IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 223 OF 2011

STATE

V

JAGDISH CHAND REDDY

Counsel: Ms. S. Kiran for the State
Mr. J. Singh with Ms. Singh for the Accused

Date of Summing Up: 6th November, 2015
Date of Judgment: 12th November, 2015

JUDGMENT

1.	The Accused was charged with the following count and was tried before three Assessors.

Statement of Offence

RAPE: Contrary to Sections 207 (1) (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JAGDISH CHAND REDDY on the 23rdof November, 2011 at Lautoka in the Western Division, penetrated vagina of SEREIMALEWANIMAROU with HIS FINGERS, without her consent.

2. On the 6th of November, 2015, two Assessors found the Accused guilty while the other Assessor found the Accused not guilty of Rape.

3. I direct myself in accordance with my own Summing Up and review the evidence called in the trial. I pronounce my judgment as follows.

4. The State was running the case on the basis that the Accused, disguised himself as 'Brother Jack' from New Methodist Denomination, inserted his three fingers into Complainant's vagina, consent for which was obtained by making false and fraudulent representations as to the nature or purpose of the act consequently vitiating consent. 

5. It is the defence case that the alleged incident never took place and the Accused was never indulged in any such criminal activity. His case was entirely based on the premise that Complainant had fabricated this story since her attempt to extort $ 10,000.00 from the Accused failed. In short, Defence case was entirely aimed at discrediting the Prosecution case.

6. At the close of my summing up, learned Counsel for Defence raised a point as a matter of redirection that the defence case was not substantially put to the Assessors and lack of direction may be prejudicial to his client. 

7. Disagreeing with the learned Counsel for Defence, I proceeded to consult the opinion of the Assessors for two reasons.

8. Firstly, although I had failed to state expressly that 'this is the case for the Defence', I was of the view that such a course of action (redirection) would confuse the Assessors in light of my summing up, which I considered had explained the case for the Defence to the extent that it was capable of being understood as to the nature of the defence.

9. I reviewed my own summing up.I believe that the defence case had been sufficiently explained to the Assessors in following terms:

"You have to consider if there is a reason or motive for the Complainant to make up a story against the Accused. Defence Counsel was cross examining Prosecution witnesses on the basis that Complainant's attempt to extort $ 10,000/- from the Accused had prompted Complainant to make this allegation. Complainant denied having made such a demand. Wainoke had not seen such a demand being made. It is up to you to decide whether such a motive is made out"(Para 63)

"When the Prosecution had closed its case, you heard me explain to the Accused his rights in defence. He could remain silent and say that the Prosecution had not proved the case beyond reasonable doubt; he could give evidence and be subjected to cross examination and call witnesses on his behalf. I explained his rights because I am required by law to do so. Not because he had to prove anything in this case"(Para 50)

"The Accused elected to remain silent and not to give evidence or call witnesses on his behalf. That is his right. You must not draw any negative inference and think that he did not exercise his rights because he is guilty"(Para 51)

"Remember, the burden to prove that the consent was obtained by false and fraudulent representations about the nature or purpose of the act rests on the Prosecution. Accused is under no obligation to prove that he did not make false and fraudulent representations to obtain her consent". (Para82)

10. Secondly, even if there is a risk of Accused in any way being prejudiced by lack of direction, the unique nature of our judicial system is capable of eliminating such a risk by intervention of the judge at the Judgment stage. 'unique safeguard' assured to an accused in our judicial system was vividly and authoritatively explained by his Lordship the Chief Justice Anthony Gates recently in Noa Maya v State (Criminal Appeal No.AAU 0053/2011 (23rd October,2015) in following terms:

"Where such litigation issues continue and remain alive into the trial proper, the judge's opinion on this important matter should be referred to in the judge's judgment following the tendering of the opinion of the Assessors, irrespective of whether the judge conforms with those opinions or not [Section 237(2) Criminal Procedure Decree]. In this way the decision of the trial judge on a curtail litigation issue can be known and understood by the appellate courts. This is another example of why it is highly desirable for a judge to write a short judgment explaining the basis for his concurrence or disagreement with opinions of the assessors. At the end of the day, in Fiji the decision on guilt or innocence is entrusted to the presiding judge. The role of the assessors is to tender opinions to assist the judge. But they are not deciders of fact or ultimately of the verdict".(emphasis added)

11. With those words in my mind, I now proceed to give reasons, though somewhat in detail, for my judgement.

12. The Prosecution based its case substantially on the evidence of the Complainant. I am satisfied that the evidence Complainant gave in Court is reliable and trustworthy,and the Prosecution has proved each element of the offence beyond reasonable doubt.

Identity of the Accused

13. There is obviously no issue in this case with regard to the identity of the Accused. Defence Counsel cross-examined the Prosecution witnesses on the basis that the person who had come to the Complainant's house on the day of the alleged incident is the Accused. Accused had visited the Complainant's house on two occasions and had spent considerable time with her. There was reasonable foundation for dock identification. Both Prosecution witnesses identified the Accused in Court without any difficulty. 

Credibility of the Complainant's evidence

14. Inow consider how probable or improbable is the evidence given by the Complainant in the circumstances of the case. 

Probabilities/improbabilities

15. Complainant admitted that she allowed the Accused to touch her body and even allowed him to insert his fingers into her private part in the belief that those acts formed part of his prayer aimed at giving a baby to her. It was the first time she had met the Accused. I asked the Assessors to consider if her conduct is probable.

16. Soon after the alleged incident, Complainant who is of iTaukei origin, had gone to her neighbour, Wainoke, who is also of iTaukei origin had used the word 'vakasilima' in her complaint to explain the incident. In her evidence Wainoke described what vakasilima means to Fijians in following terms:

"She told me that that man had prayed for her and she also told me that the man touched her body and also bathed her and used his hand to touch her private parts"….

…"He used his fingers to touch the private parts of a woman, in Fijian my Lord, she was saying 'vakasilima' which means bath". 

17. Complainant stated that she, as a woman in need of children, totally believed the words of the accused. Two assessors of iTaukeiorigin believed the prosecution version and returned with an opinion of guilty. Their opinion bears testimony to the fact that, in Fiji, it is still possible to make Fijian women believe that a prayer could give them children. Such beliefs are based on traditions handed down from generation to generation. 'Vakasilima' is one 'craft' imbedded in their traditions which is aimed at giving children to childless women performed by specially trained Fijian women.

18. Two Assessors found the conduct of the Complainant not improbable. I agree with their finding as they had reasons do to.

19. Both Prosecution witnesses had the opportunity to report the matter to Police soon after the incident on 23rdof November 2011. Complainant also had the opportunity to point out the Accused to her husband on 24thas he (husband) was just leaving for work and still within her sight as the Accused approached. But they chose not to do so. 

20. Their conduct to my mind is not improbable. Wainoke said that she wanted him to come the next morning so that police could catch him. Complainant and Wainoke had talked about the scheme to trap him on the next day. Accused had indeed been caught as planned. I consider their conduct of not reporting the matter to Police soon after the incident is natural and probable. 

21. Complainant had not told the complete story to her husband on 23rd. Explaining the reason, she said that she was scared of her husband because she had realised that her allowing the Accused inside the house in husband's absence is wrong. It is not improbable for her to keep the most offending part a secret from her husband due to fear and divulge the other part to ensure the arrest of the Accused. 

Recent Complaint Evidence 

22. There is no rule in Fiji to look for corroboration of Complainant's story to bring home an opinion of guilt in a rape case. However, I consider it prudent and safe, in this case, to look for other independent evidence to support or test the consistency and credibility of the Complainant's story of rape. In this regard the recent complaint evidence of Wainoke is important. 

