IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 12 of 2020

STATE

V

CHRISTIAN ETHAN AMAFALA

Counsel			:	Ms. W.T. Elo and Mr S. Seruvatu for the State.
:	Mr. S. F. Koya and Ms. Radhia for the Accused.

Dates of Hearing		:	29, 30 November, 01 December, 2023
Closing Speeches	:	05 December, 2023
Date of Judgment 	:	05 December, 2023

JUDGMENT

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

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

COUNT ONE
Statement of Offence 
INDECENT ASSAULT: Contrary to section 212 (1) of the Crimes Act 2009.

Particulars of Offence 
CHRISTIAN ETHAN AMAFALA on the 10th day of January, 2020 at Nadi in the Western Division, unlawfully and indecently assaulted “K.S” by rubbing her vagina with his hand.

COUNT TWO
Statement of Offence
RAPE: Contrary to section 207 (1) and 2 (b) of the Crimes Act 2009.

Particulars of Offence
CHRISTIAN ETHAN AMAFALA on the 10th day of January, 2020 at Nadi in the Western Division, penetrated the vagina of “K.S” with his finger, without her consent.

COUNT THREE
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence
CHRISTIAN ETHAN AMAFALA on the 10th day of January, 2020 at Nadi in the Western Division, penetrated the vagina of “K.S” with his penis, without her consent.

COUNT FOUR
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence
CHRISTIAN ETHAN AMAFALA on the 10th day of January, 2020 at Nadi in the Western Division, on an occasion other than count 3 penetrated the vagina of “K.S” with his penis, without her consent.
2.	In this trial, the prosecution called two witnesses 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

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.

ELEMENTS OF THE OFFENCE 

INDECENT ASSAULT

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

	(a)	The accused;
	(b)	Unlawfully and indecently;
(c)	Assaulted the complainant by rubbing her vagina with his hand.	 

5.	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. 

6.	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.  
7.	Assault is the unlawful use of force on the complainant by rubbing her vagina with his hand. 

8.	In respect of the count of indecent assault the accused has denied committing this offence. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had unlawfully and indecently assaulted the complainant by rubbing her vagina with his hand.

9.	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. 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.

RAPE

10.	To prove counts two, three and four 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 with his finger and penis respectively; 
(c)	Without her consent;
(d)	The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time. 

11.	In this trial, the accused has denied committing the offences 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 his finger and penis respectively 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.

12.	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.

13.	The second element is the act of penetration of the complainant’s vagina by the finger and the penis.  This element is also not in dispute. 

14.	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.

15.	If this court is satisfied that the accused had penetrated the vagina of the complainant with his finger and penis respectively 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.

16.	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.

17.	If this court is satisfied beyond reasonable doubt that the prosecution has proven beyond reasonable doubt that the accused had penetrated his finger and penis into the complainant’s vagina without her consent then this court must find the accused guilty as charged. 
18.	If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offences of rape, then this court must find the accused not guilty.

19.	The slightest of penetration of the complainant’s vagina by the accused finger and/or penis is sufficient to satisfy the act of penetration.

20.		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.

21.	In this case, the accused is charged with four 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 he must be guilty of the others as well. This also applies to the outcome of not guilty. 

  	ADMITTED FACTS

22.	In this trial, the prosecution and the defence have agreed to certain facts titled as 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. 

23.	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

24.	The complainant informed the court that in the evening of 9th January, 2020 the complainant with her friends went to the Beach Club ‘the Bamboos” at Wailoaloa for some drinks. The drinking continued till after 11pm, it was here the complainant met the accused who was her brother’s best friend.

25.	The complainant knew the accused from the past four to five years. The accused came and joined the complainant’s group, after sometime the complainant and her group of friends with the accused went to MacDonald’s to eat and from there they all went to the Jet Point complex. From here the complainant’s friends left for their respective homes. The complainant and the accused were the only ones left, they walked towards Mount Saint Mary’s circle to the complainant’s sister Edwina’s house.

26.	Whilst they were walking Edwina came in her car and picked the complainant and the accused. At Edwina’s house the complainant picked her bag of clothes and then the complainant and the accused were driven to Edwina’s Air BnB flat at Westfield, Legalega.

27.	After the complainant and the accused were in the flat, Edwina left. The complainant was to stay overnight and look after the flat. When inside the flat, the complainant went to have her shower and she made her way to the bed in the sitting room. The accused also had his shower and he came and sat next to the complainant on the bed. The complainant was lying down with a blanket covering her, the accused started to rub her vagina with his hand.

28.	The complainant was wearing a short black pants and shirt, she tried to stop the accused by saying “no” but it had no effect on him since by this time the accused got on top of her. The complainant also tried to push the accused but she could not. When asked to explain how? The complainant said “while his weight is on top of me he manages to push my legs towards my neck and face.” The complainant further stated that at this time her legs were towards her chest and the accused managed to put his fingers through her shorts into her vagina.

29.	The complainant further stated that it was painful and she could not do much since the accused was bigger than her. After a while the accused got off the complainant and went straight into the shower.

30.	The complainant was lying on the bed in pain and she was bleeding from her vagina. In less than 5 minutes the accused came back and he again got on top of her. She tried to push the accused and she also tried to punch him, the accused turned the complainant around making her rest on her stomach and he grabbed both her hands and placed it behind her back.

31.	Thereafter the accused with his other hand pushed down her pants below her thighs and then he inserted his penis into her vagina and had sexual intercourse. The complainant could not do anything because her hands were behind her back and the accused was leaning on her stomach after turning her over.

32.	The accused got off and went into the shower, after washing himself he came back by this time the complainant was weak and in pain. This time when the accused got on top of her he held the back of her neck and he inserted his penis inside her vagina again. The complainant stated that she could not do anything because she was hurt, in pain and useless. When questioned why she did not alert her neighbours who were close by, the complainant said:

“The second time when he came back he sit on top of me while he used his free hand to pull down my pants and he was done inserting himself inside of me, he used that free hand to cover my mouth.”

33.	Finally when the accused was done he whispered into her ears and told her not to tell her father about what he had done to her. In the morning Edwina came but the complainant did not tell Edwina anything, she behaved like nothing had happened because she was embarrassed that she had just lost her virginity before marriage.

34.	The complainant and her sister Edwina went to Edwina’s house at Mount St. Mary’s circle it was here the complainant got into a heated argument with her elder sister Gianoula who had seen the bruises on her neck and wrist. At this time she told her sister that the accused had raped her. Upon hearing this Gianoula hugged and comforted her and the matter was reported to the police. The complainant identified the accused in court.

35.	In cross examination, the complainant stated that it was during the early hours of 10th January, 2020 that she was dropped at the flat of her sister Edwina with the accused. In her estimation the time would have been around 1 am and it was around 9 am she was picked by Edwina from the flat.  According to the complainant the accused had left at around 4 am since it was dark outside. When asked whose idea was it to stay at Edwina’s flat the complainant said both the accused and hers.

36.	The complainant was able to recall giving a police statement on 12th January, 2020, however, she had not read the same before coming to court. The complainant agreed that it was not in her police statement that the accused had forcefully held both her arms and she was bleeding because she had lost her virginity. The complainant also agreed that it was not in her police statement that the accused had grabbed her neck and had forcefully held her down while having sexual intercourse. 

37.	Upon further questioning the complainant also agreed that it was not in her police statement that her sister had noticed bruises on her wrist. When it was suggested that she could have run away from the flat when the accused was in the shower after the first incident, the complainant stated that she was in pain and there was blood after the accused had inserted his finger into her vagina hence she could not get up and run away. The complainant also said that she did not have a phone at that time to call anyone or yell for help from the neighbours.

38.	According to the complainant when they were walking from MacDonald’s to Jet Point complex the accused had tried to kiss her and she had told him that she was uncomfortable with that. The reason why she decided to go to her sister’s place with the accused was because the accused had no place to stay for the night. She also trusted the accused as her brother’s best friend and her father treated the accused like his son. The complainant also stated that she grew up with the accused and she did not expect the accused to do anything to her after she had told him that she was uncomfortable when he had tried to kiss her.

39.	Upon further questioning the complainant said when her sister Edwina came the next day to pick her from the flat she did not say anything to Edwina because they were going to their sister’s wedding and she did not want everything to be about her.
40.	The complainant only told her elder sister Gianoula about what the accused had done. When it was suggested that she could have scratched the accused face or poked his eyes or pull his hand or bite his ears the complainant stated that she tried to shove, push him away and she had hit him. The complainant maintained that she did not consent to what the accused had done to her.

41.	In re-examination the complainant stated that there were some inconsistencies between her evidence and her police statement particularly some of the things she had said in her evidence were not in her police statement. She stated that she told the truth in court.

42.	The final witness Gianoula Small the elder sister of the complainant informed the court that in January, 2020 one of their sister’s was getting married. The witness noticed that the complainant was distraught and not her normal self during the wedding. The other reason of her attention towards the complainant was the markings she had seen on the wrist, arms and neck of the complainant. These marks were also seen by her other family members as well, so after the wedding the whole family sat down to talk with the complainant. The complainant said she wanted to talk in private.

43.	The witness and her elder sisters took the complainant to another room. The witness asked the complainant about the markings on her body, the complainant was hesitant in the beginning, she was shaking but eventually told them the accused had raped her. The witness upon hearing this embraced the complainant and consoled her. Their eldest sister wanted to check the complainant when this was done more markings were seen on the back of the complainant. The matter was reported to the police.

44.	In cross examination the witness said the bruises on the complainant’s wrists were visible but the most visible or prominent ones were on the neck and back. According to the witness the complainant was very alienated from the rest of the family during the wedding and was sitting in a corner most of the time. The complainant was not her usual self since she knows the complainant to be a bubbly person but this was not so at the time.

45.	The witness agreed that it was not in her police statement dated 12th January, 2020 that she had told the complainant at the wedding that she will talk when they all reached home. 

RECENT COMPLAINT EVIDENCE

46.	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.

47.	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 would be given to the fact that the complainant told her elder sister Gianoula on the next day of the incidents that the accused had raped her.

48.	This is commonly known as recent complaint evidence. The evidence given by Gianoula is not evidence of what actually happened between the complainant and the accused since Gianoula was not present and did not see what had happened between the complainant and the accused.

49.	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 the complainant told Gianoula that the accused had raped her.

50.	The complainant was distressed and in response to Gianoula the complainant despite hesitation in the beginning told Gianoula the accused had raped her. The complainant gave relevant and important information about what the accused had done which was sufficient to alert Gianoula that something was indeed wrong with the complainant. Gianoula then got a bit soft and started to hug and comfort the complainant. 

51.	The prosecution is also asking this court to consider the fact that the complainant was 16 years of age at the time and considering her situation there was no need for the complainant to go into every detail of what the accused had done to her and therefore she is more likely to be truthful.  

52.	On the other hand, the accused says the complainant made up a story against him after having consensual sexual encounters and sexual intercourse experimenting different styles and positions misled Gianoula by saying she was raped by the accused. Furthermore, the complainant before meeting Gianoula had already met Edwina and yet she did not tell anything to Edwina about the allegations because she was an active player in the equation. The complainant had consented to what had happened that early morning and therefore she should not be believed in respect of her assertions that the accused had raped her. 

53.	It is for this court to decide whether the evidence of recent complaint helps in reaching a decision.  The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness.  It is a matter for this court to decide whether it accepts the complainant as reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.

PREVIOUS INCONSISTENT STATEMENT

54.	This court also directs its mind to the fact that the defence counsel during cross examination of the complainant and Gianoula Small had questioned these witnesses about some inconsistencies in their police statements they had given to the police when facts were fresh in their minds with their evidence in court.
  
55.	This court is allowed to take into consideration the inconsistencies between what these witnesses told the court and their police statements when considering whether these witnesses were believable and credible.  However, the police statements are not evidence of the truth of its contents.

56.	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.

57.	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 witnesses.  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.

58.	This was the prosecution case.

DEFENCE CASE

59.	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 and also called one witness. This court must also consider the defence evidence and give it such weight as is appropriate.

60.	The accused informed the court that in the evening of 9th January, 2020 he went to the Bamboo Bar with his three friends for a drink. The drinking continued from 6 pm till 10.30pm during this time the complainant also joined them. The complainant asked the accused not to tell her brother that he had seen her at the bar. After drinking the complainant, the accused and their friends walked to MacDonald’s to eat.

61.	After eating the group walked to Jet Point complex, here all the others left and it was only the accused and the complainant who were left. The complainant told him that she was going to sleep at Mount St. Mary’s circle so he accompanied her to drop her at her home. The accused knows the complainant for three to four years through her elder brother. When they were walking the complainant’s sister Edwina came in her car and told both of them to get in.

62.	At Mount St. Mary’s circle the complainant went to get her clothes and then Edwina took them to her Westfield flat. As soon as both entered the flat Edwina left, the complainant handed him a towel to go and shower. After shower the accused put on some music on his phone and then the complainant went to have her shower.

63.	When the complainant came out of shower she was wrapped in a towel and she asked for his vest the accused refused to give it to her because he could not believe she had nothing to wear. When the complainant removed the towel that’s when he saw she was wearing a bra and mini shorts.

64.	The complainant wanted the accused to sleep on the bed which he did while the complainant slept on the sofa in the living room. When he woke up, he saw the complainant on top of him without her bra moving back and forth. The accused was surprised to see what the complainant was doing. He was shocked and then he asked “what are you doing.” At this time the complainant learned towards him and kissed him on his lips. He also kissed her back, after this he asked her if she was okay and she was sure of what she was doing. The complainant said yes and she nodded at the same time. 

65.	The accused put his right arm trying to reach around her and with the other hand he was rubbing her vagina. The accused realized the complainant’s vagina was getting wet through her clothes. At this time he inserted his finger gently into her vagina the complainant liked it and was moaning and kissing him. After a while he pulled out his finger. He then lowered his pants half way and he asked the complainant if she was sure of this and she said yes. The complainant reached down and held his penis and rubbed it on her vagina before inserting it.

66.	The accused gave a detailed account of oral and physical sex he had with the complainant that early morning including the various positions they had carried out. He stated that the complainant enjoyed every bit of what was happening to her and on all occasions she had consented to his acts.

67.	The accused said he had been asking her all along whether she was sure of what she wanted him to do and it was with the consent of the complainant he did what he told the court.  He also admitted making all the love bites in the neck, arms and the back of the complainant. The accused denied there was any force used on the complainant by him what ever had happened was with the consent of the complainant. It was day light when the accused left the flat.

68.	In cross examination by the state counsel the accused stated that in the year 2020 he was 21 years of age and he was a family friend through the complainant’s brother. He would sometimes go to her house and also slept over and the family trusted him.

69.	The accused denied that after both had their shower the complainant lay on the bed. Upon further questioning the accused said he rubbed the complainant’s vagina when the complainant was on top of him and at this time he had also inserted his finger inside her vagina.

70.	The accused denied there was any resistance by the complainant and he also denied that he had forceful sexual intercourse with the complainant. The accused denied all the allegations raised against him by the complainant. He maintained that at no time he had forced, covered the complainant’s mouth, held her hands behind her or had done anything that would be without her consent or by restraining her in any manner. The complainant was willing throughout she cooperated to the extent of allowing him to have oral sex as well. The accused denied that he was saying the complainant had consented to save himself.

71.	In re-examination the accused said that he has been telling his side of the story ever since the allegations were raised against him.

72.	The final defence witness Dr. Jashilta Singh informed the court that she graduated with an MBBS degree from the Fiji National University in the year 2017 and after one year of internship she became a Medical Officer and this was her fifth year of service. 

73.	The witness had examined the complainant on 12th January, 2020 at the Nadi Hospital at about 1.30 am. The specific medical findings were:

(a)	Approximately six, 2 x 2cm bruise marks spread over the back (love bites);
(b)	3 x 2 cm bruise on right shoulder (love bite);
(c)	2 x 2 cm bruise on left anterior neck (love bite);
(d)	Vaginal examination – hymen not intact.

74.	The witness carried out a head to toe, private part and from perineum to lower limb examination of the complainant. According to the witness she had also illustrated her findings in appendix 1. The witness had not made any observations of the arms and wrist of the complainant in her medical report so it would have been normal. The Fiji Police Medical Examination Form of the complainant dated 12th January, 2020 was marked and tendered as defence exhibit no. 1.

75.	In cross examination the witness stated that her initial observation of the patient was that she looked scared, was crying and shivering and very emotional. According to the witness bruises did not tend to fade but changed colour over time depending on the force used. The conclusion of the witness was that the hymen was not intact and the patient was traumatized. 

DIRECTION ON EXPERT EVIDENCE

76.	This court has heard the evidence of Dr. Singh who was called as an expert on behalf of the defence.  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.

77.	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.

78.	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.

79.	This was the defence case. 

ANALYSIS

80.	The prosecution states that in the evening of 9th January, 2020 the accused met the 16 year old complainant who was with her friends at the Bamboo’s Bar, Wailoaloa. The accused was the best friend of the complainant’s brother and both the complainant and the accused knew each other.

81.	The complainant and her family also trusted the accused and treated him like a family member. The accused accompanied the complainant to the flat of the complainant’s sister Edwina since he did not have a place to stay that night. 

82.	After having her shower the complainant laid down with a blanket covering her, firstly, the accused came and sat beside her and after sometime he started to forcefully rub her vagina with his hand. The complainant was wearing a short black pants and shirt.

83.	Secondly, the accused got on top of her, she tried to push the accused but could not.  The accused forcefully pushed the complainant’s legs towards her chest and at this time the accused managed to put his fingers through her shorts into her vagina. It was painful and she could not do much since the accused was stronger than her. After a while the accused got off the complainant and went to have his shower. The complainant was in pain lying on the bed since her vagina had started bleeding.

84.	Thirdly, in less than 5 minutes the accused came back and he again got on top of the complainant. She tried to push the accused and she also punched him, the accused turned the complainant around making her rest on her stomach and he grabbed both her hands and put it behind her back.
85.	Thereafter the accused with his other hand pushed down her pants below her thighs and after turning her around forcefully inserted his penis into the complainant’s vagina and had sexual intercourse. Thereafter the accused got off and went to have his shower.

86	Fourthly, after washing himself the accused came back again. By this time the complainant was weak and in pain. When the accused got on top of the complainant he held the back of her neck and forcefully inserted his penis inside her vagina again. The complainant did not consent to what the accused had done to her that early morning.

87.		When the complainant went to Edwina’s house her elder sister Gianoula saw the bruises in the complainant’s neck and wrist and upon her sister’s questioning the complainant told Gianoula the accused had raped her. Upon hearing this Gianoula hugged and comforted the complainant and the matter was reported to the police. 

88.  On the other hand, the defence says the allegations raised by the complainant are a made up story and a face saving strategy by the complainant since her family members had come to see the love bites on her body. The defence is asking this court to look at the evidence objectively. 

89.	Everything that happened was with the consent of the complainant from the rubbing of her vagina, the consensual digital and penile penetration. The evidence before the court is pointing to one conclusion which is that the accused was a willing partner throughout. From the Bamboo’s Bar to MacDonald’s then to Mount St. Mary’s circle ending at Edwina’s flat and all those things that happened inside the flat. The accused honestly told the court that what he did that early morning was with the consent of the complainant. He gave a detailed version and was able to describe the role played by the complainant and himself without any fear since it was the truth.  

90.	The defence further submits that the complainant in her evidence very cleverly labeled the love bites as bruises when it was abundantly obvious, there was no evidence of any violence carried out by the accused on the complainant. The love bites were the result of intimacy between the two.  What is in evidence is a series of sexual encounters and several sexual positions between two consenting young couple in a cozy environment which is a modern day reality. 

91.	The complainant was never restrained by the accused he even went to shower a few times leaving the complainant behind and there were neighbours around the flat but no one was alerted or asked to assist. The complainant also had the opportunity to scream, yell, shout and even leave the flat or scratch his face, poke his eyes or bite his ears and so on but she did not because she was consenting throughout as an active participant. 

92.	Moreover, the accused has been honest in admitting what he had done which could not have been possible without the consent of the complainant. The accused was no stranger to the complainant or her family and this is obvious from the fact that Edwina had no hesitation in leaving her young sister with the accused who was indeed a trust worthy person. 

93.	This is a case of betrayal of trust by the complainant. The chain of events expressed by the complainant shows consent and nothing else. The complainant is avoiding humiliation and embarrassment after having consented to spend some quality intimate time with the accused before marriage but she changed her tune only after her family members namely her father and ten sisters came to know about what she had done.
  	
94.	Finally, the defence submits the consent of the complainant is also implicit in her not saying or doing anything to stop the accused and cooperating in a manner that allowed the accused to do what he did. The defence is asking this court not to believe the complainant. 

DETERMINATION	

95.	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. 

96.	In this case, there are two different versions before the court, in this regard this court must consider all the evidence adduced to decide whether the prosecution has proven beyond reasonable doubt that the accused committed the offences alleged. It is not for this court to decide who is acceptable between the complainant and the accused.

97.   This court has kept in mind the following factors when determining the credibility and reliability of a witness such as promptness/spontaneity, probability/improbability,consistency/inconsistency,contradictions/omisions, interestedness/disinterestedness/bias, the demeanour and deportment in court [and the evidence of corroboration where it is relevant] see Matasavui v State [2016] FJCA 118; AAU0036.2013 (30 September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022). 

98.	 Brennan J in Liberato and Others v The Queen ((1985) [1985] HCA 66; 159 CLR 507 at 515 has discussed the appropriate approach to be taken where there are conflicting versions of evidence given by the prosecution and the defence witnesses. Brennan J held that:
“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question ( which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

99.	After carefully considering the evidence adduced by the prosecution and the defence, I believe the evidence of the complainant as truthful and reliable. She gave a comprehensive and consistent account of what the accused had forcefully done to her. The complainant was also able to withstand cross examination and was not discredited as to the main version of her allegations.

100.	The complainant was resolute, unwavering and steadfast in what the accused had forcefully done to her that early morning. I have no doubt in my mind that the complainant told the truth in court. Her demeanour was consistent with her honesty. In cross examination she was not evasive and had given frank answers to the questions asked. I also accept there were some inconsistencies between what the complainant told the court and her police statement, however, these inconsistencies were not significant to adversely affect the reliability of the complainant’s evidence. Passage of time and human memory plays a crucial role in such situations.    

101.	The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.20 (2 October 2015) had made the following pertinent observations about the above at paragraph 16 as follows:
 	[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;” 

102.	Another pertinent observation was also made by the Court of Appeal in Joseph Abourizk vs. The State, AAU 0054 of 2016 (7 June, 2019) at paragraph 107 in the following manner about deficiencies, drawbacks and other infirmities in evidence by taking into account the comments made by the Indian Supreme Court in State of UP v. M K Anthony (1985) 1 SCC 505:
‘While appreciating the evidence of a witness the approach must be to ascertain whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, then the court should scrutinise the evidence more particularly to find out whether deficiencies, drawbacks and other infirmities pointed out in the evidence is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case should not be given undue importance. Even truthful witnesses may differ is some details unrelated to main incident because power of observation, retention and reproduction differ with individuals…’

103.	The complainant was giving evidence after three years of the incidents hence there were bound to be some inconsistencies or omissions, here the discrepancies did not shake the basic version or the thrust of the complainant’s evidence. It is also noted that the accused and the complainant and her family members had a good relationship until the allegations came about. 
 
104.	I accept that the complainant was embarrassed to tell Edwina during the pickup in the morning about what the accused had done to her. It is a natural consequence of any person who has had an unwanted sexual experience from a trusted and known person and more so in this case the loss of her virginity to tell Edwina her elder sister when they were all going to the wedding of one of their sister. However, as the day progressed and it was after her sister’s wedding the complainant told Gianoula in private that she had been raped by the accused. 
105.	It is also noteworthy that the complainant had promptly reported the matter to the police after she had told her sister Gianoula about what the accused had done. I also accept the observations by Dr. Singh that the complainant looked scared, was crying, traumatized and shivering during the medical examination which supports the observations made by Gianoula that the complainant was distraught and not her usual self. 

106.	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 push the accused away or poke his eyes etc., in the circumstances of this case does not mean that she was consenting to the acts of the accused. 

107.	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.   

108.	The issue in this case is whether the complainant had consented for the accused to rub her vagina and have digital and penile intercourse with her. The 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 evidence that it was the accused who was forcefully doing what he wanted to do that early morning. The accused also knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time. 

109.	Furthermore, the defence contention that the complainant was not doing anything to push him away or was just lying down doing nothing or shouting or yelling or scratching his face or poking his eyes or biting his ears 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 also includes submission without physical resistance to the act of another shall not alone constitute consent.

110.	On the other hand, the accused did not tell the truth he gave a version of events which is not tenable or plausible on the totality of the evidence. The accused did not tell the truth when he said the complainant had consented to all that he had done to her that early morning. I also noticed that the accused was not honest and forthcoming in his response during cross examination by the state counsel.

111.	In addition to this, the accused was presenting himself as a responsible individual that whatever he did that early morning he would first ask for the complainant’s consent is also rejected as improbable and far-fetched. 

112.	This court accepts the evidence of both the prosecution witnesses as reliable and credible.   On the other hand, this court rejects the defence of consent in respect of the count of indecent assault, digital and penile penetration of the complainant’s vagina as not worthy of belief. 

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

 CONCLUSION 

114.	This court is satisfied beyond reasonable doubt that the accused on 10th January, 2020 had unlawfully and indecently assaulted the complainant by rubbing her vagina with his hand.  This court is also satisfied beyond reasonable doubt that the accused had acted unlawfully that is without lawful excuse and indecently in what he did to the complainant. The conduct of the accused has some elements of indecency that any right minded person would consider such conduct indecent in nature.  Finally, the complainant did not consent to the above mentioned act of the accused.  

115.	Furthermore, this court is also satisfied beyond reasonable doubt that the accused on the same date had penetrated the vagina of the complainant with his finger and on two occasions thereafter with his penis without her consent.   
  
116.	The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.

117.	In view of the above, I find the accused guilty of one count of indecent assault and three counts of rape as charged and he is convicted accordingly.  

118.	This is the judgment of the court.        

Sunil Sharma
Judge

At Lautoka 
05 December, 2023

Solicitors
Office of the Director of Public Prosecutions for the State.
Messrs Siddiq Koya Lawyers, Nadi for the Accused.