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

Home | Databases | WorldLII | Search | Feedback

High Court of Fiji

You are here: PacLII >> Databases >> High Court of Fiji >> 2022 >> [2022] FJHC 635

Download original PDF

State v Kaisau [2022] FJHC 635; HAC140.2019 (14 September 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 140 of 2019

STATE

TAITO KAISAU

Counsel : Mr. M.I. Rafiq for the State.
: Ms. A. Bilivalu for the Accused.

Dates of Hearing : 06, 08 September, 2022
Closing Speeches : 12 September, 2022
Date of Judgment : 14 September, 2022

JUDGMENT

(The name of the complainant is suppressed she will be referred to as “M.W”)

The Director of Public Prosecutions charged the accused by filing the following amended information:

FIRST COUNT
Statement of Offence

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

Particulars of Offence

TAITO KAISAU on the 3^rd day of June, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, unlawfully and indecently assaulted “M.W”, by fondling her breast.

SECOND COUNT
Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) of the Crimes Act, 2009.

Particulars of Offence

TAITO KAISAU on the 3^rd day of June, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, unlawfully and indecently assaulted “M.W”, by licking her vagina.

THIRD COUNT
Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) of the Crimes Act, 2009.

Particulars of Offence

TAITO KAISAU on the 31^st day of July, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, unlawfully and indecently assaulted “M.W”, by sucking her breast.

FOURTH COUNT
Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) of the Crimes Act, 2009.

Particulars of Offence

TAITO KAISAU on the 31^st day of July, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, unlawfully and indecently assaulted “M.W”, by licking her vagina.

FIFTH COUNT
Statement of Offence

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

Particulars of Offence

TAITO KAISAU on the 31^st day of July, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, penetrated the vagina of “M.W”, with his finger, without the consent of the said “M. W”.

SIXTH COUNT
Statement of Offence

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

Particulars of Offence

TAITO KAISAU on the 31^st day of July, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, had carnal knowledge of “M.W”, without her consent.

SEVENTH COUNT
Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) of the Crimes Act, 2009.

Particulars of Offence

TAITO KAISAU on the 31^st day of July, 2019 at Vitawa Village, Rakiraki, Ra in the Western Division, on an occasion other than COUNT 3, unlawfully and indecently assaulted “M. W”, by licking her vagina.

In this trial, the prosecution called three witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer for counts one to six only.

BURDEN OF PROOF AND STANDARD OF PROOF

As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
The accused now faces six counts, the evidence in respect of each count will be considered separately from the other if the accused is guilty of one count, it does not mean that he is guilty of the other counts as well. This also applies with the findings of not guilty.

ELEMENTS OF THE OFFENCE

INDECENT ASSAULT

To prove the first count the prosecution must prove the following elements of the offence of indecent assault beyond reasonable doubt:
- (a) The accused;
- (b) Unlawfully and indecently;

The first element of the offence of indecent assault is concerned with the identity of the person who allegedly committed the offence.
The words “unlawfully” and “indecently” in respect of the second element of the offence simply means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such act indecent.
Assault is the unlawful use of force on the complainant by the act of fondling her breast.
In respect of the offence of indecent assault the accused has denied committing this offence. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had unlawfully and indecently assaulted the complainant by fondling her breast.
If this court is satisfied that the prosecution has proved all the elements of the offence of indecent assault beyond reasonable doubt, then this court must find the accused guilty of the offence of indecent assault. However, if there is a reasonable doubt with respect to any elements of the offence of indecent assault then this court must find the accused not guilty.

SEXUAL ASSAULT

To prove counts two, three and four the prosecution must prove the following elements of the offence of sexual assault beyond reasonable doubt:
- (a) The accused;
- (b) Unlawfully and indecently;

The first element of the offence of sexual assault is concerned with the identity of the person who allegedly committed these offences.
The words “unlawfully” and “indecently” in respect of the second element of the offences of sexual assault means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such conduct indecent.
The final element of assault is the unlawful use of force on the complainant by licking her vagina on two occasions and sucking her breast.

