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State v Raj [2024] FJHC 598; HAC103.2021 (25 September 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA SITTING IN BA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 103 OF 2021


BETWEEN2024_59800.png


STATE


AND2024_59801.png


RONEEL ROHITESH RAJ


Appearances2024_59802.png Ms. S Naibe (ODPP) for the State
Mr P Sharma & Mr N Chand for Accused


Trial dates2024_59803.png 9th - 13th September 2024
Closing Submissions: 17th September 2024
Judgment date2024_59804.png 25th September 2024


JUDGMENT


[The name of the complainant juvenile is suppressed, and she will be referred to as “SFN”]


Introduction


  1. The accused in this matter was charged for 2 counts of Rape contrary to section to sections 207(1) and (2)(a) and 3 of the Crimes Act 2009 and 2 counts of Sexual Assault contrary to section 210(1)(a) of the Crimes Act 2009.
  2. The statement and particulars as per the amended information as follows:

First Count

(Representative Count)

Statement of Offence

RAPE: contrary to section 207(1) and (2)(a) and 3 of the Crimes Act 2009.

Particulars of Offence

RONEEL ROHITESH RAJ between the 1st day of February 2016 and 31st day of December 2017 at Ellington, Rakiraki in the Western Division had carnal knowledge of SFN, a child under 13 years of age.

Second Count

(Representative Count)

Statement of Offence

RAPE: contrary to section 207(1) and (2)(a) and 3 of the Crimes Act 2009.

Particulars of Offence

RONEEL ROHITESH RAJ between the 1st day of February 2016 and 31st day of December 2017 at Ellington, Rakiraki in the Western Division had penetrated the vagina of SFN with his finger, a child under 13 years of age.

Third Count

(Representative Count)

Statement of Offence

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

Particulars of Offence

RONEEL ROHITESH RAJ between the 1st day of February 2016 and 31st day of December 2017 at Ellington, Rakiraki in the Western Division unlawfully and indecently kissed the mouth of SFN, a child under 13 years of age.

Fourth Count

(Representative Count)

Statement of Offence

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

Particulars of Offence

RONEEL ROHITESH RAJ between the 1st day of February 2016 and 31st day of December 2017 at Ellington, Rakiraki in the Western Division unlawfully and indecently licked the breasts of SFN, a child under 13 years of age.


  1. At the conclusion of prosecution case there was a case to answer for all the four counts. Accused was directed to give his defence and he opted as of right to remain silent. Two witnesses were called in support of the defence case. Respective counsels submitted their closing submissions as directed by the Court and I acknowledge the assistance extended to the Court.
  2. I now turn to briefly consider the relevant evidence adduced at trial for both prosecution and defence.

Brief of Prosecution Evidence


  1. PW1 – SFN (complainant)

She lives with her parents and 2 brothers at Rarawai Rakiraki. She was born on 17th July 2007 and currently in form 5 at Rakiraki Public High School. She was 9yrs old in 2016 and in class 4 and attended Naria Primary School. In 2016 she was living with her parents and one sibling Adrian who was 5 years old then. She also recalled that in 2016, Ateca (their house girl), her uncle (store manager) and Roneel the accused (security guard) also stayed with them, when parents were at work. She had known accused from 2016 because after Cyclone Winston as he was employed by her father and used to do repairs for damages at their place. She had known the accused from 2016 to 2020 as a friend. Apart from being security guard, fixing damages to the house, accused used to spend most of the time with her.

She recalls that in 2016 accused used to sexually abuse her when her parents were at work. Accused used to take her into her parents bedroom and used to forcefully insert his penis into her vagina and used to close her mouth really tight. Accused would grab her hold of her and covered her mouth tightly, lay her on parents bed and used force on her and it really hurt. When accused is done, he would remind her to make sure that she doesn’t tell anyone and threaten her when his done. Accused would do that for 8 – 10 minutes.

