IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 273 OF 2019S

STATE

vs

ESORI GAUNAVINAKA

Counsels	:	Ms. U. Tamanikaiyaroi  for State
			Mr. F. Vosarogo and Ms. J. Qica for Accused
Hearings	:	17, 18, 19 and 20 January, 2022.
Judgment	:	24 January, 2022.

JUDGMENT

1.	On 17 January 2022, the following information was read over and explained to the accused, in the presence of his counsels:

“Count One
Statement of Offence
RAPE:  Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence
ESORI GAUNAVINAKA between the 1st day of February 2019 to the 28th day of February 2019 at Naselai, Tailevu, in the Eastern Division, penetrated the vagina of LV with his finger, without her consent. 

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

Particulars of Offence
ESORI GAUNAVINAKA between the 1st day of February 2019 to the 28th day of February 2019 at Naselai, Tailevu, in the Eastern Division, unlawfully and indecently assaulted LV, by fondling her breasts.

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

Particulars of Offence
ESORI GAUNAVINAKA between the 1st day of March 2019 to the 31st day of March 2019 at Wainibokasi, Nausori, in the Eastern Division, penetrated the vagina of LV with his finger, without her consent. 

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

Particulars of Offence
ESORI GAUNAVINAKA between the 1st day of March 2019 to the 31st day of March 2019 at Wainibokasi, Nausori, in the Eastern Division, unlawfully and indecently assaulted LV, by fondling her breasts.

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

Particulars of Offence
ESORI GAUNAVINAKA on 18th day of April 2019 at Wainibokasi, Nausori, in the Eastern Division, penetrated the vagina of LV with his penis, without her consent.

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

Particulars of Offence
ESORI GAUNAVINAKA on the 18th day of April 2019 at Wainibokasi, Nausori, in the Eastern Division, unlawfully and indecently assaulted LV, by fondling her breasts. 

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

Particulars of Offence
ESORI GAUNAVINAKA between the 24th day of June 2019 to the 30th day of June 2019 at Naselai, Tailevu, in the Eastern Division, penetrated the vulva of LV with his finger, without her consent. 

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

Particulars of Offence
ESORI GAUNAVINAKA between the 24th day of June 2019 to the 30th day of June 2019, at Naselai, Tailevu, in the Eastern Division, unlawfully and indecently assaulted LV, by fondling her breasts.”

2.	Mr. Esori Gaunavinaka said, he understood the charges, and pleaded not guilty to all the counts.  The prosecution then called their only witness, the complainant (PW1) herself.  She gave evidence on 17, 18 and 19 January 2022.  At the end of the prosecution’s case, both parties agreed that the accused had a case to answer on counts no. 1 to 7, but not on count no. 8.  The court agreed with the parties and ruled accordingly.  On count no. 8, the court found the accused not guilty as charged and acquitted him accordingly.  On count no. 1 to 7, the accused was given the standard options open to him.  He chose to give sworn evidence himself, and called no witness.

3.	The accused, in his evidence, denied all the allegations against him, as particularized in counts no 1 to 7.

4.	As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused.  There is no obligation on the accused to prove his innocence.  Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.  The prosecution must prove the accused’s guilt, on all counts, beyond reasonable doubt.  If there is a reasonable doubt on any count, so that the court was not sure of the accused’s guilt, he must be found not guilty as charged and acquitted accordingly.

5.	There were four counts of rape in count no. 1, 3, 5 and 7; and three counts of sexual assault in counts no. 2, 4 and 6.  For the accused to be found guilty of rape, the prosecution must prove beyond reasonable doubt, the following elements:
(i)	the accused
(ii)	penetrated the complainant’s vagina with his finger (counts no. 1 and 3); or
(iii)	penetrated the complainant’s vulva with his finger (count no. 7); or
(iv)	penetrated the complainant’s vagina with his penis (count no. 5);
(v)	without the complainant’s consent; and 
(vi)	he knew she was not consenting to 5 (ii) or 5 (iii) or 5 (iv), at the time.

6.	Crucial to the above offence is the meaning of the verb “penetrate”.  In the Oxford Advanced Learner’s Dictionary, 6th edition, Oxford University Press, 2002, the word “penetrate” means “to go into or through something”.  The slightest penetration of the complainant’s vagina (counts no. 1 and 3), or vulva (count no. 7) by the accused’s finger, or the complainant’s vagina by the accused’s penis (count no. 5), is sufficient to satisfy element 5 (ii), 5 (iii) and 5 (iv) above.

7.	“Consent” is to agree freely and voluntarily and out of her own freewill.  If consent was obtained by force, threat, intimidation or by fear of bodily harm to herself or by exercise of authority over her, that “consent” is deemed to be no consent.  The consent must be freely and voluntarily given by the complainant.  

8.	It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting, at the time.  The court will have to look at the parties’ conduct at the time, and the surrounding circumstances, to decide this issue. 

9.	For the accused to be found guilty of “sexual assault” (count nos. 2, 4 and 6), the prosecution must prove beyond reasonable doubt, the following elements:
(i)	the accused
(ii)	unlawfully and indecently
(iii)	assault
(iv)	the female complainant

10.	Sexual assault is an aggravated form of indecent assault.  The prosecution must prove the above elements against the accused beyond reasonable doubt.  “Assault” is really to apply unlawful force to the person of another without his or her consent.  The “assault” must be considered “indecent” by right thinking members of society. 

