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High Court of Fiji |
THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 399 of 2022
THE STATE
V
ISIMELI BURUA RADRAVU
Counsel : Ms S Bibi for the State
Mr E Veibataki for the Accused
Hearing : 18 & 19 July 2024
Closing addresses: 25 July 2024
Judgment: 5 August 2024
JUDGMENT
[1] The Complainant has been granted name suppression. Therefore, any public record of these proceedings must not contain any information that may lead to the identity of the Complainant. She is referred to as ‘AB’ in this Judgment. I have deliberately avoided identifying details that may lead to identifying the Complainant, such as the name of her parents, her grandparents or the name of her village.
[2] The Accused, Mr Isimeli Radravu, is charged with the following three Counts:
Count 1
Statement of Offence
Sexual Assault – Contrary to Section 210(1)(a) of the Crimes Act 2009
ISIMELI BURUA RADRAVU between the 13th day of November 2022 and 14th day of November 2022, at Ovalau, in the Eastern Division, unlawfully and indecently assaulted AB by biting her breast and by licking her highs, from inside her clothes.
Count 2
Statement of Offence
Rape: Contrary to Section 207(1) & (2)(b) & (3) of the Crimes Act 2009
ISIMELI BURUA RADRAVU between the 13th day of November 2022 and 14th day of November 2022, at Ovalau, in the Eastern Division, penetrated the vagina of AB, a child under the age of 13 years, with his tongue.
Count 3
Statement of Offence
Rape: Contrary to Section 207(1) & (2)(b) & (3) of the Crimes Act 2009
ISIMELI BURUA RADRAVU between the 13th day of November 2022 and 14th day of November 2022, at Ovalau, in the Eastern Division, penetrated the vagina of AB, a child under the age of 13 years, with his finger.
[3] Mr Radravu denies having committed the offences.
[4] Mr Radravu is alleged to have raped the Complainant, a child under 13 years, on a date between 13 and 14 November 2022 by penetrating the vagina of the Complainant with his tongue and finger. Mr Radravu is also alleged to have sexually assaulted the Complainant over the same period by biting the breast of the Complainant and licking her thighs from the inside of her clothes.
Count 1 – Sexual Assault
[5] Sexual assault is an offence contrary to s 210(1)(a) and (2) of the Crimes Act.
[6] To establish the offence of sexual assault, the prosecution must prove the following elements beyond a reasonable doubt:
Counts 2 & 3 – Rape
[7] The offence of rape has three elements: the penetration of a complainant’s vagina, anus or mouth by an accused with their penis, finger or an object, the complainant not consenting to sexual penetration, and the knowledge of the accused that the complainant was not consenting.[1] The slightest penetration is sufficient to establish the element of penetration.
[8] As the Complainant here is alleged to have been under 13 years, it is not necessary for the prosecution to establish that she did not consent or that the Accused knew that the Complainant did not consent to the penetration.[2]
[9] To establish the two offences of rape in the present case, the prosecution must prove the following elements beyond a reasonable doubt:
Burden of proof and assessment of the evidence
[10] Mr Radravu is presumed to be innocent until he is proven to be guilty. As a matter of law, the onus or burden of proof rests on the prosecution throughout the trial, and it never shifts to Mr Radravu. There is no obligation or burden on Mr Radravu to prove his innocence.
[11] Mr Radravu chose to give evidence, but he does not carry any burden to prove or disprove anything. The burden remains on the prosecution to prove his guilt beyond a reasonable doubt.
[12] The burden is on the prosecution to prove the charges beyond a reasonable doubt. Each element of the charge must be proved but not every fact of the story. If there is a reasonable doubt, so that the Court is not sure of Mr Radravu’s guilt, or if there is any hesitation in my mind on any of the elements, Mr Radravu must be found not guilty of the charges and, accordingly, acquitted.
