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State v Tuitoga [2022] FJHC 114; HAC308.2020 (14 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 308 of 2020

STATE

vs.

USA RAICI TUITOGA

Counsel: Ms. U. Tamanikaiyaroi with Mr. L. Baleilevuka for the State
Mr. T. Varinava with Ms. A. Sharma for Accused

Date of Hearing: 07^th – 8^th March 2022
Date of Closing Submission: 10^th March 2022
Date of Judgment: 14^th March 2022

JUDGMENT

1. The Accused is charged with one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act and one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act. The particulars of the offences are that:
   

FIRST COUNT

Statement of Offence

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

Particulars of Offence

USA RAICI TUITOGA on 28^th May 2020, at Nasinu in the Central Division, had carnal knowledge of SAINIMILI MASEIKAU without her consent.

SECOND COUNT

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

USA RAICI TUITOGA, on the 28^th May 2020, at Nasinu in the Central Division, unlawfully and indecently assaulted SAINIMILI MASEIKAU by bringing into contact his hands to her vagina.

2. Upon recording the plea of not guilty entered by the Accused, the matter proceeded to the hearing. The hearing commenced on the 7th of March 2022 and concluded on the 8th of March 2022. The Prosecution presented the evidence of two witnesses. The accused and another witness gave evidence for the Defence. Subsequently, the Court heard the oral submissions of the learned Counsel of the Prosecution and the Defence. Additionally, the learned Counsel for the Prosecution and the Defence filed written submissions. Having carefully considered the evidence presented during the hearing and the respective oral and written submissions of the parties, I now proceed to pronounce the judgment.
   
3. The main elements of the offence of Rape are that:
   

i) The Accused,
ii) Penetrated the vagina of the Complainant with his penis,

iii) e Cohe Complainant did not consent to the Accused to penetrate her vagina with
his penis,

iv) The Accused knew or believed or reckless that the Complainant was not

• consenting for him to insert his penis in that manner.
  

4. The main elements of the offence of Sexual Assault are that:
   

i) The Accused,
ii) Unlawfully and Indecently,
iii) Assaue Comp Complainant.

5. The Prosecution alleges thatAccusd penetrated the the vagina of the Complainant with his peis penis and then sexually assaulted her by indecently and unlawfully touching her vagina with his hands. The Accused is a leader and the Senior Pastor of a church group. The Complainant had joined the church mission group and moved to Suva. She was staying with the Accused and his family at his home in May 2020. On the 28th of May 2020, they went to another house to have a church cell group meeting. It finished after 9 p.m and then the Accused and the Complainant walked back home. On their way, the Accused had asked the Complainant to turn to another road after they passed the ground. It was a dark place, and few coconut trees were around. The Accused had asked the Complainant to have sex with him. The Complainant was scared. The Accused had told her to do what he asked her to do. He then asked the Complainant to stand facing her back to him. He then pulled up her dress and pulled down her shorts and undergarment. She was forced to bend down. He then inserted his penis in her vagina. The Accused had penetrated her vagina with his penis for about 2 to 3 minutes. He then asked her to turn to his side. The accused had then touched her vagina with his hands.
   
The Accused denies the allegation. The Accused, in his evidence, admitted thawent to the location. Moreover, the Accused admitted that hhat he tried to have sexual intercourse with the Complainant with her consent. However, the Accused failed to erect his penis. He then asked the Complainant to turn to his side for him to touch her. The Complainant then asked him to stop; hence, he stopped it, and they both went back home. The Accused further alleged that Jimi Rogoyawa forced the Complainant to report this matter to the Police.

AdmiFact Facts

7. The parties tendered the following facts aitted facts under Section 135 of the Criminal Procedure Acte Act.
   
   1. The name of the person charged is Usa Raici Tuitoga [“Usa”].
      
   2. Usa as born on 03 September 1961 and was 59 years old at the alleged time of offence.
      
   100. On or before the time of the alleged offence, Usa resided with his wife Letila Tuitoga and children in Makoi, Suva.
        
   4. On or before the time of the alleged offence, Us was the Senior Pastor for the “Last Days Apostacy” Church located at Lot 11 Makoi, Suva.
      
   5. The name of the complainant is Sinimili Maseikau [“Sainimili”].
      
   6. There is no domestic relationship between the parties however, Usa and Sainimili are known to each other.
      
   7. Sainimili was a church member of the Last Days Apostacy Church and resided with Usa on or before the time of the alleged offence.
      
