IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 308 of 2020

        STATE

            vs.

                 USA RAICI TUITOGA

Counsel:			Ms. U. Tamanikaiyaroi with Mr. L. Baleilevuka for the State  
				Mr. T. Varinava with Ms. A. Sharma for Accused

Date of Hearing:		07th – 8th March 2022
Date of Closing Submission:	10th March 2022
Date of Judgment:		14th March 2022

JUDGMENT

1.	The Accused is charged with one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act and one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act. The particulars of the offences are that:

                     FIRST COUNT

                           Statement of Offence
RAPE:  Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.  

Particulars of Offence
USA RAICI TUITOGA on 28th May 2020, at Nasinu in the Central Division, had carnal knowledge of SAINIMILI MASEIKAU without her consent.
SECOND COUNT

Statement of Offence
SEXUAL ASSAULT:  Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence
USA RAICI TUITOGA, on the 28th May 2020, at Nasinu in the Central Division, unlawfully and indecently assaulted SAINIMILI MASEIKAU by bringing into contact his hands to her vagina.

2.	Upon recording the plea of not guilty entered by the Accused, the matter proceeded to the hearing. The hearing commenced on the 7th of March 2022 and concluded on the 8th of March 2022. The Prosecution presented the evidence of two witnesses. The accused and another witness gave evidence for the Defence. Subsequently, the Court heard the oral submissions of the learned Counsel of the Prosecution and the Defence. Additionally, the learned Counsel for the Prosecution and the Defence filed written submissions. Having carefully considered the evidence presented during the hearing and the respective oral and written submissions of the parties, I now proceed to pronounce the judgment.

3.	The main elements of the offence of Rape are that:

	i)	      The Accused,
	ii)     Penetrated the vagina of the Complainant with his penis, 
 iii)     The Complainant did not consent to the Accused to penetrate her vagina with 
                   his penis,

	iv)	The Accused knew or believed or reckless that the Complainant was not 
	consenting for him to insert his penis in that manner.

4.	The main elements of the offence of Sexual Assault are that:
 
	i)	       The Accused, 
	ii)       Unlawfully and Indecently, 
	iii)      Assault the Complainant.

5.	The Prosecution alleges that the Accused had penetrated the vagina of the Complainant with his penis and then sexually assaulted her by indecently and unlawfully touching her vagina with his hands. The Accused is a leader and the Senior Pastor of a church group. The Complainant had joined the church mission group and moved to Suva.  She was staying with the Accused and his family at his home in May 2020.  On the 28th of May 2020, they went to another house to have a church cell group meeting. It finished after 9 p.m and then the Accused and the Complainant walked back home. On their way, the Accused had asked the Complainant to turn to another road after they passed the ground. It was a dark place, and few coconut trees were around. The Accused had asked the Complainant to have sex with him. The Complainant was scared. The Accused had told her to do what he asked her to do. He then asked the Complainant to stand facing her back to him. He then pulled up her dress and pulled down her shorts and undergarment. She was forced to bend down. He then inserted his penis in her vagina. The Accused had penetrated her vagina with his penis for about 2 to 3 minutes. He then asked her to turn to his side. The accused had then touched her vagina with his hands. 

6.	The Accused denies the allegation. The Accused, in his evidence, admitted that he went to the location. Moreover, the Accused admitted that he tried to have sexual intercourse with the Complainant with her consent. However, the Accused failed to erect his penis. He then asked the Complainant to turn to his side for him to touch her. The Complainant then asked him to stop; hence, he stopped it, and they both went back home. The Accused further alleged that Jimi Rogoyawa forced the Complainant to report this matter to the Police. 
Admitted Facts

7.	The parties tendered the following facts as admitted facts under Section 135 of the Criminal Procedure Act. 

a)	The name of the person charged is Usa Raici Tuitoga [“Usa”].

b)	Usa as born on 03 September 1961 and was 59 years old at the alleged time of offence.

c)	On or before the time of the alleged offence, Usa resided with his wife Letila Tuitoga and children in Makoi, Suva.

