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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 392 0f2022
STATE
-v-
MARIKA RAITILA
Counsel Mr. Singh, Joshua for State
Mr. O'Driscoll, Gavin for the Accused
Date of Trial 14th - 16th May 2025
Date of Closing Submission 2nd June, 2025 and 13th June, 2025
Date of Judgment 5th September, 2025
JUDGMENT
[1]. The Director of Public Prosecutions filed an amended Information dated 8th June, 2023 on 24th August, 2023 against Marika Raitila who is charged as follows;
Countl
RAPE: Contrary to Section 207(1) and (2) (c) of the Crimes Act 2009.
Particulars of Offence
MARIKA RAITILA on 26th February, 2022 at Nasinu, in the Central Division, penetrated the mouth of ELENI KOPETA, with his penis, without her consent.
Count2
RAPE: Contrary to Section 207(1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
MARIKA RAITILA on the same occasion as in count I, penetrated the vagina of ELENI KOPET A, with his penis, without her consent.
Count 3
RAPE: Contrary to Section 207(1) and (2) (c) of the Crimes Act 2009.
Particulars of Offence
MARIKA RAITILA on the same occasion as in count I, penetrated the mouth of ELENI KOPETA, with his penis, without her consent.
Count 4
RAPE: Contrary to Section 207(1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
MARIKA RAITILA on the same occasion as in count 1, penetrated the vagina of ELENI KOPETA, with his penis, without her consent.
[2]. The Accused pleaded not guilty to the above offence and the hearing commenced on 14th May, 2025 and concluded on 16th May, 2025.
[3]. During the trial, the Prosecution adduced only the evidence of complainant, PWl - Eleni Kopeta. At the close of the Prosecution case, the Court ruled that there is a case to answer. The Accused opted to provide sworn evidence and call one witness namely DW 2 - Osea Delavale.
[4]. In addition to the evidence presented in court, the Learned Counsel for the Prosecution and Defence filed their written closing submissions. After having carefully considered the evidence in court and read the written submissions filed by the parties, I now proceed to pronounce my judgment on this case.
Prosecution Case
[5]. PWI - Elesi Kopeta in her sworn evidence states that on 26/02/2022 she lived with her boyfriend, daughter and her mother. On the said date at about 9.00am, she was alone at home when the accused called and offered to buy clothes for her and her daughter. Accused is her boyfriend's workmate. Her boyfriend works at a supermarket at Nabua.
[6]. Accused told her to catch a taxi and come over to see him. He would give her, his ATM card and his cousin can accompany her to buy clothes and groceries at Nakasi. After that call, she went to Accused's house at Kalabu. She left home at 9.30am. Upon reaching accused's house, she was not supposed to get off the taxi but he insisted that she get off the taxi and wait for his cousin at his house. She got off the taxi, entered accused's house and sat on a mat on the floor.
[7]. The accused then told her, he was going to call his cousin. After that he came in and told her not sit on the floor but to go and sit on a chair in the room. He kept on insisting
for her to go and sit inside the room. She then stood up and went and sat on the chair inside the room. At that time, Marika was in the sitting room.
[8]. Inside the room she saw two chairs, two beds and a wardrobe. It is a bedroom. She then asked him as to when his cousin would arrive. His respond was that his female cousin would go and change her clothes then come to his house. At that time he was speaking to her, he was standing at the living room and she was inside the room. She was using her phone.
[9]. Accused then entered the room, stood at the window and started using his phone. He asked her, "If her boyfriend knew that she had gone to his house? If he did what would he do to her?" When she responded in the negative, accused then asked her as to why she was there. Her answer was, she only knew that she would come in a taxi, pick up the ATM card and his cousin would accompany her. She informed him to hurry and call his cousin to come so they can go. Accused stood up and went into the living room to call his cousin. She was still sitting on the chair and using her phone.
[1O]. He returned to the room and sat at the edge of the bed. He asked her to go and sit on the edge of the bed beside him. She responded that she would remain sitting on the chair. Thereafter, accused lay on the bed and invited her to come onto the bed and lie there whilst waiting for his cousin. She did not agree to his request but instead told him as to why she should go and lie on the bed as her boyfriend is his friend. She then told accused to call his cousin as she wishes to go. She heard the accused calling his cousin.
[11]. After that, Marika entered the room, came right to her, placed his legs on her and tried to kiss her. She moved backwards and pushed him away. The accused then threatened to call her boyfriend. She begged him not to do so. She knew that if the accused called her boyfriend, the latter would leave her.
[12]. The accused then left her, walked to the bed and sat on the mattress. He invited her to go and sit on the bed and should she refuse to do so, he would force her. She remained on the chair and kept on using her phone.
[13]. Accused again threatened to contact her boyfriend. Unbeknown to her, the accused had already taken her photo. He threatened to send her photo to her boyfriend and also informed her boyfriend that she was there with him. She did not see him take her photo. However, she stood up, went to the bed and sat with the accused. She did not take off her dress. The accused did that for her. When she stood up, the accused again threatened to contact her boyfriend. Then she sat on the bed, accused removed her bra. She again stood up, returned and sat on the chair. She requested for the accused to return her dress. He refused to do so but again threatened to contact her boyfriend.
[14]. When she returned to the bed, the Accused then requested her to suck his penis. The accused was lying in bed naked. He was also holding onto his phone. She sucked the accused penis for 4 minutes. The reason she did it because accused had threatened to report her to her boyfriend if she refused to do so. As she was sucking the accused penis, he was video recording her. Accused told her that this is the time she should stop mistreating men. She felt disgusted and did not consent to sucking the accused penis.
[15]. As soon as the accused ejaculated, he told her to lie on the bed. As she lay on the bed, the accused sucked her breasts until his penis erected. Then Accused lay on the bed and inserted his penis into her vagina. He did not say anything to her. Whilst he was doing that, she kept on telling him to stop. She cannot recall as to how long the accused was inserting his penis into her vagina but he stopped when he ejaculated. She did not consent at all.
[16]. After that session, she asked the accused if she could go and clean herself. He told her that after she has her shower, they would do four more round before he allows her to leave. She asked him for a towel and also for him to return her dress and accused repeated what he told her before.
[17]. The accused again asked her to suck his penis and she did so for one minute until it was fully erected. At that time, the accused was naked. He then told her that this will stop her from cheating around with men. Her tears started streaming. She did not consent to sucking his penis.
[18]. When his penis was erected he told her to face down, hold onto the bed whilst he penetrated her vagina with his penis from the rear. He penetrated her vagina for about 1 ½ minutes until he ejaculated inside her vagina. He then told her to look at his phone so that both of them can be seen on the phone. The phone belongs to Marika. Accused requested that she look at the phone whilst he was penetrating her vagina from her rear. Accused only told her to look at the camera. She did not consent for the Accused to penetrate her vagina.
[19]. The complainant presumed that she was at the Accused house for 3½ hours since there was a church nearby and the church service was still in session.
(20]. PWJ further states that prior to meeting Accused on 26/02/2022, she has not met the accused before. She does not know the accused. However, she would often communicate with the accused on the phone.
[21]. Complainant identified the accused in the dock.
[22]. She also states that she remained in the accused house because she was scared. At that time she was months pregnant.
[23]. She reported the matter on the same day at the Nasinu Police Station.
[24]. In cross examination, she said she had not met the accused before. She only saw the accused on 25/02/2022 when he came and drank grog with her boyfriend. She had only known her boyfriend for one and a half years. It was her boyfriend that told her about the accused as they are workmates. Her boyfriend uses the accused phone to call her at home. She has her boyfriend's phone.
[25]. Pwl further states that she is friends with the accused on the social media platform -
Facebook (FB). [When asked by the Defence Counsel as to why she had requested the
accused to delete her messages on FB?} Her response was for her boyfriend not to be angry with her because she jokes with the accused.
[26]. She denied having financial problems. PWl only states that the reason she went to the accused home because he offered to buy clothes and groceries for them. She concedes that it is not normal to go to someone whom you do not know. She does not know the accused. They are only friends on FB. She also went to the accused home because she was confident that his cousin would be there.
[27]. [When Defence referred PWl to her Police statement dated 26/02/2022, page 2 line 4 onwards and PWl read "He then told me to get one taxi from Namadi, then he will pay the taxi. I came and stop at one iron house next to the Seventh Day Adventist Church..."}. She agreed that some of her evidence in court today was not written in her statement. However, she had mentioned that to the police officer. She also confirmed reading and signing her statement. She did not add or delete anything on her statement. [Defence tendered PWl's statement as Exhibit number 1].