In this regard this court has to consider:

(a) whether the force used in licking her vagina on two occasions and sucking her breast were sexual in nature; and

(b) if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, was in fact sexual in nature.

In this trial, the accused has denied committing the offences of sexual assault. It is for the prosecution to prove beyond reasonable doubt that it was the accused, who had unlawfully and indecently assaulted the complainant by licking her vagina on two occasions and sucking her breast.
If this court is satisfied beyond reasonable doubt that the prosecution has proved all the elements of the offence of sexual assault as explained above, then this court must find the accused guilty. If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offences of sexual assault, then this court must find the accused not guilty.

RAPE

In respect of the fifth and sixth counts the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:

(a) The accused;

(b) Penetrated the vagina of the complainant with his finger and penis;

(d) The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.

In this trial, the accused has denied committing the offences of rape. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his finger and penis without her consent and the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
The first element of the offence is concerned with the identity of the person who allegedly committed this offence.
The second element is the act of penetration of the complainant’s vagina by the finger and penis.
The third element is of consent, which means to agree freely and voluntarily and out of her free will. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority, then that consent is no consent at all. Furthermore, submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
If this court is satisfied that the accused had penetrated the vagina of the complainant with his finger and penis and she had not consented, then this court is required to consider the last element of the offence that is whether the accused knew or believed that the complainant was not consenting or did not care if she was not consenting at the time.
To answer the above this court will have to look at the conduct of both the complainant and the accused at the time and the surrounding circumstances to decide this issue.
If this court is satisfied beyond reasonable doubt that the prosecution has proven beyond reasonable doubt that the accused had penetrated his finger and penis into the complainant’s vagina without her consent then this court must find the accused guilty as charged.
If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offences of rape, then this court must find the accused not guilty.
The slightest of penetration of the complainant’s vagina by the accused finger and penis is sufficient to satisfy the act of penetration.
As a matter of law, I have to direct myself that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means, if this court is satisfied with the evidence given by the complainant and accepts it as reliable and truthful then this court is not required to look for any other evidence to support the account given by the complainant.

ADMITTED FACTS

In this trial, the prosecution and the defence have agreed to certain facts titled as admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.

