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State v Matakitoga [2022] FJHC 144; HAC037.2021S (24 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 037 OF 2021S

STATE

vs

RUSIATE MATAKITOGA

Counsels : Mr. S. Komaibaba for the State
Mr. T. Varinava for the Accused
Hearings : 21, 22 and 23 March, 2022.
Judgment : 24 March, 2022.

JUDGMENT

1. On 21 March 2022, the following amended information was read over and explained to the accused, in the presence of his counsel:
   

“First Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 24^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, unlawfully and indecently assaulted AK by licking her vagina.

Second Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 25^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, unlawfully and indecently assaulted AK by licking her vagina.

Third Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 26^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, unlawfully and indecently assaulted AK by licking her breasts.

Fourth Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 26^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, had carnal knowledge of AL without her consent.

Fifth Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 27^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, had carnal knowledge of AL without her consent.

Sixth Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 30^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, had carnal knowledge of AL without her consent.”

2. Mr. Rusiate Matakitoga said, he understood the charge, and pleaded not guilty to all the counts, in the amended information. The prosecutor then briefly opened his case by summarizing his case theory to the court. He then called his first witness, the 16 year old female complainant (PW1). She gave evidence on 21 and 22 March 2022. The prosecution then called his second witness, the complainant’s mother (PW2). She gave evidence on 22 March 2022. The parties had submitted an “Agreed Facts”, dated 21 March 2022. It had four paragraphs of “Agreed Facts”. During the hearing, the prosecution tendered four exhibits. The first exhibit was a “Booklet of Photos” (Prosecution Exhibit No. 1), showing the alleged crime scene. The second exhibit was a “Police Sketch Plan” of the alleged crime scene (Prosecution Exhibit No. 2). The third exhibit was the complainant’s birth certificate (Prosecution Exhibit No. 3). The fourth exhibit was the complainant’s medical report, dated 24 January 2021 (Prosecution Exhibit No. 4).
   
3. At the end of prosecution’s case both parties agreed that, on the evidence so far laid before the court, there was a prima facie case against the accused on counts no. 1, 2, 3, 4 and 5. The court agreed with the parties and ruled accordingly. However, on count no. 6, the defence submitted that the accused had no case to answer, as the evidence presented, did not support the charge. The prosecution conceded the point. The court found the accused had no case to answer on count no. 6, found him not guilty as charged and acquitted him accordingly on that count. On the other counts, the standard options were put to the accused. He chose to give sworn evidence in his defence, and called one witness only. In his evidence, the accused denied the complainant’s allegations in counts no. 1, 2 3, 4 and 5. He basically said, the complainant consented to the sexual acts he performed on her, at the material time.
   
4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty. The prosecution must prove the accused’s guilt, beyond reasonable doubt. If there is a reasonable doubt, so that the court was not sure of the accused’s guilt, he must be found not guilty as charged and acquitted accordingly.
   
5. Count No. 4 and 5 involved the more serious offence of rape. We will consider it first. For the accused to be found guilty of rape, the prosecution must prove beyond reasonable doubt, the following elements:
   • (i) the accused
   • (ii) penetrated the complainant’s vagina with his penis,
   • (iii) without her consent, and
   • (iv) he knew she was not consenting to 5 (ii) at the time.
     
6. The slightest penetration of the complainant’s vagina by the accused’s penis is sufficient to satisfy element 5 (ii) above. Whether or not he ejaculated, is irrelevant.
   
7. “Consent” is to agree freely and voluntarily and out of her own freewill. If consent was obtained by force, threat, intimidation or by fear of bodily harm to herself or by exercise of authority over her, that “consent” is deemed to be no consent. The consent must be freely and voluntarily given by the complainant.
   
8. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting, at the time. The court will have to look at the parties’ conduct at the time, and the surrounding circumstances, to decide this issue.
   
9. Count No. 1, 2 and 3 involved the offence of “sexual assault”. For the accused to be found guilty of “sexual assault”, the prosecution must prove beyond reasonable doubt, the following elements:
   • (i) the accused
   • (ii) unlawfully and indecently
   • (iii) assaulted
   • (iv) the female complainant.
     
10. Sexual assault is an aggravated form of indecent assault. The prosecution must prove the above elements against the accused beyond reasonable doubt. “Assault” is really to apply unlawful force to the person of another without his or her consent. The “assault” must be considered “indecent” by right thinking members of society.
    
11. The court will now examine the prosecution’s case. On Count no. 1, 2 and 3, that is, the offences of “sexual assault”, both the complainant (PW1) and the accused (DW1) agreed that, at the material time, the accused licked the complainant’s vagina (count no. 1 and 2) and breasts (count no. 3). Legally, to lick someone’s vagina or breasts, would constitute the application of force to the person of another. In this case, it would appear that, when the accused was licking the complainant’s vagina or breasts, at the material time, he was applying force to the person of the complainant. This would amount to an assault to the person of the complainant. The assault becomes unlawful, if the complainant does not consent to the accused licking her vagina or breasts. In this particular case, the complainant said, in her evidence that, she did not consent to the accused licking her vagina and/or breasts. If the complainant’s evidence was to be accepted by the court, after considering all the evidence, the accused’s actions of licking the complainant’s vagina and breasts, would be considered unlawful. However, the offence of “sexual assault”, demanded the satisfaction of another element of the offence, that is, the assault must be “indecent”. An assault is “indecent”, if right thinking members of society, consider it indecent. In this particular case, a 58 years old stepfather licking his 15 year old stepdaughter’s vagina and breasts, would certainly, by right thinking members of society’s standard, would be considered indecent. It would appear, that if the court accepted that the complainant did not give her consent to the accused licking her vagina and breasts, at the material times, the prosecution would have proven the accused’s guilt on count no. 1, 2 and 3, beyond a reasonable doubt.
    
12. We will now examine the alleged rape in count no. 4 and 5. Both the complainant (PW1) and the accused (DW1) agreed that, at the material times, the accused inserted his penis into the vagina of the complainant. In count no. 4, the complainant said, the accused inserted his penis into her vagina for about 20 minutes, while in count no. 5, she said, his penis was in her vagina for about 10 to 20 minutes. The complainant said that, when the accused’s penis was in her vagina, as mentioned above, she did not give her consent to the same. She said, on both occasion, she told him to stop, but he ignored her. She said, she was afraid of the accused, as she had seen him assault her mother before. She said, the accused after having sex with her, warned her not to tell anyone about the incidents, or he would do something to her. If the complainant’s evidence of non-consensual sexual intercourse with the accused, at the material times, were accepted by the court, after considering all the evidence, the prosecution would have proven beyond a reasonable doubt the accused’s guilt on counts no. 4 and 5.
    
13. For the defence, the accused did not dispute that he licked the complainant’s vagina on 24 November 2020 (count no. 1), and again on 25 November 2020 (count no. 2). He also did not dispute that he licked the complainant’s breasts on 26 November 2020 (count no. 3). He said, the complainant gave her consent to the above. As to inserting his penis into the complainant’s vagina on 26 November 2020 (count no. 4) and repeating the same on 27 November 2020 (count no. 5), the accused did not dispute the same. He admitted in his evidence that he had sexual intercourse with the complainant on 26 November 2020 and 27 November 2020. However, he said, on both occasions, the complainant gave her consent to the same. If the accused’s evidence mentioned above was to be accepted by the court, after considering all the evidence, the accused would not be guilty as charged on all the counts laid against him.
    
14. The law required the prosecution to prove the allegations against the accused in count no. 1, 2, 3, 4 and 5 beyond a reasonable doubt. The court had heard the evidence of the complainant as against the evidence of the accused. Throughout the trial, the court had carefully examined and considered the demeanours of the complainant and the accused. During cross-examination, the accused admitted that it was wrong in god’s eyes for a 58 year old father to lick the vagina of his 15 year old stepdaughter. He also admitted, during cross examination that, it was wrong for him to insert his penis into his stepdaughter’s vagina. After carefully considering all the evidence, I find the complainant to be a credible witness. I accept her evidence that she did not give her consent to the accused licking her vagina and breasts, at the material time. I also accept that she did not give her consent to the accused having sexual intercourse with her, as alleged in count no. 4 and 5. I also find that the accused was not a credible witness. I reject his sworn denials.
    
15. Given the above, I find the prosecution has proven the accused’s guilt in count no. 1, 2, 3, 4 and 5 beyond a reasonable doubt and I find him guilty as charged on those counts. I convict him on those counts accordingly.
    

Salesi Temo
JUDGE

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