Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Naikalivou [2022] FJHC 52; HAC077.2020LAB (8 February 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 077 OF 2020LAB

STATE

V

JOSAIA NAIKALIVOU

Counsels : Ms. L. Latu and Ms. M. Lomaloma for State
Ms. R. Raj and Ms. V. Kirti for Accused

Hearings : 31 January, 1, 2, 3, and 4 February, 2022
Judgment : 8 February, 2022

JUDGMENT

1. On 31 January 2022, the following information was read over and explained to the accused, in the presence of his counsels:
   

COUNT ONE

Statement of Offence

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

Particulars of Offence

JOSAIA NAIKALIVOU, between the 1^st of January 2019 and the 31^st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by fondling her breasts.

COUNT TWO

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.

Particulars of Offence

JOSAIA NAIKALIVOU, between the 1^st of January 2019 and the 31^st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by touching her thighs.

COUNT THREE

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.

Particulars of Offence

JOSAIA NAIKALIVOU, between the 1^st of January 2019 and the 31^st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by touching her mouth

COUNT FOUR

Statement of Offence

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

Particulars of Offence

JOSAIA NAIKALIVOU, between the 1^st of January 2020 and the 31^st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, penetrated the vagina of “V.B.”, with his finger 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

JOSAIA NAIKALIVOU, between the 1^st of January 2020 and the 31^st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.

COUNT SIX

Statement of Offence

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

Particulars of Offence

JOSAIA NAIKALIVOU, on an occasion other than that referred to in Count 5 between the 1^st of January 2020 and the 31^st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.

COUNT SEVEN

Statement of Offence

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

Particulars of Offence

JOSAIA NAIKALIVOU, on an occasion other than that referred to in Count 5 and Count 6 between the 1^st of January 2020 and the 31^st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.

2. Mr. Josaia Naikalivou 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 31 January, 1, 2, and 3 February 2022. The prosecution, through PW1, tendered her birth certificate into evidence, as Prosecution Exhibit No. 1. The parties also submitted an “Admitted Facts”, dated 31 January 2022, pursuant to sectin135 of the Criminal Procedure Act 2009. 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. The court agreed with the parties and ruled accordingly. The accused was given the standard options. He chose to give sworn evidence himself, and called no witness.
3. The accused, in his sworn evidence, denied the complainant’s allegations, as contained in counts no. 1, 2 and 3. He said, he did not fondle the complainant’s breasts, as alleged in count no. 1. He also said, he did not touch the complainant’s thighs, as alleged in count no. 2. He also said, he did not touch the complainant’s mouth, as alleged in count no. 3. On count no. 4, he denied penetrating the complainant’s vagina with his finger. As to counts no. 5, 6 and 7, the accused, by virtue of paragraph 4 of the “Admitted Facts” dated 31 January 2022, admitted that his penis penetrated the complainant’s vagina, at the times alleged in those counts. He said, the complainant consented to the above at the times alleged in counts no. 5, 6 and 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 counts no, 4, 5, 6 and 7; two indecent assault charges in counts no. 2 and 3; and one charge of sexual assault in count no. 1. 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 (count no. 4); or

(iii) penetrated the complainant’s vagina with his penis (count no. 5, 6 and 7);

(iv) without the complainant’s consent; and

(v) he knew she was not consenting to 5 (ii) or 5 (iii), at the time.

6. The slightest penetration of the complainant’s vagina by the accused’s finger (count no. 4) or by the accused’s penis (count no. 5, 6 and 7), is sufficient to satisfy element 5 (ii) or 5 (iii) 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 no. 1) or “indecent assault” (counts no. 2 and 3), 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 female complainant (PW1). On count no. 1 (sexual assault), she said, sometime between 1^st January 2019 to 31^st December 2019, she was residing with her parents at Naweni, Savusavu. She said, she was born on 27 March 2006. On 27 March 2019, she turned 13 years old. She said, she normally goes to the accused’s house at Naweni to play with his twin sons. She said, she was normally accompanied by her younger brother Paul, who was 9 years old. At times, she and her brother slept at the accused’s house. The accused and his family were their neighbours, and they were friendly with each other.
    
12. The complainant said, sometime between January and December 2019, she was asleep in one of the rooms at the accused’s house. It was night time. She said, she felt someone touching her. There was a solar light in the sitting room which also lighted the bedroom. She said, she woke up to find the accused was touching her. She said, she saw the accused touched the inside of her singlet and he was touching her breasts from left to the right (count no. 1). She said, he later touched her thighs, feeling the same from her knees and in and upward direction. She demonstrated the same in the witness box (count no. 2). She said, he later began to touch her lips and mouth with his fingers. He was feeling her mouth with his fingers. She again demonstrated the same in the witness box (count no. 3). The complainant said she did not give her permission to the accused to do the above. She said, between January and December 2019, the accused touched her breasts, thighs and mouth so many times. She said, she did not consent to the same. She said, when the above happened to her, she did not tell anyone about the same because she was frightened.
    
13. On count no. 4, the complainant said, it occurred sometime between 1 January 2020 and 31 August 2020. The complainant said, she and her younger brother Paul went to the accused’s house to play with his twin boys, and also to watch movies. It was night time. At the end of the movies, the complainant said, she and her brother Paul slept at the accused’s house. She said, the twins and her brother slept in the sitting room, while she slept in a room. She said, while sleeping at night, she felt someone touching her. She said, she awoke to find the accused touching her. She said, she tried to raise the alarm, but the accused put a pillow over her mouth. She said, the accused later kissed her mouth, breast, stomach and vagina. Later, she said, he inserted two of his fingers into her vagina (count no. 4). She said, he later inserted his penis into her vagina, and went up and down for 5 minutes (count no. 5). She said, she did not consent to the above, and she said, the accused well knew she was not consenting to the above when he did the same.
    
14. On count no. 6, the complainant said, between 1^st January 2020 and 31^st August 2020, she was going to the river to have her bath. She said, on her way down to the river, she got a shock when someone pulled her towards a dalo patch. It was day light, and she said, she saw the accused pulling her further into the dalo patch. She said, she tried to free herself to no avail. She said, the accused laid her down on the ground and quickly removed her clothes. He then inserted his penis into her vagina (count no. 6). While doing the same, one of the twins appeared and asked the accused what he was doing. She said, the accused stood up and went away. She said, she did not consent to the above, and the accused well knew she was not consenting to the same, at the time.
    
15. On count no. 7, the complainant said, between 1 January 2020 and 31 August 2020, she went to the accused’s house with his younger brother Paul to charge their phones and to watch movies. It was after 7pm. After the movies, the complainant said, she and her brother slept at the accused’s house. She said, she slept in the sitting room with the twins and her younger brother. She said, at night the accused carried her to another room to sleep in. She said, when putting her on a bed, the accused began to take off her clothes. She said, she resisted him to no avail. She said, he later took off her clothes. Then he took off his clothes. She said, he then kissed her mouth, breasts, stomach and vagina. Later he inserted his penis into her vagina (count no. 7). She said she was crying at the time. She said, he penetrated her vagina with his penis for 5 minutes, and she did not consent to the same. She said, he well knew she was not consenting to sex at the time.
16. The above was a summary of the prosecution’s case, based entirely on the verbal evidence of the complainant. She gave evidence for 3½ days. The accused then gave evidence for 1½ days. Basically, he denied the complainant’s allegations in counts no. 1, 2, 3 and 4. He said, he did not fondle the complainant’s breasts, as alleged in count no. 1. He said, he did not touch the complainant’s thighs, as alleged in count no. 2. He said, he did not touch the complainant’s mouth as alleged in count no. 3. He said, he did not insert his finger into the complainant’s vagina, as alleged in count no. 4. However, for counts no. 5, 6 and 7, he admitted, as per paragraph 4 of the “Admitted Facts” dated 31 January 2022, that he inserted his penis into the complainant’s vagina, at the material time. He admitted that he was 64 years old at the time, while the complainant was 14 years old, an age gap of 50 years. The case will be decided on the credibility of the complainant’s version of events as that against the accused’s version of events.
    
17. I had carefully examined the verbal evidence of both the complainant and the accused’s in this trial. I had carefully examined their demeanour and the logics of their actions, during the trial. In my view, the accused, as the complainant’s uncle at the material time, aged 64 years, and the complainant, aged 14 years, was in a position of authority visa vi the complainant. The complainant was a child and it was his duty to look after the complainant in a positive way. In my view, he abused his position of authority over the child complainant by having sexual intercourse with her, as admitted in counts no. 5, 6 and 7. In my view, if he had gone that far in counts no. 5, 6 and 7, he must have done what the complainant alleged in counts no. 1, 2, 3 and 4. Looking at the evidence in their totality, I accept the complainant’s version of events and reject the accused’s version of events. In my view, the child complainant was a credible witness and I accept her version of events. I reject the accused’s sworn denials.
    
18. Given the above, I find, on the totality of the evidence, that the prosecution had proven the accused’s guilt on counts no. 1, 2, 3, 4, 5, 6 and 7 beyond reasonable doubt, and I find him guilty as charged on those counts. I convict him accordingly on those counts. I order so accordingly.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Legal Aid Commission, Labasa