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State v Natoga [2022] FJHC 194; HAC261.2020 (4 May 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Crim. Case No: HAC 261 of 2020


STATE


vs.


SAKENASA NATOGA


Counsel: Ms. S. Tivao with Ms. P. Ram for the State
Ms. L. Manulevu with Mr. J. Buakula for Accused

Date of Hearing: 06th to 08th April 2022
Date of Closing Submission: 11th April 2022
Date of Judgment: 04th May 2022


JUDGMENT


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

COUNT ONE


Statement of Offence

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

Particulars of Offence

SAKENASA NATOGA between the 1st May 2018 to the 30th June 2018 at Lakeba, Lau, in the Eastern Division, unlawfully and indecently assaulted SEINI BIAUKULA by touching her genitalia over her clothes.


COUNT TWO


Statement of Offence

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


Particulars of Offence

SAKENASA NATOGA between the 1st May 2018 to the 30th June 2018 at Lakeba, Lau, in the Eastern Division, penetrated the vagina of SEINI BIAUKULA, with his tongue without her consent.


COUNT THREE


Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (b) (ii) of the Crimes Act 2009.

Particulars of Offence

SAKENASA NATOGA between the 1st May 2018 to the 30th June 2018 at Lakeba, Lau, in the Eastern Division, procured SEINI BIAUKULA and without her consent made her witness SAKENASA NATOGA masturbating his penis.

COUNT FOUR


Statement of Offence

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


Particulars of Offence

SAKENASA NATOGA between the 5th July 2018 to the 31st July 2018 at Lakeba, Lau, in the Eastern Division, had carnal knowledge of SEINI BIAUKULA, without her consent.


COUNT FIVE


Statement of Offence

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


Particulars of Offence

SAKENASA NATOGA between the 1st August 2018 to the 31st August 2018 at Lakeba, Lau, in the Eastern Division, had carnal knowledge of SEINI BIAUKULA, without her consent.


COUNT SIX

(Representative count)


Statement of Offence

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


Particulars of Offence

SAKENASA NATOGA between the 1st September 2018 to the 31st October 2018 at Lakeba, Lau, in the Eastern Division, had carnal knowledge of SEINI BIAUKULA, at their home without her consent.


COUNT SEVEN

(Representative count)


Statement of Offence

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

Particulars of Offence

SAKENASA NATOGA between the 1st September 2018 to the 30th September 2018 at Lakeba, Lau, in the Eastern Division, had carnal knowledge of SEINI BIAUKULA, at the plantation without her consent.


COUNT EIGHT

(Representative count)


Statement of Offence

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


Particulars of Offence

SAKENASA NATOGA between the 1st October 2018 to the 31st October 2018 at Lakeba, Lau, in the Eastern Division, had carnal knowledge of SEINI BIAUKULA, at the plantation without her consent.


COUNT NINE


Statement of Offence

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


Particulars of Offence

SAKENASA NATOGA between the 1st November 2018 to the 31st December 2018 at Lakeba, Lau, in the Eastern Division, had carnal knowledge of SEINI BIAUKULA, without her consent.


  1. Consequent to the plea of not guilty entered by the Accused, the matter proceeded to the hearing. The hearing commenced on the 6th of April 2022 and concluded on the 8th of April 2022 . The Prosecution adduced the evidence of the Complainant, while the Accused gave evidence for the Defence. Subsequently, the Court heard the oral submissions of the parties. The learned Counsel for the Prosecution and the Defence then filed their respective written submissions. Having carefully perused the evidence adduced during the hearing, the respective oral and written submissions of the parties, I now proceed to pronounce the judgment.
  2. The main element of the offence of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act are that:
i) The Accused,
ii) Unlly and Indecendecently,
iisault the Complainalainant.
  1. The main elements of the offence of Sexual Assault, contro Section 210 (1) (b) (ii) (ii) of the Crimes Act are that:
i) The Accused,
ii) Procured the Complainant,
iii) Without the consent of the Complainant,
iv) To witness an act of gross indecency,
  1. The main elements of the offence of Rape under Section 207 (1) and (2) (b) of the Crimes Act are that:
i) The Accused,
ii) Penetrated the vagina of the Complainant with his tongue,
  • his tongue,
  • consenting for him to insert his tongue in that manner,
    1. The main elements of the offence of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act are that:
    i) The Accused,
    ii) Penetrated the vagina of the Complainant with his penis,
    iii) Thelainant did ndid not consent to the Accused to penetrate her vagina with
    iv) The Ad knew or believed or recklreckless that the Complainant was not
    1. The Prosecution and the Defence tendered the following Admitted Facts under Section 135 of the Criminal Procedure Act.

    Amended Admitted Facts:


    1. Seini Biaukula, [the complainant] was a form 6 student of John Wesley School. She was born on the 5th July 2002.
    2. Sakenasa Natoga, is 35 years old of Sakoca, Nasinu.
    3. Sakenasa Natoga is married to the complainant’s mother Acarua Tonono. Sakenasa Natoga is the complainant’s stepfather.
    4. In 2016 the complainant went to reside with Sakenasa Natoga and her mother at Lakeba, Lau, together with younger siblings.
    5. Sakenasa Natoga and the complainant are known to each other
    6. Sometime between 5th July 2018 and the 31st July 2018, Sakenasa Natoga and the complainant went to the plantation. At the plantation Sakenasa Natoga and the complainant had sexual intercourse, i.e. Sakenasa Natoga inserted his penis into the complainant’s vagina.
    7. Sometime between 1st August 2018 to the 31st August 2018 when Sakenasa Natoga and complainant was at home on a Friday evening, Sakenasa Natoga and the complainant had sexual intercourse, i.e. Sakenasa Natoga inserted his penis into the complainant’s vagina.
    8. It is agreed that on more than one occasion between the 1st September 2018 and 31st October 2018 at their home, Sakenasa Natoga and the complainant had sexual intercourse, i.e. Sakenasa Natoga inserted his penis into the complainant’s vagina.
    9. It is agreed that on more than one occasion between the 1st September 2018 and 30th September 2018 at the plantation Sakenasa Natoga and the complainant had sexual intercourse, i.e. Sakenasa Natoga inserted his penis into the complainant’s vagina.
    10. It is agreed that on more than one occasion between the 1st October 2018 and 31st October 2018 at the plantation Sakenasa Natoga and the complainant had sexual intercourse, i.e. Sakenasa Natoga inserted his penis into the complainant’s vagina.
    11. Sometime between the 1st November 2018 and the 31st December 2018 Sakenasa Natoga and the complainant had sexual intercourse, i.e. Sakenasa Natoga inserted his penis into the complainant’s vagina.
    12. It is agreed that the complainant fell pregnant.
    13. It is agreed that the child of the complainant has died.
    14. It is agreed that Doctor James Kalougivaki had taken bone and hair samples from baby X and those samples were given to Ms. Paulini Saurogo from Forensic Science Service of Fiji Police Force.
    15. It is agreed that DNA samples taken from the complainant and those samples were given to Ms. Paulini Saurogo from Forensic Science Service of Fiji Police Force.

    Additional Admitted Facts:


    1. On 21 October 2019, Mr. Maikeli Rauqeuqe collected buccal reference

    samples from Sakenasa Natoga which was to be used for DNA testing.


    1. That DNA testing was conducted by Paulini Saurogo of the Fiji Police

    Forensics Office, she had tested the samples collected from Sakenasa Natoga, against the samples of Baby X collected by Doctor James Kalougivaki.


    1. The DNA testing confirmed that Sakenasa Natoga was the father of the

    child [Baby X] that Seini Biaukula had given birth to sometime in September 2019.


    1. The Forensic Report by Paulini Saurogo is tendered by consent.
    2. At the conclusion of the Prosecution's evidence, the Court found no evidence to establish the count of Rape, contrary to Section 207 (1) and (2) and (b) of the Crimes Act. Accordingly, the Accused was acquitted of the same pursuant to Section 231 (1) of the Criminal Procedure Act.
    3. The Accused is the stepfather of the Complainant. The Complainant had moved to Lakeba in 2016 to live with her mother, stepfather and two siblings after the passing away of her grandmother. One Saturday morning, between the 1st of May 2018 and the 30th of June 2018, the Accused had taken the Complainant to his plantation, which is away from their home. At the plantation, the Accused had unlawfully and indecently touched the genital area of the Complainant. He had then forcefully removed her clothes and forced her to witness him masturbating. The Accused had again taken the Complainant to the plantation sometime between the 5th of July 2018 and the 31st of July 2018. At the plantation, the Accused had forcefully penetrated the vagina of the Complainant with his penis without her consent. One Friday evening between the 1st of August 2018 and the 31st of August 2018, the Complainant's mother had gone to attend the church group meeting, leaving the Complainant and her two siblings at home with the Accused. The Accused had then forcefully taken the Complainant to the room when she was sleeping with her siblings in the living room. He had forcefully removed her clothes and then penetrated her vagina with his penis without her consent.
    4. tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='10' value="10">In respect of count Six, the Accused had penetrated the vagina of the Complainant with his penis without onsent at their home duringuring the period between the 1st of September 2018 and the 31st of October 2018. The Complainant alleges that the Accused had done this when her mother went to prayer sessions on Friday evenings. The Prosecution further alleges that the Accused had penetrated the vagina of the Complainant with his penis without her consent at the plantation during the period between the 1st of September 2018 and the 30th of September 2018. Regarding count eight, the Accused had taken the Complainant to the plantation between the 1st of October 2018 and the 31st of October 2018 and forcefully penetrated her vagina with his penis without her consent. Sometimes between the 1st of November 2018 and the 31st of November 2018, the Accused had taken the Complainant to his dairy farm, where he had forcefully penetrated the vagina of the Complainant with his penis without her consent.
    5. The Court heard the evidence of the Complainant, explaining that the Accused had threatened her not to tell anyone of this incident. The Accused had threatened the Complainant, stating that she would regret it for the rest of her life if she did tell anyone. The Complainant further explained the Accused's abusive, authoritative, and threatening behaviours towards her, making her scared of him. The Accused had manipulatively persuaded her mother to force the Complainant to go to the plantation when she wanted to stay back at home, knowing the intention of the accused of taking her there. It was further elaborated by the Complainant that she was scared of the Accused, and he had continuously pressured her not to reveal this incident, even after she was taken to the Police Station in relation to a murder allegation. The Complainant finally found her self-confidence to reveal these allegations when she was produced to St Gile's Hospital by order of the Court for psychiatric evaluation. By that time, the Accused and her mother had moved out from her Aunty's place, leaving her space to regain her confidence to confide in this allegation to her aunty and uncle.
      <
    6. On the contrary, the Accused denies allegation pertaining to counts one and three of the information. He had not taken the Comp Complainant to the plantation sometime between the 1st of May 2018 and the 30th of June 2018 and indecently and unlawfully touched her genital area. He further denied that he had masturbated in front of the Complainant, forcing her to witness it. In respect of the counts four to nine, the Accused admitted that he penetrated the vagina of the Complainant with his penis. On all of these occasions, the Complainant had given her consent to the Accused to penetrate her vagina with his penis. The Court heard the Accused’s evidence, explaining that he made plans with the Complainant to go to the plantation and have sex since the Complainant did not want to have it at home. Accordingly, the Complainant had willingly taken part in those sexual encounters that happened at the plantation, dairy farm, and their home during the period between the 5th of July 2018 to the 31st of December 2018. Moreover, the Accused denied that he had threatened the Complainant asking her not to tell anyone about those sexual encounters as she consented to them.
    7. Accordingly, the main dispute in respf Count four to nine is whether the Complainant had given her consent to the Accused to peno penetrate her vagina with his penis on those occasions as charged.
    8. Consent is a state of mind that can take many forms, from willing enthusiasm to reluctant agreement. Regarding the offence of the Complainant consents ints 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.
    9. 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 to this alleged sexual act. The belief in consent is not the same as the hope or expectation that the Complainant was consenting.
    10. The Complainant specifically stated that she did not consent to the Accused to penetrate her vagina with his penis on any of those occasions. He had forced her to remove her clothes and then forcefully laid her down. He then penetrated her vagina with his penis. The Complainant did not want to go to the plantation with the Accused, but he had persuaded her mother to insert pressure on the Complainant to go to the plantation with him. She knew the Accused's intention when he tried to take her to the plantation. However, she had no option but to surrender to his demand as her mother also forced her to go to the plantation.
    11. According to the Complainant's evidence, she had no freedom or option to make a choice of giving consent as she was isolathreatened and forced by they the Accused.
    12. Conversely, the Accused claimed that the Complainant consented and agreed to have sexual intercourse with him. According to the Accused, the Complainant came and started to massage his stomach. Then, he wanted to have sex with her. He then asked her if they could have sexual intercourse, to which she agreed but said that she could not do it at home because of her siblings and mother. They then made plans to go to the plantation and have sexual intercourse there.
    13. The Fiji Court of Appeal in Goundar v State [2015] FJCA 10077.2011 (the 2nd of January 2015) has discussed tsed the correct approach when the Court has to deal with the conflicting versions of evidence presented by the Complainant and the Accused, where Basnayake JA held that:

    “[43] The learned judge directed the Assessors to find the appellant guilty or not guilty by considering whose evidence they believe. By so doing the Assessors have been misdirected with regard to the burden of proof, and thereby caused a miscarriage of justice. The Assessors may believe the evidence of Emma and disbelieve the evidence of the appellant. It does not mean that the case has been proved beyond a reasonable doubt. If, after considering the evidence of the whole case, a reasonable doubt is created in the minds of the Assessors with regard to the guilt of the appellant, the appellant is entitled to the benefit of that doubt and entitled to an acquittal. The courts have held in a series of cases that it is not correct to find the guilt of the accused by allowing the Assessors to believe either party.


    [44] Brennan and Deanne JJ in the Australian High Court case of Liberato and Others v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515 (minority) held, "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is common place for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue." (Emphasis added).


    [45] The Court of Criminal Appeal of the Supreme Court of New South Wales in R v Li (supra) following the minority decision in Liberato, quashed the convictions and ordered a new trial on the ground of mis-directions. Dunford J held, "The issue can never be which of the cases is correct or who of the complainant and the accused is telling the truth: They should have been directed:, the test was whether, taking into account the whole of the evidence, including what had been said by the appellant in his recorded interview, and the witnesses called in his case, they were satisfied beyond reasonable doubt of the truth of the complainant's evidence" (at 301). Hunt CJ in E (89 A Crim R 325) said, "A judge should not tell the jury that they must make a choice between the evidence led by the Crown and that given by the accused (Beserick (1993) 30 NSWLR 510 at 528; 66 A Crim R 419 at 435)”


    1. The Privy Council in Attorney-Gener Hong Kong Kong v Wong Muk Ping (1987) 2 W.L.R. 1033) found that it is not an advisable practice to evaluate the credibility of the evidence of a witness in isolation from other evidence presented in the triald Bridge of Harwich in Won Ping (supra) held

    “There may, of course, be extreme cases where a witness under cross examination is driven to admit that his evidence-in-chief was false. Such triumphs for ross examiner are frequentluently seen in fictional courtroom dramas than in real life. But in such an extreme case, if it should happen, there would no longer be any question of credibility. Evidence which a witness first gives and then admits to have been false is no longer his sworn testimony and, if a criminal prosecution depends on it, the judge should direct an acquittal. But apart from such extremes, any tribunal of fact confronted with a conflict of testimony must evaluate the credibility of evidence in deciding whether the party who bears the burden of proof has discharged it. It is a commonplace of judicial experience that a witness who makes a poor impression in the witness box may be found at the end of the day, when his evidence is considered in the light of all the other evidence bearing upon the issue, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable may at the end of the day have to be rejected. Such experience suggests that it is dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case which is capable of throwing light on its reliability”. (emphasis added)


    1. The Accused is not obliged to give evidence. He does not have to prove his innocence as his innocence is presumed by law. However, if the Accused opted to give evidence, then such evidence has to be considered when determining the issues of facts of this case. Lord Reading C.J. in Abramovitch (1914) 84 L.J.K.B. 397) had explained how the Court should evaluate the evidence given by the Defence, where it was held that:

    "If an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution.”


    1. Accordingly, if the Court believes the evidence given by the Accused is true or may reasonably be true, then the Accused must be acquitted. If the Court neither believes nor disbelieves the Accused's version, yet, it creates a reasonable doubt about the Prosecution's case, the Court still must find the Accused is not guilty. The rejection of the Accused's version does not mean that the Prosecution has established that the Accused is guilty of the offence. Still, the Prosecution has to satisfy on its evidence, beyond a reasonable doubt, that the Accused committed the offence as charged. In doing that, the Court must evaluate the whole of the evidence presented during the trial to stratify whether the evidence given by the Complainant is true and credible.
    2. This is an allegation made by the stepdaughter against her stepfather. It is important to approach evidence ins of this sort, particularlularly cases involving the treatment of stepchildren sexually, cautiously. The Court must dispassionately evaluate the evidence as it is easy to feel angry and indignant that a stepfather had abused his teenage stepdaughter as a surrogated sexual partner. The Court must determine the legal culpability of the alleged act but not the moral culpability.
      >
    3. Being cognizant of the above guide, I now proceed to evaluate the evidence given by the Prosecution and the Defence. The Defence submitted that the delay in reporting this matter makes the allon less probable, thus making the Complainant's evidence noce not credible. The Defence argues that the lack of promptness in reporting this matter without an acceptable explanation has affected the veracity of the evidence given by the Complainant. It was submitted by the learned Counsel for the Defence that the Complainant had not reported this matter to anyone until she was produced to a Doctor at St Giles Hospital by order of the Court for a psychiatric evaluation. The learned Counsel for the Defence further submitted that the Complainant had adequate opportunities and circumstances to report this matter, but she chose not to.
    4. Moreover, the Complainant had mned the name of one Small as the father of her child when she gave birth to the child. The The Accused, in the admitted facts, tendered under Section 135 of the Criminal Procedure Act, had not disputed the finding of the DNA testing, which confirms that the Accused was the father of the child that the Complainant had given birth to sometimes in September 2019.
    5. Gamlath JA in State v Serelevu [2018] FJCA 1AU141.2014 (4 October 2018) has extensively discussed the issue of delay in reportiporting, where His Lordship found "the totality of the circumstance test" is the correct approach in evaluating the delay in reporting in order to determine the credibility of the evidence. Gamlath JA held that:

    “[23] At this point, I wish to refer briefly to another point of law on which the counsel for the DPP drew the attention of the Court. That relates to the issue of “the delays in making the first complaint by victims of crime”. As I understood his submissions, the counsel for DPP must have made the submission on this point because of the belatedness of the first complaint of the complainant, meaning the victim has made the first complaint about the alleged sexual assault in 2012 whereas, it is her evidence at the trial that the said incident took place in 2011. It was sought to be advanced as an argument for the appellant, notwithstanding the delay, the evidence of the complainant should have been relied upon and the respondent should have been convicted based on her testimony.

    [24] In law the test to be applied on the issue of the delay in making a complaint is described as “the totality of circumstances test”. In the case in the United States, in Tuyford 186, N.W. 2d at 548 it was decided that:-


    “The mere lapse of time occurring after the injury and the time of the complaint is not the test of the admissibility of evidence. The rule requires that the complaint should be made within a reasonable time. The surrounding circumstances should be taken into consideration in determining what would be a reasonable time in any particular case. By applying the totality of circumstances test, what should be examined is whether the complaint was made at the first suitable opportunity within a reasonable time or whether there was an explanation for the delay.”


    [25] This is a matter that operates between promptness and veracity. According to learned authors on the subject, the fresh complaint rule evolved from the Common Law requirement of “Hue and Cry” test which was based on the expectation that victims of violent crimes would cry out immediately and which required proof of the details of the victim’s prompt complaint as part of the prosecution’s evidence.


    [26] However, if the delay in making can be explained away that would not necessarily have an impact on the veracity of the evidence of the witness. In the case of Thulia Kali v State of Tamil Naidu; 1973 AIR.501; 1972 SCR (3) 622:


    “A prompt first information statement serves a purpose. Delay can lead to embellishment or after thought as a result of deliberation and consultation. Prosecution (not the prosecutor) must explain the delay satisfactorily. The court is bound to apply its mind to the explanation offered by the prosecution through its witnesses, circumstances, probabilities and common course of natural events, human conduct. Unexplained delay does not necessarily or automatically render the prosecution case doubtful. Whether the case becomes doubtful or not, depends on the facts and circumstances of the particular case. The remoteness of the scene of occurrence or the residence of the victim of the offence, physical and mental condition of persons expected to go to the Police Station, immediate availability or non-availability of a relative or friend or well-wisher who is prepared to go to the Police Station, seriousness of injuries sustained, number of victims, efforts made or required to be made to provide medical aid to the injured, availability of transport facilities, time and hour of the day or night, distance to the hospital, or to the Police Station, reluctance of people generally to visit a Police Station and other relevant circumstances are to be considered.”(see: 1973 AIR 501; [1972] INSC 64; 1972 (3) SCR 622; 1972(3) (SCC) 393).


    [27] In the case of State of Andhra Pradesh v M. Madhusudhan Rao (2008) 15 SCC 582;


    “The delay in lodging a complaint more often than not results in embellishment and exaggeration which is a creature of an afterthought. That a delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story. As a result of deliberations and consultations, also creeps in issues casting a serious doubt in the veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. Resultantly when the substratum of the evidence given by the complainant is found to be unreliable, the prosecution’s case has to be rejected in its entirety”. (See: Sahib Singh v State of Haryana, AIR 1977 SC 3247; Shiv Rama Anr v State of U.P AIR 1998 SC 49; Munshi Prasad & Ors v State of Bihar, AIR 2001 SC 3031).


    1. As held by Gamlath JA above, an unexplained delay does not necessarily or automatically render the Prosecution case doubtful. Whether the case becomes doubtful or not depends on the facts and circumstances of the particular case. In this case, the Accused claims that he had sexual intercourse with the Complainant with her consent, which the Prosecution denies. The Complainant's version is that she was threatened and forced to have sexual intercourse with the Accused against her consent. She had no option but to submit herself to the Accused as the Accused had manipulatively isolated the Complainant either at the Plantation or at home. As stated above, the Prosecution and the Defence presented conflicting versions. Under such circumstances, the Court needs to evaluate all the evidence presented during the hearing to determine whether the evidence given by the Complainant is true. Therefore, the explanation for the delay is essentially material in assessing the credibility of the evidence presented by the Complainant.
    2. In evaluating the credibility of the evidence given by a witness, the Court to consider (1) her knowledge of facts, (2) her disinteresterestedness, (3) her integrity, (4) her veracity, (5) her bond to speak the truth on oath or affirmation. As Gamlath JA held in State v Serelevu (supra), the unexplained delay affects the veracity of the evidence given by the witness.
      tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='30' value="30">The Complainant had not reported the matter promptly. She had also given the name of one Small as the chifather when she gave birth irth to the child. The delay goes to the issue of veracity, and the fact of providing a false name as the child's father creates a doubt whether she had any other interest in doing that.
      style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='31' value="31">The Court heard the explanation of the Complainant during the evidence ief that there was no other incident of alleged raping afterafter December 2018. She then found that she was pregnant. The Complainant was then asked by the learned Counsel for the Prosecution that:

    “Ms Tivao: Alright, So did anyone else know that you were pregnant?

    Ms Seini: No mam,”


    1. This answer confirms that no one knew about her pregnancy. The learned Counsel for the Prosecution then asked the following questions that:

    “Ms Tivao; Okay, can you tell us how this incident came to light? How

    did people find out about this incident?

    Ms Seini: The day when I was conceived. That was 2019 that I was conceived in September. And that day everyone knew that something was going on that all the village came to know everything that happened. They all suspected no one else but only my stepfather was the one who did that to me. Because of everything, all the village member they all know that I am not the kind of girl who used to go around and they used to strictly put me in,


    Ms Tivao; So when you gave birth to the baby in September 2019, who did you say the baby’s father was?

    Ms Seini: That time when they asked me, when the Police asked me I mentioned it was Small that time,


    Ms Tivao: Sorry who is Small?

    Ms Seini: I don’t even know the guy because he told me if, because he knew that I was pregnant, then he told me if anyone ask you don’t try and mention my name, you mention Small’s name. And I don’t even know who Small is. And I was so feel sorry and.”


    1. In light of these questions and answers, there is an ambiguity about whether the Complainant had informed the Accused about her pregnancy before she delivered the baby. There is no explanation for the answer, stating "no Mam" when she was asked whether anyone else knew that she was pregnant. Furthering the above doubt, the Complainant, during the cross-examination, said the Accused knew that she was pregnant before she delivered the baby.
    2. Further to that, the Complainant explained the description of Small during the cross-examination. According to the Compnt, Small lives in the neig neighbouring village. She said that the Police told her about Small as they found these details of him during the investigation. However, the Prosecution did not call any Police officer who had taken part in the investigation to establish whether they found such details of Small as claimed by the Complainant. Hence, what she heard about Small from the Police amounts to hearsay, therefore inadmissible. This creates doubt about whether she actually knew about this Small who lives in Waciwaci village from another source. This doubt leads to another doubt about whether she lied about Small in her evidence, saying that she even don't know who Small is. This creates further doubt about the truthfulness of her evidence. These doubts create another question of whether the introduction of Small was a consensual act of the Complainant with the Accused's assistance to conceal the child's true paternity.
    3. I shall now proceed to discuss the issue of delay in reporting this allegation of rape.
    4. The learned Counsel for the Prosecution did not invite the Comant to explain when and how she reported this matter to the law enforcement authority. She She merely asked the Complainant how did people find out about this incident (vide paragraph 32 above), for which she said the whole of the village came to know about everything when she was conceived in September 2019. The learned Counsel for the Prosecution made no effort to clarify from the Complainant what she meant by stating that the whole village came to know about everything in September 2019. If the villagers found out everything about this allegation of rape, why did she wait till the 16th of July 2020 to make her statement to the Police?
    5. The Complainant stated during the cross-examination that she was investigated and charged with an offence of murder subsequent to giving birth to her child in September 2019. The Police investigated her during September and October. There is no evidence before the Court about the deceased's identity of the said murder allegation. The Court only heard the Complainant was saying that the Accused and her mother threatened and forced her to maintain the same story about Small during the Police investigation. Nonetheless, the Court has no direct or circumstantial evidence to conclude that this murder investigation and the subsequent charging of the Complainant for murder were directly related or linked to this allegation of rape.
    6. According to the Complainant, the main reason for not reporting this incident wr fear of the Accused, as he had threatened her not to tell tell anyone, warning that if she did so, she would regret the rest of her life. She explained the abusive and aggressive behaviour of the Accused when she was living with him in the village. The Complainant did not feel safe and confident revealing these sexual assaults even though she was with the Police officers and the legal aid lawyer during the investigation of the murder. She admitted that Officer Jitoko treated her like his own daughter. Yet, she was afraid of the Accused as he was still living with her at her uncle and aunty's house in Suva, forcing and threatening her not to tell anyone about him.
    7. Having carefully considered the evidence of the Complainant, I find that she had given different versions about revealing tllegation of rape. The lear learned Counsel for the Defence asked the Complainant during the cross-examination that she had never told Officer Jitoko that the Accused had raped her during the investigation of the murder. For that, she answered by stating that:

    “Because that time Mam, when Jitoko talked to me that was the time I was in Suva with my Aunty and Uncle at Ganji. And that time too my Mom and my Step Father Sakenasa were also there inside the house. And that time, they used to tell me not to tell the Police because I mentioned Small’s name because he told me to mention Small’s name.


    And when they were inside the house they told me not to say anything or tell anything to the Police of what happened. That’s why I kept quiet. I always mentioned Small’s name up until the day I feel like there is no need to keep lying to the Police and everything. That time I admitted everything to them and explained everything to them .Exactly what happened to me. And it was not from Small but it was from my stepfather Sakenasa who made me pregnant and all those kind of things. That’s the time I explained those matters to Jitoko” (emphasis added)


    1. According to this answer, the Complainant had revealed this allegation of rape to the Police when she felt that there was no need to keep lying to the Police. Accordingly, she had explained to Officer Jitoko about this allegation. Yet, she did not explain when and where she explained it to Jitoko. However, she answered differently when the learned Counsel for the Defence asked the following questions:

    “Ms. Manulevu: Now you agree with me Seini that never a time you complain to either Officer Jitoko or the female officer or the Legal Aid lawyer that was sitting with you that Sakenasa raped you?

    Ms; Seini: Yes Mam, That time I never explained to them because that was the time they both living with me in Ganji road and telling me not to tell anything to anybody.


    When they questioning me inside that room Jitoko the Police and all those people, I was really trying to tell everything but how they told me not to tell anything, looking at me with that rude face and told me not to say anything, and that is what remind me not to tell anything during that time,


    And afterwards then when I came and attend all the court cases about me and after everything then I called my Aunty and Uncle then I told them about everything, everything that happened to me. And that time they took me to Totogo Police Station then that’s the time I went and explained everything to them. Because they are no longer inside the house because that time they have fought with my Aunty and Uncle and my Uncle told them to go and find another place because they used to stay there they don’t even give me any space, any space to talk even my friends there inside the house. They always close me. When I go to school come back when they go somewhere they took me because for me not to tell anything” (emphasis added)


    1. According to this answer of the Complainant, she had told her aunt and uncle about this allegation after attending to all the Court cases. They have then taken her to Totogo Police Station. That was the time she had explained to the Police about this allegation.
    2. The Complainant then contradicted herself by answering the following questions.

    “Ms Manu Will you remember that that the Court had made orders for you to go and see a Doctor at St Giels?

    Ms Seini: Yes mam,


    Ms Manulevu: I will not go into what had happened at St Giles, I just want to ask you that will you agree with me that when you had an interview with the Doctor at St Giles, you informed them about the allegation of Rape by Sakenasa, Yes?

    Ms Seini: Yes Mam,


    Ms. Manulevu: Okay and you also agree with me that that was the

    first time that you had informed someone else about the allegation of Rape?

    Ms Seini: Yes,


    Ms Manulevu: And you will agree with me that the allegations

    against Murder that State/DPP had actually withdrawn the charges against you?

    Ms Seini : Yes Mam,


    Ms Manulevu: And if you can remember this charges were withdrawn around June 2020?

    Ms Seini: Yes mam,


    Ms Manulevu: And you will agree with me that after the charges

    were withdrawn June 2020, You went and had your statement recorded at the Police Station around 16th of July 2020?

    Ms Seini: Yes Mam,


    Ms Manulevu: And then when your statement was recorded that was

    the 2nd time apart from your interview with the Doctor at St Giles. Now the Statement that was recorded on the 16th of July 2020 was actually the 2nd time

    Ms Seini: At Totogo


    Ms Manulevu: That you had informed anybody about the allegation

    against Sakenasa

    Ms Seini: That’s Totogo Police Station, yes Mam”


    1. According to these answers, the Complainant had revealed this allegation of Rape to the Doctor at St Giles Hospital when she was produced to the Hospital. It was the first time that she had informed someone about this allegation of Rape. This version of evidence contradicts the earlier version where she had told the Police about everything that had happened to her when she felt there was no need to lie to the Police.
    2. There is no evidence of when she made this revelation to tctor at St Giles Hospital. The State/DPP had withdrawn the charges of murder against her iner in June 2020. That was after she had disclosed to the Doctor this allegation. Accordingly, it could presume that she had explained this to the Doctor at St. Giles Hospital sometime before June 2020. Then on the 16th of July 2020, at the Totogo Police Station, she made her statement to the Police. That was the second time she explained this Rape allegation to someone. There is no evidence of what had happened after she revealed this allegation to the Doctor at St Giles Hospital. There is no evidence explaining why she waited until the 16th of July 2020 to make her statement to the Police regarding this allegation.
    3. If she made her first complaint about this rape allegation to the Doctor at St Giles Hospital, her evidence stating that she told her aunt and uncle about this allegation after attending all the court cases and they then took her to the Police Station to report it cannot be accurate.
    4. If her aunt and uncle took her to the Police Station to report this matter before she was produced to the St Giles Hospital, then her evidence saying that she made her first complaint about this allegation to the Doctor at St Giles Hospital is not true. On the other hand, if she told her aunt and uncle about this allegation after she had complained to the Doctor at St Giles Hospital, there is a doubt whether the Doctor had informed any law enforcement authorities about this serious allegation of Rape. If the Doctor made such a complaint, there is no reason for her to wait until her uncle and aunt to take her to Totogo Police Station to report everything to the Police.
    5. Unfortunately, the Prosecution decided not to call the Doctor to whom the Complt claims that she made her first complaint or the Investigastigation Officer who investigated this serious allegation of Rape to give evidence to clarify the above-discussed ambiguities and doubts. In addition to that, the learned Counsel for the Prosecution made no effort to clarify these issues during the re-examination of the Complainant, leaving a reasonable doubt about the veracity of the evidence given by the Complainant.
    6. In view of the above reasons, there is reasonable doubt about the credibility of the evidence given by the Comant. Accordingly, I find thnd the Complainant's evidence is not credible and reliable. Hence, I conclude that the Prosecution has failed to prove beyond reasonable doubt that the Accused had committed these nine counts as charged in the Information.
      <
    7. In conclusion, I find the Accused nolty of one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, one one count of Sexual Assault, contrary to Section 210 (1) (b) (ii) of the Crimes Act, and six counts of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act as charged in the Information and acquit him on the same.
    8. The Parties have thirty (30) days to appeal to the Fiji Court of Appeal.

    ..................................................

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


    At Suva

    04th May 2022


    Solicitors

    Office of the Dire Director of Public Prosecutions for the State.

    Office of the Legal Aid Commission for the Accused.



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