23. Soon after the incident, Complainant had gone to her neighbour, Wainoke, to relate what had happened to her. Wainoke gave evidence in Court and confirmed that she received the related information from the Complainant. 

24. Procedurally for the evidence of recent complaint to be admissible, both the complainant and the witness complained to must testify as to the terms of the complaint: Kory White v The Queen (1991) 1AC 210 at p 251H; Anand Abhaya Raj v The State Spl. Leave to Appeal No. CAV 0003 of 2014. This was done in this case.

25. In her complaint, Complainant had not described the full extent of the sexual conduct to Wainoke and had only told about touching of vagina with fingers. 

26. For the recent complaint to be admissible the complaint need not disclose all of the ingredients of the offence but it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the sexual conduct, provided it is capable of supporting the credibility of the complainant's evidence. Raj v The State (supra)

27. Wainoke is an independent witness. Her unshaken evidence supported the evidence of the Complainant and bolstered the Prosecution case.

Lack of Motive to fabricate 

28. Defence Counsel was cross examining Prosecution witnesses on the basis that Complainant's attempt to extort $ 10,000/- from the Accused had prompted her to make this allegation. Complainant denied having made such a demand. Waynoka had not seen such a demand being made from the Accused. Assessors disbelieved the assertion of the defence that there was a reason or motive for the Complainant to make up a story against the Accused. Their finding is not perverse given the evidence led in the trial.

Contradictions/ Omissions

29. Placing before the Complainant the previous statement to Police, Defence Counsel highlighted number of so called contradictions and omissions to prove that she has not been consistent in her evidence and therefore she is not a credible witness. Defence Counsel, in his closing remarks, refreshed memory of Assessors on almost every one of them. 

30. I gave a general direction to Assessors as to how they should use previous statements to evaluate consistency and credibility of a witness. Majority of Assessors found contradictions and omissions highlighted by the Defence had not discredited the Prosecution version.

31. I do agree with the Assessors as most of the contradictions highlighted are not material and significant so as to affect her credibility. They are only in relation to insignificant or peripheral matters. Such variations are possible due to loss of memory. Complainant said that she is first time in court and some of the events are out of her mind. She gave evidence nearly four years after the incident. 

32. Complainant admitted that her statement to police was served to her along with summons so that she could refresh her memory. If the Complainant really wanted to conform 100% to her previous statement, she simply could have done so by memorising the statement. She could have repeated what she had told police four years ago without any contradiction or omission. She did not do so. That's why Defence Counsel found contradictions and omissions in her testimony. Evidence comes from human beings. They cannot have photographic or video graphic memory.

Honesty / Demeanour

33. Complainant frankly admitted that she allowed the Accused to insert his fingers into her vagina in the belief that it formed part of the prayer. That shows her honesty as a witness. 

34. I considered overall evidence of Prosecution witnesses, the demeanour, the way they faced questions. They are straightforward and not evasive. I find the Prosecution version to be plausible and believable. 

Elements of the Offence 

35. Having been satisfied about the credibility of the Prosecution version of events, I now proceed to analyse evidence to see whether each element of the offence of rape, as charged, has been proved by the Prosecution beyond reasonable doubt.

36. There is sufficient evidence to find that the Accused penetrated the vagina of the Complainant with his fingers. Now the question to be resolved is whether the Prosecution has proved beyond reasonable doubt that the penetration occurred without Complainant's consent. 

37. A non-exhaustive definition of consent is provided by Section 206 of the Crimes Decree. As defined in Section 206 of the Crimes Decree, consent means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

38. A person's consent to an act is not freely and voluntarily given if it is obtained —

 (a) by force; or 

 (b) by threat or intimidation; or 

 (c) by fear of bodily harm; or 

 (d) by exercise of authority; or 

 (e) by false and fraudulent representations about the nature or purpose of the act; or 

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner. 