d)	On or before the time of the alleged offence, Us was the Senior Pastor for the “Last Days Apostacy” Church located at Lot 11 Makoi, Suva.

e)	The name of the complainant is Sinimili Maseikau [“Sainimili”].

f)	There is no domestic relationship between the parties however, Usa and Sainimili are known to each other.

g)	Sainimili was a church member of the Last Days Apostacy Church and resided with Usa on or before the time of the alleged offence.

h)	On 28th May 2020, Usa and Sainimili with other church members including Timi Rogoyawa went to a church member namely Marika’s residence in Makoi.

i)	Timi Rogoyawa is also a church member of the Last Days Apostacy Church and was an active missionary worker for the church on or before the time of the alleged offence. 

j)	The following document is not disputed and hereby tendered by consent:

(a)	Police Photographic booklet dated 15th October 2020.

Identity of the Accused

8.	According to the evidence presented by the parties, there is no dispute about the identity of the Accused. The main dispute in respect of the first count is whether the Accused had actually penetrated the vagina of the Complainant with his penis, and the Complainant did not consent for such penetration. 

Penetration

9.	Evidence of the slightest penetration of the vagina of the Complainant with the penis of the Accused is sufficient to prove the element of penetration. The Complainant, in her evidence, stated that the Accused put his penis at her vagina from behind. She felt it as the Accused was standing behind her. He then tried to insert his penis into her vagina. She demonstrated using her finger, saying that the penis of the Accused penetrated her vagina. However, during the cross-examination, she answered 'yes' when the learned Counsel for the Defence asked her that the Accused did not insert his penis into her vagina because he could not erect his penis. I observed that she answered "yes" and then tried to explain something, but the learned Counsel for the Defence interjected, pointing out the Court the Complainant's answer. Besides that answer, the Complainant consistently explained that the Accused penetrated her vagina with his penis from behind. She reaffirmed that the Accused inserted his penis into her vagina during the re-examination. 

10.	The Accused stated that he did not penetrate her vagina because he failed to get his penis erected. However, there is no evidence to suggest or point that there is a reasonable possibility that the Accused has erectile dysfunction.  Moreover, there is no requirement that the penis is erected to complete the element of penetration. The slightest penetration of the penis is sufficient to establish the element of penetration. 

11.	Having considered the above-discussed reasons, I am satisfied that the Prosecution has successfully established that the Accused had penetrated the vagina of the Complainant. 

Consent

12.	I shall now draw my attention to determine whether the Complainant had given her consent to the Accused to penetrate her vagina with his penis. Consent is a state of mind that can take many forms, from willing enthusiasm to reluctant agreement. In respect of the offence of Rape, the Complainant consents if she had the freedom and capacity to make a choice and express that choice freely and voluntarily. A consent obtained through fear, threat, the exercise of authority, use of force, or intimidation could not be considered the consent expressed freely and voluntarily. A submission without physical resistance by the Complainant to an act of another person shall not alone constitute consent.

13.	If the Court is satisfied that the Accused had penetrated the vagina of the Complainant with his penis and she had not given her consent, the Court is then required to consider the last element of the offence. That is whether the Accused honestly believed or knew or was reckless that the Complainant was freely consenting for this alleged sexual act. The belief in consent is not the same as hope or expectation that the Complainant was consenting.
 
14.	The Complainant stated that she was scared when the Accused asked her to have sex with him. She had told the Accused that she was scared, but he had asked her to follow what he said.  At that moment she felt that not to follow the mission team. She explained that she was alone in Suva as her parents and family were in Vanua Levu. If she tells the Accused’s family about this incident, they will not believe her. The Complainant further explained that she had to obey him because he was her Senior Pastor and church leader. She thought that if she did not obey him, something could happen to her or even her family because of his position in the church. She did not like what the Accused did to her. 

