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State v Werelagi [2019] FJHC 1145; HAC425.2018 (9 December 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 425 OF 2018

STATE

V

JOSEVATA WERELAGI

Counsel : Ms S Tivao with Ms L Bogitini for the State

Ms S Nasedra with Ms T Kean for the Accused

Date of Hearing : 25 – 29 November 2019, 2 – 4 December 2019

Date of Summing Up: 5 December 2019

Date Judgment : 9 December 2019

JUDGMENT

[1] After deliberating, the assessors expressed unanimous opinions that the Accused is guilty of aggravated sexual servitude as charged on count one and domestic trafficking in children as charged on counts two, three and four. The assessors’ opinions are not binding on me. However, if I do not agree with their opinions I am obliged to give cogent reasons. I now pronounce my judgment. I direct myself in accordance with my summing up.

[2] The legal burden of proof in respect to the charges lies with the prosecution. The standard is proof beyond reasonable doubt.

[3] The Accused gave evidence. He carries no burden to prove anything in respect to these charges. He denies the allegations. He denies both the physical and fault elements of the alleged offences. He gives an innocent explanation regarding his association with the complainant during the relevant period. He says that parts of his statement (Q 136 onwards) in his record of interview that incriminates him were fabricated by the investigating officer.

[4] The assessors have obviously rejected the evidence of the Accused as untrue. I too reject his account that his association with the complainant at the relevant time was innocent and was out of concern for her after learning her predicament. His evidence is inconsistent with his caution statement made to Police. In his evidence he denies taking the complainant from Nausori to Samabula on the night of 18 July 2015. In his caution interview he admits taking the complainant from Nausori to Rewa Street on the night of 18 July 2015. But he denies taking her there to provide sexual services. He claims she voluntarily tagged along with him like other girls who join sex industry.

[5] I accept the evidence of the investigating officer that she accurately recorded the caution statement of the Accused and that she did not fabricate anything. The statement is mixed, that is, evidence for and against the Accused. The Accused’s evidence that the incriminating parts of his statement were fabricated by the investigating officer is too convenient to be true. I feel sure that the Accused made the incriminating statements and that the statements are true.

[6] I now consider whether the prosecution has proved the charges beyond reasonable doubt. For the offence of aggravated sexual servitude as charged on count one, the prosecution must prove beyond reasonable doubt that the Accused by use of force or a threat of force caused a child under the age of 18 years to enter or remain in a condition to commercially use her body for the sexual gratification of others and that he intended to cause that sexual servitude.

[7] For the offence of domestic trafficking in children as charged on counts two, three and four, the prosecution must prove beyond reasonable doubt that on the alleged dates the Accused facilitated the transportation of a child under the age of 18 years from one place to another within Fiji with the intention that the child will provide sexual service.

[8] It is not in dispute that the complainant was a child at the relevant time. She was about 15 years of age. The Accused in his evidence has said that he was not aware of the age of the complainant but he has not suggested that he honestly and reasonably believed that the complainant was over the age of 18 years. I accept the evidence of SC Kelemedi who rescued the complainant from the street on the early hours of 23 July 2015 and took her to Totogo Police Station because she was a child. I accept the evidence of the complainant that on two occasions the Accused groomed her to look older before she was taken to Rewa Street by him. I accept the evidence of the complainant that when a potential client suggested that she looked young, the Accused remarked that she was not. I find the Accused knew that the complainant was a child at the relevant time. I feel sure that in respect of each charge the prosecution has proved that the complainant was a child.

[9] It is not in dispute that at the relevant time the complainant provided sexual service for money. The complainant’s account is that between 18 July 2015 and 22 July 2015, she had sex with many clients in exchange for money, some of which she gave it to the Accused as part of his share. I feel sure that the prosecution has proved that the complainant entered into a condition to provide sexual service for money at Rewa Street on 18 July 2015 and that she remained in that condition until 23 July 2015 when she was rescued by a police officer.

[10] I believe the complainant’s account that she was initially lured by the Accused to accompany him from Nausori to Samabula in the pretext of having a meal on the night of 18 July 2015. I believe her account that on all occasions the Accused accompanied her on the same vehicle as hers from Nausori to Samabula for her to provide sexual services from a location at Rewa Street. This particular location which the complainant described as the Gospel bus stop was a pick up point for the clients for sexual services and is frequented by sex workers. I believe the complainant’s account that the Accused created a condition for her to provide sexual services at the relevant time. I believe her account that he controlled that condition by giving instructions, which she perceived as force or threat. His instructions to follow clients after handing condom to her show his intention to use her for sexual services.

[11] I believe the account of the complainant that she was afraid of the Accused’s physical appearance despite him not using any physical force. On one occasion he accused her of being cunning and threatened her with assault by his transgender friends. It is not necessary for the prosecution to prove that the complainant was physically restrained from leaving the area where she provided the sexual service. Force or threats can be shuttle to create a condition of sexual servitude. The question is whether the Accused by his conduct caused the complainant to believe that she was not free to cease providing sexual service or that she was not free to leave the place where she provided the service.

[12] I believe the complainant’s account that on all occasions after providing sexual services she returned to the Accused on his instructions. She described her condition as “a slave to look for money”. I find that the child complainant honestly and reasonably believed that the threat of force in the form of control and instructions were real and that she was not free to cease providing sexual service or was not free to leave the place or area where she provided the service.

[13] On the charge of sexual servitude I feel sure that between 18 July 2015 and 22 July 2015, the Accused by use of a threat of force caused the complainant who was a child to enter into or remain in a condition to provide commercial sexual service and that he intended to cause that sexual servitude. I find the Accused guilty of sexual servitude as charged on count one.

[14] On each charge of domestic trafficking in children I feel sure that the Accused facilitated the transportation of the complainant who was a child from Nausori to Samabula with the intention that the complainant will provide sexual services at Rewa Street. I find the Accused guilty of domestic trafficking of a child as charged on counts two, three and four.

[15] The Accused is convicted as charged on all four counts.

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Hon. Mr Justice Daniel Goundar

Solicitors: Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused