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.
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[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.

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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
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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.

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 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

5
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
6
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

7
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
8
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
9
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,

10
 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

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 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 doubt. This 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 guilt of the accused.”

[38] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen
(1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka),

“A fact is said to be proved when, after considering the matters before

it, the court either believes it to exist or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.

[39] Therefore, if the court or prudent man thinks the accused is guilty for
offence in considering all the facts placed before them without any reasonable
doubt, then charge has been proved beyond reasonable doubt and the accused
12
should be convicted as per charged. If the court or prudent man thinks that the
accused is not guilty to the offence in considering all the facts placed before
them, then the charge has not been proved beyond reasonable doubt. If evidence
creates some reasonable doubt in mind of court or prudent man, the benefit of
doubt must be given to accused and accused should be acquitted and discharged
from the proceedings. This is the golden rule of criminal law and “one who says
the fact exists should prove that fact no burden lies on one who denies it- as
legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the
other hand court should consider what actually happened and not what
adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod
dictum est sed qudogestum est inspicitur” have to be noted.

Evaluation of evidence

[40] It is for the court to determine whether there is sufficient evidence adduced
in respect of each one element of the offence and beyond reasonable doubt.

[41] This court now altogether analyses whether there is any evidence in respect
of each element of the offence.

a) Any person and c) of a woman or girl

[42]The identity of the accused has never been disputed and all lay and official
witnesses identified the accused. The accused did not deny the participation of
the incident but denied the rape allegation. PW3 was identified as the victim of
alleged offence. The accused totally denied the rape allegation and the victim
said she was raped by the accused, her real brother. Thus any person is the
accused and woman is the victim, those elements have been proved. I now turn
to other elements.

b) Had unlawful carnal knowledge and d) Without her consent;

[43] In respect of these elements the evidence of PW3 is to be analysed carefully.

The victim said she was raped by her brother it went on nearly two to three
hours. The rape took place in the accused’s house and vicinity was showed and
explained by photographs to the court which were tendered in the evidence (EX-
3). The vicinity is also admitted by the accused. The victim said she did not
consent to the act of the accused. She categorically said that the accused inserted
his penis into her vagina. If this court believed this version that concludes the
fulfilment of ingredients for the charge. If so, carnal knowledge and without
consent is accepted and proved. The accused’s defence was total denial of said
act.

13
[44] The victim says that she had been raped by the accused brother. This is
direct evidence. How strong these direct evidence (positive evidence) and risk of
admitting direct evidence was discussed in centuries ago. In Commonwealth v
Webster (1850) 5 Cushing (Mass) 295, remarks of Chief Justice Shaw are
particularly instructive to this, that is;

"The advantage of positive evidence is that it is the direct testimony of a witness

to the fact to be proved, who, he speaks the truth, saw it done; and the only
question is whether he is entitled to belief. The disadvantage is that the witness
may be false and corrupt and that the case may not afford the means of detecting
his falsehood"(Emphasis is mine)

[45] Adduced evidence is the wards against the wards. The victim said that she
was raped by the accused which is totally denied by the accused. Therefore this
court has to look credibility of witnesses, specially the victim and the accused (if
need be).

[46] I consider guidepost of assessing credibility of witnesses. Canadian Justice

John D. Rooke of the Court of Queen’s Bench of Alberta stated “ that all decision
makers, who are making findings on credibility, should have more training
(institutionalized, or self-directed, and should spend some more time reading
(and thinking) about credibility, before and while they are gaining experience in
determining it1. Judge Rooke, for his part, identifies the following list of factors:

(a) the demeanor of the witness while testifying and the manner in which the
witness testified;

(b) the character of the witness’s testimony;

(c) the extent of the capacity of the witness to perceive, to recollect, or to

communicate any matter about which he or she testifies;

(d) the extent of the witness’s opportunity to perceive any matter about which he
or she testifies;

(e) the witness’s character for honesty or veracity or their opposites;

1 (ASSESSING CREDIBILITY IN ARBITRATIONS AND IN COURT: A Difficult Task for Judge, Jury or
Arbitrator(s)? presented to the Canadian Bar Association Alternative Dispute Resolution Section (Northern), The
Honourable Mr. Justice John D. Rooke, Court of Queen’s Bench of Alberta, Edmonton, Alberta, March 20, 1996.)

