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State v Wabale [2022] FJHC 199; HAC29.2018 (2 May 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 29 of 2018

STATE

AMELE WABALE

Counsel : Ms. S. Naibe for the State.
: Ms. V. Diroiroi for the Accused.

Dates of Hearing : 25, 27, 28 April, 2022
Closing Speeches : 29 April, 2022
Date of Judgment : 02 May, 2022

JUDGMENT

(The name of complainant is suppressed she will be referred to as “C.H”)

The Director of Public Prosecutions charged the accused by filing the following information:

COUNT ONE
Statement of Offence

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

Particulars of Offence

AMELE WABALE on the 8^th day of February, 2018 at Nadi in the Western Division penetrated the vagina of “C.H” with her fingers without her consent.

COUNT TWO
Statement of Offence

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

Particulars of Offence

AMELE WABALE on the 8^th day of February, 2018 at Nadi in the Western Division unlawfully and indecently assaulted “C.H”.

COUNT THREE
Statement of Offence

INDECENT ASSAULT: Contrary to section 212 (1) of the Crimes Act, 2009.

Particulars of Offence

AMELE WABALE on the 8^th day of February, 2018 at Nadi in the Western Division unlawfully and indecently assaulted “C.H”.

In this trial, the prosecution called one witness and after the prosecution closed its case, this court ruled that the accused had a case to answer in respect of all the offences as charged.

BURDEN OF PROOF AND STANDARD OF PROOF

As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove her innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.

ELEMENTS OF THE OFFENCE

RAPE

To prove count one the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:

(a) The accused;

(b) Penetrated the vagina of the complainant “C.H” with her fingers;

(d) The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.

In this trial, the accused has denied committing the offence of rape. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with her fingers without her consent and the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
The first element of the offence is concerned with the identity of the person who allegedly committed this offence. This element is not in dispute.
The second element is the act of penetration of the complainant’s vagina by the fingers. This element is also not in dispute.
The third element of consent is in dispute, which means to agree freely and voluntarily and out of her free will. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority, then that consent is no consent at all. Furthermore, submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
If this court is satisfied that the accused had penetrated the vagina of the complainant with her fingers and she had not consented, then this court is required to consider the last element of the offence that is whether the accused knew or believed that the complainant was not consenting or did not care if she was not consenting at the time.
To answer the above this court will have to look at the conduct of both the complainant and the accused at the time and the surrounding circumstances to decide this issue.
If this court is satisfied beyond reasonable doubt that the prosecution has proven beyond reasonable doubt that the accused had penetrated her fingers into the complainant’s vagina without her consent then this court must find the accused guilty as charged.
If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offence of rape, then this court must find the accused not guilty.
The slightest of penetration of the complainant’s vagina by the accused fingers is sufficient to satisfy the act of penetration.

SEXUAL ASSAULT

To prove count two the prosecution must prove the following elements of the offence of sexual assault beyond reasonable doubt:

(a) The accused;

(b) Unlawfully and indecently;

The first element of the offence of sexual assault is concerned with the identity of the person who allegedly committed this offence. This element is not in dispute.
The words “unlawfully” and “indecently” in respect of the second element of the offence of sexual assault means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such conduct indecent.
The final element of assault is the unlawful use of force on the complainant by sucking her vagina.

In this regard this court has to consider:

(a) whether the force used in sucking the complainant’s vagina was sexual in nature; and

(b) if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, was in fact sexual in nature.

In this trial, the accused has denied committing the offence of sexual assault. It is for the prosecution to prove beyond reasonable doubt that it was the accused, who had unlawfully and indecently assaulted the complainant by sucking her vagina.
If this court is satisfied beyond reasonable doubt that the prosecution has proved all the elements of sexual assault as explained above, then this court must find the accused guilty of sexual assault. If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offence of sexual assault, then this court must find the accused not guilty.

INDECENT ASSAULT

To prove count three the prosecution must prove the following elements of the offence of indecent assault beyond reasonable doubt:

(a) The accused;
(b) Unlawfully and indecently;

The first element of the offence of indecent assault is concerned with the identity of the person who allegedly committed this offence. This element is not in dispute.
The words “unlawfully” and “indecently” in respect of the second element of the offence simply means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such act indecent.
Assault is the unlawful use of force on the complainant “C.H” by the act of kissing her mouth, neck, breasts and making love bites on her breasts.
In respect of the count of indecent assault the accused has denied the elements of the offence. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had unlawfully and indecently assaulted the complainant “C.H” by kissing her mouth, neck, breasts and making love bites on her breasts.
If this court is satisfied that the prosecution has proved all the elements of the offence of indecent assault beyond reasonable doubt, then this court must find the accused guilty of the offence of indecent assault. However, if there is a reasonable doubt with respect to any elements of the offence of indecent assault then this court must find the accused not guilty.
As a matter of law, I direct myself that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means, if this court is satisfied with the evidence given by the complainant and accepts it as reliable and truthful then this court is not required to look for any other evidence to support the account given by the complainant.
In this case, the accused is charged with three offences, I have borne in mind that the evidence in each count is to be considered separately from the other. It is not to be assumed that because the accused is guilty of one count that she must be guilty of the others as well. This also applies to the outcome of not guilty.

ADMITTED FACTS

In this trial, the prosecution and the defence have agreed to certain facts titled as Final Further Amended Admitted Facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.

PROSECUTION CASE

The complainant informed the court that in 2018 she was staying at a hostel at Namaka, Nadi with her friend Vasiti and the accused. The flat did not have any partitions it was an open space with three beds, bathroom, washroom and kitchen. The complainant had moved into the flat about two weeks before the alleged incidents.
On 7^th February, 2018 at around 5.30 pm the complainant and Vasiti went to the work place of the accused to pick food items for cooking. In the evening, after the complainant finished having her dinner the accused came and invited Vasiti and the complainant to go with her to the Nasa Bar for drinks. Both Vasiti and the complainant refused. The complainant told the accused that she did not have any money and also she had to be at work the next day.
The accused kept insisting that the complainant go with her and that she will pay for everything. Finally, the complainant agreed, at the Nasa bar the complainant and the accused were drinking when they were joined by some of the accused friends. They left Nasa bar at about 4.00am the next day and by this time the complainant was drunk.
After walking towards the main road they were able to get into a car and they went to the After Dark Night Club which was near her flat. Here the complainant was not drinking but the accused and her friends were. She was only drinking water to sober up because she had to go to work at 6 am.
At about 5am the accused and the complainant left the night club and walked towards their flat. When the complainant entered the flat Vasiti was asleep so she woke Vasiti and asked her if there was anything to eat. After eating the complainant went to have her shower, wore her clothes that is her panty, bra, t-shirt, sulu and went to bed. It was at this time the accused came into the flat.
The accused took off her shoes and was lying on her bed, both were having a conversation when the accused said in Itaukei “kere hug” meaning please hug. The complainant responded by saying “kere boyfriend” meaning boyfriend please. The accused went quiet for some time so the complainant turned her back towards the accused and was facing the wall.
The accused then said that she wanted to come and lie next to her. The complainant said “if it is just to come and sleep, then that’s fine.” It was a single bed which according to the complainant was “really, really small”.
The accused came on top of the complainant and kissed her mouth, the complainant pulled back and asked the accused what she was doing. The accused said not to make noise as it might wake Vasiti. The complainant tried to push the accused, at this time she felt the accused block her mouth with one hand so that she could not make any noise. The accused was heavy and she was not able to push her.
The accused then started making love bites on her breast and then pulled down her panty and then started putting her finger into her vagina. The complainant tried to get off the bed but the accused held her down. The accused had one hand on the complainant’s month and with the other hand was holding down her hip.
The complainant said when the accused had inserted her fingers in her vagina she felt uncomfortable because she did not consent for the accused to do any of these things to her or to violate her body like that.
She felt the fingers of the accused inside her vagina, she had an itch in her vagina which was swollen and when the accused had inserted her fingers she could feel it because her vaginal walls were swollen and the accused was wearing rings in her fingers which she could feel. The complainant also stated after this the accused had put her mouth on her vagina and sucked it.
All this happened in 3 to 4 minutes whilst Vasiti was sleeping. Vasiti’s alarm kept going off and it was after the third alarm Vasiti got up and it was at this time the accused left the complainant’s bed and went to hers.
The complainant got out of the bed went outside and called Vasiti to come out with her phone. The complainant told Vasiti what had happened and they waited for the landlady to come and after telling her the matter was reported to the police. The complainant left the flat for good.
In cross examination, the complainant stated that the bed of the accused was opposite her bed about one step away and Vasiti’s bed was about 3 to 4 steps away. The complainant denied that after returning to the flat she had requested to go and sleep with the accused on the accused bed.
However, the complainant agreed that the accused had said in a joking manner “you are too fat to come and sleep with me on my bed”. After this, the accused asked the complainant if she could come to her bed. The complainant agreed, when the accused came and lay on top of her, the accused did not ask if she could kiss her.
The complainant agreed the accused had kissed her mouth and she tried to push the accused even before the accused had started to kiss her. The complainant denied she was engaged in a passionate kissing session with the accused that lasted for 5 minutes. The complainant stated that when she tried pushing the accused she felt the hand of the accused blocking her mouth.
The complainant was referred to her police statement dated 10^th February, 2018 to page 2 lines 1 to 4, the complainant agreed that nowhere in her police statement it was mentioned that the accused had blocked her mouth. When it was put to the complainant that the reason it was not in her police statement was because the accused had not blocked her mouth. The complainant maintained the accused had blocked her mouth and she had told the police officer this because it was a few days after the incident.

PREVIOUS INCONSISTENT STATEMENT

This court directs its mind to the fact that the defence counsel during the cross examination of the complainant had questioned her about some inconsistency in her police statement which she had given to the police when facts were fresh in her mind with her evidence in court.
This court is allowed to take into consideration the inconsistency between what this witness told the court and her police statement when considering whether this witness was believable and credible. However, the police statement is not evidence of the truth of its contents.
It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it 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 for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
The complainant agreed the accused had kissed her mouth, neck and made love bites on her breast and chest. When it was suggested that she was enjoying every bit of this the complainant stated “I was not enjoying any bit of it.” The complainant also agreed that at this time the accused slowly slipped her hand between the complainant’s legs and was erotically fondling her vagina which made the complainant uncomfortable.
The complainant denied she had said “play with my vagina”. The complainant agreed that the accused then moved her head down to her vagina and started licking and sucking her vagina which according to the complainant was like the accused was biting her vagina. The complainant was not relaxing and enjoying but struggling to push the accused. The complainant stated that the accused was blocking her mouth and that she was not lying in court. The complainant explained that when the accused was holding the bottom part of her body the other hand was covering her mouth. The complainant maintained the accused had blocked her mouth. When it was put to the complainant that when the accused was licking and sucking her vagina the accused body was on top of her. The complainant stated the accused was holding the bottom part of her body with one hand and with the other the accused was covering her mouth. The accused agreed this was not in her police statement.
The complainant did not crush the head of the accused with her legs because she was intoxicated and tired. The complainant said although she was intoxicated it was correct that she had walked home on her own, woken Vasiti, asked for food, eaten, showered, and then changed into her clothes and was lying on her bed. In 2018, the complainant was bigger than the accused who was smaller in height but she maintained she had not consented to the sexual encounter. The accused only stopped licking and sucking her vagina after Vasiti had woken up.
The complainant denied she had consented for the accused to do all that to her that morning. When further questioned that she was enjoying the pleasures of the moment the complainant denied and said “if I was we wouldn’t be here”.
When it was put to the complainant that she only cried rape because she did not want to be known as a woman who has had sexual relationship with another woman the complainant stated “I have lesbian friends so I am not ashamed of anything like that. I didn’t give consent to what she did. I did not give her consent to violate my body and I am not ashamed of having relationship with another woman.”

56. This was the prosecution’s case.

DEFENCE CASE

At the end of the prosecution case, the accused was explained her options. She could have remained silent but she chose to give sworn evidence and be subjected to cross examination. This court must also consider the accused evidence and give it such weight as is appropriate.
The accused informed the court that in 2018 she was working and living in Nadi. She was residing at a Girls Hostel at Namaka with the complainant, Vasiti and Aqela. The room was an open one with four beds, the complainant’s bed was opposite Vasiti’s and the accused bed was two steps away from the complainant’s.
In the evening of 7th February, 2018 after having her shower the accused asked the complainant if they can go to the night club. The complainant responded by saying that she did not have any money to go to the night club. The accused agreed to pay for her drinks so the complainant agreed, she did not ask Vasiti because Vasiti does not drink and smoke. The accused and the complainant went to Nasa Night Club at about 9pm.
At the night club the accused bought drinks for her friends and the complainant, drinking continued till the night club closed around 3 to 4am the next morning. According to the accused the complainant did not drink that much. The accused was drunk and she could not walk properly.
The accused and the complainant then went to the After Dark Night Club but they did not drink liquor, after a short while the accused called out to the complainant to go home. Both walked to the hostel, upon reaching the entrance the complainant took the lead to the flat while the accused went to the nearest supermarket to buy cigarette. She was not able to get any cigarette so she went to the flat.
As soon as the accused entered the flat she went to her bed while the complainant was on her bed doing something on her phone. Vasiti was sleeping while the complainant and the accused were joking with each other. The complainant said in Itaukei “kere tagane” meaning calling for some men the accused did not say anything. The complainant then said that she wanted to come and sleep with the accused. The accused said “you can’t because you are too fat”.
The complainant then asked the accused to come to her bed, the accused went to the complainant’s bed and laid on top of the complainant. The complainant was still on her phone. The accused asked the complainant if she can kiss her, the complainant said yes.
Upon hearing this, the accused started to kiss the complainant on her mouth, the complainant kept still and did not move the kissing was for about 5 minutes. The complainant did not push the accused but was lying still. She continued kissing the complainant’s breast and then moved her hand towards the complainant’s panty. While kissing the breast the accused made love bites on the complainant’s breast and chest. The accused stated the complainant was just lying doing nothing not even pushing her away.
The accused thereafter removed the complainant’s panty and then started sucking her vagina for 3 to 5 minutes she denied she had one hand on the mouth of the complainant and the other hand on her hip. The complainant did not push her.
The accused went to her bed and slept it was around 7am the accused woke up after the landlady called to say the police were waiting for her downstairs.
The accused also stated that she had inserted her fingers into the complainant’s vagina with the consent of the complainant and that the complainant was lying in court when she said she had not consented. The accused maintained that whatever she had done that morning to the complainant was with her consent. At no time had the accused blocked the complainant’s mouth or even held her hip down and put her body weight on the complainant.
In cross examination, the accused agreed that each flat mate had a single bed which would fit one person only. The accused agreed in the room there was an exchange of jokes and she had said “kere hug” meaning please hug and the complainant said “kere boyfriend” meaning “please boyfriend”. The accused also agreed that the complainant had only agreed for her to go and sleep with the complainant but she went and lay on top of her. The accused denied this time the complainant had pushed her away.
According to the accused, the complainant was on her phone at this time but this proposition was not put to the complainant in cross examination. The accused denied making up her evidence in court. The accused maintained that she had asked the complainant if she could kiss her when she lay on the complainant and the complainant had kissed her back. The complainant did not say anything but continued to press her phone. The accused agreed when she was kissing the complainant, the complainant was on her phone.
The accused admitted kissing the complainant on her breast, neck and made love bites, but she did not ask the complainant to do such things. When the accused was doing all these things the complainant did not push her or even move but was lying still and also she did not say that she liked it. In respect of inserting fingers into the vagina of the complainant, the accused said she had only inserted one finger and not fingers into the complainant’s vagina but she did not ask the complainant if she could do this.
After this, the accused agreed she sucked the complainant’s vagina but she had not asked the complainant to do this to her. She did not ask because the complainant was “full time” on the phone and this proposition that the complainant was “full time” on her phone was not put to the complainant by her counsel.
The accused said that the complainant liked what she had done to her even though she did not say anything but her reaction did. The accused maintained that the complainant had consented for her to kiss her on her lips, on her breast and chest and also to make love bites, insert her finger inside her vagina and then suck her vagina. The accused also stated that at no time she had blocked the complainant’s mouth with her hand or forced her and at no time had the complainant pushed her away.
In re-examination the accused stated that throughout the sexual encounter the complainant was lying down relaxing holding on to her phone doing nothing.
This was the defence case.

ANALYSIS

The prosecution alleges that during the morning of 8^th February, 2018 the complainant and the accused had arrived at their flat after clubbing. After exchange of some jokes the complainant agreed for the accused to come and sleep beside her on her single bed.
Unbeknown to the complainant, the accused came on top of her and forcefully started kissing her mouth. The complainant pulled back and asked the accused what she was doing. The accused said not to make any noise to wake Vasiti. The complainant tried to push the accused, but could not, at this time she felt the accused hand block her mouth to stop her from making any noise.
The accused did not stop but forcefully continued kissing the complainant’s neck, breast and then made love bites on her breast and chest. Thereafter, the accused pulled down the complainant’s panty and then put her fingers into the complainant’s vagina. The complainant tried to get off the bed but the accused held her down. The accused had one hand blocking the complainant’s mouth and with the other hand was holding down her hip.
Finally, the accused forcefully put her mouth on the complainant’s vagina and sucked it. The complainant felt uncomfortable because she did not consent to what the accused was doing to her. All this happened in 3 to 4 minutes.
On the other hand, the defence says the allegations raised by the complainant are lies and a made up story. The defence is asking this court to look at the evidence objectively. The complainant on her own admission had stated that she was bigger than the accused and rightfully so this was evident to the court as well. It is the complainant who had invited the accused to sleep with her which the accused obliged. The complainant knew it was a single bed which fits one person yet she asked the accused to come onto her bed to sleep does not make sense.
The complainant did not resist or push the accused away from on top of her. The least she could have done was to yell or shout to wake Vasiti who was just 3 steps away from where the complainant and the accused were. The complainant was an active participant in that she was enjoying every moment of what the accused was doing yet when Vasiti woke up the complainant cried rape.
The complainant was bigger in physique than the accused to push away the accused from on top of her yet she did not do so. On the other hand, the accused has been honest in admitting all the acts she had done that morning and if there was no consent from the complainant the accused would not have carried out those acts.
This is a case of betrayal of trust by the complainant. The chain of events expressed by the complainant will have to be examined closely and at no time the accused could have blocked the mouth of the complainant with her hand as narrated by the complainant. The complainant is trying to avoid humiliation and embarrassment about the fact that she had consented for another woman to have a sexual encounter with her.
Finally, the defence submits the complainant did not tell the truth in court. She raised these allegations to shy away from blame or contempt that she had a sexual encounter with another woman.
The accused was forthright and honest in what she told the court. It takes a lot of courage for a person to admit sexual conduct on a person of the same sex which she only carried out after the complainant had consented. The consent of the complainant is implicit in her not saying or doing anything to stop the accused, cooperating in a manner that allowed the accused to first start kissing her lips, then the neck, breast and then the making of three love bites on the breast.
The complainant then allowed the accused to play with her vagina after her panty was removed and then making space for the accused to insert her finger inside her vagina. If this was not enough, the complainant allowed the accused to suck her vagina. According to defence all these acts required movement by the accused from on top of the complainant to her vagina which would not have been possible had the complainant not consented. The defence is asking this court not to believe the complainant.

DETERMINATION

I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. She gave a comprehensive and consistent account of what the accused had done to her. The complainant was also able to withstand a determined and forceful cross examination and was not discredited as to the main version of her allegations.
The complainant was steadfast in what she had encountered that morning and I have no doubt in my mind that she told the truth in court. Her demeanour was consistent with her honesty. It is also noteworthy that the complainant had promptly reported the matter to the police.
Experience has shown that individuals differ in terms of how they react towards what is happening to him or her. Some display obvious signs of distress and some not. The fact that the complainant did not shout or yell or wake Vasiti does not mean that she was consenting to the forceful acts of the accused.
I agree with the complainant that had she consented to what the accused had done to her then she would not be in court. I also observed that the complainant had a strong view against the conduct of the accused on her and she had expressed herself clearly that she did not like or agree to or approve of what the accused had done to her.
The defence did not raise any motivation on the complainant to falsely implicate the accused. From the evidence it was the accused who had spent money on drinks and both the accused and the complainant had an enjoyable night together. There was no evidence of any enmity between the two as well. The complainant and the accused from the evidence appeared to be good flat mates.

92. The only issue in this case is whether the complainant had consented to

the acts of the accused. The legal definition of consent as mentioned in

the early part of this judgment is crucial to resolve this issue. It is

obvious to me from the conduct of the accused that she was forcefully

doing what she wanted to do. The accused also knew or believed the

complainant was not consenting or didn’t care if she was not consenting

at the time.

Furthermore, the defence contention that the complainant was not during anything to push her away or was just lying down doing nothing hence showing consent is rejected by this court as untenable on the totality of the evidence. It is to be noted that the legal meaning of consent is wide which includes submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
In cross examination, the accused agreed that she had not asked the complainant permission to do what she did that morning gives support to the evidence of the complainant that she had not consented to what the accused had done to her. The accused in her evidence also stated that the complainant was not responding or doing anything but lying still shows the complainant was not a consenting party to what was happening to her and I can only infer that she was not in it at all.
I also accept the circumstances of the complainant that due to her intoxication and tiredness she tried her best to push the accused but was unable to despite her efforts to do so. The explanation of the complainant in this regard is believable. The defence also says that what the complainant told the court was not possible particularly when the accused was licking and sucking her vagina she could not have possibly blocked her mouth. I have taken note of this aspect of the complainant’s evidence as raised by the defence. The issue is not about the conduct of the accused but whether the complainant had consented to all the acts of the accused including the sucking of her vagina. The evidence is clear and obvious, the complainant did not consent to any of the acts of the accused that morning.
I agree there was an inconsistency between what the complainant told the court in her evidence and her police statement. The discrepancy in my view was not significant to adversely affect the credibility of the complainant or shake the main thrust of her testimony.
I have taken extreme care in addressing this discrepancy. Firstly, I have taken into account the fact that the police statement of this witness was written by another person and secondly, despite vigorous cross examination this witness maintained under oath that she had told the police officer that the accused had blocked her mouth with her hand to stop her from making any noise.
The omission from the police statement of the complainant that the accused had blocked her mouth with her hand is not significant to affect the credibility of this witness.
The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) had made the following pertinent observations about the above at paragraphs 15 and 16 as follows:

[15] It is well settled that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be discredited or disregarded. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witnesses. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of incidents, minor discrepancies are bound to occur in the statements of witnesses.

[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;”

On the other hand, the accused did not tell the truth she gave a version of events which is not tenable or plausible on the totality of the evidence. It is difficult to accept that what the accused did to the complainant was done with her consent. I reject the accused evidence that the complainant was “full time” concentrating on her phone while she was on top of her as a made up assertion when this was not put to the complainant in cross examination. The accused did not tell the truth when she said the accused had consented to all her acts.
Furthermore, the accused also did not tell the truth when she said the complainant was consenting by her reaction towards her. In her evidence the accused maintained that the complainant was keeping still and doing nothing which suggests to me that there was no reaction by the complainant at all.
I reject the evidence of the accused as unreliable and untruthful. I also noticed that the accused was not forthright in her response during cross examination and most of what she told the court was not put to the complainant thus not complying with the rule in Brown vs. Dunn.
This court accepts the evidence of the complainant as reliable and credible. On the other hand, this court rejects the defence of consent in respect of all the counts as untenable and implausible on the totality of the evidence.

104. The defence has not been able to create a reasonable doubt in the prosecution case.

CONCLUSION

This court is satisfied beyond reasonable doubt that the accused on 8^thFebruary, 2018 had penetrated the vagina of the complainant “C.H” with her fingers without her consent.
Furthermore, this court also accepts that the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
This court is also satisfied beyond reasonable doubt that the accused on 8^th February, 2018 had unlawfully and indecently assaulted the complainant “C.H” by sucking her vagina. This court is also satisfied beyond reasonable doubt the accused had on the same date unlawfully and indecently assaulted the complainant “C.H” by kissing her mouth, neck and breast and also made love bites on her breast.
In both the above counts this court is satisfied beyond reasonable doubt that the accused had acted unlawfully that is without lawful excuse and indecently in what she did to the complainant. The acts of the accused in counts two and three have some elements of indecency that any right minded person would consider such conduct sexual and indecent in nature. Finally, the complainant did not consent to the above mentioned acts of the accused.
In view of the above, I find the accused guilty of one count of rape, one count of sexual assault and one count of indecent assault as charged and she is convicted accordingly.
This is the judgment of the court.

Sunil Sharma
Judge

At Lautoka
02 May, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.

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