She recalls when she was having her shower with her little brother when accused came in the bathroom and when she was done, accused carried her when she was wearing only a towel, to her parents bedroom. Her small brother would still be in the bathroom then. She saw and felt it when accused would insert his penis into her vagina. Accused would be standing and he titled himself, forcefully held her mouth and pressed her down then insert his penis and only stopped when he saw her bleeding then. Accused really held her tightly and pulled her towards himself which ripped her vagina opening slightly. Her vagina was bleeding when accused forced himself and inserted his penis which really hurt. After doing this accused told her that what his doing is normal and told her not to speak to anyone. Accused would then wipe his penis, wrapped up and went out of the room. Accused was wearing a t-shirt and blue jeans then and when he had done this acts to her, he was not wearing any clothing then. She was lying on her back and accused standing and holding her hands. Half of her body was on the middle edge of the bed and the other half accused was holding. Accused would be standing on the edge and facing towards her. When accused had inserted his penis into her vagina, she tried to move but couldn’t as accused covered her mouth she couldn’t scream. Accused also holding her legs and pressing on her arms. She didn’t tell anyone what happened because accused had threaten to do something to her if she said a single word to anyone.

There were several incidents and she recalls once in the kitchen. Accused called her into the kitchen behind the counter and would lay himself down and would forcefully grabbed her and told her to sit on his penis. Accused would pull her pants down half of it down and could feel accused inserting his penis into her vagina. Accused would do this for a couple of minutes. When this incident occurred, her younger brother was in the living room watching TV and the house girl was taking clothes off line. She wouldn’t shout because accused told her not to scream or to say anything to anyone. Accused did these acts to her in 2016 and 2017. She recalls that accused did other acts too and he would use his mouth to forcefully kiss her and also suck her vagina whenever he had the opportunity. She recalls this happened when she was 10 years old and done to her multiple times. She really felt bad in 2016 and 2017 when accused was doing all these acts to her.

Then in 2020 an incident occurred in school and her parents were notified and her Dad came to pick her. Her mother then asked her what was happening in school and she didn’t say a word. Her mother then picked the belt to correct and discipline her and then she told her mother everything that happened to her those years and why she was acting that way. She then told her mother that during those years when they were away at work, accused used to spend time with her and sexually abuse her, threaten her to live in fear. She then decided to speak out. He mother broke into tears and couldn’t believe what had occurred those past years. Her parents then reported to police. She had not reported too because his father and accused went to school together and seeing their friendship, she thought his Dad wouldn’t believe her. She identified the accused in court. In 2016 and 2017, her mother used to work in the hospital and her father used to run around for errands. It was during the day when accused would do the said acts to her.


In cross examination she confirmed that the alleged incidence happened in 2016 and 2017. She had known accused from 2016 to 2020 and not prior to that. She confirmed that the first act was done to her when she was having her shower. She didn’t inform her parents or anyone about what accused had done to her because accused had threatened to punish her if she opened her mouth and therefore she lived in fear. She also recalls when the matter was reported to police and they came to their place. This police lady and social welfare worker came and took her to her room and started questioning her. The incident that occurred to her happened at midday when her mother was at work and her father was out to get things for the house as it was under repair. At first accused was a friend but when time went on, he wasn’t a friend. When her father started going out for other errands then accused became a different person and started doing all these acts to her several times when her parents were not at home. She told her mother what accused was doing to her after she was disciplined by her mother. She recalls being taken to the hospital and being medically examined.


  1. PW2 – Shireen Shobna Lata

She’s the mother of PW1. She confirmed that PW1 was born on 17th July 2007. In 2016 and 2017 she was working for Ministry of Health and resigned in January 2020. In October 2020 there was an incident in school concerning PW1 and her husband informed her that it needs to be sorted out. She talked to PW1 at home in her room as to what happened in school. PW1 remained quiet and she kept insisting her to speak out but PW1 didn’t say anything. She then belted PW1 twice on PW1’s upper arms and legs. PW1 started crying and then began to reveal to her that accused had been doing bad things to her, Accused had touched her breast, put his mouth in her private parts and also inserted his penis into her vagina. PW1 told her that this happened from 2016 to 2017. She then informed her husband and they reported the matter to police. Then two police officers and a social welfare officer came to their place. The social welfare office and police officer talked to PW1 in her room. PW1’s statement was taken and she was also taken for medical examination. Her husband was running a grog business from their home and had employed the accused to work for him. There was no bad relationship with accused prior to this incident. The incident in PW1’s school was that a student had reported PW1 to the head teacher that she was kissing another boy in school. She was in the hospital with PW1 but was not present in the examining room where PW1 was examined by medical officer in the presence of a nurse and police officer. She noticed that PW1 was extremely emotional, sad and fearful, whilst being relieved too that she was able talk about the thing that happened to her. PW1 stated that accused had threatened her not to say any words to anyone especially her parents.


In cross examination she confirmed that she belted PW1 twice and PW1 red marks on her hands and legs. She was charged for belting PW1. PW1 was taken for medical examination and she was not present inside the room. They went to the hospital with female police, social welfare officer in a police vehicle. She also confirmed that she was charged for belting PW1.


In re-examination she confirmed that she was charged at Rakiraki Magistrate and later police withdrew the charge.

Brief of Defence Evidence


  1. DW1 – 3916 WPC Litiana Nabuta

On 22nd October 2020 she received a report of sexual offence from Ellington. She then informed the social welfare officer and they proceeded together to Ellington, Rakiraki in police vehicle. They went to PW1’s house and spoke to her parents and also spoke to PW1 in a room as she was uncomfortable talking to them in the presence of males around. PW1’s statement was taken before she was taken to the hospital.

In cross examination she stated that PW1 was uncomfortable to talk in the presence of her father and grandparents and requested that they talk in isolated room.

In re-examination she stated that some victims due to trauma cannot face any male regardless of father.


  1. DW2 – Unaisi Ravuso Tamani Sigace

She’s a Social Welfare Officer based at Rakiraki since 2015. She received a report on 22nd October 2020 on sexual harassment from Rakiraki Police Station. Police then came to pick her and they went to meet the child (PW1) and parents and their place. They spoke to PW1’s parents and requested for a room to speak alone to the child. They were given the child’s room. She noticed bruises on PW1’s arms and they were told by PW1 that her mother had beaten her. PW1 admitted that she kissed a boy in school and that’s why she received injuries from her mother and whilst probing PW1 told that she was assaulted 2 years ago.

In cross examination she stated that they came to attend a report of sexual harassment in school then they were there, they found out about the sexual assault 2 years by a person named Roneel. PW1 had informed them that she was sexually assaulted by Roneel. She was taken to the hospital for the bruises.

In re examination she confirmed PW1 telling them that Roneel sexually assaulted her about 2 years back and that would be in 2018.


Issue


  1. Whether prosecution had proved beyond reasonable doubt the elements of the offences charged for counts 1 - 4?

Law/Analysis


  1. In assessing the evidence, I bear in mind that prosecution has the burden of proving the suspects guilt beyond a reasonable doubt. This burden never shifts to the suspect and remains with prosecution throughout the trial. Prosecution must prove all the elements of the offence beyond a reasonable doubt before a suspect is found guilty of any criminal offence. (see: Woolmington v DPP (1935) AC 462 & sections 57 & 58 of Crimes Act 2009)
  2. In sexual related offences the need for corroboration is no longer required. That is clearly stated in section 129 of the Criminal Procedure Act (CPA), 2009. Thus, the Court can acquit or convict based on whether it disbelieves or believes complainant’s evidence alone.
  3. The essential elements for the said counts 1 to 4 as follows:

First Count (Rape)

Second Count (Rape)

Third Count (Sexual Assault)

Fourth Count (Sexual Assault)

  1. According to the admitted facts filed on 1/11/23, the following evidence are undisputed:
  2. According to the evidence adduced at trial, the following evolved as undisputed evidence too:
  3. The case presented by prosecution asserts that the accused, while employed by the stepfather of PW1 from 2016 to 2017, engaged in acts of sexual abuse against PW1. This included penetrating her vagina with his penis and kissing her and by licking or sucking her breasts on multiple occasions during the daytime. PW1 specifically referenced one instance in the parents' bedroom and another instance in the kitchen. These incidence took place in the absence of PW1’s parents, with only the accused, whilst the house girl, and PW1’s younger sibling were also present but occupied with other things.
  4. The defense of the accused is a total denial of the allegations, asserting that PW1 is not truthful and she invented an untrue narrative. The supposed incidents of rape and sexual assault by PW1 could not have taken place since PW1's sibling and the house girl were also present at the home during that time making the conduct of the accused impossible. The accused had exercised his right to silence, hence nothing adverse will be derived from the position taken by accused.
  5. After thoroughly reviewing all the evidence presented, I must emphasize from the beginning that there is a complete lack of reliable and credible evidence from PW1 establishing that the accused penetrated her vagina with his finger as stated in the second count of the information. Consequently, I must conclude that prosecution has not established the second count against the accused beyond a reasonable doubt. The accused is found not guilty concerning the second count of the information.
  6. However for the first, third and fourth counts, PW1 had presented reliable and credible evidence of two occasions, the first where accused had carried PW1 from the bathroom into her parents bedroom, placed PW1 on the bed close to the edge and inserted his penis into her vagina for 8 – 10 minutes and this occurred whilst her younger sibling was still in the bathroom. On a separate occasion in the kitchen, the accused called her behind the counter, positioned himself on the floor, and forcibly grabbed her, instructing her to sit on his penis. The accused partially removed PW1's pants and engaged in sexual intercourse with her for several minutes. At the time of the incident, PW1’s younger brother was situated in the living room watching television, while the house girl was in the process of removing clothes from the line. PW1 refrained from shouting as the accused instructed her not to scream or disclose anything to anyone. The accused person committed these acts against her in the years 2016 and 2017. She remembers that the accused engaged in additional actions as well, using his mouth to forcibly kiss her and to suck or lick her breasts whenever the chance arose. She remembers that this occurred when she was 10 years old and that it happened to her on multiple occasions.
  7. The court recognizes that PW1 failed to inform the others present in the house at the relevant time, notably the house girl and her sibling. Nonetheless, PW1 indicated that she faced threats or warnings against disclosing any information and that the accused would do something to her if she did. Because of the threats made by the accused and her age at the time, PW1 was reluctant to tell her parents or those close to her. She was frightened and lived in constant fear of the accused's threats and warnings. PW1 even considered that her stepfather might doubt her if she reported the incident, as she observed a close friendship between her stepfather and the accused. It was only after the incident at school in 2020 and following the beatings from her mother that she found the strength to share her story about what had been done to her by the accused. There is no set standard for how individuals who have made complaints or are alleged victims in sexual-related offenses should react after the incident in question. The fear and trauma that PW1 faced from the alleged actions and threats undeniably influenced her response. The reasoning provided by PW1 for delaying her complaint and discussing it with her mother in 2020 seems logical and persuasive to me. Taking into account all relevant factors and circumstances of the case, I find that the absence of complaint from PW1 to those near her and the delay in filing a formal complaint shortly after the incidents in 2016 and 2017 does not undermine her credibility.
  8. Additionally, it is highly unlikely that PW1 would have fabricated any evidence in this case, as there was no motive to do so. PW1 with her family and the accused had a good relationship before the alleged incidence, as stated by PW1 and PW2 in their testimonies. I don't see any ill-intentioned motive behind PW1’s allegations against the accused, who was a friend of PW1’s stepfather and an employee too. Without any convincing evidence to the contrary, to me PW1 made the allegations against the accused because they are true. It's clear that this report is very strange coming from PW1, who is said to have had a good relationship with the accused in the past and had no reason to lie unless the incident really happened.
  9. During cross-examination, PW1 remained firm and consistent with her account. She was never discredited, and I considered her a credible and reliable witness. Regarding the first, third, and fourth counts of the charges provided, I consider her evidence as being truthful.
  10. Turning to the defence, I accept that there were people within the vicinity or home with PW1 and there was a lack of immediate alarm or complaint raised by her. It seems to have been asserted that the alleged conduct by accused couldn’t have taken place without detection due to the proximity of other family members in the house with PW1 at relevant time. Therefore, the narrative of PW1 was deemed highly unlikely.