PROSECUTION CASE

The complainant informed the court that in the year 2019 she was living in Vitawa village, Rakiraki with her grandparents Inia Kaisau and Ana Waqa. After 6 houses is the house of the complainant’s maternal uncle the accused. The accused is the son of her grandmother Vinaina Mataivecena. The complainant was 15 years old and a year 10 student at the time.
On 2^nd June, 2019 the complainant went to the house of her grandmother Vinaina to get some flour for baking. When giving the flour Vinaina told the complainant that she has to accompany Vinaina for fishing the next day. After baking and having dinner at around 8 pm the complainant went to Vinaina’s house to sleep over for the fishing trip the next morning.
After a while everyone at Vinaina’s house went to sleep. The complainant was sleeping in the sitting room on a mattress with her cousin Miliana. At around 2 am the complainant woke up since she felt someone was lying beside her on her left side. The complainant was shocked to see the accused from the lit kerosene lamp, he started to fondle her left breast with his hand. The complainant told the accused not do this and she asked the accused why he was doing this to her. The accused said that she has to relax and it will be good. The accused kept on touching her breast. The complainant did not want the accused to do what he was doing to her.
The accused knelt over her with his knees on the side of her legs. He tightened her legs with his and unbuttoned her shorts and pulled it down. Thereafter the accused removed the complainant’s shorts and panty and started licking her vagina. When the accused was pulling down her shorts she tried to push the accused away.
The complainant was ashamed and she kept pushing the accused but he did not move away. The accused then licked her vagina for less than two minutes. She did not want the accused to lick her vagina.
After this the accused started to pull her into another room but the complainant held on to the mattress at this time her grandmother came into the sitting room and the accused ran to his room. The complainant wore her clothes and pretended to sleep.
At about 5 am the complainant was woken by Vinaina so that they could go fishing. The complainant did not tell Vinaina about what the accused had done to her because Vinaina is the accused mother. She also did not tell her grandparents because she was ashamed. The complainant thereafter met the accused but she did not confront him because he is her uncle and she had respect for him.
When questioned why she had not woken her cousin Miliana who was sleeping on the same mattress the complainant responded the accused had told her not to wake anyone.
On 31^st July, 2019 the complainant was at the house of her grandparents, at about 5 am she woke up to prepare lunch. The complainant saw the accused standing in the bedroom from the light in the sitting room. The complainant asked him what he came to do, the accused did not respond she wanted to scream but the accused blocked her mouth with a pillow.
The accused told her to go to the kitchen where he removed the bulb and told her to lie on the floor she refused so he pushed her shoulders down and bent her knees making the complainant lie on the floor. After the complainant lay on her back face up the accused started touching her breast. The accused then pulled her top up to her chest sucked her breast and then removed her skirt and panty and licked her vagina.
The accused then inserted his two fingers into the complainant’s vagina which was painful. She tried to push the accused away, the complainant did not want the accused to do what he was doing but he did not stop. According to the complainant the accused had inserted his fingers into her vagina for less than two minutes and she did not allow him to do this. The complainant did not yell because the accused kept telling her not to shout or talk and to be quiet.
The complainant was pushing the accused because she did not like what he was doing to her. Thereafter, the accused inserted his penis into her vagina and had sexual intercourse for about two minutes. She knew the accused had penetrated his penis inside her vagina because she felt pain in her lower abdomen and vagina.
According to the complainant she felt bad about what the accused was doing to her. When the complainant told the accused to stop because of the pain she was getting the accused said it will feel good.
After this, the accused stood up and left but before leaving he told the complainant not to tell anyone but to keep it between them. The complainant did not tell anyone including her grandfather who was sleeping in his room in the house because she was embarrassed and also because he was elderly so she was afraid if she told him it might affect his health. She was ashamed and afraid as well. The complainant’s grandmother was not at home at this time.
The following Sunday on 4^th August the complainant saw the accused peeping into the sitting room from outside the house and calling her. The complainant was scared so she called her grandfather. Her grandfather came and chased the accused away, after a while the complainant told her grandfather about what the accused had done to her on two earlier occasions she told him the accused had been touching her. The next day her grandfather took her to the police station to report the matter from there she was taken to the Rakiraki Hospital for a medical checkup.
In cross examination, the complainant agreed that her grandmother Vinaina’s house was small and any noise in the sitting room could be heard in the entire house. In respect of the first incident the complainant stated that it had happened at about 2 am on 3^rd June, 2019. The complainant denied that her cousins Miliana and Semesa had slept with her in the sitting room. She stated that it was only Miliana who was sleeping with her.
The complainant was referred to the first page last sentence of her police statement dated 5^th August, 2019 which was read as follows:

“I was sleeping in the sitting room with my two cousin and Vinaina was sleeping in the room.”

When asked which version was correct the complainant said what she told the court that Semesa was sleeping with her grandmother. According to the complainant she did not tell the police officer writing her police statement that both her cousins were sleeping with her in the sitting room.
The complainant further confirmed that the incident on 3^rd June had happened at 2 am and not at 2 pm as mentioned in her police statement which was a mistake. The complainant said that she was sleeping with her cousin Miliana on a single bed mattress.

