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State v Tikoinamena [2023] FJHC 424; HAC130.2021 (8 June 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 130 of 2021

STATE

V

VERAMO TIKOINAMENA

Counsel : Ms. S. Naibe for the State.

: Ms. K. Boseiwaqa and Mr. B. Makanjee for the Accused.

Dates of Hearing : 31 May, 01, 02, 05 June, 2023
Closing Speeches : 08 June, 2023
Date of Judgment : 08 June, 2023

JUDGMENT

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

1. 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

VERAMO TIKOINAMENA between the 1^st day of May 2021 and the 31^st day of May 2021 at Drauniivi village, Tavua in the Western Division, unlawfully and indecently assaulted “V.M”.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA between the 1^st day of May 2021 and the 31^st day of May 2021 at Drauniivi village, Tavua in the Western Division, had carnal knowledge of “V.M” without her consent.

THIRD COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA on the 6^th day of June 2021 at Drauniivi village, Tavua in the Western Division, unlawfully and indecently assaulted “V.M”.

FOURTH COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA on the 6^th day of June 2021 at Drauniivi village, Tavua in the Western Division, had carnal knowledge of “V.M” without her consent.

FIFTH COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA on the 7^th day of June 2021 at Drauniivi village, Tavua in the Western Division, unlawfully and indecently assaulted “V.M”.

SIXTH COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA on the 7^th day of June 2021 at Drauniivi village, Tavua in the Western Division, had carnal knowledge of “V.M” without her consent.

SEVENTH COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA on the 8^th day of June 2021 at Drauniivi village, Tavua in the Western Division, unlawfully and indecently assaulted “V.M”.

EIGHTH COUNT
Statement of Offence

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

Particulars of Offence

VERAMO TIKOINAMENA on the 8^th day of June 2021 at Drauniivi village, Tavua in the Western Division, had carnal knowledge of “V.M” without her consent.

2. In this trial, the prosecution called two witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer as charged:
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. 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.
   
4. The accused faces a total of eight counts being four counts of indecent assault and four counts of rape, 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

5. To prove the offence of indecent assault the prosecution must prove the following elements beyond reasonable doubt:
   

(a) The accused;
(b) Unlawfully and indecently;

(c) Assaulted the complainant by kissing her neck and/or touching her breast.

6. The first element of the offence of indecent assault is concerned with the identity of the person who allegedly committed the offence. This element is not in dispute.
   
7. 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.
   
8. Assault is the unlawful use of force on the complainant by the act of kissing her neck and touching her breast.
   
9. 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 kissing her neck and/or touching her breast.
   
10. 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.
    

RAPE

11. In respect of the count of rape the prosecution must prove the following elements of this offence beyond reasonable doubt:
    

(a) The accused;

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

(c) Without her consent;

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

12. In this trial, the accused has denied committing the offence 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 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.
    
13. The first element of the offence is concerned with the identity of the person who allegedly committed this offence. This element is not in dispute.
14. The second element is the act of penetration of the complainant’s vagina by the penis.
    
15. 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.
    
16. If this court is satisfied that the accused had penetrated the vagina of the complainant with his 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.
    
17. 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.
    
18. If this court is satisfied beyond reasonable doubt that the prosecution has proven beyond reasonable doubt that the accused had penetrated his penis into the complainant’s vagina without her consent then this court must find the accused guilty as charged.
    
19. If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offence of rape, then this court must find the accused not guilty.
    
20. The slightest of penetration of the complainant’s vagina by the accused 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 accept 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

21. In this trial, the prosecution and the defence have agreed to certain facts titled as amended admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
22. 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.
    
23. Before I begin I would like to state at the outset that I have completely disregarded the plea entered by the accused before the trial began. The focus of attention is solely on the evidence adduced during trial and nothing else.
    