Approach to the assessment of the evidence
[13] I approach the evidence dispassionately, without sympathy or value-laden rules regarding how men and women should conduct themselves. It is entirely a matter for me to decide which witnesses are credible and reliable and which part of their evidence I accept as true.
[14] The prosecution’s case is dependent upon the Complainant’s evidence. She is 14 years old. Her evidence does not require corroboration. If her account of the alleged incidents is true, then Mr Radravu is guilty of the charges. However, if her account is false or may be false then Mr Radravu is not guilty.
[15] The identity of Mr Radravu is an issue in this case. The Defence claim that the Complainant has mistakenly identified the Accused as the offender when, in fact, the offender is someone else. Accordingly, the prosecution must prove beyond reasonable doubt all the elements of the alleged offending, including that the Accused is the person alleged to have committed the offending.
Prosecution Evidence
[16] The Accused did not admit any facts. That is his right. The prosecution must establish every element of the offence beyond a reasonable doubt.
[17] The State called three witnesses, being:
[18] The State made two preliminary applications in respect to the Complainant’s evidence; namely, that her evidence be provided in closed court and that a screen be placed between the Complainant and the Accused while she provided evidence. The Accused did not object. The two orders were granted.
[19] The Complainant’s evidence in examination-in-chief was as follows:
I was sleeping and I woke up when I felt that he was biting my breast, and the lights were off and he was bending beside the settee. And then he stood up and he went out and the lights outside was on, and that’s when I knew that it was Isimeli. After that he came back and opened my thighs and he licked my mimi and up to my neck and he went out again. He closed the door and went inside room, and when he went inside the room I stood up and pulled my clothes and ran home...
[20] In cross-examination the Complainant stated:
[21] In re-examination, the Complainant stated that the two other boys who were watching the movie with her were her cousins; one was younger than the Complainant while the other was older. The two boys stayed with their own family in another house in the same settlement. The Complainant identified the Accused in the dock as the person who had committed the offences on her.
[22] Adi Vika Marama Navukula was the second prosecution witness. Ms Navukula is a teacher. She was teaching at the school that the Complainant was attending at the time of the alleged offending. She has been teaching at this school for 10 or 11 years. Ms Navukula has a diploma in education as well as a certificate in student counselling. She described the Complainant as a ‘calm student, very humble’. On the morning of Monday 14 November, at about 8am she was in the classroom at school. She noticed that as soon as the Complainant entered the classroom she was crying. Ms Navukula stated:
...Then I asked her, what happened to you. She said that somebody molested her on that night. Sunday night, and I said, how can you describe it to me. Then she described the situation to me. From then, then I went to report the matter to the Head Teacher. Then the Head Teacher reported it to the police on the same day.
...
...she [the Complainant] said that she went to watch movie in the grandmother’s place. When she woke up, it was dark. The lights were off. And she could feel that her pants were down and somebody was licking her...
...
She said she could feel somebody licking her breast. But she didn’t go into detail with me because the whole time she was crying.
[23] In cross-examination, Ms Navukula stated that the Complainant’s mother only became aware of the incident when the Head Teacher called the Complainant’s mother to inform her.
[24] The third and final prosecution witness was Dr Vakaraia Mavoa. He was a medical officer at the local medical centre on Ovalau in November 2022. He examined the Complainant on 14 November 2022 in relation to the police complaint. Dr Mavoa completed a Fiji Police Medical Examination Form which was produced as Prosecution Exhibit 3. The contents were based on his examination and interview of the Complainant on 14 November 2022. Dr Mavoa explained the contents. The history at D(10) reads:
As related by the victim, she woke up with her pants down in the middle of the night when the perpetrator was sucking on her breast. She pulled up the blanket and pants and fell off to sleep again. She was awoken again by when the perpetrator was biting and licking her foot. He went on to lick her vagina and used his finger to penetrate her vagina: holding her mouth she, by his other hand. Third time she ran to her house.
# Appear shy and emotional in sharing her story.
[25] Dr Mavoa’s medical findings were a ‘[t]orn hymen with minimal bruise to the right labia minora’. He stated that the age of the injury was recent, within 24 hours, and attributed the cause to a ‘penetrating injury’. Dr Mavoa’s conclusion, contained at D(16), reads:
12-year-old female claimed to have been sexually assaulted in the early hours of this morning, to which the perpetrator used his tongue and fingers on her vagina as well as her breast and neck while holding her mouth shut by one hand. Matters were reported to police this morning.
[26] Dr Mavoa prepared a diagram in the report showing the location of the Complainant’s bruise and torn hymen. He explained that he mistakenly used the word ‘imperforated’ on the diagram when he meant to use the word perforated. He opined that the injuries to the Complainant’s vagina were caused by a blunt force or strenuous activity and that the bruise was likely caused within 24 hours of his examination because it was still red. Normally after 24 hours a bruise will turn purple in colour.
[27] In cross-examination, Dr Mavoa acknowledged that there were no marks on the Complainant's breast or nipple and that the bruise on the vagina could have been caused by a blunt object other than a tongue.
[28] The prosecution then closed its case.
[29] The Defence advanced an argument of no case to answer in respect to count 3. Responsibly, counsel accepted that there was some evidence for each of the elements for Counts 1 and 2. However, he submitted that there was no evidence provided by the Complainant that the Accused had penetrated her vagina with his finger. The prosecution agreed, as did I.
[30] Accordingly, I found that the Accused had a case to answer in respect to counts 1 and 2. However, with respect to count 3, I found Mr Radravu not guilty.
Defence’s Evidence
[31] I put the three options to Mr. Radravu. He chose to provide sworn evidence.
[32] In examination in chief, Mr Radravu stated that he is 22 years old, he will be 23 years on 18 October. He accepted that the Complainant had been assaulted but stated that it was not him that was responsible. He stated there were three other males in the house that night.
[33] In cross-examination, Mr. Radravu stated:
[34] In clarification from the Court, Mr Radravu stated that when he fell asleep, the two boys were still watching television. When he woke up the next morning, there was no one in the living room.
Summary of the Evidence
[35] In November 2022, the Complainant was aged 12 years and living with her family in a small settlement. Her grandparents lived in the house next door. There are two bedrooms in the grandparents’ house. The grandparents occupied one bedroom while the Accused, who was then aged 21 years, occupied the second bedroom. He had started living with his grandparents that same month. The Accused and the Complainant are cousins.
[36] On the evening of Sunday, 13 November 2022, the Complainant was watching a movie in the living room of her grandparents' house. Also watching the movie were the Accused, her grandmother and two male cousins who lived elsewhere in the same settlement. The Complainant fell asleep on the settee in the living room while watching the movie. The Complainant says she awoke later. She was still lying on the settee. The lights in the house were off and it was dark. The movie had clearly finished. She was awoken by someone biting her breast. She could not see who was doing this because it was too dark. The offender then got up and walked outside. A light was on outside the house and as soon as the offender walked outside into the light the Complainant says she was able to see that the offender was the Accused. The Accused came back into the house, pulled the Complainant's clothes off, opened her thighs and licked her vagina with his tongue. The Complainant says that the Accused’s tongue went inside her vagina causing her pain. She states that the Accused also licked her thighs and licked up to her neck. The Complainant states that the Accused then went into his bedroom and closed the door. The Complainant pulled her clothes on and immediately ran home.
[37] The Accused does not deny that the Complainant was raped and sexually assaulted but says it was not him. He says that he too fell asleep in the living room while watching the movie. The Complainant was already asleep on the settee when he fell asleep, but the two boys were still watching the movie. He woke up the next morning in the living room and found that there no one else in the living room. He did not see or hear the alleged offending as he was asleep.
[38] The next day, the Complainant’s teacher saw the Complainant crying when she arrived at school. The reason for the crying, as explained by the Complainant to the teacher, was an assault on the Complainant the previous night. The teacher reported the matter to the Head Teacher who in turn informed the police and the Complainant’s mother.
[39] The police arranged for the Complainant to be medically examined the same day. Dr Mavoa conducted the examination. He found recent injures to the Complainant’s vagina, being a bruise and a torn hymen.
[40] As stated, the Accused does not dispute that the Complainant was raped and sexually assaulted on the evening of 13 November 2022. His defense is that it is a case of mistaken identity and that he was not the offender. He points out that there were three other males in the house that night being his grandfather and the two other male cousins.
Analysis of Evidence and Determination
[41] I remind myself that the burden to prove the Accused’s guilt beyond a reasonable doubt lies with the prosecution throughout the trial and it never shifts to the Accused. The Defence does not dispute that the Complainant was raped and sexually assaulted on the evening of 13 November 2022. The Accused says, however, that it was not him. He was in the same room but asleep when the alleged offences occurred.
[42] Irrespective whether the Accused accepts that the Complainant was raped and sexually assaulted, I must still be satisfied beyond reasonable doubt that the offending occurred. I must be sure of the truth of the Complainant’s evidence, being that a person bit her breast, licked her thighs and penetrated her vagina with his tongue on the night of 13 November 2022.
[43] I keep in mind the following factors when determining the credibility and reliability of a witness such as: promptness, spontaneity, probability, improbability, consistency, inconsistency, contradictions, omissions, interestedness, disinterestedness, bias, and the demeanour and deportment in court - see Matasavui v State [2016] FJCA 118; AAU0036.2013 (30 September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).
[44] Count 1 alleges that the Accused bit the Complainant’s breast and licked her thighs under her clothes. The Complainant’s evidence is that an offender bit her breast but she does not state whether she was bitten on her clothing or beneath her clothing. The Complainant also states that when the Accused pulled off her clothing he licked her thighs. As such, there is evidence from the Complainant both of biting the breast and licking the thighs, the latter under the Complainant’s clothes.
[45] Similarly, with respect to count 2, there is evidence from the Complainant that an offender penetrated her vagina with his tongue after pulling down her clothes.
[46] If I accept the Complainant’s evidence as true then she was raped and sexually assaulted on the evening of 13 November 2022. I am satisfied that the Complainant’s evidence on these matters is true. Her description of the assaults on her were sufficiently clear. She was visibly embarrassed when providing evidence on these intimate matters. She made appropriate concessions in cross examination such as that her mother did not believe her and that she could not see the offender when he was committing the offences as it was dark. She was tearful under cross-examination when speaking about informing her mother of the assault and her mother’s reaction that she did not believe the Complainant.
[47] There were inconsistencies such as the failure by the Complainant to describe the finger penetration (contrary to the description given to Dr Mavoa). Also, it was not clear whether the Complainant had stated that she had informed her mother of the assault before she went to school; her teacher’s evidence was that her mother was not aware before being informed by the Head Teacher. The court must take into account any inconsistencies to consider whether a witness is believable and credible. It is obvious that the passage of time can affect one’s accuracy of memory. It cannot be expected that every detail will be the same from one account to the next. If there is an inconsistency, it is necessary to decide, firstly, whether the inconsistency is significant and, secondly, whether the inconsistency 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. If there is an acceptable explanation for the change, then this Court may conclude that the underlying reliability of the witness’ evidence is unaffected. If the inconsistency is fundamental, then it is for this Court to decide to what extent it influences the reliability of the witness’ evidence. As the Court of Appeal observed in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) at [16]:
[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;
[48] The inconsistencies by the Complainant are explained by the Complainant’s young age and the time that has passed since the alleged events. Also, the events will have been traumatic for her at the time. It would be surprising if she were able to recall all the circumstances of the assaults fully and accurately. The core aspects of her evidence remain intact. I am, therefore, satisfied that the Complainant’s evidence is a true account of the assaults on her. In addition to her own evidence, she reported the matter the next morning to her teacher. The importance of the teacher’s evidence pertains to the recent complaint rule – she was the first person that the Complainant complained to about the Accused’s conduct. This evidence does not corroborate the Complainant’s evidence but the consistency of the timing of the complaint lends weight to the Complainant’s credibility. As the Court of Appeal noted in Kumar v State [2018] FJCA 65:
[9] It was the evidence of PW2, Madhur Lata who gave evidence relating to recent complaint. Regarding recent complaint the Respondent referred to the decision in Senikarawa v. State [2006] FJCA 25; AAU0005.2004S (24 March 2006) where it was stated:
[14] Evidence of recent complaint may be adduced to show the consistency of the conduct of the complainant and to negative consent. Kory White v. R [1998] UKPC 38; [1999] AC 210 requires that both the complainant and the named person to whom the complaint was made must testify as to the terms of the complaint. If the evidence of recent complaint is admitted then the jury should be directed that such complaint is not evidence of the facts complained of and cannot be regarded as corroboration, but goes to the consistency of the conduct of the complainant with her evidence given at the trial.
[15] The principle on which the evidence is admitted is to support and enhance the credibility of the complainant. The jury, in assessing the truth of the complainant’s evidence, may take into account evidence as to the consistency between that evidence and evidence of her contemporaneous complaint. It can be aid to her credit (Spooner v. R [2004] EWCA Crim. 1320, Eng. Court of Appeal.
[10] In State v. Likunitoga [2018] FJCA 18; AAU0019.2014 (8 March 2018), the Court of Appeal stated:
[56] The legal position on recent complaint evidence was stated in Raj v. State CAV0003 of 2014: 20 August 2014] FJSC 12
In any case evidence of recent complaint was never capable of corroborating the complainant’s account: R v. Whitehead (1929) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant’s conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v. The State Crim. App.12 of 1989; Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439; Vasu v. The State Crim. App. AAU0011/2006S. 24th November 2006.
Procedurally for the evidence of recent complaint to be admissible, both the complainant and the witness complained to, must testify as to the terms of the complaint. Kory White v. The Queen [1998] UKPC 38; [1999] 1 AC 210 at p215H.K.”
The complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
[11] In Anand Abhay Raj v. State [2104] FJSC 12; CAV0003.2014 (20 August 2014) the Supreme Court referring to recent complaint stated:
[38] The complaint is not evidence of facts complained of, nor is corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
[49] It is for this Court to decide whether the evidence of recent complaint assists in reaching a decision. The question of consistency or inconsistency in the Complainant’s conduct goes to her credibility and reliability as a witness. I am satisfied that the complaint to the teacher is consistent with the Complainant’s evidence. The complaint was reported the very next morning to her teacher. The Complainant was crying at the time which is further consistent with her account.
[50] The evidence from Dr Mavoa is also consistent with the Complainant’s evidence. The Complainant stated that the offender penetrated her vagina with his tongue causing her pain. Dr Mavoa found recent injuries to the Complainant’s vagina which was consistent with the rape and the timing of the events.
[51] The only question that remains is whether the Accused is the person who committed the offences. The Accused says that the Complainant is mistaken.
[52] Where identification is in issue the guidelines in R v Turnbull [1976] 3 All ER 549 are required to be applied. This has been recognized in Fiji for some time. The same was reiterated by the Supreme Court as follows in Koroivuki v State [2017] FJSC 28 (26 October 2017):
[15] In R v Turnbull (1977) Q.B.224, [1976] 3 WLR 445, [1976] 3 All ER 549, at 551 to 552,Lord Widgery CJ articulated special guidance on visual identification in the following words:
“ First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance. If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”(Emphasis added).
[16] The guidelines enunciated by Lord Widgery CJ have been consistently recognised and applied in Fiji...
[53] There are certainly some contradictions with the Complainant's evidence on identification. It was unclear at times whether the Complainant stated that the offender had walked outside a second time, ie after the rape, back into the light. There is also the question of the fact that it was dark in the house at the time of the offending and the Complainant had just woken from her sleep when the offending occurred. As the Accused points out, there were three males in the house that night before the Complainant fell asleep. In addition, it is of course possible that another male entered the house and committed the offences.
[54] I remind myself as per the Turnbull guidelines of the need for caution before convicting a person in reliance on the correctness of an identification. Witnesses can be mistaken. They can also convince themselves of an identification even where they are mistaken. Here, however, the Accused was known to the Complainant. She was, therefore, able to recognize the Accused. The Complainant was adamant that she saw it was the Accused when he stepped into the light provided by the outside tube light. She stated that the light was bright and that she had an unobstructed view of the Accused. Another factor that lends weight to the Complainant’s recognition is her evidence that the Accused went into his bedroom after he had raped her. I found the Complainant to be a reliable and truthful witness. Her contradictions were understandable given, again, her age and the fact that these events happened almost 2 years ago.
[55] Nevertheless, the Accused provided evidence and denies the offences. He states that he slept in the same room that night but that he did not commit the offences. That if the Complainant was raped and sexually assaulted, he neither heard nor saw the same.
[56] I am sure that the Complainant was raped and sexually assaulted by an offender as she was lying on the settee on the evening of 13 November 2022. That being the case, if the Accused is to be believed then another male entered the living room, raped and assaulted the Complainant, and then went into the Accused’s bedroom. I do not find this to be plausible.
Conclusion
[57] I have found the Accused not guilty of count 3 of digital rape. The Complainant did not provide evidence of any finger penetration of her vagina. The Accused is acquitted of this charge.
[58] With respect to counts 1 and 2, despite the fact that I do not accept the Accused’s evidence it does not mean that the Accused is guilty. The prosecution is not relieved of its burden to prove beyond a reasonable doubt that the offences were committed by the Accused. Having listened to all the evidence carefully I am sure that the Complainant’s evidence correctly sets out what happened to her that night. Her complaint to her teacher the next day is consistent with the Complainant’s evidence as is the evidence from her medical examination.
[59] I accept the evidence of the Complainant as truthful and reliable. She gave a clear account of what the Accused had done to her. The Complainant was not discredited as to the core version of her allegations. I have no doubt in my mind that she told the truth. Her demeanour was consistent with her honesty. The fact that the Complainant did not yell or wake her grandmother when the offending was occurring does not mean that the offending did not occur.
[60] I do not accept the Accused’s evidence. He asserts that the Complainant is mistaken with her identification of him as the offender. I am satisfied that the Complainant was able to properly identify the Accused as the offender.
[61] The Court is satisfied beyond a reasonable doubt that the Accused on the evening of 13 November 2022 unlawfully and indecently assaulted the Complainant by biting her breast and licking her thighs. Irrespective whether the biting of the breast was inside or outside the clothing, this act and the licking of the thighs has some element of indecency in that any right-minded person would consider such conduct sexual and indecent in nature.
[62] The Court is also satisfied beyond a reasonable doubt that the Accused on the same night penetrated the vagina of the Complainant with his tongue.
[63] In view of the above, I find the accused guilty as charged of count 1 of sexual assault contrary to s 210(1)(a) of the Crimes Act, and guilty of count 2 of rape contrary to s 207(1) and (2)(b) and (3) of the Crimes Act, and he is, accordingly, convicted.
............................
D.K.L Tuiqereqere
JUDGE
Solicitors:
Office of Director of Public Prosecutions for the State
Legal Aid Commission for the Accused
[1] Section 207(2).
[2] Section 207(3).
[3] I have deliberately not identified the day of her birth to avoid identifying her.
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