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State v Vuetikorovatu [2022] FJHC 53; HAC143.2020 (31 January 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 143 OF 2020

STATE

V

SOLOMONE VUETIKOROVATU

Counsel: Ms K Semisi for the State

Mr F Vosarogo for the Accused

Date of Hearing: 22 January – 26 January 2022
Date of Judgment: 31 January 2022

JUDGMENT

[1] The Accused is charged with one count of digital rape contrary to section 207(1) and (2)(b) of the Crimes Act. The charge alleges that the Accused on 22 March 2020 at Suva penetrated the vulva of the complainant, with his tongue, without her consent.

[2] It is for the prosecution to prove the charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. The prosecution must prove its case beyond reasonable doubt.

[3] To prove the charge, the prosecution must prove three elements.

[4] First, it must be proved beyond reasonable doubt that on the alleged date and place, the Accused penetrated the vulva of the complainant with his tongue. Slightest penetration is sufficient.

[5] Second, the prosecution must prove beyond reasonable doubt that when the Accused penetrated the vulva of the complainant with his tongue, he did so without her consent. The term consent means consent freely and voluntarily given by the complainant for the Accused to sexually penetrate her. Consent can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways. Consent obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual acts is not, by reason only of that fact, to be regarded as consenting to the sexual acts.

[6] Third, it must be proved that the Accused knew that the complainant did not consent. This is a subjective, and not an objective test.

[7] The fong wing facts are agreed:

1. The complainant IM. Her date of bir 17^th of July, 2001.
2. The Accused is Solomone Vuetikorovatu. His date of birth is 4^th August, 1995.
3. The complainant is originally from Qamea, Taveuni. She came to reside in Suva since December 2019 because she had enrolled at USP.
4. The complainant stayed with her cousin brothers, Poasa Tabuaciri Jnr, the Accused and sister in law, Lavenia Bola.
5. Lavenia Bola is the wife of Poasa Tabuaciri Jnr.
6. The Accused and Poasa Tabuaciri are biological brothers.
7. In 2020, the Accused was studying at FNU, Samabula while the complainant was studying at USP, Laucala.
8. The house they lived in consisted of 4 bedrooms. 1 bedroom was occupied by the Accused, the 2^nd bedroom was occupied by the complainant. The 3^rd bedroom was occupied by Poasa Tabuaciri Jnr and Lavenia Bola. The 4^th bedroom was a guest room.
9. On 21^st March 2020 at about 7am Poasa Jnr, Lavenia, the Accused and the complainant were visited by relatives. These relatives stayed, ate food, and drank grog. Everyone finished eating and drinking on 22^nd March 2020 after midnight.
10. The Accused was alone in his bedroom on 22^nd March 2020 at about 2.30am. His stomach was sore from having grog and so he messaged the complainant via facebook messenger telling her that his stomach was sore and that he wanted coconut oil.
11. The Accused was interviewed under caution and charged at Valelevu Police Station on 4^th May 2020.
    

[8] The prosecution led evidence from the complainant and two other witnesses.

[9] The evidence of the complainant is that on 22 March 2020 at around 2.30 am when she went into her bedroom to sleep the Accused started sending her messages via his Facebook account insisting that she bring oil to his bedroom as he was having stomach pains. At first she ignored his request but when he called her twice on her mobile, she took a bottle of oil to his bedroom out of concern for him. When she arrived at his bedroom, he pulled her inside, locked the door and pushed her on the mattress on the floor. He ca top of her and triedtried to kiss her but she resisted. While she was resisting him, her wraparound sulu was undone and her pants was pulled down to her knees. The Accused tried to remove herrwear but her resistance prce prevented him from doing so. She felt her panty was pulled to a side and she could feel his tongue penetrate her vagina for a second. She did not consent to the act. She managed to push him away. When he got off her she put on her clothes and returned to her bedroom.

[10] She felt afraid and ashamed. She messaged her cousin, Laisa that the Accused tried to do something to her but she did not give details of what had happened.

[11] Laisa Tabuaciri in her evidence confirmed receiving the complainant’s message that something bad had happened to her and when Laisa pressed for details the complainant told her that the Accused had forced himself on her.

[12] While the complainant was in her room the Accused sent her messages though his Facebook account apologizing and seeking forgiveness from her. The complainant remained in her room until the daylight when she contacted a female member of the household, Lavenia Bola. She told Lavenia that the Accused did something to her.

[13] Lavenia Bola in her evidence said that when she met the complainant in the morning of 22 March 2020 she was not comfortable to speak inside the house. She noticed that the complainant was distressed and reluctant to speak. She took the complainant for a ride in her vehicle and then to her parents’ house at Valelevu. Lavenia said that she could not gauge what had happened to her and upon prodding the complainant told her that the Accused did something to her.

[14] Under cross-examination, the complainant denied propositions put to her that she voluntarily went inside the Accused’s bedroom, massaged his abdomen with oil and consensually engaged in the act of kissing.

[15] The Accused chose to give evidence. However, he does not have to prove anything. If the account given by him is or may be true, then he must be found not guilty. But even the account given by him is entirely rejected, that would not relieve the prosecution of its burden of making sure by evidence of the Accused’s guilt.

[16] The Accused’s evidence is that he did message the complainant to bring a bottle of oil to his bedroom using his Facebook account. He said that he sent several messages and called her twice to bring the oil to his bedroom because he was having stomach pains. He said that when the complainant entered his room he was lying down on the floor on a mattress. When he asked her to massage his abdomen, she locked the door and closed the curtains. She took off her sulu and sat on his lap. She massaged his belly. She tried to kiss him and then they both kissed. Apart from kissing her he said that he did not do any other sexual acts. He denies pulling her panty to one side and penetrating her vagina with his tongue.

[17] Aftesingssing the complainant for about five minutes the Accused said that he stood up and went to the kitchen to drink water. He said that when he assured the complainant that no one else was awae sneaked back into her bedr bedroom.

[18] The Accused said that when he returned to his bedroom he released that what had happened between him and the complainant was not right. He said that he sent her messages apologizing and seeking forgiveness from her because they were like a brother and sister and that her parents had sent her to live with them to pursue her studies at USP.

[19] The Accused said that about 7 am his elder brother woke him for a family conference. He said that he participated in the family conference with his brother, his brother’s girlfriend, Lavenia and the complainant. He said that he left the house because that is what his family decided.

[20] The defence case is of denial. The Accused suggests that he is a victim of a false allegation.

[21] The identity of the Accused is not an issue. The Accused admits that he was with the complainant at the time of the alleged incident. His account of him sending numerous messages using his Facebook account and calling the complainant twice for her to bring a bottle of oil to his bedroom is consistent with the account given by the complainant. Further his account of what transpired after the alleged incident is consistent with the account of the complainant.

[22] The point of difference is what occurred in the bedroom when the complainant went there with a bottle of oil.

[23] His account is that the complainant voluntarily came to him, massaged his abdomen and that they consensually kissed for five minutes. After that he went out of his room and she quietly sneaked back into her bedroom. When he returned to his room he realized the consensual act of kissing was not right because the complainant was like a sister to him and that is why he apologized and sought forgiveness from the complainant. He left the house in the morning after a family conference because that is what his family had decided.

[24] The prosecution case is entirely dependent on the complainant’s account of the alleged event. If her account is true then the Accused is guilty of rape.

[25] The prosecution relies upon the complaint made to the two female relatives shortly after the alleged incident to show consistency on the complainant’s account.

[26] I am mindful that the complaint is not independent evidence of what happened between the complainant and the Accused, and it therefore cannot of itself prove that the complaint is true. The only use I make of the recent complaint evidence is to determine whether the complainant told the truth when she said that the Accused forced her to the mattress and penetrated her vulva with his tongue.

[27] The two female relatives’ evidence is that the complainant complained to them that something bad had occurred to her but she was reluctant to divulge details. Both witnesses have said that the complainant either sounded or appeared distressed when the complaint was communicated to them. Upon prodding the complainant said that the Accused did something to her.

[28] The complainant struck me as a honest witness. I believe the account of the complainant as true. I do not believe the Accused’s denial of the alleged incident.

[29] The complainant’s reluctance to provide details of the alleged incident to her relatives is understandable in the circumstances of the case. She was a younger female cousin of the Accused and living with his relatives away from her own family. Her explanations for her not raising alarm by screaming during the alleged incident are also reasonable in the circumstances of this case. She was genuinely shocked by the incident and was afraid and ashamed.

[30] I accept the complainant’s account as true and I feel sure that the Accused penetrated the complainant’s vulva with his tongue. I feel sure that the complainant did not consent and that the Accused knew that the complainant did not consent.

[31] I find the Accused guilty of rape as charged and convict him accordingly.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Vosarogo Lawyers for the Accused