IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 47 of 2021

        STATE

            vs.

                         ILIESA LEWADOKARA

Counsel:			Ms. U. Tamanikaiyaroi with Mr. L. Baleilevuka for the State  
				Ms. L. Nabainivalu for the Accused 
				
Date of Hearing:		25th and 26th April 2022
Date of Closing Submission:	27th April 2022
Date of Judgment:		06th May 2022

JUDGMENT

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

1.	The Director of Public Prosecutions has charged the accused for the following offence as per the Amended Information dated 15th April 2021:

COUNT ONE
Statement of Offence
RAPE: contrary to Section 207 (1) and (2) (b) of the Crimes Act, 2009.

Particulars of Offence
ILIESA LEWADOKARA between the 1st day of September 2020 and the 23rd day of September 2020 at Suva, in the Central Division, penetrate the vulva of E.R, with his tongue without her consent.

2.	Upon reading of the charge Mr. Iliesa Lewadokara understood and pleaded not guilty to the same. The prosecution then called the complainant (PW1) as their first and only witness and closed their case. As it appeared to me that there was a case to answer by the accused his options and rights were explained and the Accused was called upon to make his defence. The Accused opted to give evidence and that was the defence. Then upon hearing the submissions of both the Defence and the Prosecution this was set for Judgement.

Defect In the Charge
3.	At this stage I observed that the charge was not in order. The victim ER was a minor less than 13 years of age. The statement of offence correctly stated that “RAPE: contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009”. However, particulars of offence describes that the penetration of the vulva of ER was “with his tongue without her consent”. On the face of it this cannot be so as the description ‘without her consent’ is not in accordance with the statement of offence which refers to sub section 3 of section 207 where the victim is less than 13 years. Very simply, when the statement of offence refers to a minor who is incapable of to giving consent how can the particulars of offence aver that penetrating the vulva of the said minor child was without her consent? To that extent there was a contradiction between the statement and the particulars of the offence. The change in this form is ambiguous and not clear thus defective to that extent. As the victim was less than 13 years of age the particulars ought to have stated “a child under the age of 13 years” instead of stating without her consent.

4.	Section 122(f)of the CPC requires that any charge or information should in such a manner indicate with reasonable clearness the place, time, thing, matter, act or omission which it is necessary to refer in any charge or information.

5.	This matter was brought to the notice of the prosecutor and the defence counsel and an opportunity was afforded to rectify this defect. However, to my surprise and dismay the learned State counsel instead of amending the charge opted to proceed with the charge as it is on the basis inter alia that the defect causes no prejudice or that there was no defect. My understanding is otherwise and if at any stage during the course of a trial if an apparent defect is observed it is necessary to amend and rectify the said defect as provided for by section 214 (3) of the CPA.

6.	The prosecuting counsel made no application to amend the charge. However, under section 214(3) this court is empowered at any stage of the trial, if it appears to court, that the information is defective to make such order for the amendment of the information.  As this court thought it necessary to meet the circumstances of the case, made order to amend the charge by substituting the words “a child under the age of 13 years, with his tongue”, for the words, “with his tongue without her consent” of the last line of the particulars of the offence. Accordingly, direction was made and the amendment was made accordingly. I am of the view no prejudice was caused to the accused as defence from the inception proceeded on the bases that the girl was a minor and consent was not an issue. This is further confirmed by the admissions in this case. The amendment was made. The amended charge as amended is as follows;

   COUNT ONE
Statement of Offence
RAPE: contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.

Particulars of Offence
ILIESA LEWADOKARA between the 1st day of September 2020 and the 23rd day of September 2020 at Suva, in the Central Division, penetrate the vulva of E.R, a child under the age of 13 years, with his tongue.

7.	The amendment made and the information so amended was explained to the accused who maintained his not guilty plea.

8.	The accused is presumed to be innocent until he is proved guilty. 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 or burden on the accused to prove his innocence. 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, or if there be any hesitation in my mind on any of the ingredient or on the of evidence or led by of the prosecution the Accused must be found not guilty of the charge and accordingly acquitted. As the Accused has given evidence in this case if this court accepts his evidence or is unable to reject or accept his evidence then too the accused is entitled to finding in his favour.

9.	For the accused to be found guilty of rape in the present case based on sub sections 2(b) and (3), the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused
(ii) penetrated the complainant’s vulva with his tongue,
(iii) complainant is less than 13 years of age’
The slightest penetration of the complainant’s vulva by the accused’s tongue is sufficient to satisfy penetration. 

10.	It is admitted and agreed that the person charged is Iliesa Lewadokara [“Iliesa”] was born on 10 July 1960 and was 60 years old at the time of the alleged incident. The complainant is E.R whose mother is Setaita Rasovanivalu [“Setaita”] and they reside together at Jittu Estate, Raiwaqa. It is also admitted that Iliesa and E.R are known to each other and they reside in the same neighbourhood in JIttu Estate, Raiwaqa. Vinaina Misi [“Vinaina”] is a is known to Iliesa as they are neighbours.  Viniana’s granddaughter is Elisabeci Adisau Baleisasa (“Elisabeci”).

11.	The birth certificate of E.R was admitted and not in dispute. The court will now examine the prosecution’s case. It is common ground that the is Iliesa Lewadokara is the Accused in this case
 
Evidence of E.R.
12.	In 2020 she had been living in Jittu and was in class 5 at Nabua Primary School. The day in question being a Sunday, around 3.30 in the afternoon she had gone to buy biscuits. On as she passed the Accused’s house the Accused had called from his house and asked her to come and watch a movie. When she went only Iliesa had been in the house. She had asked him to play the ‘Barbie’ cartoon movies which he refused and played a bad movie in which a man and a lady were seen naked on TV. Then the Accused had asked her close the door go inside the room, take off my pants and for them to do what was seen in the movie. She had not agreed but the Accused had wanted her to just do it once. Then he had got her lie down beside the fridge to follow what she saw in the movie. Then the Accused had got her to bend over and spread her legs and then licked where she urinates from with his tongue for about a minute. She calls it ‘mimi’. [she pointed out on a doll the place where he licked ]. 

13.	At this moment hearing the voice of Elisabeci from outside Iliesa asked her to go into the room and wear her clothes which she had done and then I climbed up the window between the kitchen and the room. Then heard Elisabeci’s voice was coming from inside the house. So as soon as he opened the door E.R had run out and the old woman seen her and asked what she was doing in that house. But she without replying had gone straight home. Then on Sunday her sister Sala had asked about this and has got into an argument with her and then told their mother that Iliesa had licked E.R.

Failure to Promptly Disclose
14.	E.R did not complain to anyone immediately and her disclosure to her mother was because her sister finding out about this and informing her mother. The defence suggested that the victim made this allegation because her sister Sala told so which she denied. It is not unusual for children to act in this way due to fear, shame and even believing that she is at fault. Her explanation was that she was scared of her mom. She had watched a DVD with a sexually explicit scene. This naturally would have created a scene of guilt in her mind. That is why she hid when Elisabeci came and then surreptitiously ran away. The fact that she left the Accused’s house when Elisabeci’s grandmother called is admitted by the Accused. This demonstrates and manifest a sense of guilt in her mind. What was it? Was it merely watching a phonographic movie or something more? She says the Accused wanted her to enact the sex act seen on the disc, licking her vulva. Now the conduct of running away in these circumstances is consistent with her story the happening of an unspeakable act. E.R in her tender but sexually inquisitive age would have naturally been curious as to sexual acts and such material of a pornographic nature. Thus having participated possibly even willingly and then concealing it from others is quite natural and probable. Further it is very likely for a girl of tender age to develop a sence of guilt and shame which too will lead to concealing and non-disclosure. This is more probable when the perpetrator is a known adult as in the present case. Thus not promptly disclosing is consistent with the natural conduct as stated above, especially so if her mother was strict as she has stated. Thus the failure to promptly disclose does not affect the credibility or the veracity of her evidence.

15.	Defence suggested that E.R made this allegation merely because her sister Sala said that it happened so. E.R answered in the affirmative. Does this mean that E repeated something that did not happen due to fear? To understand this in context I will reproduce the portion of the evidence which is thus;

Ms. Nabainivalu:	E.R, I suggest to you that on that day when you told your mother I suggest to you that you only told your mum the same story your sister said because you were scared?
Ms. E.R:	Yes.
Judge:	I don’t think that question is fair [sic.] and she understood. [sic.] as to  Why the evidence she told the mother. What she told the mother is not receipted [sic.] received in evidence in this up to [sic.] now. You are going on [sic.] the assumption that certain evidence had been given by her. Saying that she narrated the incident to her mother.
[Discussion between the counsel and Judge].
Ms. E.R:	Yes.
Judge:	What did your sister tell the mother?
Ms. E.R:	My Lord, she told mum that Iliesa had licked me. 
Judge:	Who told your sister about that licking?
Ms. E.R:	Elizabeth, My Lord. Someone told Elizabeth, Elizabeth told E.R, E.R told Sala.
Judge:	Okay you can proceed and you are free to cross examine whatever it came out in the course of the question bring to the court also.
Ms. Nabainivalu:	Very well, My Lord. Thank you, My Lord. E.R you just told the court that your sister Sala she told your mum that Iliesa licked you. Now I suggest to you again E.R that the only reason you told your mother that same story that Sala said was because you were scared?
Ms. E.R:	Yes.
Ms. Nabainivalu:	No further questions, My Lord.
Judge:	Re-Examination.
Ms. Tamanikaiyaroi:	My Lord, just one question. E.R you agreed that you were scared that’s why you told your mum.
Ms. E.R:	Yes.

16.	So what does it mean when E.R admits the suggestion that “the only reason you told your mother that same story that Sala said was because you were scared”? It means that, E.R repeated the same story Sala narrated to her mother and did so s because ‘she was scared of her mother’. What did Sala tell her mother? She said that ‘Iliesa had licked E.R’. When in fact what had happened to E.R was just that was there anything else E.R could have done but to repeat that? I think not? Thus E.R has to necessarily repeat the same story and by admitting the suggestion she does no more than accepting the obvious.  E.R also admits that she did so disclose because she was scared of her mom. 

17.	In the first instance it was the fear of her mother that deterred and inhibited her from disclosing and in the same vein it was the same fear that prompted her to admit the incident when it was suddenly disclosed and narrated by her sister. In these circumstances it is probable and natural for a small to so admit when such an incident comes to light unexpectedly. Thus in these circumstances I am convinced and confident in my mind that E.R is not accepting something which did not happen merely because her sister said so but E.R had to repeat the something to her mother because that happen to be what Iliesa did to her.

18.	The next I will consider the probability of E.R’s version. According to her evidence it is apparent that the Accused after watching a disc containing sexually explicit pornographic matter, have been excited and then taken advantage of the E,R to satisfy his perverted sexual desires and give vent to his lustful excitement. Isn’t this very probable? This is made more probable especially in the light of the evidence that wife was separated and he was living alone with his daughter and granddaughter in this house. Thus her evidence stands to reason and is highly probable.

19.	The E.R when giving evidence did not exaggerate and the manner she responded to cross examination clearly exhibited that she was recalling and narrating something she had actually experienced. Neither did she exhibit malice nor was she over enthusiastic thus her demeanor and deportment clearly was consistent with that of a truthful witness. There was no other motive or reason even a suggestion that she or another connected to her had any reason to make a false allegation against the Accused. In these circumstances, I, without any reservation can safely and comfortably conclude that E.R is a credible, trustworthy and truthful witness.

Defence Evidence
20.	The Accused opted to give evidence and he basically admitted the fact that E.R came to his house around 3 p.m. and when she came into his house a CD disc was playing on his deck. Accused said that he is a cleaner attached to Suva City Council and he found some disc which he home and was watching when E.R walked in there. At that moment there had been an adult scene in which a naked man and woman were seen. E.R had come in and stood in front of the TV, the Accused had told her if she wants she may sit down or if not she can go home. Then she had gone up to the washing machine at which point another small girl named Elisabeci had come in. Short while later Elisabeci’s grandmother had called out and both E.R and Elisabeci are said to have left his house together led by E.R. The Accused denies calling her in or deliberately showing a phonographic movie or asking her to remove her clothes and inviting her to act what she saw in the movie. He also denies that he licked her or promise to give her money. The Accused finally says that he does not know as to why E.R made this allegation. In cross examination the State counsel suggested the prosecution version which he denied. The Accused himself has a daughter and a grand-daughter living with him and E.R and her sister Elisa and Elisebeci visits them and also comes to his house to watch TV. He had known E.R and family for some time as they lived in a same village.

21.	The in cross examination the omission elicited were inter alia that, the picking up of disc, and telling E.R that she could go home or watch TV, were not mentioned in his caution interview. 

22.	This being the defence evidence the only matter the parties are at varience or in dispute is whether the fact of Accused licking the vulva of the victim. Apart from this as regards the date, place, the identity of the Accused, age of the victim and even the fact that the girl coming to the house of the accused on that day and the fact of adult being played are all common ground. 

23.	That being so, now I will consider the credibility, veracity and the truthfulness of the accused evidence and that of the defence case. Accused admitted the events that happened that day subject to minor differences. According to him the arrival of E.R when the adult movie was playing was a co-incident or a chance happening. If a sexually explicit pornographic scene pops up in the television when a little girl arrives at that time will he ask her to sit down? Is this the natural and probable conduct of a normal person faced with such a situation? I do not think so. The Accused watching by design or otherwise a movie of this nature alone in his house is not an issue or a matter for adverse comment. However, if a small child walks in   a person watching such a movie as afore mentioned one would expect, him to immediately chase the child away or discontinue the movie from playing. This Accused had done neither. In the contrary he invites her to sit down and watch a movie. His position is that the adult movie (disc) stopped playing due to some issue and then he wanted to show the girl a different movie but his evidence is that at the moment the movie stopped playing Elisabeci too arrived and it appears she too had been allowed to come in. Then shortly thereafter Elisabeci’s grandmother calls out and the two girls run away just like that. This is the evidence of the Accsed and the defence version. In the normal course of events, it is not natural for a person to permit or allow two small children to come in and remain in the house if he was watching an adult movie. In the contrary you would expect the accused to have chased the children away. He had in the contrary invited them to sit down. This is not probable. Then assume for a moment that the accused invited E.R and Elisebeci to watch an innocent movie. If that be so, why should the girls run away when they hear the grandmother calling? This narration of facts is inherently improbable. Why I say so is that in the first instance if he was innocently watching or happen to watch an adult movie you would not expect him to allow the E.R into the house. Assume that the children came in on their own, then you would not expect the Accused to invite them to sit and remain in the house. Therefore while that part of the accused’s evidence is improbable per se the part of the children running away in that manner is totally inconsistent with his explanation that when Elisabeci came in the adult movie scene was not playing. For if that be so there was no reason for Elisabeci to run away when her grandmother was heard coming. 

24.	That being so the Accused had not told the police that the finding of the adult movie disc or playing the same when the girls arrived. This is an omission. As the main allegation against him was based on showing an adult phonographic movie and then committing a sexual act, one would expect the Accused to tell the police at the first instance about his finding of the disc and watching it because the adult movie was a primary matter. He had not done so. He claims that he did tell but the police had not written it. If the Accused told the police of the finding and playing of a phonographic disc I see no reason why any sane policeman with minimum intelligence would not have record this because that by itself would have been an important item of evidence against the Accused. Therefore the explanation given by the accused is improbable and to that extent it is false. 

25.	I had the opportunity to observe his demeanor and deportment. Even during examination in chief, the narration of facts did not flow freely. What I observed is it did not have the attributes or the nature of a person narrating something that had actually happened or experience by him. It was more of in the nature that he was making an attempt to put together a story to fall in line as much as possible with the story of E.R. It was no doubt quite a cunning and clever attempt. However, the per se improbabilities has proved that it is false. Therefore, on the above evaluation the Accused evidence is improbable on important matters. Accordingly, I find that the Accused’s evidence is totally unreliable, improbable, untrue and false. Accordingly, I reject his evidence in its totality. 

26.	Merely because the accused evidence is false and is rejected that will not prove the prosecution’s case. Prosecution should prove all ingredients of the offence beyond reasonable doubt. Now let’s consider if there is evidence to prove the said ingredients and if it is sufficient to meet the criminal standard of beyond reasonable doubt. 

Conclusion
27.	The evidence on which the prosecution relies is the solitary testimony of the complainant E.R. I have considered and determined that E.R’s evidence is credible. Her sworn testimony is evidence of the facts asserted and she is the victim. Corroborative, extrinsic, or forensic evidence, or expert or third-party witness testimony, was not led in this case and there’s no legal requirement corroboration. Of course, such evidence, if properly admitted, may have corroborated but is not required to bring home a conviction, if E.R’s testimony covers the facts that constitute each element of the offense charged and her testimony, is found to be credible, is sufficient on its own to support a finding beyond reasonable doubt.

28.	Though E.R’s evidence is credible E.R was not very clear on the date of offence and she did mention that it was May. This was obviously due to the faulty memory with the lapse of time. However, she was certain that within a day or two the incident this came to light and the complaint to the police immediately and the date on which her complaint was made was elicited in cross examination as 23rd September 2020 and in re-examination it was clarified thus;
Ms. Tamanikaiyaroi: Okay E.R you remember you told us this morning you are asked about what month you told us May, alright. Okay then when Iliesa’s lawyer asked you questions using your statement and you read out the dates gave on the statement was on the 23rd September 2020, okay. Can you just clarify when did what month did the incident happened?

Ms. E.R:	September, My Lord.

29.	Thus there is sufficient evidence to safely conclude on the required criminal standard that the offence was committed between the 1st and 23rd of September 2020. This is not disputed by the defence either.

30.	E.R states that the Accused licked her private parts which she referred to as “mimi” or the place she urinates. This she pointed out on a doll. She also explained that she was asked to bend down and be in a particular posture. The description clearly indicated that accused had positioned E.R in such a way it enables him to gain access to her vulva with ease. She said that she felt the tongue on her vulva. This narration of facts supports the position that the Accused could have reached the vulva and licked it. What I observe is that a small girl will not be able to narrate an incident in this manner so descriptively unless she had in fact gone through it and experienced it. She says that she felt the tongue touching her vulva. Therefore, this evidence of E.R to my mind proves beyond reasonable doubt that the Accused did lick her vulva and penetrate her vulva with his tongue as charged.

31.	The birth certificate of E.R is admitted and not in dispute. According to which E.R was born on 31st May 2010 and between the 1st and 23rd of September 2020 she was 10 years and 4 months in age thus is less than 13 years. 

32.	Accordingly I am satisfied that the prosecution has proved beyond reasonable doubt that the accused Iliesa Lewadokara has between the 1st day of September 2020 and the 23rd day of September 2020 at Suva, in the Central Division, penetrated the vulva of PW1 E.R, with his tongue and that PW1 E.R was a child under the age of 13 years as at that date.

33.	Accordingly, I find the Accused's denial is false and not true and the defence has not been able to create any reasonable doubt in the prosecution case.

34.	Thus, I find the prosecution has proved the accused’s guilt of the count of Rape as charged beyond reasonable doubt.

35.	Accordingly, I hold that prosecution has proved counts of rape as charged beyond reasonable doubt and I find the Accused Iliesa Lewadokara guilty of the said count of Rape, as charged in the Amended information, and convict for the same. 

………………………………………………….
							Justice K.M.G.H.Kulatunga

At Suva
06th May 2022

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