   8. On 28^th May 2020, Usa and Sainimili with other church members including Timi Rogoyawa went to a church member namely Marika’s residence in Makoi.
      
   9. Timi Rogoyawa is also a church member of the Last Days Apostacy Church and was an active missionary worker for the church on or before the time of the alleged offence.
      
   10. The following document is not disputed and hereby tendered by consent:
       
       • (a) Police Photographic booklet dated 15^th October 2020.
         

Identity of the Accused

8. According to the evidence presented by the parties, there is no dispute about the identity of the Accused. The main dispute in respect of the first count is whether the Accused had actually penetrated the vagina of the Complainant with his penis, and the Complainant did not consent for such penetration.

Penetratetration

10. The Accused stated that he did not penetrate her vagina because he failed to get his penis erected. However, there is noence to suggest or point thnt that there is a reasonable possibility that the Accused has erectile dysfunction. Moreover, there is no requirement that the penis is erected to complete the element of penetration. The slightest penetration of the penis is sufficient to establish the element of penetration.
    
Having considered the above-discussed reasons, I am satisfied that the Prosecution has successfully establithat the Accused had penetrenetrated the vagina of the Complainant.

Consent

12. I shall now draw my attention to determine whethe Complainant had given her consent to the Accused to pene penetrate her vagina with his penis. Consent is a state of mind that can take many forms, from willing enthusiasm to reluctant agreement. In respect of the offence of Rape, the Complainant consents if she had the freedom and capacity to make a choice and express that choice freely and voluntarily. A consent obtained through fear, threat, the exercise of authority, use of force, or intimidation could not be considered the consent expressed freely and voluntarily. A submission without physical resistance by the Complainant to an act of another person shall not alone constitute consent.
    
13. If the Court is satisfied that the Accused had penetrated the vagina of the Complainant with his penis and she had not given her consent, the Court is then required to consider the last element of the offence. That is whether the Accused honestly believed or knew or was reckless that the Complainant was freely consenting for this alleged sexual act. The belief in consent is not the same as hope or expectation that the Complainant was consenting.

Delay

19. The Defence submitted that the delay in reporting this matter makes the allegation less probable. The Complainant had reported this matter to the Police a few months after this incident. It would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. Victims of sexual offences can react to the trauma they have faced in different ways. In distress or anger, some may complain to the first person they see. Others, who respond with shame or fear or shock or confusion, do not complain or go to authority for some time.

20. The Complainant explained that the Accused had told her not to tell anyone about incident. According to the Complainant, the Accused was thas the leader and Senior Pastor of the church. She had finally decided to confide this matter to Jimi after hearing that the Accused had done something similar to another girl. She then told Jimi about this incident. They thought the church members were the proper channel of dealing with this matter. In the meantime, the Accused had relieved Jimi and the Complainant from the church group.
    
21. According to Jimi, a person informed them what the Accused had done to another girl. Then tmplainant confided Jimi what had happened to her. What Jimi Jimi heard from the person about the Accused is not admissible to establish that the Accused had done something to another girl. But it is admissible to the extent that a person made a statement to Jimi, and that statement prompted the Complainant to confide Jim what the Accused had done to her. (vide; Goundar v State [2020] FJCA 4; AAU29.2015 (the 27th of February 2020), Subramaniam v Public Prosecutor [1956]R 965 at 969).
22. The Defence extensively argued that relieving their duties from the church prompted Jimi and the Complainant to report this matter to the Police, which both the Complainant and Jimi denied. The Complainant had confided Jimi about this incident before being relieved from the church duties. They had already set the motion of reporting this allegation through the church members. Hence, I do not find the delay in reporting this matter to the Police has adversely affected the credibility and reliability of the Complainant's evidence.
    
The Accused had asked her to turn to his side after penetrating her vagina with his penis from behind. He then put his hand under her clothes and touched her vagina with his hands. I accept the Complainant's evidence regarding this incident as credible, reliable and truthful.

24. In conclusion, I find the Prosecution has successfully proven beyond a reasonable doubt that the Accused had penetrated the vagina of the Complainant with his penis without her consent on the 28th of May 2020. He had then unlawfully and indecently touched her vagina with his hand. Wherefore, I hold the Accused is guilty of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act and Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act and convict to the same accordingly.
    

..................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva

Solicitors

Office of the Directorector of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.