14
 (f) the existence or nonexistence of a bias, interest, or other motive;

(g) a statement previously made by the witness that is consistent with his or her
statement at the hearing;

(h) a statement made by the witness that is inconsistent with any part of the
witness’s testimony at the hearing;
(i) the existence or nonexistence of any fact testified to by the witness;

(j) the attitude of the witness toward the action in which the witness testifies or
toward the giving of the testimony; and

(k) any admission of untruthfulness the witness makes.

[47] In his paper, Judge Rooke referred with approval to the following
description of how another judge went about the job of finding the facts;

“I question whether the respect given to our findings of fact based on the
demeanor of the witness is always deserved. I doubt my own ability and
sometimes that of other judges to discern from a witness’ demeanor or the tone of
his voice whether he is telling the truth. He speaks hesitantly. Is it the mark of a
cautious man whose statements are for that reason to be respected, or is he taking
time to fabricate. Is the emphatic witness putting on an act to deceive me or is he
speaking from the fullness of his heart knowing that he is right. Is he likely to be
more truthful if he looks me straight in the face than if he casts his eyes on the
ground, perhaps from shyness or a natural timidity? For my part, I rely on these
considerations as little as I can help.”

[48] In White v. R., [1947] S.C.R. 268, Estey J. identified some of the factors that
are relevant to the assessment of credibility;

The issue of credibility is one of fact and cannot be determined by following a set
of rules that it is suggested have the force of law ... Anglin J. (later Chief Justice)
in speaking of credibility stated;

“By that I understand not merely the appreciation of the witnesses’ desire to be
truthful but also of their opportunities of knowledge and powers of observation,
judgment and memory B in a word, the trustworthiness of their testimony, which
may have depended very largely on their demeanor in the witness box and their
manner in giving evidence… The foregoing is a general statement and does not

15
 purport to be exhaustive. Eminent judges have from time to time indicated certain
guides that have been of the greatest assistance, but so far as I have been able to
find there has never been an effort made to indicate all the possible factors that
might enter into the determination. It is a matter in which so many human
characteristics, both the strong and the weak, must be taken into consideration.
The general integrity and intelligence of the witness, his power to observe, his
capacity to remember and his accuracy in statement are important. It is also
important to determine whether he is honestly endeavoring to tell the truth,
whether he is sincere and frank or whether he is biased, reticent and evasive. All
these questions and others may be answered from the observation of the witness’
general conduct and demeanor in determining the questions of credibility.”

[49] This paper further clarifies the trier’s responsibility application of common
sense and life experience. It is to be noted the trier’s place and responsibility in
the search for truth. For search of truth that there is no formula with which to
uncover deceit or rank credibility. There is no crucible for truth, as if pieces of
evidence, a dash of procedure, and a measure of principle mixed together by
seasoned judicial stirring will yield proof of veracity. Human nature, common
sense and life’s experience are indispensable when assessing creditworthiness,
but they cannot be the only guide posts. Demeanor too can be a factor taken into
account by the trier of fact when testing the evidence, but standing alone it is
hardly determinative. Experience tells us that one of the best tools to determine
credibility and reliability is the painstaking, careful and repeated testing of the
evidence to see how it stacks up. How does the witness’s account stand in
harmony with the other evidence pertaining to it, while applying the appropriate
standard of proof in a civil or a criminal case? (Emphasis is mine)

[50] In this regard the lucid observations of Justice O’Halloran in Faryna v.

Chorny [1952] 2 D.L.R. 354 at 356 is noteworthy to mention.

“. . . But the validity of evidence does not depend in the final analysis on the
circumstance that it remains uncontradicted, or the circumstance that the Judge
may have remarked favorably or unfavorably on the evidence or the demeanor of a
witness; these things are elements in testing the evidence but they are subject to
whether the evidence is consistent with the probabilities affecting the case as a
whole and shown to be in existence at the time; and cf. Brethour v. Law Society of
B.C., [1951] 2 D.L.R. 138 at pp. 141-2. (Emphasis is mine)

If a trial Judge's finding of credibility is to depend solely on which person he

thinks made the better appearance of sincerity in the witness box, we are left with
a purely arbitrary finding and justice would then depend upon the best actors in

16
the witness box. On reflection it becomes almost axiomatic that the appearance of
telling the truth is but one of the elements that enter into the credibility of the
evidence of a
witness. Opportunities for knowledge, powers of observation, judgment
and memory, ability to describe clearly what he has seen and heard, as
well as other factors, combine to produce what is called credibility, and cf.
Raymond v. Bosanquet 1919 CanLII 11 (SCC), (1919), 50 D.L.R. 560 at p. 566,
59 S.C.R. 452 at p. 460, 17 O.W.N. 295. (Emphasis is mine)

A witness by his manner may create a very unfavorable impression of his

truthfulness upon the trial Judge, and yet the surrounding circumstances in
the case may point decisively to the conclusion that he is actually telling
the truth. I am not referring to the comparatively infrequent cases in which a
witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the personal demeanor of the
particular witness carried conviction of the truth. The test must reasonably
subject his story to an examination of its consistency with the probabilities that
surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case
must be its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in
that place and in those conditions. Only thus can a Court satisfactorily
appraise the testimony of quick-minded, experienced and confident witnesses, and
of those shrewd persons adept in the half-lie and of long and successful experience
in combining skilful exaggeration with partial suppression of the truth. Again a
witness may testify what he sincerely believes to be true, but he may be quite
honestly mistaken. For a trial Judge to say "I believe him because I judge him to
be telling the truth” is to come to a conclusion on consideration of only half the
problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes
is in accordance with the preponderance of probabilities in the case and, if his view
is to command confidence, also state his reasons for that conclusion. The law
does not clothe the trial Judge with a divine insight into the hearts and
minds of the witnesses. And a Court of Appeal must be satisfied that the trial
Judge's finding of credibility is based not on one element only to the exclusion of
others, but is based on all the elements by which it can be tested in the particular
case. (Emphasis is mine)

17
[51] In this respect the court finds the comments of Rowles, J.A., in R. v.
R.W.B. [1993] B.C.J. No. 758 (B.C.C.A.) especially instructive. In allowing an
appeal from conviction on a charge of sexual touching and ordering a new trial,
the court found that the trial judge erred in placing too much weight on the
complainant’s apparent lack of motive to lie. Where credibility is important,
the triers of fact must apply the rule of reasonable doubt to that issue. In that
case the trial judge failed to apply the test of reasonable doubt and took into
account considerable irrelevant evidence in determining the issue of credibility.
Justice Rowles noted at & 28-31:

[28] It does not logically follow that because there is no apparent

reason for a witness to lie, the witness must be telling the truth.
Whether a witness has a motive to lie is one factor which may be
considered in assessing the credibility of a witness, but it is not the only
factor to be considered. Where, as here, the case for the Crown is wholly
dependant upon the testimony of the complainant, it is essential that the
credibility and reliability of the complainant's evidence be tested in the
light of all of the other evidence presented.

[29] In this case there were a number of inconsistencies in the

complainant's own evidence and a number of inconsistencies between the
complainant's evidence and the testimony of other witnesses. While it is
true that minor inconsistencies may not diminish the credibility of a
witness unduly, a series of inconsistencies may become quite significant
and cause the trier of fact to have a reasonable doubt about the reliability
of the witness' evidence. There is no rule as to when, in the face of
inconsistency, such doubt may arise but at the least the trier of fact should
look to the totality of the inconsistencies in order to assess whether the
witness' evidence is reliable. This is particularly so when there is no
supporting evidence on the central issue, which was the case here.

[30] The trial judge characterized the evidence called on behalf of

the accused as a "flat denial" and said "the rest of it is directed to the
proposition that all of the time had been accounted for" and "that there
would have been no opportunity for the accused to have done the things
this young woman said he did." The trial judge went on to say that he was
"really not that concerned about certain discrepancies, if they were
discrepancies, in S.'s testimony" and that he was "not concerned because
in my view such inconsistencies as were pointed out were upon the trivial
side."

18
 [31] With deference to the learned trial judge, his characterization of the
purpose of the defence evidence is inaccurate. The evidence as to timing
was not, as the trial judge stated, directed simply to the matter of there not
being any opportunity for the incident to have occurred, although that
was part of it. The question of timing was important in this case, not only
because of the limited opportunity in which the events the complainant
described could have taken place, but also because of the lack of
consistency between the complainant's evidence and the evidence of other
witnesses. (Emphasis is mine)

[52] I directed myself on above principles and notions of the credibility of the
witnesses, especially on the victim PW3. I hold this incident should be
considered wholly not in isolation. The victim claims serious criminal charge
against the accused, her real brother. The accused is a Special Inspector of Police
and he managed and trained Fiji Police Rugby team. I start story from the
accused’s side as it appears to me. It was a very happy moment to the accused
that they won the “Sukuna Bowl” Rugby Cup under the guidance of the accused.
He then went on celebration. It is to be noted that the accused was drinking at a
stretch over twenty four hours. He was mixing hard alcohol brands such as Rum,
Vodka and home brewed. The accused did not any time take voluntarily
intoxication as a defence. His defence was total denial of the rape allegation. At
that doomed day the accused was centered with the police officers, possibly
police team or otherwise. At that time the accused called home asking Ronald,
but Ronald was not there and call was answered by the victim. The victim had
painted bad image on their family’s name and the money missing question
suddenly emerged on the accused’s mind. The accused asked the victim to come
home. The victim said she can’t, because she was cooking. But the accused got
permission of the father for her to be released. Then, the victim’s story begins as I
have already noted in my judgment.

