IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 258 OF 2020

STATE

V

ILAITIA RAVITIKULA

Counsel: Ms S Shameem & Ms A Devi for the State
  Ms L Manulevu for the Accused

Date of Hearing: 21 March - 23 March 2022
Date of Judgment:	13 April 2022

JUDGMENT

Charges
[1]	The accused is charged with two representative counts of sexual assault (counts 1-2), four representative counts of digital rape (counts 3-6) and one count of penile rape (count 7).  

[2]	The charges cover a period of three and half years from 1 January 2017 to 8 August 2020. 

[3]	On counts one and two, the prosecution alleges that the accused on at least two occasions procured the complainant to commit an act of gross indecency by forcing her to touch his penis. The prosecution says that on the occasion alleged on count one, the complainant was under the age of 13 years. 

[4]	On counts three and four, the prosecution alleges that the accused on at least two occasions penetrated the complainant’s vagina with his finger, without her consent. The prosecution says that on the occasion alleged on count three, the complainant was under the age of 13 years.  

[5]	On counts five and six, the prosecution alleges that the accused on at least two occasions penetrated the complainant’s mouth with his penis, without her consent. The prosecution says that on the occasion alleged on count five, the complainant was under the age of 13 years.  

[6]	On count seven, the prosecution alleges that on 8 August 2020 the accused penetrated the complainant’s vagina with his penis, without her consent. 

Burden and standard of proof
[7]	The accused has pleaded not guilty to the charges. The burden is on the prosecution to prove each charge beyond reasonable doubt. This burden never changes, never shifts to the accused.

Sexual assault
[8]	Section 210 (1) (b) (ii) of the Crimes Act states that:

A person commits an indictable offence…if he or she – procures another person, without the person’s consent – to commit an act of gross indecency. 

[9]	To prove sexual assault as alleged on counts one and two, the prosecution must prove the following elements: 

1.	That the Accused on the said date and place procured the complainant,
2.	Without her consent,
3.	To commit an act of gross indecency. 

[10]	To procure means to knowingly entice or persuade a person to engage in an act of gross indecency. The word gross indecency bears its ordinary everyday meaning, that is, what the community regards as indecent. It is what offends against currently accepted standards of decency. Gross indecency must always be judged in the light of time, place and circumstance. Consent means consent freely and voluntarily given by a person with the ability to know and understand what she or he is doing in giving consent. 

Rape
[11]	Section 207 (2) of the Crimes Act defines rape as:

     	  A person rapes another person if —
(a) the person has carnal knowledge with or of the other person without the other person’s consent; or
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

[12]	Subsection (3) states: 

For this section, a child under the age of 13 years is incapable of giving consent.

[13]	To prove the charge of rape, the prosecution must prove that the Accused:

Counts 3-4
Penetrated the vagina of the complainant, 
With a thing or part of his body which is not a penis, 
Without the consent of the complainant. 

Counts 5-6
Penetrated the mouth of the complainant to any extent, 
With his penis, 
Without the consent of the complainant. 
Count 7 
Penetrated the vagina of the complainant,
With his penis,
Without the consent of the complainant. 

[14]	Slight penetration is sufficient. In case of sexual intercourse ejaculation is not necessary. 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. If at the time of penetration the complainant was a child under the age of 13 years, then it is not necessary to prove lack of consent because a child under the age of 13 years is incapable of giving consent.  

[15]	In the present case, there is no suggestion that the accused mistakenly believed that the complainant consented to the alleged sexual acts.  It is not necessary for the prosecution to prove that the accused knew that the complainant did not consent. 

Prosecution case
[16]	At trial, the prosecution called five witnesses including the complainant. The complainant is a child. Her name is suppressed and special measures such as a screen and closed court were used to record her evidence. 

[17]	The complainant’s date of birth and her relationship with the accused are not in dispute. She was born on 26 April 2006. After her biological father passed away in 2012 her mother entered into a live-in relationship with the accused.  She addressed the accused ‘Ta Laitia” as he was her stepfather. She is the youngest of all the siblings.  

[18]	The complainant’s evidence is that when the incidents started in 2017 she was about 10 or 11 years old. At the time she was living at Namadi Heights with her mother and siblings.  The accused was also living with them and working at the Fiji Water Authority. 

[19]	The complainant said that the first incident occurred when she was in Class 6.  On that day she slept in the same bed with her mother and the accused. In the morning her mother woke up and went to cook breakfast, leaving the complainant on the bed with the accused. While she was on the bed the accused touched her.  She got up and went to her mother, but she did not complain to her.  

[20]	According to the complainant the other incidents mostly occurred on Fridays after school before her mother arrived home from work.  At the time her mother worked as a housemaid for someone else. 

[21]	She spoke about an incident when the accused invited her to his bedroom and took off her pants and inserted his finger into her vagina. 

[22]	After that he unzipped his pants and pulled it bit down and then made the complainant rub his penis up and down until ‘a white thing came out’.  

[23]	According to the complainant the accused made her suck his penis and while she did that he told her to suck faster and harder. 

