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DPP v Bola [2017] FJMC 29; Criminal Case 1617.2010 (28 February 2017)

IN THE MAGISTRATE’S COURT of FIJI
AT SUVA

Criminal Case No. 1617/10

DPP

-v-

PANAPASA BOLA

JUDGMENT

1. The accused in this case is charged with one count of Rape Contrary to Section 149 and 150 of the Penal Code. The charge is as follows:
   

Rape: Contrary to Section 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

Panapasa Bola on the 24^th day of May 2008 at Yadua Village, Gau in the Central Division had unlawful carnal knowledge of girl namely Asenaca Naio without her consent.

2. The following elements are required to be proved by the Prosecution beyond reasonable doubt.
   
   1. Carnal knowledge
   2. Without consent
      
3. In order to prove this charge the Prosecution led evidence of 3 witnesses including the prosecutrix. The Prosecution case is as follows.
   

The victim was a 13 year old girl as at the date of this incident. On 24^th of May 2005 in the afternoon, after 2.00pm she went to “plantation” to collect some coconuts. She was accompanied by “Lorima” who was her younger brother in law. In the “plantation” Lorima went away to pick some “young coconuts” for them. During this time the accused who came with 2 other men had sexual intercourse with the victim without her consent.

4. The accused did not dispute the sexual intercourse. His defense is consent. Accused the only witness for the defence, said in his evidence that he received a message from one Samisoni that the victim wants to have sex with him. According to the accused he asked again from the victim before having sexual intercourse whether she she still wants to have sex with him. She said “yes”.
   

The accused further went on to say that the victim herself took off her clothes. He took off his clothes and they had sexual intercourse for about 5 minutes according to the accused. He said in evidence that she enjoyed what they did. The accused further says that the victim was holding his back when they were having sex. “She didn’t tell me to stop, she didn’t says anything”. After the accused went to the shore from where he came to that place and he doesn’t know what happened to the victim.

5. The purpose of two other witnesses of the Prosecution is infact to prove sexual intercourse and not consent. As said before carnal knowledge is not disputed. The best witness to give evidence regarding consent is the victim.
   
6. The victim said in her evidence that she was grabbed by these three men first. They made her lay down. It is the accused who had took off her clothes. Then the accused had sexual intercourse with her. She said it was painful for her. The accused had sexual intercourse for about 2 minutes. The victim further said in evidence that she cried and shouted. She clearly said that she didn’t want to have sex with those three men. Other 2 men also had sex with her after the accused. She called “Lorima” for help. According to the victim’s evidence she was thrown to the nearby river by these three men after having sex with her.
7. Lorima was called as a prosecution witness. He said in his evidence that he heard his sister shouting when he was at a distance. Then he saw Maikeli, another person who came with the accused, was pulling coconuts from the victim’s hand. Then he left for the village seeking help.
   
8. Could Lorima hear victim’s shouting? This question was raised by the defence.Lorima said in evidence that he was about 100 meters away when he heard the victim’s voice. He was small boy at the time and three men were adults. So he went to the village seeking help. The first one who witnessed the forcible actions of these three men is Lorima. It is very clear that this first sight of Lorima indicated that the victim was resisting from the beginning. I have no doubt about Lorima’s evidence.
   
9. The defence in its written submissions says that absence of bruises or any mark, at all on her body at least to show any signs of struggle when the rape took place in a forest, weakens the victim’s evidence. This is unacceptable. The victim is a 13 year old girl. The accused was an adult who came with 2 other men. What sort of struggle can be expected from a 13 years old girl with three adults except her indication that she is not willing. She had refused expressly to have sex with them. She shouted. Absence of injuries on the victim’s body has never been accepted by our law as a fact that vitiates the Prosecution case. However the victim in this case says that her clothes were removed forcibly. As a result her clothes were torn. Lorima in his evidence said that he saw the victim with torn clothes when he returned to the scene with PW2.
   
10. The defence has drawn the attention of this court in written submissions on certain discrepancies. One of them is that the complainant’s evidence that she was thrown to the river by the accused after the incident is contradictory to the Lorima’s evidence that he saw the victim was bathing in the river when he returned to the scene with PW2. The complainants version is that she was still in the river when Lorima came with PW2 after the incident. It is Lorima’s view when he saw the victim that she was bathing. This is not a contradiction at all. The word “bathing” cannot give any indication that she was happy after the incident.
    
    10. One other discrepancy that the defence has emphasized is that the victim in his evidence says that only three men came to assault her sexually. According to the medical report she has revealed to the doctor that 5 men came including the accused. However the defence has not contradicted her statement given to the police with regard to this issue. The only discrepancy arises only in the medical report (marked as PEX1). The history given by the victim is the doctor cannot be given the same value that is given to a statement to the police. It is a brief history taken by the doctor in order to assist his medical examination. This cannot be considered as a contradiction that is capable of creating any doubt in the victim’s evidence. On the other hand the accused in his evidence did not dispute that there were only 2 other men with him. He said “myself, Maikeli and Manasa.....”
        
12. I shall now examine the defence of consent. The accused’s version is that he received a message from one Samisoni that the victim wants to have sex with him. However this was not at least put to the victim in cross examination. It has firstly brought in the accused evidence. At least presence of Samisoni was never suggested to the victim in her cross examination.
    
13. The accused in his evidence says that just after having sex with the victim he left to shore in order to catch a boat. He says he doesn’t know what happened to the victim. He doesn’t know what happened to other 2 men who came with him. It is very clear that this ignorance is not based on actual facts but merely to put up a defence. But his defence cannot stand without factual surrounding.
    
14. I do not find any reason for the victim to propose to the accused to have sex with her. She didn’t have any affair with him. Accused doesn’t say that she had any interest in him before this. The accused in fact said in evidence.
    

Q. She had no reason to make this allegation against you or to bring a false allegation?

1. No.
   

15. As said before the complainant was a 13 years old girl at the time of this incident. Therefore her capacity to give consent is a material fact in this case. “Capacity is an integral part of the definition of consent. Common law principles that developed under the old law suggest that the complainant will not have had capacity to agree by choice where her understanding and knowledge were so limited that she was not in a position to decide whether or not agree. This may arise in a variety of different circumstances; for instance when the complainant is suffering from some mental disorder, very young....”-Blackstone’s – Criminal Practice 2015 page 310.

Accordingly the victim’s consent should also be examined in the light of understanding about sexual activities due to her younger age. The victim’s age was not disputed by the accused in his cross examination. Therefore would a girl of 13 years agree to engage in sexual intercourse with 3 adults including the accused?

16. For the reasons said above the defence is unreliable and unacceptable.
    
17. Defence has not created any doubt in respect of the victim’s evidence. Her evidence was corroborated by Lorima (PW2) evidence of PW2 need not to be examined or acted upon because she came after the incident.
    
18. For the reasons adduced above this court is of the view that the Prosecution has proved the 2^nd element above beyond reasonable doubt. Accordingly Prosecution has proved the charge beyond reasonable doubt.
    
19. The accused is therefore found guilty to the charge of rape Contrary to Section 149 and 150 of the Penal Code and enter a conviction accordingly.
    

28 Days to Appeal

PRIYANTHA LIYANAGE
RESIDENT MAGISTRATE, SUVA

On 28^th day of February 2017