[53] The accused in his cross examination elicited several omissions. First one
was that in her evidence in chief she did not tell money missing question. This is
a one issue had been raised by the accused to discipline her. 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 when
she was questioned at that day. Would that omission have been diminished the
value of victim’s evidence? Further, the victim said when she got there, the
accused’s house, 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. Is it vital omission? Moreover, the
witness said the accused threw 5 or 6 punches and she was not slapped. But

19
injuries did not tally with heavy blows. Does this make victim’s evidence
unreliable? The victim said she roughly spent two or three hours in the bed
room. During that period the room was locked according to the victim. The
accused said it was unlocked and cannot be locked. The victim said 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. Seta also came to that room. The victim said she cannot
remember they came before the incident or after the rape. Is this rape story
probable? Can a person rape a woman when people were hanging around the
vicinity? Why did not the victim resist?

[54] The credibility of witness can be measured in certain tests. I consider it now.

Test of Spontaneity

[55]The victim revealed the story as soon as she went home. It appears that there
is no time to concoct a story.

[56] In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the
fact that a complaint was made is admissible provided it was made as speedily
after the acts complained of as could reasonably be expected. His Lordship said
that it is for the trial judge who tries the case to decide whether the complaint is
made as speedily as could reasonably be expected and that here is no one else
who can decide it. (Emphasis is mine)

[57] In R v Cummings (1948) All E.R. 551 Court of Criminal Appeal held that it
was for the judge who tried the case to decide whether the complaint was
made as speedily as could reasonably be expected. Once the trial judge holds
that it was an early complaint, an appeal court could not interfere with the
exercise of his discretion as to the admissibility of the evidence. I hold the
victim’s evidence pass this test. She made rape story earliest as possible to the
brother, sister and mother, medical doctor and finally to the police within a day.

Test of consistency and inconsistency.

[58]It should be noted that the evidence of the prosecution witnesses are mostly
in line with each other; they did not show any vital contradiction per se or inter
se. The only thing the other witnesses said she was repeatedly raped. The victim
said it went on some times. Time duration could be assumed as repeatedly
raped. The accused tried to suggest just because of it was December hot and
humid the victim was sweating. But this negates when her under wears were

20
damped and body odour of after having sex. The accused failed to impeach the
prosecution’s evidence seriously.

Test of probability and improbability.

[59] The victim is not uneducated she is a student of FNU who was undergoing
her tertiary education. She knew the repercussion of making serious rape charge
against his brother. If it is found to be false she may be imprisoned or if found
and decided to be truth her real brother may be imprisoned for long term and his
young family will be shattered and children will be vulnerable. Yet she made this
allegation against the brother. There are no real reasons to level against such a
serious charge against her flesh and blood. Therefore the main defence just
because of she was embarrassed in public she made this false allegation, cannot
be sustained. Her allegation is not proportionate to the act of punching or
slapping . Will she take revenge like this if her real brother had not done this to
her? I must address attendant circumstances of this case. Can this be happened in
crowded house? The witness did not resist. No one knows what was going on
the room. The evidence showed that she was assaulted in front of others. She had
been demoralized. The assault resulted shitting and urinating herself. The people
in the house know the issues of assaulting. The accused is the hero of the day
winning the Sukuna Cup. He normally does discipline of the family. Because of
the relationship was real brother and sister, no one suspects of them being
isolating in a room for wicked idea. Why the victim did not resist? The victim
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
21
 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 ( This is
an omission), 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”
(Emphasis is mine)

[60] Is this a bogus story by the victim? In Reg v Henry [1968] 53 cr. app Rep 150
at 153 his Lordship Salmon LJ discussed the story of concoction in sexual cases as
follows;

“...human experience has shown that in these courts girls and women
sometimes tell an entirely false story, which is very easy to fabricate, but
extremely difficult to refute. Such stories are fabricated for all sorts of
reasons, which I need not now enumerate and sometimes for no reasons at
all”

[61] It could be noted some discrepancies in her police statement and the
evidence. Could this vitiate her story? This was happened in 2007 the victim
gave evidence after 5 years of the incident. I am guided by some common law
authorities in this regard.