[24]	The complainant said that she did not report the incident to her mother, siblings, neighbours or her teachers because she was scared of the accused. She said that she was scared of the accused because he had threatened to kill her if she complained to anyone. The complainant said that she had witnessed the accused smacking and threatening her mother and swear at them. These incidents made the complainant very scared of him. 

[25]	The complainant said in 2019 she moved to live with the accused in his house at Cunningham with her mother and siblings. She said that similar incidents occurred when she moved to Cunningham sometimes after November 2019. 

[26]	The accused invited the complainant to his bedroom after school when her mother was at work and her sibling was outside playing. He made the complainant take off her clothes and lie on the bed. He made her rub his penis with her hand and suck his penis. He then inserted his finger into her vagina. She rubbed his penis up and down until something white came out from his penis. 

[27]	The complainant said that she did not consent to any of the sexual acts with the accused. She said that sometimes she would refuse but he would force her. She said that she did not say anything to him because she was scared of him. 

[28]	The complainant said that the last incident occurred on a Sunday afternoon in the first week of August 2020 when her mother had gone out shopping. She said that she was playing outside with her friends Kitiana and Lili when the accused returned home drunk. The accused called out to the complainant to come to his bedroom. 

[29]	When she entered his room, he told her to take off her clothes. She was scared of him because he was drunk. His eyes were all red. She started crying and told him that she wanted to go to her mum. When she started crying she heard her two friends who she was playing with, call out to her. She said that the accused insisted that she take off her clothes and lie on the bed. She complied. He forcefully pulled her legs apart and penetrated her vagina with his penis. While he was penetrating her, she continuously cried and told him that she wanted to go to her mother. He did not listen.

[30]	When he was done he told her to go and make tea for him. She left the room and waited until he fell asleep when she ran to her neighbour’s house, crying. When she reached her neighbour’s house she did not say anything but continued to cry. She remained at the neighbour’s house until her mother returned home and took her to the police station. 

[31]	The complainant’s mother gave evidence that she was in a de-facto relationship with the accused after her husband passed away. She said that during the weekdays she worked as a housemaid at Laucala Beach. She left home for work around 7 am and returned around 6 pm. She said that there were occasions the accused were abusive and would swear but he supported her and her children while they were living together. She also said that when the children would disrespect her the accused would discipline them. Her evidence is that she would not have been aware of what was happening at home when she would be at work. 

[32]	Two other children gave evidence regarding the incident charged on count seven. Liliviwa and Kitiana told the court that in the afternoon of 8 August 2020 they were playing with the complainant outside her house in Cunningham when the accused came and told the complainant to go inside with him. When the complainant went inside the house with the accused, Liliviwa and Kitiana went at the back of the house and took turns to peep into the bedroom through a hole from a nail on the corrugated iron wall. They said nothing obstructed their view. 

[33]	Kitiana told the court that she saw the complainant lying on the accused’s bed and crying and the accused talking to her. 

[34]	Liliviwa gave a more detailed account of what she saw. She said that she saw the accused and the complainant lying on the bed and that he was kissing and touching her lower part of her body. She said that they were not wearing any clothes. She saw the complainant crying and resisting the accused and pleading with him not to do anything to her. She heard the accused threatening the complainant that he will cut her into pieces and throw her off the cliff. She said that when the accused realized he was being watched he punched the corrugated iron wall and swore at the girls. The girls got scared and ran away from there. 
[35]	The complainant’s neighbour, Vara gave evidence that on 8 August 2020 the complainant came to her home, crying. Vara said that she cried with the complainant and told her to just tell her mother whatever happened to her. She kept the complainant in her home until her mother came and took her.

[36]	Dr Burua medically examined the complainant on 8 August 2020 at about 9.50 pm.  Upon examination of the complainant’s genitalia the doctor noted healed abrasions and a fresh tear at 3 o’clock and 6 o’clock position with slight bleeding.  The complainant’s hymen was also not intact. The doctor said that the injuries were consistent with blunt force trauma such as forceful penetration with a finger or an erect penis. The doctor confirmed that there were no forensic evidence linking the accused to the injuries found on the complainant.

[37]	That summarizes the prosecution case. 

Defence case
[38]	The accused in his evidence admits being in a de-facto relationship with the complainant’s mother.  He took care of the complainant and two of her siblings. He provided them with food, shoes and bags. He denies the allegations of sexual assault and rape. He said that two of the complainant’s siblings were around whenever he and the complainant were at home. 

[39]	When questioned about the alleged incident on 8 August 2020, the accused said he was drunk and he didn’t know. When he woke up in the afternoon he heard the story of what had happened and was scared and frightened. 

[49]	That summarizes the defence case. 

Analysis 
[41]	The accused chose to give evidence. However, he does not have to prove anything. If the account given by him is or may be true, then he must be found not guilty. But even if the account given by him is entirely rejected, that would not relieve the prosecution of its burden of making sure by evidence of the accused’s guilt. 

[42]	The prosecution case is substantially dependent upon the complainant’s evidence. I approach her evidence without sympathy or prejudice.  If her account of the alleged incidents are true, then the accused is guilty of the charges. However, if her account is false or may be false then the accused is not guilty. 

[43]	The complainant’s account of the accused touching her for the first time that made her to get out of the bed and go to her mother in 2017 is an uncharged act. This incident is relied upon by the prosecution to make the circumstances of the particular offences charged more intelligible.  The incident is not relied upon to establish a tendency on the part of the accused to commit offences of the type charged, and therefore, the incident cannot be used as an element in the chain of proof of the offences charged. The only use I make of this incident if I accept it to be true is to place the charged acts into a realistic context.

[44]	Apart from the alleged incident on 8 August 2020 subject of count seven, all other alleged incidents are representative charges. 

[45]	The complainant’s account is that the first set of alleged incidents occurred in 2017 when she was living in Namadi Heights. In 2017 she was eleven years old and was in Year 6. Her account is that the accused invited her to his bedroom and took off her pants. He inserted his finger into her vagina (count 3), got her to masturbate him (count 1) and suck his penis (count 5).

[46]	The complainant’s account is that similar incidents were repeated when they moved to Cunningham in 2019. Her account of the incident at Cunningham is that the accused invited her in his bedroom, took off her clothes, made her to masturbate him (count 2) and suck his penis (count 6). He also inserted his finger into her vagina (count 4).

[47]	The complainant’s account of the last incident before the matter was reported to police is that the accused was drunk and forced her to have sexual intercourse with him inside their house at Cunningham.

[48]	I find there is consistency in the complainant’s account despite her reporting the incidents late to police. I find her explanation for the delay in reporting the incidents reasonable. She came from a poor family background.  Her mother worked as a housemaid for living. She was of a tender age at the time of the first incident. After her biological father had passed away, her mother entered into a live-in relationship with the accused. 

[49]	The complainant had witnessed the accused asserting his authority over her mother and her siblings. She was the youngest of the siblings.  She was a girl. The age gap between her and the accused was vast. 

[50]	The complainant struck me as an honest witness. I believe her evidence that the accused threatened to kill her if she complained and that she was scared to complain to her mother, neighbours and teachers. 

[51]	The complainant’s account of the incident on 8 August 2020 is consistent with the account of the incident by witnesses Liliviwa and Kitiana. Liliviwa’s account is more descriptive than Kitiana’s account, the reason being that they were taking turns to peep into the bedroom through a small hole made of nail on the corrugated iron wall. 

[52]	These two witnesses did not see the accused having sexual intercourse with the complainant but Liliviwa saw the accused and the complainant naked on the bed and the accused was touching the complainant’s lower part of the body and the complainant was crying and the accused was threatening her. The hole on the wall may have been tiny but the duration of the observation was long and not fleeting. The observation was made during daylight in the afternoon and the witnesses’ accounts are that they fled the scene when the accused banged the wall and swore at them.  
[53]	The accused’s account is that he was so drunk that he could not remember anything.  However, the defence accepts that self-induced intoxication is not a defence for rape.

[54]	Shortly after this incident the next door neighbour of the complainant witnessed the complainant coming to her home in a distressed condition.   

[55]	On the same day the complainant was medically examined and injuries were found on the complainant’s genitalia that were consistent with forceful blunt trauma. The medical evidence does not implicate the accused but the evidence is consistent with the account of the complainant that she was raped.  

[56]	I do not accept the defence case that the allegations of sexual assault and rape have been fabricated by the complainant. I believe the complainant’s account of sexual assault and rape. I believe her account that she did not consent to any of the sexual acts with the accused.

[57]	On count one I feel sure that in 2017 at Namadi Heights the accused procured the complainant who was a child under the age of 13 years to commit an act of gross indecency by forcing her to masturbate him. 

[58]	On count two I feel sure that in 2019 at Cunningham the accused procured the complainant to commit an act of gross indecency by forcing her to masturbate him, without her consent. 

[59]	On count three I feel sure that in 2017 at Namadi Heights the accused penetrated the vagina of the complainant, a child under the age of 13 years, with his finger.  

[60]	On count four I feel sure that in 2019 at Cunningham the accused penetrated the vagina of the complainant with his finger, without her consent.

[61]	On count five I feel sure that in 2017 at Namadi Heights the accused penetrated the mouth of the complainant, a child under the age of 13 years, with his penis.  

[62]	On count six I feel sure that in 2019 at Cunningham the accused penetrated the mouth of the complainant with his penis, without her consent.

[63]	On count seven I feel sure that on 8 August 2020 at Cunningham the accused penetrated the vagina of the complainant with his penis, without her consent.

Verdict
[64]	The verdict of the Court is:
Count 1 – Guilty – Convicted.
Count 2 – Guilty – Convicted.
Count 3 – Guilty – Convicted.
Count 4 – Guilty – Convicted.
Count 5 – Guilty – Convicted.
Count 6 – Guilty – Convicted.
Count 7 – Guilty – Convicted.

. …………………………………….
Hon. Mr Justice Daniel Goundar

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