PREVIOUS INCONSISTENT STATEMENT

This court directs its mind to the fact that the defence counsel during cross examination of the complainant had questioned this witness about some inconsistency in her police statement which she had given to the police when facts were fresh in her mind with her evidence in court.
This court is allowed to take into consideration the inconsistency between what this witness told the court and her police statement when considering whether this witness was believable and credible. However, the police statement is not evidence of the truth of its contents.
It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witness. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
The complainant agreed that the accused legs were on the mattress when he was fondling her breast and that her cousin had not woken up. Miliana was lying close to the complainant but when the accused came he told the complainant to move away from Miliana and put a pillow between her and Miliana. The complainant clarified that it was after the accused had run out of the sitting room that her grandmother Vinaina came into the sitting room, since she pretended to sleep her grandmother did not say anything but went back to her room.
The complainant went fishing with her grandmother Vinaina but she did not say anything about what the accused had done to her. The complainant also did not tell Miliana and Semesa because both her cousins were in primary school and she did not want to be made fun of. She also did not tell her sister Asena because she was afraid her sister after coming to know would leave her.
After the June incidents she did not tell her grandfather about what the accused had done to her because she was ashamed. The complainant agreed before the incidents her grandfather had called the accused a thief for stealing from him. The complainant denied her grandfather never liked the accused.
The complainant agreed that after the first incident in June she went about her normal life without telling anyone about what had happened between her and the accused. She would go to Vinaina’s house when the accused was not at his house.
In respect of the second incident on 31^st July, when the accused came into her room she did not wake her sister. When she was told by the accused to go to the kitchen she did not want to go with him and she did not scream or call out to her grandfather who was sleeping in the next room. She went into the kitchen because she was forced by the accused. The complainant did not escape because the accused kept on forcing her to go to the kitchen.
She did not tell her grandfather or her sister about what the accused had done to her. It was when the accused was peeping from the window of the house one night after the incidents that the complainant called out to her grandfather. By the time her grandfather came into the sitting room the accused had left.
When the complainant was telling her grandfather about the accused peeping into the sitting room she also told him the accused had touched and harassed her on two occasions. The next day the matter was reported to the police. The complainant agreed that she did not tell her grandfather all the details of what the accused had done to her such as sucking her breast, fondling her breasts and licking her vagina. When questioned further why she did not tell her grandfather after the first incident the complainant said that she was ashamed of what the accused had done to her. The complainant maintained that the incidents on both the occasions had happened.
When it was suggested that her grandfather had forced her to raise the allegations on both occasions the complainant disagreed and stated that she wanted to report to the police and no one had forced her to lodge the police complaint. The complainant maintained that she did not make up any of the allegations whatever she told the court the accused had done to her.
In re-examination the complainant stated that the mattress she was sleeping on was 3 meters x 1 ½ meters. She told her grandfather because the accused was coming to her house to harass her and she could not take it anymore so she told her grandfather.
Inia Waqa the grandfather of the complainant informed the court that in the year 2019 he was residing at Vitawa village with his wife and two granddaughters namely the complainant and her sister. On Sunday 4^th August, 2019 after a village meeting when he went home he was told by the complainant that the accused was peeping from the window of the house and she was afraid of him.
At this time only her two granddaughters were at home when the witness further questioned the complainant as to why she was afraid of the accused the complainant said “Taito had touched her body”. The witness upon hearing this told the complainant that he will take her to the police the next day. The accused is the son of his biological sister Vinaina. The witness has a good relationship with the accused and he has financed his studies.
In cross examination, the witness agreed that he was not at home when the complainant said the accused was peeping through the window. When he came home that night he did not see the accused around his house. The witness stated that the complainant did not tell him when and where the accused had touched her because he did not ask her where she was touched and the next day the matter was reported to the police.
The witness denied he used to call the accused a thief when the accused was small or he had made allegations against the accused. He did not force or pressure the complainant to lodge a police complaint against the accused.
The witness could not remember if he had signed a consent form for the complainant’s medical examination he said he left it to the police to do their duty.