39. There is no evidence in this case and nor was the Prosecution case that the consent was obtained by force or by threat or intimidation or by fear of bodily harm or, by exercise of authority or by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

40. Complainant clearly said, under cross examination, that she was never subjected to any of those conditions when she allowed the Accused to penetrate her. The only issue remains to be decided now therefore is whether her consent was obtained by the Accused by making false and fraudulent representations about the nature or purpose of the act.

41. Accused had allegedly told the Complainant that he is a Brother and prayer warrior of New Methodist Denomination and he can pray for her to have a baby. She had believed him and had accepted what he said and had allowed him to pray for her. In the course of the prayer, he inserted his three fingers into her vagina. 

42. I find in evidence that Accused had made a false and fraudulent representation as to the nature and purpose of the act that he was going to perform on Complainant's body. 

False and fraudulent representation as to the nature of the act

43. Accused had told the Complainant that he can pray for her to have a baby. Then she invited him inside the house as she thought it proper for him to pray inside the house. Prayer is a holy or venerated act and it is quite natural for her to invite him inside. Before coming inside the house he told the plan or internal set up of the house to her surprise. She asked him "how do you know my house is like this?" His conduct no doubt would have made her believe that he can really pray for her. 

44. Sequence of events took place inside the house is far removed from the notion of prayer known to any denomination. The circumstances were, to say the least, unusual and nothing to do with prayers. It consisted of acts of slapping of naked buttocks, kissing, hugging, touching the vagina and digital penetration of vagina. The nature of the acts is completely different from what she agreed for him to do. 

45. It is not difficult to draw certain inferences from proved facts to conclude that the Complainant, at the time she gave consent to the Accused to pray for her, was not aware that his prayer would include digital penetration. 

46. Accused first asked her to lie down and lift her skirt. She thought he would pray on her stomach or something like that. Then he asked her to remove her panty which she did not. Then he moved her panty to a side and inserts his three fingers into her vagina, mumbling something. She asked him why he is doing this. He said he is inserting Holy Spirit into her body. She said she was afraid when he was doing this. 

47. She specifically admitted that before inserting fingers into her vagina Accused informed him that he is going to do that. Learned Defence Counsel's argument was that if she was informed beforehand that he is going to insert his fingers into her vagina, then it can't be said that she was misled or deceived as to the nature of the act. 

48. I am unable to agree with the contention of the learned Counsel. It is true that immediately before he did that he had informed her. But at that stage she is undoubtedly helpless and has no option but to allow him to proceed. 

49. Mere fact that she had prior knowledge immediately before the act does not make her consent real. It is obvious from her evidence that she was taken by surprise by his act of digital penetration. Her surprise is manifested in her conduct before, during and after the act of penetration. 

50. When Complainant was asked to remove her panty before penetration, she did not oblige. That is why he had to shift the panty to a side before doing that. During penetration, she asked him 'why you are doing this? If she had prior knowledge, at the time he agreed to the prayer, that digital penetration to be a part of his prayer, she would not have asked him 'why you are doing this? She also said she was afraid when he was doing this.

51. After the penetration, he stood up and asked her to hug each other. Then he asked her to give him a kiss. She refused. Finally she started crying because she realised what he did to her was wrong. 

52. After Accused had left, she goes to her neighbour, Wainoke Jiu, who belonged to New Methodist Denomination to get the matter clarified. Having shared some scriptures from the Bible, Wainoke explained to the Complainant that what he had done to her is not godly. Wainoke even discusses with her husband who is a pastor belonged to New Methodist Denomination. Finally, Complainant is assured that she had been deceived. 

53. The English decisions of R v Williams [1922] All ER 433 and R v Flattery [1877] 2QBD 410 illustrate the types of situations that fall within this category. The former case concerned a singing teacher who had intercourse with a student, having represented the act as an operation to improve her breathing. In the latter case, a quack doctor had sex with a patient, while representing that he was carrying out surgery. Since the fraud related to the 'nature' of the act (ie, the girl believed she was having medical treatment whereas in fact she was submitting to sexual intercourse) consent has vitiated and the man was guilty of Rape.