PROSECUTION CASE

24. The complainant informed the court that in the year 2021 she was 15 years of age and a student. She was living in a two bedroom house with her mother, the accused her stepfather and her two young siblings. In one bedroom the complainant slept and in the other bedroom her two siblings while her parents slept in the sitting room.
25. One day in the month of May, 2021 the complainant’s mother went for a stomach massage at one of her aunt’s house. The complainant was at home with the accused and her two siblings. At around 10 to 11 pm the complainant was sleeping in her room when the accused came into her room and lay behind her back. The complainant turned and saw the accused and went back to sleep.
26. After a while the accused started kissing the complainant’s neck, turned her towards him and started touching her breast from over her clothes. Thereafter the accused went on top of the complainant she did not like what the accused was doing to her since he was her dad.
27. Whilst on top of the complainant the accused started removing her pants and panty and also pushed his pants down to his knees and then penetrated his penis into the vagina of the complainant. The complainant did not do anything, she was small she tried to raise her voice but could not since the accused was on top of her and he was heavy. The complainant felt pain and her body waist down became numb she did not agree to what the accused had done to her.
28. After the accused left the bedroom the complainant could not do anything since her body was weak. The next morning she asked the accused why he did that to her the accused told the complainant not to tell anyone or else he will do something to her including the person she tells.
29. At this time the complainant’s mother was at home but she did not tell anything to her mother because she was afraid of the accused. When asked to explain why she was scared of the accused the complainant stated the accused used to ill-treat her and her siblings by beating them and the accused would talk to them in an aggressive tone. The complainant further stated that this happened when they did something wrong or when they did not listen to what the accused told them. The threat by the accused had made her scared.
30. On 6^th June the complainant’s mother was getting ready to go to the hospital and be admitted for three days, the complainant and her siblings were to stay with an aunt. After her mother left the accused told the complainant and her siblings to stay at home.
31. At around midnight while sleeping the complainant felt someone behind her as she turned she saw the accused lying behind her. The complainant did not bother and slept again. After a while the accused started kissing her neck and touched her breast from on top of her clothes.
32. Thereafter the accused went on top of the complainant, removed her pants and panty and then unzipped his pants took out his penis and then penetrated it into her vagina.
33. The complainant did not like what the accused was doing to her and she felt bad because the accused was her father. The complainant did not do anything because she was small and he was big in built and when the accused was lying on top of her she was up to his chest.
34. The complainant had shouted but it was not loud and the accused was very heavy although her hands were free the accused was holding her tightly. The complainant did not agree for the accused to penetrate his penis into her vagina.
35. After having sex the accused stood up and threw the blanket at the complainant and told her not to tell anyone otherwise he will do something to her. The complainant got frightened that the accused might do something to her. The complainant did not do anything when the accused was doing all this to her.
36. The next day 7^th June the complainant’s mother was still at the hospital. Again in the night while she was sleeping the accused came into her bedroom and started touching her breast from on top of her clothes.
37. The complainant further stated “he laid on top of me this time it was fast he undress me and took off my clothes, trousers and panty, took off his, take out his penis and insert it into my vagina.”
38. According to the complainant the accused was holding her tightly so she could not do anything the complainant also could not scream. After the accused had finished he told the complainant not to tell anyone or he will do something to her and also to the person she tells.
39. The complainant did not agree to what the accused had done to her that night because the accused was her father and he was not supposed to do those things to her. Since the complainant was frightened of the accused she did not tell anyone about what the accused had done to her.
40. On 8^th June, 2021 the complainant’s mother had still not returned home. After dinner the complainant went to sleep in her bedroom. During the night the accused came and laid beside her touched her breast from on top of her clothes and then turned her to lie face-up and then laid on top of the complainant removed her trousers and panty and then penetrated his penis into her vagina.
41. The complainant felt bad about what the accused had done to her because he was her father. The complainant could not do anything since the accused was holding her tightly and she also did not shout because the accused was lying on top of her and was heavy.
42. The complainant did not agree to what the accused had done to her that night because the accused was her father and he was not supposed to do those things to her. Since the complainant was frightened of the accused she did not tell anyone about what the accused had done to her.
43. Next day the complainant’s mother came home but the complainant did not tell her mother anything because the complainant did not have any time to share these incidents whenever she was with her mother the accused would come and join in.
44. It was in November, 2021 the complainant went with her uncle and aunt to sell mangoes it was here her aunt noticed some changes in the complainant’s breasts and also the complainant was vomiting in the car. The complainant’s uncle asked her what happened, the complainant told her uncle the accused was doing all those acts to her. The complainant’s uncle got very angry the complainant’s mother was called and the matter was reported to the police. At the hospital it was confirmed by the doctor that the complainant was 6 months pregnant. After the matter was reported to the police the following day the accused came and apologized to the complainant, she did not respond.
45. In cross examination the complainant agreed that in respect of the first allegation she called the accused into her bedroom and when he came she was lying on her bed, however, she denied standing up and hugging the accused. The accused was not resisting and saying “if something goes wrong he will be charged.”
46. The complainant denied telling the accused that she was giving herself freely to him or kissing the accused or putting her hand inside the accused underwear and fondling his testicles and her other hand was not around the accused.
47. The complainant also denied moving backwards towards her bed and then falling on the bed and having consensual sexual intercourse with the accused.
48. On 6^th June, the complainant agreed her mother had gone to the hospital, however, she denied calling the accused into her bedroom in the night and hugging each other, falling gently on the bed, removing each other’s clothes and then having consensual sexual intercourse.
49. On 7^th June, 2021 the complainant denied forcing the accused to have sexual intercourse with her on her bed despite the accused saying “please let’s end this here.” The complainant denied going on top of the accused and inserting the accused penis into her vagina.
50. In respect of the final count of rape the complainant denied on 8^th June her mother was at home. The complainant denied the suggestion that since her mother was at home the accused had not touched her in any way.
51. The complainant agreed sex was forbidden or taboo for teenage girls in the village. She also agreed that the reason why she did not tell her family members about what the accused was doing to her was because she would be embarrassed if her sexual relationship with the accused was known by her family members.
52. The complainant denied she did not discuss about the incidents with anyone because she wanted to keep her relationship with the accused a secret. The complainant also denied being forced by her family members to blame the accused.
53. Upon further questioning the complainant agreed that in order to save herself and her family from embarrassment in the village she had reported the accused to the police for raping her. The complainant denied that despite having the opportunity to inform her siblings, her mother and other villagers about what the accused was doing to her she did not do so.
54. The complainant also denied that the reason she did not report about the alleged incidents was because she had consented to have sex with the accused.
55. In re-examination the complainant clarified that she had said “yes” to the question that in order to save herself from embarrassment she reported the accused for raping her because she was asked by her uncle about the person who had impregnated her so she told uncle it was her stepfather.
56. The final witness Manoa Vakatawabai the uncle of the complainant informed the court that the accused is his brother in law and they had a good relationship whereas the complainant is his niece (sister’s daughter).
57. One day the witness with his wife and the complainant had gone to pick some mangoes, his wife suspected the complainant was pregnant. When the witness asked the complainant whether she was pregnant the reply he got was the accused had impregnated her and the accused had told her not to tell anyone else otherwise he will do something to her.
58. When the complainant was telling this to the witness she was crying, the witness got furious when he heard this. The matter was reported at the Tavua Police Station.
59. In cross-examination the witness agreed that he told the court he was furious because he had come to know about the sexual relationship of the complainant and the accused.
    

