High Court of Fiji

"... [read from the information]...."

4. THE MAIN ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:

(i) On count no. 1, did the accused, on 3 August 2013, at Macuata in the Northern Division, rape the complainant?

(ii) On count no. 2, did the accused, on 5 September 2013, at Macuata in the Northern Division, rape the complainant?

(iii) On count no. 3, did the accused, on 29 September 2013, at Macuata in the Northern Division, indecently insult the complainant?

(iv) On count no. 4, did the accused, on 5 October 2013, at Macuata in the Northern Division, rape the complainant?

5. THE OFFENCES AND THEIR ELEMENTS
   

9. On counts nos. 1, 2, and 4, the accused was charged with "rape", contrary to Section 207 (1) and (2) (c) of the Crimes Decree 2009. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused inserted his penis into the complainant's mouth;

(ii) without the complainant's consent; and

(iii) he knew the complainant was not consenting to (i), at the time.

10. In law, the slightest penetration of the complainant's mouth by the accused's penis, is sufficient to satisfy paragraph 9 (i) above and it's irrelevant whether or not the accused ejaculated.

11. Consent is to "agree freely and voluntarily and out of his own free will", and he must have the necessary mental capacity to give his consent. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over him, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all. Note in count no. 1, 2, and 4, the complainant was under 13 years old, and was thus incapable, in law, to give his consent to the accused penetrating his mouth with his penis. It is a policy of the law that under 13 years olds are incapable of consenting to the abovementioned act.

12. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue. For a boy under 13 years old, a person is presumed to know that he is incapable of consenting to a person penetrating his mouth, at the material time.

13. Count No. 3 involved the offence of "indecently insulting or annoying a person", contrary to section 231 (1) (a) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt the following elements:

(i) the accused

(iii) with intent to insult

(iii) the modesty of a person

(iv) utters any word or

(v) makes any gesture

(vi) intending such word or

(vii) gestures

(viii) to be heard or seen

(ix) by the other person

14. The accused must intend to insult or annoy the complainant by uttering a word or gesture that will insult the complainant. You will have to assess the accused's alleged actions, at the time, and determine whether or not they were intended to insult or annoy the complainant. The act must be considered "indecent" by right – thinking members of society.

6. THE PROSECUTION'S CASE
   

15. The prosecution's case were as follows. On 3 August 2013, the complainant (PW1) was aged 11 years 10 months old. The accused (DW1) was aged 44 years 4 months old. The complainant lived with his parents and family in Macuata. The accused lived with his wife and son nearby in Macuata. The accused worked as a driver for a government department. He is a related to the complainant through his wife.

16. On 3 August 2013, according to the prosecution, the accused came to the complainant's house and invited the complainant and his grandmother to his house. They went and stayed there until the evening. They slept in the accused's house that night. According to the prosecution, PW1, his grandmother, the accused and his wife (DW2) and their son slept together in the sitting room. According to the prosecution, the accused came to PW1 in the night, and told him to suck his penis. According to PW1, he then sucked DW1's penis (count no. 1).

17. On 5 September 2013, the accused took PW1 to Basoga in Labasa. They slept at his mother-in-law's house that night. According to the prosecution, the accused came to PW1 at night and asked him to suck his penis. PW1 said, he then sucked his penis (count no.2). The next day, they returned to their houses in Macuata. On 29 September 2013, the accused invited the complainant to his house. They went to this house. No-one was at his house at the time. At his house, he closed the windows and the doors. He then took his clothes off. According to the prosecution, he then asked PW1 to suck his penis. PW1 was disgusted and refused to do the same (count no. 3)

18. On 5 October 2013, according to the prosecution, the accused and the complainant met at a nearby bus stop. The bus they went to catch had already left. The two decided to walk to the accused's house. While walking along the road, the accused asked the complainant to suck his penis. The complainant refused. The accused told the complainant that he will force him to do the same. The complainant complied. They went into a nearby bush and the complainant sucked the accused's penis (count no. 4). Thereafter, they went to the accused's place.

19. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.

7. THE ACCUSED'S CASE
   

20. On 27 October 2015, the first day of the trial, the information was put to the accused in the presence of his counsel. He pleaded not guilty to all the counts. In other words, he denied the three rape and indecent insult allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to give sworn evidence and called his wife as his only witness. That was his right.

21. The accused's case was very simple. On oath, he denied all the allegations against him. He said, at no time whatsoever, did he insert his penis into the complainant's mouth. He said, he did not insert his penis into PW1's mouth as alleged. He also denied the indecent insult allegations. As to his alleged confession to the police, in Prosecution Exhibit No. 1(A) and 1(B), he said he was forced by the police to give the same, and as a result, you should place no weight or value on the same, and disregard it.

22. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged on all counts, and acquit him accordingly. That was the defence's case.

ANALYSIS OF THE EVIDENCE

(a) Agreed Facts:

23. The parties had submitted an "Agreed Facts". A copy of the same is with you. You must read it and carefully understand the same. There are two paragraph of facts. The significance of the "Agreed Facts" was that the parties agree the complainant was born on 7 October 2001, which was confirmed by his birth certificate. This meant that on 3 August 2013 (count no. 1); on 5 September 2013 (count no. 2) and on 5 October 2013 (count no. 4), the complainant was under 13 years old.

24. With regards to the second element of rape, as discussed in paragraph 9 (ii) hereof, a child under 13 years old is incapable, as a matter of law, to give his consent to a person to penetrate his mouth with his penis. Furthermore, as far as the third element of rape, as discussed in paragraph 9 (iii) hereof, a person is presumed in law to know that a child under 13 years old cannot consent to a person to penetrate his mouth with his penis, at the material time. So for rape to be proved by the prosecution against the accused, all they need to do is to make you sure that the accused penetrated PW1's mouth with his penis, at the material times.

(b) The Complainant's Evidence:

25. The State's case against the accused is based primarily on the complainant's direct verbal evidence, given on oath. As a matter of law, his verbal evidence does not need to be corroborated by independent evidence. If you accept his evidence as credible, and you place more weight and value on the same, you may find the accused guilty as charged on all counts.

26. PW1 said, on 3 August 2013, while sleeping in the accused's sitting room with others, the accused came to him and told him to suck his penis. He said, he did so at the time (count no. 1). On 5 September, 2013, the accused took the complainant to Basoga in Labasa, and they slept at his mother-in-law's house. The complainant said, at night, the accused came to him and told him to suck his penis. He said, he did so (count no. 2).

27. On 29 September 2013, the complainant said, the accused took him to his house. When they arrived in the house, he closed all the windows and doors. The complainant said, the accused took off his clothes, and told him to suck his penis. PW1 said, he was disgusted and refused (count no. 3). On 5 October 2013, the complainant said the accused called him on his mobile phone. They met at a nearby bus-stop. However, the bus they planned to catch had left. They then walked towards the accused's house. On the way, the complainant said, the accused forced PW1 to suck his penis in a nearby bush. PW1 said he sucked the accused's penis (count no. 4). Thereafter, they walked to the accused's house.

(c) The Accused's Evidence:

28. On oath, the accused denied ever inserting his penis into the complainant's mouth at anytime whatsoever. He denied all the allegations against him.

(d) The Accused's Caution Interview Statements:

29. PC 4278 Arvin Maharaj (PW2), a police officer, gave evidence in Court. He said, on 22 October 2013, he cautioned interviewed the accused at Dreketi Police Post. The interview started at 12.20pm and concluded at 3pm on the same day. He asked the accused 64 questions and the accused gave 64 answers. PW2 said, he was given his right to counsels, other rights, formally cautioned, and was given the standard meal and rest breaks. PW2 said WPC 3166 Selina was the witnessing officer. The allegations were put to the accused. According to PW2, from questions and answers 25 to 33, 53, 54, 57 and 59, the accused admitted that the complainant only sucked his penis once.

30. When considering the above evidence, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact - in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his police caution statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If its otherwise, you may give it less weight and value. It is a matter entirely for you.

31. In this case, the accused said he gave those statements. However, he said, the police forced him to do so. He said, they threatened to lock him up in Seaqaqa Police Station cell if he did not confess. The caution interview officer, PW2 said, he and WPC Selina did not assault, threaten or made false promises to the accused during the interview, or while in their custody. PW2 said, the accused gave his police statements voluntarily. The accused said, he made no complaints to the police or the Magistrate Court, about any police misbehaviour. If you accept the accused's confession, it will support the prosecution's case, and as a result, you are entitled to find the accused guilty as charged on all counts. If otherwise, you will have to work on the other evidence to make a decision on whether or not the accused is guilty as charged. It is a matter entirely for you.

(e) Considering All The Evidence Together:

32. You must consider all the evidence together. You have heard the evidence of all the prosecution and defences' witnesses. You have observed their demeanour in the court room. Who do you think was the credible witness? Who do you think was the forthright witness? Who do you think was evasive? Who do you think was telling the truth? If you think the prosecutions' witnesses were credible, you must find the accused guilty as charged. If its otherwise, you must find the accused not guilty as charged. It is a matter entirely for you.

SUMMARY

33. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

34. Your possible opinions are as follows:

35. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa