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State v Baleinarewa [2023] FJHC 626; HAC108.2022 (31 August 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 108 of 2022

STATE

V

ISOA BALEINAREWA

Counsel : Ms. S. Naibe for the State.
: Ms. L. Taukei and Ms. S. Shafiq for the Accused.

Dates of Hearing : 21, 22, 23, 24 and 25 August, 2023
Closing Speeches : 30 August, 2023
Date of Judgment : 31 August, 2023

JUDGMENT

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

1. The Director of Public Prosecutions charged the accused by filing the following information dated 25^th January, 2023:
   

FIRST COUNT

Statement of Offence

ASSAULT WITH INTENT TO COMMIT RAPE: contrary to section 209 of the Crimes Act 2009.

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, assaulted “L.C” with intent to rape “L.C”.

SECOND COUNT

Statement of Offence

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

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, unlawfully and indecently assaulted “L.C” by putting his penis on her cheeks.

THIRD COUNT

Statement of Offence

RAPE: contrary to section 207(1) and (2) (b) and (3) of the Crimes Act 2009.

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, penetrated the vagina of “L. C” a child under the age of 13 years with his tongue.

FOURTH COUNT

Statement of Offence

RAPE: contrary to section 207(1) and (2) (b) and (3) of the Crimes Act 2009.

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, penetrated the anus of “L. C” a child under the age of 13 years with his tongue.

FIFTH COUNT

Statement of Offence

RAPE: contrary to section 207(1) and (2) (b) and (3) of the Crimes Act 2009.

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, penetrated the vagina of “L. C” a child under the age of 13 years with his finger.

SIXTH COUNT

Statement of Offence

RAPE: contrary to section 207(1) and (2) (b) and (3) of the Crimes Act 2009.

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, penetrated the anus of “L. C” a child under the age of 13 years with his finger.

SEVENTH COUNT

Statement of Offence

RAPE: contrary to section 207(1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of offence

ISOA BALEINAREWA on the 17^th day of July 2022 at Rakiraki in the Western Division, penetrated the vagina of “L. C” a child under the age of 13 years with his penis.

2. In this trial, the prosecution called four witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer for one count of sexual assault (count 2) and three counts of rape (counts 5, 6 and 7) as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. 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 his 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.
   
4. The accused is charged with more than one offence, the evidence in respect of each offence will be considered separately from the other if the accused is guilty of one offence, it does not mean that he is guilty of the others as well. This also applies with the findings of not guilty.
   

ELEMENTS OF THE OFFENCE

SEXUAL ASSAULT

5. 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;

(c) Assaulted the complainant by putting his penis on her cheeks.

6. The first element of the offence of sexual assault is concerned with the identity of the person who allegedly committed this offence.
   
7. 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.
   
8. The final element of assault is the unlawful use of force on the complainant by the accused putting his penis on the complainant’s cheeks.
   

In this regard this court has to consider:

(a) whether the force used in putting the penis on the cheeks 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.

9. 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 putting his penis on her cheeks.
   
10. If this court is satisfied beyond reasonable doubt that the prosecution has proved all the elements of the offence of sexual assault as explained above, then this court must find the accused guilty. 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.

RAPE

11. To prove counts five, six and seven the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:
    
    • (a) The accused;
    • (b) Penetrated the vagina and the anus of the complainant with either his finger or his penis respectively;
    • (c) “L.C” was below the age of 13 years.
      
12. The slightest of penetration of the complainant’s vagina and anus by the accused’s finger or penis is sufficient to satisfy the act of penetration. As a matter of law a person under the age of 13 years does not have the capacity to consent. In this case, the complainant was 5 years at the time of the alleged offending and therefore the consent of the complainant is not an issue in regards to these counts.
    
13. The first element of the offence is concerned with the identity of the person who allegedly committed this offence.
    
14. The second element is the act of penetration of the complainant’s vagina and the anus with either the finger or the penis respectively.
    
15. The final element of the offence is the age of the complainant. It is an admitted fact that the complainant was 5 years in 2022 which establishes that she was below the age of 13 years at the time of the alleged incidents.
    
16. In this trial, the accused denied committing the offences of rape he is charged with. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina and the anus of the complainant with either his finger or his penis.
    
17. This court must be satisfied that the prosecution has proved all the elements of the offences of rape beyond reasonable doubt in order for this court to find the accused guilty. If on the other hand, this court has a reasonable doubt with regard to any of those elements concerning the offences, then this court must find the accused not guilty.
    
18. As a matter of law, I have to 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.
    

ADMITTED FACTS

19. In this trial, the prosecution and the defence have agreed to certain facts titled as admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
20. 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

21. At the outset I would like to mention that before the complainant gave evidence a series of questions were asked and answers received. This was done in accordance with section 117 of the Criminal Procedure Act to ascertain whether the complainant ought to take an oath or not. This court was satisfied that due to the tender age of the complainant being 6 years, no oath be administered hence the complainant gave unsworn evidence.
    
22. The complainant told the court that the accused is her uncle and she calls him “Ta Levu”. One afternoon the complainant with her two brothers Ilai and Tomasi, the accused and Vika went to tether the cattle. The complainant was piggybacking on the accused shoulder.
    
23. From the place where the cattle were Tomasi, llai and Vika took the cattle to another place, the complainant did not go since the accused had told her not to.
    
24. When the complainant was alone with the accused he pulled down her trousers and touched her “vara” meaning her vagina with his index finger. When the accused did this, it was painful after this the accused removed his pants and she saw the accused ball meaning his penis.
25. At this time the complainant was trying to stand up but the accused kept pulling her down. The complainant further stated that the accused put his penis on her cheeks and also penetrated his finger into her “vo-te” meaning her bum, when the accused did this the complainant felt pain. When asked what the bum was used for, the complainant said it was used to pass stool. Finally, the complainant stated the accused had put his penis in her vagina which was painful.
    
26. The complainant told Vika, Tomasi, Ilai, her parents and grandparents about what the accused had done to her. Her parents cried after they heard this. The complainant identified the accused in court.
    
27. In cross examination the complainant agreed the accused was living with her grandparents. On the day in question the complainant agreed that only Tomasi was riding the horse and at the place where the cattle were to be tethered the complainant and the accused were watching and after sometime she did not see Vika, Tomasi and Ilai.
    
28. At the time the complainant was standing with the accused and waiting for her siblings nothing happened. The complainant also agreed that after her siblings came back the accused went to look for one cow that had gone up the hill.
    
29. After her uncle came back they all went to the river. At the river the accused touched the water and said the water was too cold to swim so her uncle told all of them to go home.
    
30. Furthermore, the complainant agreed that at the police station it was her mother who told the police about what had happened to her. The complainant agreed that her mother did not like the accused and that was the reason her mum told her to tell the police about the touching of her vagina and bum by the accused.
    
31. In re-examination the complainant stated that Vika told her mum about what had happened to her since she had told Vika about the accused touching her vagina and bum.
    
32. The second witness Adi Vika Lewasau (13 years of age) informed the court that the complainant is her cousin sister. On 17^th July, 2022 she was at home with her grandparents and the accused. The accused is her uncle and she lived with them.
    
33. In the afternoon the witness with Tomasi, Ilai, the complainant and the accused went to check on their livestock. While on their way to the place where the livestock were, the accused told the witness, Tomasi and Ilai to take the lead. The witness said that they would go together, since Tomasi and Ilai had taken the lead the witness went with them.
    
34. After checking on the livestock the witness, llai and Tomasi returned to the place where they left the accused and the complainant. The accused and the complainant took the lead and stood under a tree. The accused told them to go swimming but no one went to swim so the accused left.
    
35. After the accused left, the complainant told the witness that the accused had touched her vagina. According to the witness when the complainant was telling her this, the complainant appeared to be scared. Upon hearing this they went home and the witness told the complainant’s mother about what the complainant had told her. The witness also stated that when she went to tether the livestock she did not see the accused and the complainant.
36. In cross examination the witness agreed that on 17^th July, 2022 the accused had asked the witness, Tomasi, Ilai and the complainant to go with him to tether the cattle. Upon reaching the place where the cattle were, the witness with Tomasi and Ilai started tethering the cattle.
    
37. The witness maintained that the accused had said for them to take the lead as mentioned by her in her evidence when they were going to tether the cattle. The witness agreed that after tethering the cattle everyone including the accused and the complainant went to the river. From the river the witness was on the horse back and the accused had lifted the complainant to sit behind her on the horse.
    
38. The witness agreed that she had told the court the complainant had told her the accused had touched her vagina. The witness was referred to her police statement page 2, lines 20 to 26 which were read as:

“Uncle Isoa removed her panty. L. was wearing a grey t-shirt and blue and white skirt also L. told us that uncle Isoa removed her panty and licked her vagina with his tongue.”

39. The witness agreed that nowhere in her police statement it was mentioned that the complainant had told her the accused had touched the complainant’s vagina. The witness also agreed that she would have remembered to tell the police officer writing her police statement had the complainant told her about the accused touching the complainant’s vagina.
    

PREVIOUS INCONSISTENT STATEMENT

40. This court directs its mind to the fact that the defence counsel during cross examination of Vika Lewasau had questioned this witness 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.
    
41. 41. This court is allowed to take into consideration the inconsistency or omission 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.
    
42. 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.
    
43. If there is any inconsistency or omission, 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.
    
44. The witness maintained that the complainant had told her the accused had touched her vagina. The witness agreed that the complainant’s mother did not like the accused and it was the complainant’s mother who had told her to say that the accused had touched the complainant’s vagina. The witness also stated that her police statement was not read to her and she was also not given the opportunity to read.
    
45. In re-examination the witness stated that the complainant’s mother had told her to say the accused had touched the complainant’s vagina since the complainant’s mother hated the accused. The witness did not know why the complainant’s mother did not like the accused.
    
46. The third witness Anaseini Bale the mother of the complainant informed the court that the complainant is her daughter born on 11^th September, 2016. On 17^th July, 2022 the complainant with her two brothers namely Tomasi and Ilai went to their grandparent’s house for Sunday prayers.
    
47. Later the witness and her husband took lunch for the family to her in laws house, there she came to know that her children had gone to fetch the cattle. After sometime Vika and her children came back, Vika called out to the witness saying “Naini its Ta Levu”. The witness said what happened to “Ta Levu”? Vika took the complainant’s name.
    
48. The witness then asked what “Ta Levu” did to the complainant. At this time the complainant was standing with her brothers at the back, the witness observed the complainant had watery eyes as a result of crying. Again the witness asked Vika what happened to the complainant, Vika said the complainant told Vika her uncle had removed her panty and touched her.
    
49. Upon hearing this, the witness started crying, after this the witness took the complainant home. At home the witness took the complainant in a room and asked her what happened. The witness noticed the complainant looked scared, she asked “my child what happened” the complainant responded by saying “its uncle he took off my panty made me lie down whilst I was lying down I wanted to get up he pushed me down parted my thighs and then drank my “vara” meaning vagina.”
50. Furthermore the witness stated the complainant also told her the accused had poked her “voe” meaning her buttocks. Upon further questioning by the witness the complainant said the accused removed his pants and took out his “vara”. The witness said “vara” meant the accused penis. The complainant also told her the accused tried putting his penis in the complainant’s mouth but she turned away.
    
51. The matter was thereafter reported at the Rakiraki Police Station and the complainant was medically examined. The witness has a good relationship with the accused but sometimes he did things which irritated her.
    
52. In cross examination the witness denied that she was angry and upset with the accused or wanted the accused to go to prison. The witness accompanied the complainant to the police station since the complainant at the time was 5 years old.
    
53. When it was suggested to the witness that she had informed the police of the alleged incident the witness said it was not her but the complainant. The witness denied the suggestion that she did not have a good relationship with the accused. She also denied telling the complainant to inform the police and the doctor that the accused had penetrated the complainant’s vagina.
    
54. The witness denied taking revenge on the accused and she had not told the doctor that it was the accused who had penetrated the complainant’s vagina. The witness denied making up stories through the complainant to implicate the accused she also denied that she did not like him. Upon further questioning the witness denied that she wanted the accused to go to prison.
    

RECENT COMPLAINT DIRECTION

55. Complainants of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
    
56. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight is to be given to the fact that the complainant told her cousin sister Vika Lewasau immediately after the incidents that the accused had touched her vagina and to her mother Anaseini Bale shortly after that the accused had removed the complainant’s panty, made her lie down parted her thighs and then drank her vagina, poked her buttocks and tried putting his penis into the complainant’s mouth but she turned her face.
    
57. 57. This is commonly known as recent complaint evidence. The evidence given by Vika and Anaseini is not evidence of what actually happened between the complainant and the accused since Vika and Anaseini were not present and they did not see what had happened.
    
58. This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says immediately after the accused left the complainant told Vika the accused had touched her vagina. When the complainant was at home with her mother in private she gave a detailed account of what the accused had done.
    
59. 59. The prosecution is asking this court to consider that the complainant was 5 years at the time and the fact that she relayed relevant and important information about the conduct of the accused to Vika and Anaseini shows that the complainant is more likely to be truthful.
    
60. On the other hand, the defence says the complainant made up a story against the accused. She gave one version to Vika another version to her mother and a different version in court. The defence also states that this court should consider that there are different versions which shows the complainant was not consistent hence she was making up a story against the accused and therefore she should not be believed.
    
61. It is for this court to decide whether the evidence of recent complaint helps this court to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. It is for this court to decide whether the complainant is reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
    
62. The final witness Dr. Ilisapeci Adi Tabua informed the court that she graduated with an MBBS degree from the University of Fiji in 2016. After one year of internship at the Lautoka Hospital she has been based at the Rakiraki Hospital.
    
63. On 17^th July, 2022 the witness examined the complainant at the Rakiraki Hospital. The Fiji Police Medical Examination Form of the complainant dated 17^th July, 2022 was marked and tendered as prosecution exhibit no.1.
    

64. The specific medical findings of the witness were:

(a) Swollen labia majora;
(b) Lacerations noted on right labia minora at 6 o’clock and 7 o’clock positions measuring approximately 2 cm;
(c) Laceration noted on posterior fourchette with redness around labia minora;
(d) Laceration noted on anus approximately 1 cm with redness around the anus;
(e) Hymen was not intact.

65. The witness had illustrated her findings at appendix 1, she explained that in respect of (a) above the causes could be a traumatic event such as falling or hitting something or as a result of sexual intercourse or by touching the vaginal area with force considering the age of the patient. In respect of (b) the laceration could have been caused by forceful trauma which caused the skin to break or cut. The witness further stated that the injury could have been by forceful penetration or sharp object that could cut or damage the skin. The injury seen could be due to penetration of the finger or the penis.
    
66. In respect of (c) the witness said laceration injuries to the posterior fourchette are the most common injury in a sexual offence case. The witness explained if the penetration to the vagina is big for the vaginal wall there will be pressure on the posterior fourchette which is a V shaped structure above the anus which will result in a tear which is a laceration. Due to the pressure exerted there was redness in the labia minora as well. The injuries could have been caused by either finger or penis. In respect of (d) the witness said the injury could have been by forceful penetration of a finger.
    
67. In respect of the hymen not been intact the witness explained any form of vaginal penetration or trauma or injuries like riding a bicycle, falling awkwardly could cause the hymen to break. According to the doctor the patient was very much in pain when she examined the vaginal orifice and the anus. The injury could be caused by a finger or penis and all the injuries seen were very recent.
    
68. In cross examination the witness agreed that for a child of the complainant’s age the vaginal area is very tender or soft. The witness said an adult finger may cause small laceration but with the penetration of the penis into the vagina the laceration would be bigger than 1 cm. In respect of laceration in the anus not being more than 1 cm due to penetration of one finger the witness said the finger may cause small laceration. The witness stated that although she had met the police officer and the mother of the patient before the medical examination there was no discussion about anyone penetrating the vagina of the patient. The police officer and the patient’s mother had thought the patient was assaulted. When the patient was taken inside the examining room the witness was just talking with the patient.
    
69. The witness also stated that the injuries seen in the labia majora and minora, the posterior fourchette including the anus could not have been sustained from horse riding and if the injuries were sustained before horse riding the patient would not be able to sit and ride on the horse for a long distance. The witness agreed the injuries could have happened after.

DIRECTION ON EXPERT EVIDENCE

70. This court has heard the evidence of Dr. Tabua who had been called as an expert on behalf of the prosecution. Expert evidence is permitted in a criminal trial to provide the court with information and opinion which is within the witness expertise. It is by no means unusual for evidence of this nature to be called and it is important that this court should see it in its proper perspective. The medical report of the complainant is before this court and what the doctor said in her evidence as a whole is to assist this court.
    
71. An expert witness is entitled to express an opinion in respect of his or her findings and I am entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by the doctor. When coming to my conclusion about this aspect of the case this court should bear in mind that if, having given the matter careful consideration, this court does not accept the evidence of the expert it does not have to act upon it. Indeed, this court does not have to accept even the unchallenged evidence of the doctor.
    
72. This evidence of the doctor relates only to part of the case, and that whilst it may be of assistance to this court in reaching its decision, this court must reach a decision having considered the whole of the evidence.
    
73. This was the prosecution case.
    

DEFENCE CASE

74. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination. This court must also consider his evidence and give such weight as is appropriate.
    
75. The accused informed the court that he lived with his parents and niece Vika Lewasau. On 17^th July, 2022 after lunch he got Vika, Tomasi, Ilai and the complainant to go with him to tether the cattle. The cattle were about 170 meters away from his house. They all walked for about 20 meters, on the way Tomasi was able to get onto a horse to ride on until all of them reached where the cattle were.
    
76. At this time the accused told Vika, Tomasi and Ilai to take the cattle to drink water. Each child had control of one cow. The accused and the complainant were watching from about 5 to 6 meters. It took the children about two minutes to bring back the cattle and tie them. Thereafter the accused went to tether the other cow which was 7 meters away on a hill. The accused told the complainant to wait for him, on the hill he fetched the cow took it to drink water and brought it back. It took the accused four minutes to do this by this time the other children came back.
    
77. From here all went to the river which was 200 meters away. The complainant was leading the way and Tomasi was still on horseback. By the time they reached the river it was about 5pm when the accused touched the water it was cold so he told the children not to swim but to go home. Vika got on the horse from the river the accused lifted the complainant and put her on the horse behind Vika. The accused left the children to go to his friend’s house.
    
78. The accused further informed the court that his sister in law Anaseini hates him. The relationship was not good from prior to the allegations the reason was whenever something goes missing for example money and phone from his brother’s house or their livestock Anaseini blamed him. However, the accused relationship with his nephews and nieces including the complainant was good. The accused denied all the allegations saying it was not true.
    
79. In cross examination the accused agreed that he told the children to tether the cattle but denied telling the children to take the lead to where the cattle were. The accused also denied the suggestion that the reason why he had told the children to tether the cattle was not to be alone with the complainant and sexually abuse her. The accused did not allow the complainant to go with the others to tether the cattle because she was small and she usually touched the tail of the cattle and to avoid getting hurt.
    
80. The accused denied that he sexually assaulted the complainant when the three older children were tethering the cattle. The accused denied committing the offences alleged by the complainant he stated that he was not making up stories but he was telling the truth of what had happened.
    
81. The accused denied that he did not go home with the children from the river since he had done something to the complainant. The accused also denied that the complainant had told the truth that he had sexually assaulted her. The accused denied that because he had sexually assaulted the complainant she had told her mother and the police and the doctor. The accused also denied the suggestion that the injuries sustained by the complainant were due to his sexual assault on her.
    
82. When it was suggested to the accused that he was not telling the truth the accused responded by saying “I am telling the truth because I was there I was present at the place this was happening that is why I am telling the truth in this court”.
    
83. In re-examination the accused said that the reason why he did not take the children home was because the children are familiar with the place and they usually walk that route and no one would harass them.
84. This was the defence case.
    

ANALYSIS

85. The prosecution states that the complainant and the accused are known to each other the accused is the paternal uncle of the complainant. On Sunday 17^th July, 2022 the 5 year old complainant at the request of the accused went with the accused, Vika and her two brothers Tomasi and Ilai to tether the cattle.
    
86. The complainant was piggybacking on the accused, as the group was about to reach the cattle the accused told Tomasi, Vika and llai to take the lead. The complainant wanted to go with her brothers and Vika but the accused stopped her. After the cattle were taken away by Tomasi, Vika and Ilai the complainant was alone with the accused.
    
87. At this time the accused made the complainant lie down and then he pulled down the complainant’s panty and forcefully penetrated her vagina with his index finger. When the accused did this the complainant felt pain after this the accused removed his pants and the complainant saw his penis.
    
88. The complainant was trying to stand up but the accused kept pulling her down. The accused put his penis on the complainant’s cheeks and also forcefully penetrated his finger into her anus and then his penis into the complainant’s vagina. The complainant felt pain as a result of what the accused had done.
    
89. After the accused left, the complainant told Vika (eldest in the group) in the presence of her two brothers when they returned from tethering the cattle that the accused had touched her vagina. Upon returning home Vika told the complainant’s mother Anaseini about what the complainant had told her. Anaseini took the complainant home and asked her in private about what the accused had done, the complainant told Anaseini in detail about what the accused had done to her.
    
90. The prosecution further submitted that the matter was promptly reported to the police and the complainant was medically examined the same day. The doctor found lacerations in the vagina and the anus of the complainant which was consistent with forceful penetration. The doctor also mentioned that the injuries were recent and painful to the complainant during the examination of the vagina and the anus.
    
91. It was also submitted that Vika and Anaseini the mother of the complainant had seen the distraught state of the complainant after the alleged incidents.
    
92. On the other hand, the defence says the allegations are a made up story instigated against the accused by the mother of the complainant. He did not do anything to the complainant as alleged. What the complainant narrated in court was not possible and/or probable and therefore she should not be believed.
    
93. The defence is asking this court to consider the fact that the complainant did not tell Vika that the accused had touched her vagina. It was Anaseini the mother of the complainant who had told Vika to say that the accused had touched the complainant’s vagina. In respect of Anaseini’s evidence the defence says this witness hated the accused and she was the mastermind behind the false allegations. This witness had carefully laid the trap through her daughter to raise baseless allegations against the accused. Anaseini’s aim is to make sure that the accused goes to prison.
    
94. The defence is asking this court not to believe the recent complaint evidence of Anaseini as well. Furthermore, the complainant was not consistent in relaying her complaint since nothing had happened. The complainant gave one version to Vika another to her mother and a different version in court.
    
95. The defence further submits that the accused did not do anything as alleged he went to look for a cow that was at the hill after Vika, Tomasi and llai came back from tethering the cattle. Furthermore, the medical report of the complainant is not conclusive since the injuries cannot be connected to the accused.
    
96. Finally, the defence submits that what the complainant told the court does not make sense and is riddled with doubt. The defence is asking this court not to believe the complainant who appeared to be furthering the vested interest of her mother. Anaseini hated the accused and that was the reason why she told the complainant to tell the police about the touching of her vagina and bum by the accused.
    

DETERMINATION

97. 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.
    
98. 98. 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 clear account of what the accused had done to her, though the complainant was taking her time to express herself she was able to tell the court about what the accused had done. The complainant was also able to withstand cross examination and was not discredited as to the allegations raised by her. She was steadfast in what the accused had done to her. Although the complainant in her cross examination accepted the proposition of the defence the totality of her evidence cannot be doubted.
    
99. I accept the complainant told Vika and Anaseini about what the accused had done to her. In my considered judgment what Vika told the court as supposedly narrated to her by the complainant and what she told the police in her police statement does not affect the credibility of the complainant in respect of the consistency of her conduct.
    
100. The totality of the complainant’s evidence does suggest sexual abuse by the accused and what was relayed to Vika was in regards of that abuse. In her evidence Vika said the complainant told her the accused had touched her vagina and in her police statement Vika told the police officer writing her police statement (when facts were fresh in her mind) that the accused had removed the complainant’s panty and licked her vagina. The inconsistency between the two versions does not adversely affect the credibility of Vika.
     
101. When one looks at both versions (one stated in court and one contained in the police statement of Vika) the gist of the complaint by the complainant is quite obvious that something sexual had happened. Vika being the eldest of all upon listening to the complainant immediately took everyone home and relayed the complaint to the complainant’s mother Anaseini.
     
102. Anaseini then took the complainant home and in private asked the complainant what had happened to her. The complainant in some detail relayed to Anaseini about what the accused had done to her. Whatever the complainant told Vika and Anaseini was promptly acted upon which resulted in a police report being lodged.
     
103. I also accept the observations of Vika and Anaseini that the complainant was scared and in a distraught state as reliable and credible narration of what they had seen. The evidence of Vika and Anaseini is reliable and credible when they told the court about what the complainant had told them.
     
104. It is not expected of a 5 year old child who has just had an unexpected sexual encounter to tell the first person she meets everything about what had happened to her in the presence of others (here her elder brothers). The failure by the complainant to tell Vika everything about what happened to her does not affect the reliability of her evidence. Another thing to note is that the complainant did relay crucial information to Vika and Anaseini to alert them that something had happened to her.
105. Furthermore, experience has shown that individuals differ in terms of how they react after an unexpected happening. Some display obvious signs of distress and some not. The circumstances of the complainant ought to be considered holistically. It cannot be ignored that the complainant was a 5 year old child who was oblivious to an unexpected conduct by the person she knew.
     
106. The Supreme Court in Anand Abhay Raj vs. The State, CAV 0003 of 2013 (20^th August, 2014) at paragraph 39 made an important observation about the above as follows:

The complainant need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the unlawful sexual conduct, provided it is capable of supporting the credibility of the complainant’s evidence.

107. The decisive aspect of the recent complaint evidence is to show consistency of the complainant’s conduct with her evidence given at trial. It is not expected of anyone who has had an unexpected sexual encounter to give every detail of the accused unlawful sexual conduct to the person the complaint is relayed to.
     
108. The complainant struck me as a simple and reserved person who was not as vocal as one would have expected but she did narrate in court whatever she could remember and it was obvious to me that passage of time had also affected her memory.
     
109. I have no doubt in my mind that the complainant told the truth in court. Her demeanour was consistent with her honesty. I also accept the opinion of the doctor that the injuries seen in the vagina and the anus of the complainant were consistent with forceful trauma which supported the evidence of the complainant. I also accept that the accused had put his penis on the cheeks of the complainant.
     
110. Although Vika in cross examination had said that Anaseini had told her to say that the accused had touched the complainant’s vagina due to Anaseini’s hatred towards the accused does not affect the prosecution case. The medical report is self-explanatory the doctor said the injuries on the complainant were recent and it showed injuries in the vagina and the anus caused by forceful penetration was an acceptable and reliable conclusion.
     
111. Anaseini was not discredited in cross examination she did say that sometimes what the accused did irritated her but that does not mean that Anaseini had concocted a false story to implicate the accused. The evidence suggests that Anaseini had only acted on whatever she was told by Vika and the complainant. The accused in his evidence did not elaborate how Anaseini will benefit if he is sent to prison, mere dislike or mere hatred by Anaseini does not mean that she is the motivator of the allegations against the accused.
     
112. From the evidence the only reasonable inference that can be drawn is that it was the accused who had sexually assaulted the complainant on the day in question exactly where in the series of events is irrelevant. The complainant’s evidence and the medical report support each other which cannot be ignored by this court. I do not accept that Anaseini had told the complainant to say that the accused had touched her vagina and buttocks in view of the injuries suffered by the complainant. I give no weight to the assertion of the doctor that the injuries on the complainant could have happened after the horse ride as mere speculation in absence of any suggestion put to the complainant that the injuries were self-inflicted.
     

113. Although the complainant was confused and/or was not able to explicitly explain the biological/medical terms of the reproductive organs was understandable given her age and education level. Nevertheless the complainant did express herself when shown a doll and picture of male anatomy.

114. The Court of Appeal in Vilikesa Volau v State [2017] FJCA 51; AU0011.2013 (26 May 2017) at paragraph 14 made a pertinent observation in respect of the above as follows:

... It is naive to believe that a 14 year old would be aware of the medical distinction between the vulva and the vagina and therefore she could not have said with precision as to how far his finger went inside; whether his finger only went as far as the hymen or whether it went further into the vagina. However, this medical distinction is immaterial in terms of section 207(b) of the Crimes Act 2009 as far as the offence of rape is concerned.

115. I reject the defence of denial by the accused as not plausible on the totality of the evidence. The defence assertion that the accused had not done anything to the complainant is unworthy of belief.
     
116. The accused did not tell the truth he gave a version of events which is too good to be true. I also noted that the accused was giving distance and time durations without any second thought which gave me the impression that he was rehearsing whatever he had thought of.
     
117. I do not believe the accused when he said that he did not do anything to the complainant as alleged and that the allegations are a concocted story by the complainant’s mother because of the hatred the complainant’s mother has towards him. Moreover, the accused told the court that he had a good relationship with the complainant hence I do not see any reason for the complainant to lie about the allegations against the accused.
     
118. The defence has not been able to create a reasonable doubt in the prosecution case.
     

LESSER OFFENCE

119. I have also directed my mind to the lesser offence of indecent assault in respect of count two. The law provides that when a person is charged with an offence and the court is of the opinion that he is not guilty of that offence but guilty of a lesser offence, the court may find the accused guilty of that lesser offence. In this regard, I direct myself that if this court finds the accused not guilty of sexual assault then it should consider the lesser offence of indecent assault.
     
120. I have once again carefully examined all the evidence in respect of this count and I am satisfied that considering the evidence before, at the time of and from what the complainant told the court it is evident that the accused had intended to penetrate the mouth of the complainant with his penis but at the crucial or last possible moment the complainant moved her face hence the accused penis touched the cheeks of the complainant. It is sexual assault if any part of the genitalia comes in contact with any part of the mouth of a person (see section 210 (2) of the Crimes Act). In the circumstances, this court is satisfied beyond reasonable doubt that there is evidence to sustain the charge of sexual assault.
     

CONCLUSION

121. This court is satisfied beyond reasonable doubt that the accused on 17^th July, 2022 had unlawfully and indecently assaulted the complainant by putting his penis on her cheeks. This court is also satisfied beyond reasonable doubt that the accused had acted unlawfully that is without lawful excuse in what he did to the complainant. The act of the accused has some elements of sexuality and indecency that any right minded person would consider such conduct sexual and indecent in nature.
     
122. This court is also satisfied beyond reasonable doubt that the accused on 17^th July, 2022 had penetrated the anus and the vagina of the complainant with his finger and penis respectively and the complainant was a child under the age of 13 years.
     
123. In view of the above, I find the accused guilty of sexual assault (count two) and three counts of rape (counts five, six and seven) as charged and he is convicted accordingly. Due to lack of evidence the accused is acquitted of count one assault with intent to commit rape and of rape in counts three and four.
     
124. This is the judgment of the court.
     

Sunil Sharma
Judge

At Lautoka
31 August, 2023

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