RECENT COMPLAINT EVIDENCE

60. Complainants 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.

61. 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 is to be given to the fact that the complainant told her uncle Manoa Vakatawabai after about six months of the first incident that the accused had impregnated her.
    
62. This is commonly known as recent complaint evidence. The evidence given by Manoa 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.
    
63. 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 Manoa the accused had impregnated her and at the time of telling her uncle this, the complainant was a 15 year old ordinary villager. Furthermore, the complainant did not tell anyone about what the accused was doing to her because the accused had threatened the complainant that he will do something to her and to the person she tells.
    
64. The prosecution further states that the information given by the complainant to her uncle was sufficient to alert her uncle that the accused had done something wrong to the complainant. The prosecution also says although a bit late in time but when the opportunity presented itself she did not hesitate to tell her uncle about what the accused had done to her therefore she is more likely to be truthful.
    
    65. On the other hand, the accused says the complainant did not tell the complete truth to her uncle. She did not tell him that she was having a sexual relationship with the accused which had resulted in her pregnancy. When the uncle came to know the truth he got very furious that his niece was in a sexual relationship with her step father.
        
66. The complainant was 15 years of age at the time and it would be correct to say that she knew what was right and wrong. It took the complainant about six months after the first incident to tell her uncle a false story in order to blame the accused to save herself from embarrassment and therefore she should not be believed.
    
67. 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.
    
    68. This was the prosecution case.
        

DEFENCE CASE

70. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination. This court must also consider his evidence and give such weight as is appropriate.
    
