IN THE HIGH COURT OF FIJI AT SUVA
CASE NO: HAC. 223 of 2016
[CRIMINAL JURISDICTION]

STATE
V
SANAILA WAIKELIA

Counsel	:	Ms. K. Semisi for State
		Ms. T. Kean and Mr. S. Kumar for Accused 
Hearing on	: 	19th-21st September 2017
Summing up on	:	22nd September 2017
Judgment on	:	25th September 2017

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

JUDGMENT

1.	The accused is charged with the following offences;

FIRST COUNT
Statement of Offence
RAPE:  contrary to section 207(1) and 2(b) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
SANAILA WAIKELIA on the 8th day of June 2016 at Galoa village, Navua in the Central Division penetrated the vagina of NE with his finger, without her consent.

SECOND COUNT
Statement of Offence
SEXUAL ASSAULT:  contrary to section 210(1)(a) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
SANAILA WAIKELIA on the 8th day of June 2016 at Galoa village, Navua in the Central Division unlawfully and indecently assaulted NE by kissing her.

2.	The assessors have returned with the unanimous opinion that the accused is guilty of the above charges.

3.	I direct myself in accordance with the summing up delivered to the assessors on 22nd September 2017 and the evidence adduced during the trial.

4.	The prosecution led the evidence of three witnesses including the complainant. The accused gave evidence and called two witnesses.

5.	The complainant’s evidence was that the accused put his arms around her and kissed her on her lips, then forced her to sit on the bed by pushing her onto the bed while kissing her lips and having his arms around her. According to the complainant, then the accused sat on her right side and “put his right hand on her thigh through her shorts and her underwear into her vagina”. The complainant said that it was quick and then the accused stood up to undo his pants. At this moment the second defence witness came inside the room to pack her bags.

6.	The accused and the second defence witness also testified on what took place on 08th June 2016 inside the bedroom in question. According to the accused he was just sharing jokes and laughing with the complainant while they were inside the room. According to the second defence witness, she saw the complainant walk inside the bedroom and sit down on the bed and she said that she heard the complainant and the accused sharing jokes and laughing inside the room. She also saw the accused hugging the complainant. However, she was not paying attention to what was happening inside the room.

7.	In my assessment, the second defence witness though related to the accused as her niece, was a credible witness. I believe her evidence. The accused on the other hand was evasive and his evidence was not credible and reliable.
8.	Although the complainant was all in all a credible witness, I found her evidence that the accused forced her onto the bed having his arms around her and that she said ‘no’ and tried to push him away improbable and unreliable especially given the evidence of the second defence witness. If the complainant had opted to resist in the manner she described, in my view, she would have tried to escape the moment she had an opportunity and the second defence witness walking into the room was one such opportunity.

9.	However, I accept the complainant’s evidence that the accused kissed her on her lips and put his right hand through her clothes without her consent. In my view, this is a case where the complainant did not physically resist though she did not freely and voluntarily consent for the accused to do what he did to her. I accept her evidence that she was shocked as this was something she never expected and because of that she did not know what to do or how to react. I am mindful of the fact that the complainant was a foreigner who had been in Fiji only for about four months all by herself when this incident took place. Her not shouting or calling for help is understandable due to the fact that she was in shock and it could reasonably be inferred that she may have had concerns as to whether she could trust anyone who was present at that time. I also accept the complainant’s reasons for not complaining to anyone until the third day after the incident including to the third defence witness.

10.	I am satisfied beyond reasonable doubt that the accused was aware of the risk that the complainant may not be consenting for him to kiss her lips and also put his hand through her clothes and having regard to the circumstances known to him it was unjustifiable for him to take the risk and kiss the complainant on her lips and also put his hand through the complainant’s shorts and the underwear. Therefore, I find that the accused was reckless as to whether the complainant was not consenting for what he did in respect of the first count and the second count.

11.	Now I wish to turn to the second element of the offence of rape which involves penetration. In my view, the prosecution failed to establish penetration beyond reasonable doubt in this case. The evidence of the complainant on this issue was that the accused put his hand through her clothes into her vagina.

12.	Considering the circumstances, the evidence that the accused’s ‘hand’ went inside the complainant’s vagina cannot be taken as reliable. This evidence required further clarification. Though there is a possibility that the accused’s fingers or a finger may have penetrated the complainant’s vulva or vagina, this evidence was not elicited from the complainant. It is pertinent to note that the evidence of the second prosecution witness who was the first person the complainant complained with regard to what took place on 08/06/16 said that the complainant told her that she was ‘touched by her private part’. Even though this witness also used the word ‘rape’ during her examination in chief, during cross-examination she confirmed that what she was told by the complainant was that the complainant was ‘touched by private part and kissed . . .’. The evidence led by the prosecution was not sufficient to prove beyond reasonable doubt that the accused penetrated the complainant’s vulva or vagina with his finger.

13.	I consider it appropriate to comment on the medical evidence led in this case which was relevant to the issue of penetration. The third prosecution witness, the doctor who medically examined the complainant said in her evidence that she observed an old healed hymenal laceration at 9 o’clock position during the vaginal examination. Based on what she was informed she had noted in her report PE1 that “patient had previous vaginal sexual intercourse in Australia”. Though there is no mention about the age of the said injury in PE1 which was prepared by her soon after the complainant was examined, she agreed during her examination in chief that it is possible to note that injury if there was penetration about 6 days ago. According to this witness, there were no signs of fresh lacerations, bruises or abrasions. However, during cross-examination, she said that that injury can be caused within a period of 1 to 6 days. In effect, the third prosecution witness’ evidence was that the old healed hymenal laceration she referred to could have been caused one day before she examined the complainant. I find this evidence pertaining to the age of the aforementioned injury, unreliable.

14.	For the reasons given above, I am unable to agree with the unanimous opinion of the assessors that the accused is guilty of the first count as charged. However, I find the accused guilty of the lessor offence of sexual assault based on the evidence pertaining to the first count. Touching the naked genitalia of the complainant in the given circumstances was an unlawful assault which a right-minded person would consider as indecent and also sexual.

15.	I agree with the unanimous opinion of the assessors that the accused is guilty of the second count of sexual assault.

16.	Accordingly;
a)	I acquit the accused on the first count as charged;
b)	I convict the accused of the alternative offence of sexual assault under section 210(1) of the Crimes Act based on the evidence on the first count; and
c)	I convict the accused as charged on the second count.

				Vinsent S. Perera
			        	JUDGE

Solicitors for the State		: Office of the Director of Public Prosecutions, Suva.
Solicitor for the Accused	      : Legal Aid Commission, Suva.