2007. I came with some other police officers. There were three taxis, would have bee 12 police officers. We came to continue our drinking. We sat down our porch, continued drinking liquor until it ran out. We went Saturday afternoon 2 to 3pm. I asked one of boys to go to my parent’s place and get some home brews. I sent Setareki to get them. He is an uncle of my wife. When he came back, he came with my sister. She is Kelera Veresa. We just kept on drinking. I called Kelera to my living room, started asking about the issues about my mother raised with me.” He said he questioned about money missing and her Lesbian relationship. It was $600 and his sister was coming with new clothes, going up clubbing, shouting and drinking. He asked about missing money. She denied then he slapped her finally she accepted it was her. He slapped twice or thrice. Apart from slapping he did not hit her any other way. He said “I know I have heavy hands, if I hit her it would have caused serious harm”. Because of other police officers they went to the room. He said he slapped her mouth not her nose. But he did not punch her. Using photographs which were tendered by the prosecution the accused showed the vicinity of room and where they drank. The bed room door across to the laundry area and no door was put up for laundry area. The accused said that the door cannot be locked as it‘s knob was not working. Washing machine was directly opposite to the bed room. The accused said “I told her to go and wait for me in the room and when I was speaking to a guy, she made a run, so I ran after her, held her and brought her. She ran out through the passage to side door and through drive away to the gate. Seta was standing between me and her... I brought her back home. She toileted and urinated herself. My wife and I told her to clean herself. She changed and she was sitting with my wife in the room. I sat down with her and continued to ask about her affair. I asked about the affair she was having with another girl. She first denied it. The girl was distance relative of my mother. My mother asked that girl. She has admitted. I know that affair was true. But I wanted to ask her, she denied, I slapped her, I asked again then she admitted. Then I spoke to her how it could have been avoided”. The accused when he started questioning her wife went for washing. It was hot and humid. After I spoke to her she went home. Seta accompanied her home, while this was happening his friends were drinking at the porch. I have gone to them and have few glasses of drinks at that time. While he was talking door was not locked.

[29] In cross examination the accused admitted that he hit Kelera. But he said that he did not punch her and the rape allegation is a lie. He said he informed in his police statement what he can recollect. He said his wife had seen that Kelera urinate and soiled (passed stools) herself. Seta helped him to bring the victim to the house. She was never dragged. The accused said that “during caution interview, I was still intoxicated. When I go home my wife told me. I do not think my wife fabricated, because my wife told her to go to hospital. My wife got to the taxi, paid to the taxi”. He admitted that door was open when caution interview was taken. The room door cannot be lacked. The accused was questioned;

“Question: In your caution interview, you said having sexual intercourse with a woman (on that day)? That is the person whom I sexually intercourse with my wife Erika”

Question your wife was washing? You are lying, she was doing laundry? I don’t agree. After twelve noon, probably I did have sex with my wife after 12pm, sometimes in the afternoon. I was drinking with my friends; we all are enjoying and having fun with my friends”

Question: So, you have no time to sexually intercourse? It takes only 10 to 15 minutes”

[30] The accused further said his mother is lying that money was stolen by some other. She said he hit her to discipline her while the accused denying the rape allegation said she is sister my flesh and blood, it cannot be done.

[31] Answering to the court the accused said the victim was ashamed by hitting in front of crowd, she wet her pants, she had been accused for stealing $600 to get attention away from her and embarrassment, the victim had made this allegation.

[32] The accused thereafter closed his case. Both parties were given to file closing submission. Both filed the closing submission which I have carefully considered.

The Law

[33] Sections 149 and 150 of the Penal Code interpret Rape and Punishment as follows:-

“149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.”

Punishment of rape

“150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment”

The Elements of the Offence of rape

[34] The elements of rape are;

a) Any person

b) Who has unlawful carnal knowledge (penetration)

c) Of a woman or girl

d) Without her consent

[35] In State v Josefa Tukai HAC 12/03S and Anetikini Kuruvoli [2006] HAA 22/06S 15 June 2006 Madam Justice Shameem held that “the offence of rape is made up of two elements. One is carnal knowledge and other is lack of consent”. Court note first is “guilty act” which is called as Actus reus and latter is” guilty mind” which is called Mens rea.

Burden and standard of proving

[36] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[37] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond reasonable dou>. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the gui the accused.&sed.”