I acknowledge and recognize the possibility that there may have been other individuals present in the house during the pertinent timeframe. It is important to evaluate the possibility that the actions attributed to the accused may have occurred while other individuals in the residence were preoccupied with activities like watching television or retrieving laundry, as claimed by PW1 in her testimony.


  1. In my opinion, the presence of individuals nearby or within the home does not introduce any substantial uncertainty regarding PW1’s allegation. The purported behaviour took place during the day when individuals nearby were occupied with various activities. Consequently, it is probable that the other individuals present in the house at that time were oblivious to the accused's actions, as they would have been occupied with other activities. In this context, it was feasible for the accused to have executed his actions without detection.
  2. Analysing the evidence presented, it is clear that the accused had established a friendship with PW1, maintaining a positive relationship with her prior to the alleged incidence. Nonetheless, in the absence of PW1’s parents during the day, the accused, who was significantly older than PW1, began breaching that trust that had been established between them. PW1’s account indicates a clear pattern of the accused exploiting her vulnerability and inflicting sexual abuse upon her. The defendant's unequivocal denial failed to create any reasonable doubt regarding PW1’s testimony.
  3. The evidence provided by DW1 and DW2 pertained solely to the preliminary phases of the investigations. While DW2 claimed that PW1 had communicated that the allegation made by the accused occurred two years prior to 2020, it remains unclear how this evidence impacts PW1's account. PW1 explicitly testified in court that the alleged incident involving the accused took place between 2016 and 2017. As previously noted, she underwent extensive cross-examination and consistently asserted that the incidents in question occurred between 2016 and 2017.
  4. As previously mentioned, this was a matter that needed to be resolved based on credibility, whether the court believed or disbelieved the complainant. According to section 129 of the CPA 2009, corroboration of the complainant's evidence is no longer required.
  5. I accept that PW1 gave truthful evidence regarding the conduct of accused for the said offences. However, I have reservations accepting beyond reasonable doubt that there was penetration of PW1’s vagina with the accused's finger (second count). While PW1’s evidence stated that the accused had penetrated her vagina with his penis (first count ) and kissed her (third count) and licked her breasts (fourth count), she never mentioned anywhere in her evidence that accused had penetrated her vagina with his finger. Therefore, for the second count, there is no evidence hence accused is not guilty for the said count.

Conclusion


  1. In light of the above discussions, I find the evidence of PW1 to be credible and reliable. I accept PW1’s evidence as being truthful.
  2. For the second count of rape, I find the offence not proved beyond reasonable doubt. The accused is not guilty for the second count and is acquitted.
  3. However all the elements in first, third and fourth counts are proved beyond reasonable doubt. The Court is satisfied beyond a reasonable doubt that the accused committed the said offences. I therefore find accused guilty as charged for the said counts and his convicted accordingly.
  4. Therefore, the verdict of the Court as follows:
  5. For the second count, accused is not guilty and is acquitted accordingly.
  6. For the first, third and fourth counts, the accused is guilty and convicted accordingly.
  7. The court will proceed to mitigation before sentencing.

Samuela D Qica
Judge


High Court – Ba
Wednesday, 25th September 2024

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