RECENT COMPLAINT EVIDENCE

Complainant’s of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight would be given to the fact that the complainant told her grandfather the accused had touched her body.
This is commonly known as recent complaint evidence. The evidence given by Inia Waqa is not evidence of what actually happened between the complainant and the accused since this witness was not present and did not see what had happened.
This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told her grandfather the accused had touched her body shows that she wanted to tell her grandfather about what the accused had done to her. The prosecution is further asking this court to consider the fact that the complainant had relayed crucial and important aspect of what the accused had done to her.
The information given by the complainant was sufficient to alert Inia who promptly accompanied the complainant to the police station. The prosecution also says there was no need for the complainant to go into every detail of what had happened to her when narrating her story to her grandfather. The complainant was 15 years at the time and she was afraid and ashamed of telling her grandfather or anyone close to her about the incidents. When the opportunity presented itself she did not hesitate to tell her grandfather and therefore she is more likely to be truthful.
On the other hand, the accused says the complainant did not tell the truth she made up a story against him. The complainant did not give any details of the allegations to her grandfather because nothing had happened as alleged. The complainant was of a reasonable age who could have immediately told her sister, cousins Miliana and Semesa and her grandmother Ana but she did not because nothing had happened. The complainant did not tell the truth when she said she was ashamed and afraid to tell her grandfather and therefore she should not be believed.
It is for this court to decide whether the evidence of recent complaint helps in reaching a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. It is a matter for this court to decide whether it accepts the complainant as reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
The final witness Ilisapeci Adi Tabua informed the court that she graduated with an MBBS degree from University of Fiji in the year 2016. This is her 5^th year of service in 2019 she was based at the Rakiraki Hospital.
On 5^th August, 2019 the witness had examined the complainant at the Rakiraki Hospital. Her specific medical findings were:
- (a) Vaginal discharge at the vaginal orifice;
- (b) Foul smell;
- (c) Hymen was not intact
The witness explained the discharge noted is considered normal but the foul smell maybe due to other causes such as infections, poor hygiene or sexually transmitted infection or bacterial infection. In respect of the hymen not being intact the witness said any form of forceful penetration into the vagina could cause the hymen to break. In addition to this, there are other causes that could also break the hymen such as trauma, taking part in athletics, falling on the ground, bicycle or horse riding etc. According to the witness it is possible the patient’s allegations could be consistent with her medical findings. The Fiji Police Medical Examination Form of the complainant was marked and tendered as prosecution exhibit no. 1.
In cross examination, the witness agreed a police officer had accompanied the patient to the hospital and was present during the medical examination. There was no parent or guardian of the patient present to give consent so the police officer had given her consent for the medical examination to be conducted. The history was related by the police officer and the patient. The patient was a bit shy not wanting to talk most of the time but had told the witness that she had been sexually assaulted.

DIRECTION ON EXPERT EVIDENCE

This court has heard the evidence of Dr. Tabua who had been called as an expert on behalf of the prosecution. Expert evidence is permitted in a criminal trial to provide the court with information and opinion which is within the witness expertise. It is by no means unusual for evidence of this nature to be called the medical report of the complainant is before this court and what the doctor said in her evidence as a whole is to assist this court.
An expert witness is entitled to express an opinion in respect of his or her findings. When coming to my conclusion about this aspect of the case I have borne in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert I do not have to act upon it. Indeed, this court does not have to accept even the unchallenged evidence of the doctor.
I have also kept in mind that this evidence of the doctor relates only to part of the case, and that whilst it may be of assistance to me in reaching my decision, I must reach my decision having considered the whole of the evidence.
This was the prosecution case.