71. The accused informed the court that sometimes in May, 2021 he was at his home at Drauniivi village. His wife had gone for a belly massage and he was with the complainant and two young children. After dinner the children went into their bedrooms to sleep, the complainant slept alone in one bedroom.
72. After a while the complainant called the accused saying “maqu” meaning dad come. As the accused entered the bedroom after pulling the curtain aside he freaked out when he saw the complainant standing behind the curtain. When the complainant hugged him he asked “what you doing” still the complainant did not release him and after a short while the complainant told the accused to lie on the bed with her.
73. The accused said this was not right and they should not do this. However, the complainant did not listen she held the accused tightly and said “look at me you are not forcing me, I am the one who is giving myself to you.” The complainant looked up and kissed the accused and he kissed her back. While kissing on the lips they were moving towards the bed and then she lay on the bed.
    
74. The accused laid on top of the complainant, she told the accused to take off her pants whilst the complainant unbuttoned his ¾ pants which resulted in the zip sliding down and then he removed his pants. The complainant then told the accused to insert his penis into her vagina.
75. The accused and the complainant then had sex according to the accused he told the complainant that it will pain the complainant said “just insert it”. After having sexual intercourse the accused had his shower followed by the complainant.
    
76. Thereafter on 6^th June, 2021 the accused wife left home to be admitted at the hospital for three days. After dinner the two younger children went to sleep in their room and the complainant went to her room. It was after 11pm the complainant came into the sitting room where the accused was sleeping and woke him. At this time the complainant asked the accused to come to her room.
    
77. In the bedroom the accused sat on the bed and again he told the complainant that he does not want to continue. The accused begged the complainant to stop but she did not, she held and kissed him the accused also kissed her. The complainant told the accused to remove her pants which he did and then the accused removed his pants.
78. Before inserting his penis into the complainant’s vagina he asked her if he can insert his penis into her vagina and she said “just insert it”. They had sexual intercourse at about 3 or 4 am the accused came into the sitting room.
    
79. On 7^th June the wife of the accused had not returned from the hospital. After dinner all went to sleep at around 10 or 11 pm the complainant called the accused into her room. In the room the accused pushed the complainant a bit to keep the complainant away from him but she did not agree and held the accused and then all of a sudden she opened the accused pants zipper got down on her knees held his penis and put it in her mouth.
80. Thereafter the complainant told the accused to lie down on the bed. As soon as the accused did this the complainant went on top of him basically sat on him and inserted the accused penis into her vagina. After this both had sex. Furthermore, both lay on the bed, hugged each other and were kissing each other late into the night.
    
81. Both agreed that this was the last time for them to have sexual intercourse. On 8^th June nothing happened between the complainant and the accused since his wife had returned from the hospital at around midday. After these incidents the accused and the complainant were good friends.
    
82. In cross examination the accused explained that he has living with his wife since 2012. The complainant was living with them and is a Form 4 student. The accused agreed that he would discipline all his children since he wants his children to do things he tells them to do. He denied he would discipline them by beating them or treating them roughly.
83. The accused denied the complainant used to be scared of him. Upon further questioning the accused maintained in respect of the May allegation the complainant was not asleep on her bed when he entered she was standing behind the curtain, she hugged him and both kissed till they ended up on the bed.
    
84. The accused agreed that he was caution interviewed by the police and he told them the truth of what had happened since everything was fresh in his mind. The accused was referred to Q. & A. 54 which was read as:

Q: What do you have to say about what “V” mentioned in her statement?

A: When my wife went to have her massage then I came into “V’s” bedroom.

85. The accused agreed that there are two versions before the court one he gave to the police and the other to the court. The accused denied he did not tell the truth in court.
    
86. The accused was referred to Q. & A. 55:

Q: When you went into her room what was she doing?

A: She was sleeping.

87. Again the accused agreed there were two versions before the court. One version is that the complainant called the accused in the bedroom and was standing behind the curtain and the accused freaked out and the other version to the police which he agreed was the truth of what had happened.
    
88. Again the accused was referred to Q. & A. 56 which was read as:

Q: Then what did you do?
A: She was lying down and I lied beside her and called her requesting if I
could lie beside her but she did not say anything.

89. The accused agreed there were two versions before the court when it was suggested that he told the truth to the police that the complainant was lying down and he laid next to her the accused denied this.
    
90. Again the accused was referred to Q. & A. 57:

Q. Then what did you do?

A: I called her again and I kissed her.

91. When it was put to the accused that he told the truth to the police, the accused stated that he believed it was the truth back then, the accused stated that it was the complainant who had kissed him.
    
