Crime

Nasilasila Case: Rape Trial Hears Issue Of Consent

Mr Katonibau told the court that he was surprised and questioned the complainant if it was consensual and she informed him that she really loved him.
18 Sep 2019 12:19
Nasilasila Case: Rape Trial Hears Issue Of Consent
Amenoni Nasilasila outside the High Court in Lautoka on September 17, 2019. Photo: Ashna Kumar

The trial of former national 7s rugby player Amenoni Nasilasila entered day two at the High Court in Lautoka yesterday.

Nasilasila, 27, appeared before Justice Daniel Goundar and is alleged to have raped a 24-year-old woman from Olosara, Sigatoka, on December 22, 2018.

Nasilasila has pleaded not guilty to the charge.

The State prosecution is represented by counsels from the Office of the Director of Public Prosecutions, Mehzabeen Khan and Moira Konrote.

Nasilasila is represented by Mark Anthony and Unaisi Baleilevuka.

Trial day 2:

Prosecution’s third witness: Dr Elizabeth Natasha Dass:

The prosecution’s third witness, Dr Dass, took the stand yesterday. Dr Dass has been based at the Korolevu Health Centre under the Sigatoka Hospital subdivision since April 2015.

She told the court that in 2018, she was based at the Korolevu Health Centre and on the day of the alleged incident, she was at the Sigatoka Hospital in the emergency department.

Dr Dass told the court that her role included seeing patients, handling emergency cases, writing or compiling reports.

She told the court that one of her roles involved checking on patients requiring medical examination brought by the Police.

The normal procedure was for Police officers to bring patients and she would start asking questions based on the history, recent incidents and matter of concern, conduct examinations and document the medical findings in the Police medical report.

Dr Dass recalled that on December 22, 2018, while she was working at the Sigatoka Hospital, a female Police officer brought the complainant between 6pm and 7pm. She told the court that due to the busy period in the emergency department, she was able to see the complainant a little after 10pm.

She told the court that she was informed the patient (complainant) was brought in for an alleged rape incident and the Police required the medical examination.

The State prosecution showed the medical report compiled by the doctor, which Dr Dass confirmed that the examination was conducted by her and was dated on December 22, 2018, at 10.05pm.

She also told the court that the medical report was of the complainant.

Dr Dass told the court that in the matter she conducted an examination of the private parts, speculum examination, recorded the history of the patient and visible injuries examination.

She told the court that in the medical examination, she did not find any gross or physical bodily harm on the patient (the complainant).

She also told the court that there were multiple tiny skin abrasions in the opening of her private parts and explained abrasions meant the skin being rubbed away from the surface, mostly seen in blunt trauma (non-sharp trauma).

Dr Dass told the court that in her conclusion, she stated that there was a finding of recent sexual activity and minor injuries, however, it was difficult for her to state whether it was consensual or non-consensual sex.

Third witness’ cross-examination:

During cross-examination conducted by Ms Baleilevuka, Dr Dass told the court that in the general examination conducted on the patient (the complainant) there were no visible bruises or injuries that could have been recorded.

She told the court that her medical opinion was there were multiple tiny abrasions, which could have been caused by everyday activities such as shaving.

Third witness’ re-examination:

In the re-examination, Dr Dass told the court that if a person was held tightly, it would be difficult to say what other probabilities are that could cause injuries or bruises because it could range on the different circumstances.

After the re-examination, the prosecution closed their case.

Justice Goundar asked Nasilasila if he wished to exercise his right to remain silent or give evidence from the witness box or call a witness on his behalf.

Nasilasila exercised his right to remain silent.

Mr Anthony called a witness to give evidence.

Defence witness – Isake Katonibau:

Defence witness, military officer Lieutenant Isake Katonibau, 36, took the stand for Nasilasila’s case yesterday.

Mr Katonibau told the court that on December 23, 2018, he was returning from Nadi when his driver informed him that “Noni” (Nasilasila) was arrested and was at the Sigatoka Police Station.

He told the court that he informed his driver to take him to the Police Station, where he then met Nasilasila and was told about what had happened.

Mr Katonibau told the court that he considered Nasilasila as his brother and told him to pray, tell the truth to the Police and to stay strong.

He told the court that after speaking with Nasilasila, he and his driver left for Suva when he informed his driver that he was hungry.

Mr Katonibau told the court that he and his driver stopped at Chicken Express for lunch, where he met the complainant who was with her cousin.

He told the court that he had met the complainant a few times at San Francisco International Airport and while on rugby tours overseas.