DEFENCE CASE

At the end of the prosecution case the accused was given his options. The accused chose to remain silent and he did not call any witness that is his right and no adverse inference will be drawn from the fact that the accused decided to remain silent and did not call any witness.
From the line of cross examination the defence took the position that the complainant did not tell the truth in court. The accused did not at any time fondle or suck the breast or lick the vagina or have forceful sexual intercourse or penetrate the complainant’s vagina with his fingers as alleged. The complainant made up a story which does not add up.
Since the complainant was 15 years old she could have told someone, if not her grandfather then her sister Asena or her grandmother Ana with whom she had been living since she was 8 months old or her cousins Miliana and Semesa. There was nothing for the complainant to be afraid or ashamed of. The complainant also had the opportunity to shout, escape and yell but she did not because nothing had happened.
The defence is asking this court to look at each incident with caution. How can it be possible that two people can sleep on a single bed mattress close to each other and yet one of them was not disturbed despite there being a suggestion of struggle cannot be the truth? Furthermore, when Vinaina came into the sitting room why would the complainant pretend to sleep if something serious had happened to her. The complainant was alone with Vinaina during the fishing trip the next day yet the complainant did not tell Vinaina anything about what the accused had done is very unusual.
In respect of the second incidents the defence argues the complainant was in her house with her grandfather in his bedroom and her sister was sleeping in the same room as the complainant yet she did not wake her sister does not make sense. If the accused had forced the complainant to the kitchen before leaving her room the complainant could have shouted to alert her grandfather and sister but she did not. The complainant had every opportunity to alert someone but she did not because nothing had happened.
Finally, the defence submits that what the complainant told the court is not probable and it did not happen. The complainant was 15 years of age and not living with the accused that his presence would instill fear in her. The complainant admitted that after the incidents she used to go to the accused house shows that the complainant was bold and not afraid of the accused.
The complainant raised the allegations because she was forced by her grandfather to make these allegations due to his dislike for the accused. The defence is asking this court not to believe the complainant. For the recent complaint evidence the defence argues that the complainant did not give any details of the allegations to her grandfather because there was nothing to complain about.
Even when the complainant was seen by the doctor she was not opening up and telling the doctor what had actually happened which then prompted the police officer present to relay the information known to her is unsatisfactory. In any event the medical report of the doctor is inconclusive therefore no reliance should be placed on the medical report. The police officer was not the authorized officer to give her consent for the complainant to be medically examined hence the medical report should be disregarded by this court.
This was the defence case.

ANALYSIS

The prosecution states that the complainant and the accused are known to each other. The accused is the maternal uncle of the complainant and they were living in the same village. In the year 2019 the complainant was 15 years of age.
The prosecution alleges that on 2^nd June, 2019 the complainant at the request of the accused mother Vinaina went to the house of the accused. The complainant was sleeping in the sitting room with her cousin Miliana on a mattress. At around 2 am the next day the complainant woke up since she felt someone was lying beside her on her left side. From the lit kerosene lamp in the sitting room the complainant was shocked to see the accused.
The accused started to fondle her left breast with his hand. The complainant told the accused not do this but he continued. Thereafter the accused removed the complainant’s shorts and panty and started licking her vagina for less than 2 minutes. When the accused was pulling down the complainant’s shorts she tried to push him away. The accused was kneeling over her with his knees on the side of her legs. The complainant was ashamed and she kept pushing the accused but he did not move away. She did not tell anyone about what the accused had done to her due to her respect for the accused and she was also ashamed of what the accused had done.
On 31^st July, 2019 the complainant was at the house of her grandparents, at about 5 am she saw the accused in her bedroom from the light in the sitting room. The complainant asked him what he came to do, the accused did not respond she wanted to scream but the accused blocked her mouth with a pillow.
The accused forced the complainant to go to the kitchen. In the kitchen the accused removed the bulb and told the complainant to lie on the floor she refused so he forcefully made her lie on the floor. The accused started touching her breast pulled her top up to her chest and sucked her breast and then removed her skirt and panty and licked her vagina.
The complainant was pushing the accused because she did not like what he was doing to her and she told him so. Thereafter the accused inserted his two fingers into the complainant’s vagina. The complainant felt pain after this the accused penetrated the complainant’s vagina with his penis and had forceful sexual intercourse for less than two minutes. She knew the accused had penetrated his penis inside her vagina because she felt pain in her lower abdomen and vagina. The complainant did not yell because the accused kept telling her not to shout, not to talk and to be quiet.
She tried to push the accused away but he did not stop, the complainant did not want the accused to do what he was doing. She felt bad about what the accused was doing to her. When the complainant told the accused to stop because of the pain she was getting the accused said it will feel good.
Before leaving the accused told the complainant not to tell anyone but to keep it between them. The complainant did not tell anyone because she was ashamed and afraid of what the accused her biological uncle had done to her.
The accused continued to harass the complainant the following Sunday on 4^th August the complainant saw the accused peeping into the sitting room from outside the house and calling her. The complainant was scared so she called her grandfather thereafter the complainant told her grandfather about what the accused had done to her on two earlier occasions she told him the accused had been touching her body. The next day the matter was reported at the Rakiraki Police Station.
The complainant’s grandfather told the court that the complainant told him the accused had touched her body. When the complainant was medically examined the doctor’s findings stated the hymen was not intact and there was a possibility of a penetration of her vagina amongst other causes. The complainant did not consent to what the accused had done to her. The accused also knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time. The acts of the accused did not stop after the second incident, he continued harassing the complainant which was more than enough for the complainant to take so she gathered courage and told her grandfather.
On the other hand, the defence says the allegations raised by the complainant are a made up story narrated in court by the complainant. A close scrutiny of the evidence given by the complainant will show that whatever she told the court is improbable and it does not make sense. There is a reasonable doubt about what the complainant told the court.
The complainant did not tell anyone about what the accused had done immediately after the incidents because nothing had happened. There were people around her but she did not raise any alarm is unbecoming of a complainant on whom anything forceful had been done. The answer is simple nothing had happened.
The complainant was of an age who knew what was happening if indeed the accused had done anything to her she would have shouted or yelled which is a normal reaction by a person in distress. Why would the complainant pretend to sleep when Vinaina came into the sitting room if there was anything done to her? The reason is the accused did not do anything so there was nothing to complain about.
The complainant said she was ashamed of her grandfather that is why she did not promptly tell him anything after the alleged incidents cannot be accepted as the truth.
The allegations have come about since the complainant’s grandfather has a dislike for the accused and he is the one who had forced the complainant to lodge a false complaint against the accused to get rid of him. Furthermore, the medical examination of the complainant was carried out without the consent of her parent or guardian. The police officer did not have any authority to give her consent for the complainant’s medical examination which ought to be disregarded by this court.
Moreover, the medical report does not connect the accused to the medical findings of the doctor as to what caused the hymen of the complainant not to be intact. The medical findings of the doctor in this regard are inconclusive and therefore no weight should be given by this court.
Finally, the defence is asking this court not to give any weight to the evidence of all the prosecution witnesses.