92. Again the accused was referred to Q. & A. 58:

Q. Then?

A. Lay behind her and hugged her from the back then whilst hugging her I slowly removed her pants and panty.

93. The accused agreed he gave a different version to the court again the accused was referred to Q. & A. 60:

Q. As per the statement of “V.M” you were kissing her neck and fondling her breasts. What do you have to say?

A: Yes.

94. The accused agreed that he told the above to the police but denied kissing and fondling the complainant’s breast. The accused also denied having sexual intercourse with the complainant in May, 2021 without her consent and he had not threatened her after having sexual intercourse.
    
95. The accused denied that on the next day of the first alleged incident when the complainant asked him why he had done that he did not threaten her not to tell anyone about what he had done or else he would do something to her.
    
96. The accused stated that he told the truth in court as he had taken his oath on the bible.
97. In respect of 6^th June the accused agreed that his wife was going to be admitted at the hospital for three days but denied that all the children were to go to their aunt’s place. The accused denied entering the bedroom of the complainant, hugging her and kissing her on the neck and fondling her breast.
    
98. The accused also denied lying on top of the complainant and having sexual intercourse with her without her consent and he had not threatened her not to tell anyone about what he had done. The accused agreed that most of what he told the court in his evidence had not been put to the complainant during her cross examination and he was not making up a story in court.
    
99. On 7^th June the accused wife had not returned from the hospital he denied making up a story in court that the complainant had again called him into the bedroom, was standing behind the curtain and after saying no to her advances he had put out his hand to keep her at a distance. The accused again agreed that what he told the court in his evidence was not put to the complainant during her cross examination.
    

100. The accused denied committing the offences as alleged by the complainant or threatening her. The accused was referred to his caution interview Q. & A. 68:

Q: According to “V” the second day when your wife was still admitted at Rakiraki hospital on 7/6/21, she was sleeping in her bedroom when you came into her room, hugged her, kissed her neck fondled her breasts and then inserted your penis into her vagina without her consent and had sexual intercourse, what can you say to this?

1. Yes.

101. The accused agreed that he gave a different version in court to what he told the police. When questioned that he told the court that what he told the police was the truth the accused stated that he got his reasons why he said yes to all the questions asked by the police officer.
     
102. When asked that he had admitted to the allegation when questioned by the police the accused agreed but maintained that what he told the court was the truth.
     
103. When questioned about 8^th June the accused stated that his wife had returned home on this day and he was shocked to see her since she was to have come home the next day. The accused denied both the allegations raised against him by the complainant and said that nothing happened on 8^th June.
     
104. The accused agreed that after the matter was reported to police he had approached the complainant and apologized for what he had done to her.
     
105. In re-examination the accused stated that when he was caution interviewed he was not in his right mind he was emotional since his child was still born his wife was crying and things were not as it should have been so he kept on saying “yes” to whatever he was asked by the police officer.
     

PREVIOUS INCONSISTENT STATEMENT

106. This court directs its mind to the fact that the state counsel in the cross examination of the accused had questioned him about some inconsistencies in his record of interview which he had given to the police when facts were fresh in his mind with his evidence in court.
107. This court is allowed to take into consideration the inconsistencies between what the accused told the court and his record of interview when considering whether the accused is believable and credible. However, the record of interview 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.
     
108. 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 accused. 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.
     
109. This was the defence case.

ANALYSIS

110. The prosecution alleges that the accused is the step father of the complainant and they were living in the same house. In the year 2021 the complainant was 15 years of age.
     

111. One day between 1^st and 31^st May and from 6^th, to 8^th June, 2021 the complainant’s mother was not at home and on all the above dates during the night the accused would enter the bedroom of the complainant and lay behind her as she slept.

112. He forcefully kissed the neck of the complainant then turned her to face up and touched her breast over her clothes. The complainant did not like what the accused was doing to her. Thereafter the accused went on top of the complainant removed her pants and panty and then his pants and had forceful sexual intercourse with the complainant 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. The complainant could not do anything since the accused held her tightly and was heavy, the complainant was only up to the chest of the accused when he was on top of her.

113. After the above acts the accused threatened the complainant not to tell anyone anything about what he had done to her otherwise he will do something to her and also to the person she tells. The complainant was scared of the accused so she did not tell anyone anything. Furthermore, the complainant also could not tell anything to her mother because the accused would come and listen to their conversation which stopped the complainant from saying anything against the accused to her mother.
     