[62] In Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983,

1983 AIR 753, 1983 SCR (3) 280 Justice Thakkar, M.P. enumerated the assessment
of discrepancies as follows;

“Discrepancies which do not go to the root of the matter and shake the basic
version of the witnesses therefore cannot be annexed with undue importance.
More so when the all important "probabilities- factor" echoes in favour of the
version narrated by the witnesses. The reasons are: (1) By and large a witness
cannot be expected to possess a photographic memory and to recall the details of
an incident. It is not as if a video tape is replayed on the mental screen; (2)
ordinarily it so happens that a witness is overtaken by events. The witness could
not have anticipated the occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned to absorb the details;
22
 (3) The powers of observation differ from person to person. What one may notice,
another may not. An object or movement might emboss its image on one person's
mind whereas it might go unnoticed on the part of another; (4) By and large
people cannot accurately recall a conversation and reproduce the very words used
by them or heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a human tape recorder; (5)
In regard to exact time of an incident, or the time duration of an occurrence,
usually, people make their estimates by guess work on the spur of the moment at
the time of interrogation. And one cannot expect people to make very precise or
reliable estimates in such matters. Again, it depends. On the 'timesense' of
individuals which varies from person to person. (6) ordinarily a witness cannot be
expected to recall accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get confused, or mixed
up, when interrogated later on; (7) A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the piercing cross examination made by
counsel and out of nervousness mix up facts; get confused regarding sequence of
events, or fill up details from imagination on the spur of moment. The
subconscious mind of the witness sometimes so operates on account of the fear of
looking foolish, or being disbelieved, though the witness is giving a truthful and
honest account of the occurrence witnessed by him-Perhaps it is a sort of a
psychological defence mechanism activated on the spur of the moment.
Corroboration is not the sine-quo-non for a conviction in a rape case. In the
Indian setting, refusal to act on the testimony of a victim of sexual assault in the
absence of corroboration as a rule, is adding insult to injury. Viewing the
evidence of the girl or the women who complains of rape or sexual molestation
with the aid of spectacles fitted with lenses tinged with doubt, disbelief or
suspicion, is to justify the charge of male chauvinism in a male dominated society.
Rameshwar v. The State of Rajasthan, [1952] S.C.R. 377 @ 386 followed.”
(Emphasis is mine)

[63] There are no major discrepancies apart from several omissions. Those
omissions are also not go to the root of case. There were minimal resistance by
the victim. Why was that? Both parties agreed the assault resulted shitting and
urinating of her pants herself. The state of mind of the victim must have been
terrific, horrendous situation at that time; this punishment was never expected
by her. Therefore resistance strong cannot be expected in the attendant
circumstances. The accused slapped in front of his drinking colleagues and his
behaviour was unnatural and cannot be expected to the victim. Further the court
can assume this behaviour because of intoxication and the accused behaviour
was aggressive. Therefore much resistance cannot be expected by the victim. I
therefore cannot say this is a made up story.

Test of independency (interest or disinterest)

23
[64] The prosecution called several witnesses. They can be divided as lay witness
and official witnesses. The evidence of mother and sister of the witness support
the victim’s version. There are no severe inconsistencies. The court is mindful
that they gave evidence after 5 years of the incident occurred. No one can
reproduce or adduce evidence as it was recorded. On the other hand the sister
and mother have no reason to give evidence against the accused.

[65] The prosecution case is primarily based on the evidence of PW3 (the victim).
This court accepts, at present, that there is no corroboration required in law for
sexual offences cases. But Medical report and evidence shows that some injuries.
It gives some weight to the prosecution version. The doctor is an experienced
expert witness. 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”. In common law the history given to the doctor is admissible and
amounts to a corroboration. (Cited in the Court of Appeal Sri Lanka, Gamini
Dolawatte v Attorney General [1986] 1 Colombo Appellate Law Reports 183 per
Justice Siva Sellaih ) 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