DETERMINATION

I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. She gave a comprehensive and consistent account of what the accused had done to her. The complainant was also able to withstand cross examination and was not discredited as to the main version of her allegations.
The complainant was steadfast in what she had encountered at the house of the accused and also at her grandparents house. I have no doubt in my mind that she told the truth in court. Her demeanour was consistent with her honesty.
Experience has shown that individuals differ in terms of how they react towards what is happening to him or her. Some display obvious signs of distress and some not. The fact that the complainant did not shout or yell when the accused was forcing himself on her does not mean that nothing happened.
I accept the complainant was afraid and ashamed of what the accused was doing to her and the fact that she did not shout or yell or escape does not mean nothing happened. The defence assertion that there were people around her on all occasions and she could have raised the alarm does not exculpate the accused from his forceful conduct.
I also accept the evidence of the complainant that she did not tell anyone about what the accused had been doing to her since she was ashamed and embarrassed to tell anyone particularly her grandfather due to his age and health, her cousins Miliana and Semesa and her sister. In addition to the above, the complainant’s sister Asena and her cousins were younger than her and the fear of being made fun of or her sister leaving her was a genuine concern of the complainant considering what she had been through.
It was the continued harassment of the complainant by the accused that she finally told her grandfather about the accused’s actions on her. There was no need for the complainant to give every detail of what the accused had done to her to her grandfather. In my considered judgment whatever the complainant told her grandfather was enough to alert him that something wrong had happened.
The Supreme Court in Anand Abhay Raj vs. The State, CAV 0003 of 2013 (20^th August, 2014) at paragraph 39 made an important observation about the above as follows:

The complainant need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the unlawful sexual conduct, provided it is capable of supporting the credibility of the complainant’s evidence.

I accept the complainant had not consented to what the accused had done to her. I also observed that the complainant had a strong view against the conduct of the accused on her and she had expressed herself clearly against what the accused had done.
Furthermore, the defence contention that the complainant had not shouted or yelled is not believable on the totality of the evidence. It is to be noted that the legal meaning of consent is wide which includes submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
Moreover, the complainant was not shaken as to the basic version of her allegations the inconsistencies between her evidence in court and her police statement was not significant enough to adversely affect the credibility of the complainant. The complainant was also consistent in her evidence as well.
The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) had made the following pertinent observations about the above at paragraph 16 as follows:

[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra):

“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”

Another pertinent observation was also made by the Court of Appeal in Joseph Abourizk vs. The State, AAU 0054 of 2016 (7 June, 2019) at paragraph 107 in the following manner about deficiencies, drawbacks and other infirmities in evidence by taking into account the comments made by the Indian Supreme Court in State of UP v. M K Anthony (1985) 1 SCC 505:

‘While appreciating the evidence of a witness the approach must be to ascertain whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, then the court should scrutinise the evidence more particularly to find out whether deficiencies, drawbacks and other infirmities pointed out in the evidence is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case should not be given undue importance. Even truthful witnesses may differ is some details unrelated to main incident because power of observation, retention and reproduction differ with individuals...’

I also accept the evidence of Inia Waqa, he gave an honest and credible account of what the complainant had told him. I reject the defence assertion that this witness had a motivation to implicate the accused due to his dislike for the accused. The evidence of this witness that he had financially supported the accused was not disputed and in any event the defence assertion that the witness had called the accused a thief when he was small does not affect the evidence of this witness at all.
This witness was forthright in his evidence and I found him to be an honest witness. I also reject the defence assertion that this witness had forced the complainant to lodge a false complaint against the accused as implausible. On the totality of the evidence the slight delay in reporting the matter to the police cannot be taken against the complainant in view of her explanation that she was afraid of the accused who had told her not to tell anyone. This narration is further strengthened by the complainant’s unconditional respect for the accused which she considered to be a blessing.

LATE REPORTING

On the evidence before this court there is no substantial lapse of time in reporting. The slight delay in reporting the matter to the police does not affect the credibility of the complainant she gave acceptable reasons for this delay.
In law the test to be applied in such a situation is known as the totality of circumstances test. The Court of Appeal in State v Serelevu (2018) FJCA 163; AAU 141 of 2014 (4^th October, 2018) had explained this issue as follows:

“[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.”

“[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.”

Moreover, the medical report of the complainant is inconclusive which does not connect the accused to the allegations raised and therefore I do not give any weight to the medical findings and the opinion of the doctor.
This court accepts the evidence of the complainant and her grandfather as reliable and credible and rejects the defence of denial raised by the accused.
Finally, in respect of the offences of sexual assault after taking into account all the evidence this court is satisfied beyond reasonable doubt that the licking of the complainant’s vagina and sucking of her breast by the accused were sexual in nature.

128. The defence has not been able to create a reasonable doubt in the prosecution case in respect of counts one to six as charged.

CONCLUSION

This court is satisfied beyond reasonable doubt that the accused on 3^rd June, 2019 had unlawfully and indecently assaulted the complainant by fondling her breast and licking her vagina. This court is also satisfied beyond reasonable doubt that the accused on 31^st July, 2019 had unlawfully and indecently assaulted the complainant by sucking her breast and licking her vagina.
In respect of the above offences this court is also satisfied beyond reasonable doubt that the accused had acted unlawfully that is without lawful excuse and indecently assaulted the complainant in what he did to her.
The acts of the accused have some elements of indecency that any right minded person would consider such conduct indecent and sexual in nature. The complainant did not consent to the above mentioned acts of the accused.
This court is also satisfied beyond reasonable doubt that the accused on 31^st July, 2019 had penetrated the vagina of the complainant with his finger and penis without her consent. The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
In summary, the accused is found guilty and convicted of one count of indecent assault, three counts of sexual assault and two counts of rape as charged being counts one to six, however, he is acquitted of one count of sexual assault in count seven due to lack of evidence.

134. This is the judgment of the court.*

*Before I leave it is noted that the fifth count mistakenly has subsection 2 (a) mentioned under the statement of offence which should be 2 (b). I accept on the evidence that there is no prejudice caused to the defence by this omission.

Sunil Sharma
Judge

At Lautoka
14 September, 2022

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

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2022/635.html