114. It was only when the complainant got pregnant that her aunt got suspicious after noticing the physique of the complainant. When the complainant’s uncle asked the complainant without any hesitation she told her uncle that the accused had impregnated her.
     
115. The matter was reported to the police and the complainant was medically examined. After the matter was reported to the police the accused approached the complainant and apologized to her for what he had done to her.
     
116. On the other hand, the defence says the allegations are a made up story narrated in court by the complainant. The truth is that the complainant and the accused were in a sexual relationship. The accused did not indecently assault the complainant in fact it was the complainant who was the initiator of the advances by calling the accused into her bedroom during night time. Upon seeing the accused the complainant would kiss and hug him and then have consensual sexual intercourse.
     
117. On one occasion she had gone on top of the accused and on her own inserted the accused penis into her vagina and thereafter both had sexual intercourse. The accused has been ejaculating inside the vagina of the complainant as a result she got pregnant. There was no force on the complainant by the accused he was matured of the two and he resisted the complainant and even counseled her against taking any steps towards intimacy since she was his step daughter. The accused also explained to the complainant the ramification of such a relationship and that she was very young for all this. Despite all the above the complainant did not stop but continued to force herself onto the accused.
     
118. In respect of the final count of rape the complainant did not tell the truth because the mother of the complainant was at home and there was no way the accused had done anything to the complainant.
     
119. Finally, the defence is asking this court not to give any weight to the evidence of the complainant. The complainant did not tell anyone about what the accused had done to her or about any threats made to her by the accused because everything happened with her consent and she was the one who was the most active player in the equation.
     
120. The complainant was not restrained by the accused at any time and there was nothing for the complainant to be afraid of. Manoa was furious because he came to know about the sexual relationship of the complainant and the accused and that Manoa with the complainant lumped every blame on the accused.

DETERMINATION

121. 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.
     
122. In this case the complainant was 15 years of age at the time of the allegations and the complainant is the step daughter of the accused. The accused relied on the defence of consent and denial.
     

LESSER OFFENCE OF DEFILEMENT

123. The defence counsel in her closing speech submitted that the court consider the lesser offence of defilement. Section 215 (1) of the Crimes Act defines the offence of defilement as follows:

A person commits a summary offence if he or she unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any person being of or above the age of 13 years and under the age of 16 years.

124. To prove the offence of defilement, the prosecution must prove beyond reasonable doubt that the accused had unlawful sexual intercourse with the complainant when she was above the age of 13 years and under the age of 16 years. Unlawful means without lawful justification or excuse. Consent is not a defence to defilement but reasonable belief of the accused that the complainant was over the age of 16 years is a defence.

125. Furthermore, as per section162 (f) of the Criminal Procedure Act when a person is charged with an offence and the court is of the opinion that he is not guilty of that offence but guilty of a lesser offence, the court may find the accused guilty of that lesser offence (see State v Ilimo Tulevu - Ruling [2016] FJHC 561; HAC65.2014 (7 June 2016).
126. After considering all the evidence this court cannot consider the lesser offence of defilement since consent is not a defence to the offence of defilement.

127. After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. The complainant was able to withstand cross examination and she was not discredited. She was also able to narrate her version of the events in a concise and coherent manner.
     
128. In my considered judgment the complainant gave an honest account of what had happened and her demeanour was consistent with her honesty. I have no doubt in my mind that the complainant told the truth in court. The complainant was not shaken as to the basic version of her allegations, even Manoa was a credible witness his evidence can also be relied upon. He is the brother in law of the accused and there was no suggestion that Manoa had any motive to concoct a story against the accused. Manoa told the court what the complainant had told him. This court accepts the evidence of both the prosecution witnesses as reliable and worthy of belief.

LATE REPORTING

129. Furthermore, it is obvious that there is an issue of late reporting by the complainant to the police. The delay is about 6 months from the date of the first allegation in May, 2021. 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.”

130. Firstly, I would like to state that the accused was a person of authority in that he was the step father of the complainant and both were living in the same house. I accept that the complainant was treated badly by the accused in that she was assaulted for not listening to the accused on previous occasions.
     
131. Secondly, I also accept that the accused had threatened the complainant not to tell anyone about what he had done to her otherwise he will do something to her and to the person she will tell. This in my judgment had instilled fear in the mind of the complainant who did not tell anyone about what the accused was doing to her.
     