False and fraudulent representation as to the purpose of the act

54. When the representation is not truthful it is false. The representation that he can pray for her to have children is utter falsehood. No human being is capable to do such a miracle. Courts can't give validly to myths. Such a representation necessarily connotes fraud. 

55. Fraud is an intentional, dishonest act done with a purpose of deceiving. To show that the consent was obtained by fraud, the Prosecution must show that the consent of the complainant was obtained by fraud and that the fraud related to the nature or purpose of the act being carried out by the accused on the complainant.

56. By the Accused's false representation, Complainant was either misled or deceived into believing that the purpose of the act of the Accused is giving a baby to her by prayer. But acts such as kissing, hugging, touching her buttocks as if he is playing with her and digital penetration has nothing to do with prayers. All acts had sexual connotations. 

57. In the Queensland case of R v BAS [2005] QCA 97 the appellant was convicted of multiple counts of rape and sexual assault committed on young women and minors during treatments represented as 'alternative therapy'. The appellant admitted that many of the so‐called 'treatments' took place, but claimed he genuinely believed in their medical value; that claim was evidently rejected by the jury. There was no dispute that the complainants and their parents had consented to the treatments; however, there was clear evidence that they would not have done so if they had thought then, as they did later, that the sessions had no genuine therapeutic purpose. The Court of Appeal unanimously upheld the appellant's convictions. The judges appeared to accept without serious question that the scenario would fall within the meaning of the Section 348(2)(e) of Queensland Criminal Code similar to Section 206 (2) (e) of the Crimes Decree.

58. In the present case, the Accused has not admitted the act. However Bas case is relevant to the present case as this Court has already found that physical act of the Accused had been proved by the Prosecution. 

59. In the Victorian case of Mobilio [1991] VR 339, the defendant, a radiographer, carried out internal vaginal examinations on several female patients using ultrasound transducers. The examinations had no medical utility, being only for the defendant's sexual gratification. The defendant was convicted of rape, but the Victorian Court of Appeal overturned his conviction, based on the approach prescribed by the High Court. The women were not mistaken about the nature of the act being performed, but only as to its purpose. (At that time false and fraudulent representation as to the purpose of the act had not been included in the definition)

60. While the women in that case were not deceived as to the nature of the acts perpetrated on them, they were clearly misled as to their purpose. They thought the acts had a medical rationale, while, in reality, they were performed simply to gratify the desires of the defendant. 

61. Acts perpetrated by the Accused on the Complainant had only sexual connotations not associated with a prayer of any denomination. He told her or made her believe by his conduct that he was inserting his fingers into her vagina for the purpose of a prayer, when his real purpose was to obtain sexual gratification of some kind for himself. No reasonable man or woman would believe that his acts are perpetrated for a spiritual or godly purpose. Nobody can say by looking at Accused's conduct that he would have really and genuinely believed that those acts form parts of a prayer. Only inference that the Assessors could have drawn from evidence led in trial is that his purpose was prurient. It was reasonably open to the Assessors to conclude that the Accused's purpose was for self-gratification and not for prayer.

62. There was evidence on which the Assessors could properly find that the Complainant did not freely and voluntarily give their consent, but that her consent to the acts in question was, within the meaning of Section 206 (2) (e), obtained by false and fraudulent representations about the nature or purpose of the act.

63. I am satisfied beyond reasonable doubt that the Accused was dishonest, was lying when he told the complainant that the insertion of his fingers into her vagina was done for the purpose of a prayer. I am satisfied that there was no consent by the Complainant to the digital penetration. 

64. I agree with the majority opinion of the Assessors. Their opinion is not perverse. It is open for them to reach such a conclusion on the evidence led in the trial.

65. Prosecution has proved the charge beyond reasonable doubt. Accused is convicted of Rape accordingly.

66. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
12th of November, 2015 

Solicitors: Office of the Director of Public Prosecution for State
 Samusamuvodre & Sharma Law