[28]. She also states that she was in the accused house for about half an hour when he removed her dress. PWI said she cannot recall as to when she left the accused but can recall leaving after 1 to 2 minutes of the accused penetrated her vagina for the second time.
[29]. PWI also agreed that there was a church and houses nearby but she did not call out due to her fear that the accused might kill her. Further states that on the first instance, she felt disturbed when the accused was taking a video record of them. She also conceded to the version that accused had informed her that if he deletes the video recording, they would have another round. She witnessed him delete the video, however, it would be in the recycle bin.
[30]. She also denied being pleased with what the accused did to her. However, she did not voice that to him. She also said that she has no knowledge as to how the accused knew that she fools around with men.
[31]. The complainant also denied going to the accused house on 26/02/2022 to ask for money. She also agreed that if she had returned home with clothes and groceries from the accused and her boyfriend knew about it, he would not be angry.
[32]. With regards to video recording, she witnessed the accused deleting it. She has not seen the video again.
[33]. She denied the version that there was no church service on 26/02/2022. PWI said that when she arrived and left the accused house, there was church service in session. Though the Seventh Day Adventist church was next to the accused house, she did not go there for assistance as she was scared. She only reported the matter to the Police because she was scared that her boyfriend might see the video.
[34]. In re-examination, she said that she had not met the accused whether in town or elsewhere. Only saw the accused for the first time on 25/02/2022 when the accused
came to drink grog with her boyfriend. She is only has friendly conversations with the accused. The only reason she went to the accused house for the latter to help her boyfriend who works from Monday to Saturday.
[35]. At the close of the Prosecution case, the court rules that there is a prima facie case against the accused pursuant to section 231(1) and (2) of the Criminal Procedure Act, 2009.
[36]. The accused opted to provide sworn evidence and call one witness.
Defence Case
[37]. DW1 - Marika Raitila in his sworn evidence states that on 26/02/2022 he was working for Turners and Growers at Vatuwaqa. He had worked with complainant's boyfriend for about 1 year and 2 months. He is aware that the complainant is his workmate's partner. He recalls accompanying his workmate to his house on 25/02/2022 to drink grog.
[38]. Prior to the above date, he always speak to the complainant on "Messenger calls".
[39]. For the 1 year and 2 months he had worked with the complainant's boyfriend, the latter used his phone. The complainant's boyfriend informed him that he does not have a phone. The two of them would deliver goods around Viti Levu and Vanua Levu. All that time, he has not seen his workmate with a phone.
[40]. He said that the complainant would call him to speak to her boyfriend. The complainant started calling him in 2021. On the morning of 26/02/2022, the complainant called him for assistance. On that same date, the complainant's best friend's child was celebrating a birthday. The complainant called him to assist in buying a matching outfit for her and her daughter. He told her to come to his home and he can assist with money. She arrived between 9.30am and 10.00am. Only the complainant came to his house.
[41]. Their discussion was that his cousin at Rakiraki would bring his ATM Card. She would be travelling on the Sunbeam bus. Upon the complainant's arrival, he took her to his house. There was no one at his house. Only a Seventh Day Adventist pastor was sitting outside, at the front of his house.
[42]. Inside the house, they sat in the sitting room. The complainant was sitting on the floor whilst he sat on a wooden chair. He then suggested to the complainant that they go and sit in his bedroom. The room contains one chair, one bed and the beddings. The complainant came into the room when he was already inside. The room is next to the sitting room.
[43]. In the bedroom, they were joking and using their phones. At that time the complainant was sitting on the only chair in the room and he was sitting on the bed. He then moved closer to the complainant and they started talking about "deeper things" like what they discussed on the 'messenger'. He was observing the complainant's conduct and he
kissed her. After kissing her, he noticed that her attitude had changed. She asked to visit the cloakroom. She appeared unsettled or scared.
[44]. She went to the cloakroom and returned to the room. The complainant again requested that he contact his cousin. He called his cousin. She said that the bus had just reached Korovou. His cousin would take 45 minutes to reach his home. He explained same to the complainant, but she insisted that his cousin should hurry up. She became restless so he took a photo of her.
[45]. Then thereafter they were on the bed. He was lying on the bed and she was sitting there. He told her to lie on the bed. He removed his clothes and she removed hers. He then licked her vagina and she sucked his penis. They had sexual intercourse. He inserted his penis into the complainant's vagina for about 10 to 15 minutes. During that time, they did not talk to each other. Straight after that, the complainant told him that she needs to return home as her boyfriend finishes work at midday.