11.	Now, the court will examine the prosecution’s case. The prosecution’s case was based solely on the verbal evidence of the complainant.  On count no. 1 (rape), she said, sometime between the 1st and 28 February 2019, her uncle, the accused, pushed her against the wall, beside their toilet.  She said, her uncle kissed her, fondled her breast (count no. 2) and later inserted his finger into her vagina.  She said, her uncle moved his finger in and out of her vagina for about 10 to 15 minutes (count no. 1).  She said, it was painful and she didn’t give her consent to her uncle to do the same.  She said, the house at the time, was occupied by her aunty Monika, the accused’s wife, her siblings and her cousins.

12.	On count no. 3 (rape) and 4 (indecent assault), the complainant said the incidents occurred in March 2019.  She was 18 years old at the time, and the accused, her uncle was 57 years old, at the time.  She said, they were at Hanger Road near Nausori Airport in her uncle’s taxi.  She said, she was sitting in the front passenger seat, while her uncle was in the driver’s seat.  She said, her uncle told her to lie down on the front passenger seat.  She said, he moved her front car seat down.  She said, he later removed her pants.  She said, he came from the driver’s seat and came to face her in the front passenger seat.  She said, the accused later fondled her breast with his hands (count no. 4).  Later, she said, he inserted his finger into her vagina, and moved the same up and down in her vagina, for about 20 minutes (count no. 3).  She said, she did not consent to what the accused allegedly did above.  She said, the accused forced himself on her.

13.	On count no. 5 (rape) and 6 (sexual assault), the complainant said, the incident occurred on 18 April 2019.  According to the complainant, she and her uncle, the accused, were again in his taxi.  She was sitting in the front passenger seat, while he was in the driver’s seat.  According to the complainant, the car was parked in a feeder road near Kiuva Road.  It was night time.  She said, the accused later told her to go to the back seat of the car.  She said, she climbed from the front passenger seat into the back seat.  She said she tried to flee by opening the back door to no avail.  She said, her uncle came to the back seat, kissed her and fondled her breast (count no. 6).  She said, her later inserted his penis into her vagina and moved the same in and out for about 10 to 15 minutes (count no. 5).  She said, she did not give her uncle permission to do the above.

14.	On count no. 7 (rape), the complainant said, it occurred on the last week of June 2019.  She said, she went to her uncle (accused) in his room in their house to ask for money to buy her flip flop.  She said, her uncle pulled her into his room.  She said, he then pushed her against the wall next to the door to his room.  She said, he inserted his finger into her vagina and moved the same up and down inside her vagina for about 10 minutes.  She said, she did not consent to the above. She said, her aunty Monika was in the kitchen next door.  Her siblings and cousins were in the living room watching TV.  She said, she did not raise the alarm.

15.	The above was a summary of the prosecution’s case, based entirely on the complainant’s verbal evidence.  The complainant gave evidence for 2 ½ days.  Because the case will be based on the credibility of the complainant’s verbal evidence, the court had carefully examined her demeanor, including the logics of her actions, arising from her allegations.  One thing that the court noticed in this case was that the complainant was under the care of her aunty Monika and her husband, the accused.  Her mother lived in Australia and her father’s role in her life was not mentioned in the case.  Although she was 18 years old at the time, she said, she did not get along with her aunty Monika.  Her aunty was caring for her, thus this demanded some element of respect by her towards her aunty.  Furthermore, her allegations arose while she was been cared for by her aunty Monika.  This demanded an element of loyalty to her aunty, the sister of her mother.  Yet when her allegation arose, she did not see it fit to report the same to her aunty.  She kept it to herself.  All she said during the hearing that she was scared of her uncle.  During the hearing, she said, she goes out to stay with her friends for two to three days a time.  Whether or not she had obtained permission from her aunty to do so, is another matter.
16.	Finally, I find it puzzling that her allegations against the accused only came out when she was confronted by her aunty Sera.  The threat to have her hair cut appeared to force her to reveal the allegations.  Why didn’t she report the first sexual allegation to her aunty Monika?, aunty Sera?, teacher?, siblings?, friends? Police? These non-actions reveal the kind of character she was.  I have carefully observed the complainant’s demeanor throughout the 2 ½ days she was giving evidence.  The law required the prosecution to prove the guilt of the accused beyond reasonable doubt.  At the end of the prosecution’s case, I was already in doubt about the complainant’s allegations against the accused.  When the accused gave his evidence, his evidence again painted a picture of an unruly character in the complainant.  The burden of proof is not on the accused, but what he said about the complainant wanting sex with her uncle as alleged by the accused, spoke volume of her character.

17.	Looking at the total evidence given by the prosecution and the defence, I have a reasonable doubt on the guilt of the accused on count nos. 1 to 7.  The complainant’s evidence was not, in my view, credible.  As a result, I am not sure of the guilt or otherwise of the accused.  The benefit of that doubt must go to the accused, as a matter of law. 

18.	Given the above, I find the prosecution had not proven the accused’s guilt beyond reasonable doubt on counts no. 1, 2, 3, 4, 5, 6 and 7.  I find him not guilty as charged on the above counts, and I acquit him accordingly on those counts.  You are free to go home.  I order so accordingly.  

								Salesi Temo
								JUDGE

Solicitor for State 		:	Office of the Director of Public Prosecution, Suva 
Solicitor for Accused	:	Vosarogo Lawyers, Barristers & Solicitors, Suva.