He told the court that they all had lunch together and while having lunch, the complainant began to cry and said to him that “Nasilasila and I had sex in the bathroom and what hurt me a lot was that he just left me there all alone and did not bring me the towel which I asked”.

Mr Katonibau told the court that he was surprised and questioned the complainant if it was consensual and she informed him that she really loved him.

He also told the court that the complainant said to him that she wanted to do the right thing and wanted to go to the Police Station and withdraw the case.

Mr Katonibau told the court that he and his driver took the complainant and her cousin to the Sigatoka Police Station and waited for more than an hour.

He told the court that the complainant said to the Police officer that she wanted to withdraw the case.

Mr Katonibau told the court that the conversation took place in the presence of Nasilasila, his mother, Police officers, the complainant, her cousin, him and his driver.

Defence witness’ cross-examination:

In cross-examination, Mr Katonibau told the court that he had been playing with “Noni” (Nasilasila) since 2015 and they had travelled together where he also met the complainant at the airport and at the hotels.

He told the court that he had always looked out for “Noni” because when Nasilasila was introduced in the team, he was very young and Mr Katonibau was mentoring him.

Mr Katonibau also told the court that he would have helped Nasilasila, however, the law was the law and nobody was above the law.

When Ms Konrote asked Mr Katonibau if he had not met her at the restaurant and had called the complainant to meet him and to withdraw the case, Mr Katonibau told the court that it was not true.

Mr Katonibau agreed that he took the complainant to the Police station, however, he disagreed that he was pressurising the complainant to withdraw the case.

Mr Anthony closed the defence’s case.

The matter was adjourned at 12.10pm for both parties to prepare and submit their closing submissions.

At 3.3pm, the matter was called against for both prosecution and defence to deliver their closing submissions.

Closing submissions:

Defence:

In his closing submissions to the three assessors, defence counsel Mr Anthony told the court that the defence contested the allegation of rape and submitted that the sexual intercourse between the complainant and Nasilasila was consensual.

He told the court the complainant was inconsistent with her evidence.

Mr Anthony told the court that the complainant in her evidence said it was her own choice to stay back with Nasilasila and at that time, she knew that Nasilasila was allegedly intoxicated.

He told the court that the complainant confirmed to the court that she was in a romantic relationship with Nasilasila.

Mr Anthony asked the court that if a person is being raped or raped in a violent manner, would she ask the alleged rapist to bring her a towel?

He told the court that there was no shouting, yelling or call out for help made by the complainant and it backed the questioned how credible was her evidence.

Mr Anthony told the court that the complainant in her evidence had stated that she went to Nasilasila and apologised to him.

He then raised the question on whether it was reasonable to make a special trip back to the Police station and apologise to the person whom she claimed had violently raped her.

He also raised the question on the need to apologise to the alleged rapist, who she claimed had violently and forcefully raped her.

Mr Anthony told the court that the complainant in her evidence said she had loved the accused and also highlighted to the court that there were no marks on the complainant’s body in the medical report tendered as defence witness.

He told the court that the complainant was treated aggressively and violently yet there were no marks on the body.

He submitted that the prosecution was not able to prove that Nasilasila had sex with the complainant without her consent.

State prosecution:

In her closing submissions, State prosecutor Ms Khan told the court that the prosecution had called three witnesses and they were the complainant, complainant’s boyfriend Mitieli Mataibau and the medical doctor.

She told the court that the court heard the complainant and her dilemma in court, which was not easy for her to narrate.

She told the court that Nasilasila agreed that he had sex with the complainant on December 22, 2018.

The prosecution had the burden to prove whether the complainant consented to sex and was the accused aware.

Ms Khan told the court that from the outset, Nasilasila denied committing the offence.

She told the court that the prosecution’s case had overwhelming evidence that Nasilasila had sex with the complainant and that he was aware that the complainant did not consent to have sex.

Ms Khan also told the court that throughout her testimony, she was consistent with her evidence and kept saying no to Nasilasila.

She told the court that the complainant ran to the bathroom, which showed that it was sufficient for Nasilasila to know she did not consent.

Ms Khan told the court that the State was confident that the complainant was a credible and reliable witness.

She told the court that the complainant chose to stay with Nasilasila because she trusted him.

Ms Khan told the court that the State had proved all the elements of rape in the case.

Justice Goundar adjourned the matter for assessors’ opinion in the summing up tomorrow (Thursday) at 10am.

Edited by Epineri Vula

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