132. It was only after the complainant was asked by uncle Manoa about what had happened to her that the complainant immediately told her uncle it was the accused who had made her pregnant. I also accept the distressed state of the complainant when she was telling her uncle about what the accused had done to her.
     
133. The late reporting in my view was beyond the control of the complainant she was afraid of the accused and when the opportunity presented itself the complainant opened up and expressed herself to her uncle which led to the prompt reporting of the complaint to the police. The complainant was not independent from the authority or control of the accused or a free agent who could have told someone or reported the matter to the police earlier. The accused was living with the complainant and there is evidence that he would be present when the complainant and her mother conversed with each other which in my judgment also contributed to the late reporting.
     
134. I accept that the complainant was a victim of circumstances which resulted in delayed complaint to Manoa and late reporting to the police. In addition to the above, the accused was also snooping around the complainant and her mother when they were together so as to stop the complainant (who was already scared of him) from complaining to her mother.
     
135. Moreover, when the complainant told her uncle that the accused had impregnated her she narrated crucial information about what the accused had done to her which in my considered judgment was enough to alert Manoa that something was not right so he immediately called the complainant’s mother and then the matter was reported to police without any further delay.
     
136. 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.

137. Although the complainant did not go into much detail when telling her uncle about her pregnancy is understandable due to the age difference between the two and the relationship that existed. The decisive aspect of the recent complaint evidence is to show consistency of the complainant’s conduct with her evidence given at trial. It is not expected of anyone who has had an unexpected sexual encounter to give every detail of the accused unlawful sexual conduct to the person the complaint is relayed to. Here the complainant was consistent in her evidence and in her narration of what had happened to her in conversing with Manoa.
     
138. Finally, the accused admitted in cross examination that after the matter was reported to the police he had apologized to the complainant for what he had done to her.
     
139. On the other hand, the accused did not tell the truth he gave a version of events which is not tenable or plausible on the totality of the evidence. I reject the defence assertion that the accused had not done anything to the complainant without her consent as unworthy of belief. The demeanour of the accused was not consistent with his honesty he did not tell the truth. He was narrating in court a story of an ideal man who was called into the bedroom by the complainant and she would make all the sexual advances towards him and would go to the extent of restraining the accused is unbelievable.
     
140. The accused even went to the extent of saying that he was stopping the complainant yet he did not go away from the complainant is far-fetched. Being a person who would discipline the complainant by assaulting her I reject the defence assertion that the complainant was the initiator of all the sexual advances towards the accused.
     
141. The accused was caution interviewed and the facts of this case were fresh in his mind at the time of his interview. The accused told the truth to the police officer interviewing him. I give weight to the fact that the accused in his caution interview voluntarily admitted what he did to the complainant.
     
142. In my observation the accused was putting a brave face in court and making the complainant look like the architect of all his miseries. In addition to this, the accused was also presenting himself as a responsible individual that whatever he did he would first ask for the complainant’s consent is also rejected as improbable and far-fetched. The narration given by the accused was a well thought out story which lacked the goodness of a genuine happening.
     
143. I reject the evidence of the accused that at the time of his caution interview he was not in his right mind due to his personal situation of a still born child and a crying wife was designed to save him from any blame. The accused did not make any complaints against the police officers as to how his caution interview was conducted shows the accused had voluntarily given his answers during his caution interview. The accused also struck me as a strong willed person who will not incriminate himself by saying things against his interest.
     
144. I do not accept that the allegations were made up by the complainant to falsely implicate the accused. The defence has not been able to create a reasonable doubt in the prosecution case.
     

CONCLUSION

145. This court is satisfied beyond reasonable doubt that the accused between the 1^st and 31^st May and from 6^th to 8^th June, 2021 had unlawfully and indecently assaulted the complainant by kissing her neck and touching her breast.
     
146. This court is also satisfied beyond reasonable doubt that the accused had acted unlawfully that is without lawful excuse and indecently in what he did to the complainant. The acts of the accused on the above occasions have some elements of indecency that any right minded person would consider such conduct indecent.
     
147. The court is also satisfied beyond reasonable that the accused on the above mentioned dates had penetrated the vagina of the complainant with his penis without her consent. This court also accepts that the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
148. In view of the above, I find the accused guilty of four counts of indecent assault and four counts of rape as charged and he is convicted accordingly.
     
149. This is the judgment of the court.
     

Sunil Sharma
Judge

At Lautoka
08 June, 2023

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