15.	On the contrary, the Accused claimed that she became close to him after they started to share his complicated life with his wife. On the 28th of May 2020, before they left for the cell group meeting, he conversed with the Complainant while having tea at home. During that conversation, he asked the Complainant if she truly loved him, for which the Complainant affirmatively answered. After the cell group meeting, the Accused had asked the Complainant to reaffirm her love on their way back home. He then, with her consent, went to that location to have sexual intercourse with her. When the Accused tried to touch her, the Complainant had asked him to stop, which he obeyed. In contrast, the Complainant said that Accused said he will stop when she asked him to stop. 

16.	Though the Accused claimed that the Complainant agreed to love him, he admitted in his evidence that she treated him like parents. The Complainant too stated that she felt like staying with her parents when she moved to Accused's house. Considering the admitted nature of their relationship, there is no reasonable probability that the Complainant agrees to have an intimate relationship with the Accused as he claims. Hence, I do not accept the claim of the Accused that the Complainant agreed to have an intimate relationship with him. 

17.	The Complainant comprehensibly explained that she was scared when the Accused asked her to have sex with him. She had to follow what he had asked her to do because he was the leader of her church and Senior Pastor. She was scared he could do something to her or her family if she refused to obey him. The Complainant denied having any form of intimate relationship with the Accused. The Accused only said he would stop when she asked him to stop penetrating her vagina with his penis. I am satisfied that the Complainant was scared and not in a position to freely and voluntarily make a decision. The Complainant was forthright, coherent and consistent in explaining that she did not consent to the Accused. Hence, I accept her evidence as credible, reliable and truthful evidence. 

18.	Accordingly, I am satisfied that the Prosecution has successfully proven beyond reasonable doubt that the Complainant had not given her consent to the Accused to penetrate her vagina with his penis. Moreover, I am satisfied that the Accused knew or believed or reckless that the Complainant was not consenting for him to insert his penis in that manner.

Delay

19.	The Defence submitted that the delay in reporting this matter makes the allegation less probable. The Complainant had reported this matter to the Police a few months after this incident. It would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. Victims of sexual offences can react to the trauma they have faced in different ways. In distress or anger, some may complain to the first person they see. Others, who respond with shame or fear or shock or confusion, do not complain or go to authority for some time.
 
20.	The Complainant explained that the Accused had told her not to tell anyone about this incident. According to the Complainant, the Accused was the leader and Senior Pastor of the church. She had finally decided to confide this matter to Jimi after hearing that the Accused had done something similar to another girl. She then told Jimi about this incident. They thought the church members were the proper channel of dealing with this matter. In the meantime, the Accused had relieved Jimi and the Complainant from the church group. 

21.	According to Jimi, a person informed them what the Accused had done to another girl. Then the Complainant confided Jimi what had happened to her. What Jimi heard from the person about the Accused is not admissible to establish that the Accused had done something to another girl. But it is admissible to the extent that a person made a statement to Jimi, and that statement prompted the Complainant to confide Jim what the Accused had done to her. (vide; Goundar v State [2020] FJCA 4; AAU29.2015 (the 27th of February 2020), Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 969). 

22.	The Defence extensively argued that relieving their duties from the church prompted Jimi and the Complainant to report this matter to the Police, which both the Complainant and Jimi denied. The Complainant had confided Jimi about this incident before being relieved from the church duties. They had already set the motion of reporting this allegation through the church members. Hence, I do not find the delay in reporting this matter to the Police has adversely affected the credibility and reliability of the Complainant's evidence. 

23.	The Accused had asked her to turn to his side after penetrating her vagina with his penis from behind. He then put his hand under her clothes and touched her vagina with his hands. I accept the Complainant's evidence regarding this incident as credible, reliable and truthful. 

24.	In conclusion, I find the Prosecution has successfully proven beyond a reasonable doubt that the Accused had penetrated the vagina of the Complainant with his penis without her consent on the 28th of May 2020. He had then unlawfully and indecently touched her vagina with his hand. Wherefore, I hold the Accused is guilty of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act and Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act and convict to the same accordingly. 

…………………………………………..
 Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva
14th March 2022

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