[66] 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, rape; they (victims)
usually slow guarded posture and gait. Therefore the history was given to the
doctor by the victim was confirmed by the doctor by her observation. Specially,
her clothing was damped (“underwear from incident damp otherwise neatly dressed).”
The doctor opined “History of recent rape consistent with physical injuries; however
given that this lady recently had vaginal delivery no obvious genital injuries noted”. In
the case of Seremaia Balelala –v- The State FCA Criminal Appeal No. AAU0003
of 2004S it was decided that corroboration is no longer required as a matter of
practice in these type of offences. (Followed in Eliki Mototabua v State
HAC0020 of 2002 and affirmed in State v AV HAC 192 of 2008). Therefore the
doctor’s evidence is additionally strengthening the evidence of the victim.
Further the doctor explained why she did not see any vaginal injuries, the doctor
told the injuries depend on how much force used at penetration and the lapse of
time to the medical examination. It is to be noted the victim said she was
sexually aroused by the accused. Her breasts were fondled and vagina was
24
licked by the accused, it went on sometimes. This may cause although mind is
not agreement to have sex her body does. In such a situation there cannot be
injuries on genital parts. On top of that she had a vaginal delivery. This negates
to doctor to find any vaginal penetration for documentation. Therefore one
cannot say since there is a no vaginal injuries there is no sexual intercourse.

[67] The accused totally denied the rape incident, but he admitted the slapping. I
note doctor note one injuries at her back (Superficial scratch to upper back). Further
the accused caution interview was held admissible as evidence. In that the
accused answered like this;

Question 71: It was alleged that you took Kelera Veresa in the bedroom punched
her, suck her private parts and had forceful sexual intercourse with her. Is it true?

Answer: I remember I had sexual intercourse with a girl but I can’t remember
who that was”

[68] The accused in his evidence said he had sex with his wife in the afternoon. In
that afternoon the wife was doing laundry. Story of having a sex with wife is not
probable. If so why the accused mentioned “I had sex with a girl”? He could
have easily mentioned that he had sex with his wife. Therefore the given
evidence of the accused is found to be false and it amounts to corroboration on a
charge. The rule is, a lie uttered by the accused corroborates the prosecution,
was clearly held in R. v Knight [1966] 1 All E.R. 647 and .R. v. Lucas (Ruth)
[1981] 1 Q.B. 720.

[69] In Attorney General of Hong Kong v Wong Muk Ping (1987) 2 W.L.R. 1033
the Privy Council observed as follows:-

“...... any tribunal of fact confronted with a conflict of testimony had to

evaluate the credibility of evidence in deciding whether the party who
bore the burden of proof had discharged it. It was the commonplace of
judicial experience that a witness who made a poor impression in the
witness box might be found at the end of the day, when his evidence was
considered in the light of all the other evidence, to have been both
truthful and accurate. Conversely, the evidence of a witness who at first
seemed impressive and reliable might at the end of the day have to be
rejected. Such experience suggested that it was dangerous to assess the
credibility of the evidence given by any witness in isolation from other
evidence in the case capable of throwing light on its reliability.”
(Emphasis is mine)

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[70] I should revisit the standard of proof at this juncture which is mention in
Miller v Minister of Pensions [1947] 2 All ER 372. The standard of proof to
convict the accused in a criminal case clearly discussed in that case by Lord
Denning. He went on saying:

“That degree is well settled. It need not reach certainty, but it must carry a
high degree of probability. Proof beyond reasonable doubt does not mean proof
beyond a shadow of a doubt. The law would fail to protect the community if it
permitted fanciful possibilities to deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote possibility in his favour which can
be dismissed with the sentence “Of course it is possible but not in the least
probable”, the case is proved beyond reasonable doubt; nothing short will suffice.”

[71] I have excised serious consideration in law and evidence to ascertain the
truth behind this allegation. I take whole evidence as part and parcel. The
victim’s story reached certainty and probable. I believe the victim’s evidence is
cogent and impressive. The victim was clam and not shaken by cross
examination. Her evidence further was strengthened, supported and
corroborated by other evidence available such as medical, mother, sister and
even the accused brother as I noted. In Sumanasena V Attorney General, per
Justice Ninian Jayasuriya [1999] 3 Sri Lanka Law Report 137) the court stressed
that “Evidence must not be counted but weighed and the evidence of a single
solitary witness if cogent and impressive could be acted upon by a Court of
law.” There is no direct evidence for rape apart from the victim. But, I have no
hesitation to accept victim’s evidence as credible, reliable and truthful. I accept it;
I therefore reject the accused’s evidence.

Conclusion

[72] The charge against the accused has therefore been proved beyond
reasonable doubt and I return a verdict of guilty to the charge.

[73] 28 days to appeal.

On this day 17th July 2012 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]

Resident Magistrate-Nasinu

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