[46]. During the time they were having sexual intercourse, his phone was on the table. Thereafter he brought his phone and swapped the screen. He jokingly told her about the camera. However, he only checked to see if there were any phone calls. He denied taking a video of them at the time they were engaged in sexual intercourse. Only took a photo of them when they kissed.
[47]. The complainant went to the cloakroom and had a shower. Upon her return, they started talking and kissing again. They could not have sexual intercourse because his penis was erect. He then instructed the complainant to turn so he could insert his penis to her rear. He tried to do so for 15 minutes but was not successful since his penis was still not erect. The complainant did not suck his penis. He confirmed that the second incident did not happen due to his penis not been able to erect.
[48]. He states that what happened between them was a result from their conversation on the phone. The complainant was willing to have a sexual relationship with him. Their conversation on Messenger internet platform was like they were in a relationship.
[49]. DWl said that he only took one photo of them kissing and that was before they had sexual intercourse. At the time they were engaged in sex, the complainant kept on enquiring about the money.
[50]. He left to buy ice block and when he returned the complainant was getting dressed so she could leave and purchase the items.
[51]. When cross examined he agreed to the version that he had instructed the complainant to come to his house on 26th February, 2022 so he could give her some money. [However, when he was referred to his Caution Interview statement dated 7th March, 2022, Question 20 and Answer number 20 "... he rang Eleni''], he denied calling her. He states that Eleni had called him to buy their clothes. He agreed that he has not met the complainant but said that they had been friends on Facebook for about 3 to 4 months. They would joke and make fun of one another because they were from Kadavu and Ra.
[52]. When further questioned, he agreed when conversing on Facebook, there were no exchanges of sexual messages, but they would send flirtatious messages. The complainant's messages to him was like she wishes to know him more.
[53]. He denied the version that the complainant was scared of him. Further states that they both consented to the actions of him licking her vagina and for her sucking his penis and then he used his penis to penetrate her vagina. He states that he deleted the first photo he took when they kissed. Having said that, he denied taking a video of when he was penetrating his penis into her vagina. He said he only took his camera after they had sex and he pretended to take a selfie. He denied using his phone whilst they were having sexual intercourse.
[56]. DWl further states that he assumed that the complainant wishes to engage in sex with him due to the way they were conversing. He confirmed that the complainant only sucked his penis once. He also said that he had intercourse twice with the complainant, but his penis only penetrated her vagina once. On the second occasion, his penis could not penetrate her vagina because it was not erect. He denied threatening the complainant about the photos. There was also no church service at the Seventh Day Adventist Church since there was a combined service at Cakau. He also denied the complainant's version that she had informed the accused to stop penetrating her vagina. They had both enjoyed the sexual intercourse. He denied having a forceful sexual intercourse with the complainant.
[57]. DW 1 states that for the duration of 15 minutes of them having sexual intercourse, the complainant did not utter a word to him. They only had sexual intercourse once.
[58]. DW2- Osea Delavale states that he is a church elder and pastor of the Malakai Seventh Day Adventist Church at Kalabu. Their church has services on a Saturday. However, on 26th February, 2022 which was a Saturday, there was no service at their church since the combined at service was held at the Cakau Seventh Day Adventist Church. He knew about it because he is the church pastor at Kalabu.
[59]. Mr. Delavale during cross examination states that there was no church service at the church near the accused's house on 26th February, 2022. However, they were there that morning between 9.30am to IO.am waiting for the transport. The bus arrived at about 10.30am. No one stayed behind as they were all supposed to leave on the bus.
[60]. No re-examination.
Legal Burden of Proof and Standard of Proof
[61]. Section 57. -(1), (2) and (3) ofthe Crimes Act, 2009 reads;
"57. (1) The Prosecution bears a legal burden of proving every element of offence relevant to the guilt of the person charged.
(2) The Prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
- (3) In this [Act] -
"legal burden" in relation to a matter, means the burden of proving the existence of a matter."
[62]. Section 58 - (1) and (2) of the Crimes Act, 2009 states;
"58. (I) A legal burden of proof on the Prosecution must be discharged beyond reasonable doubt.
(2) Sub-section (I) does not apply if the law creating the offence specifies a different standard of proof."
[63]. In Woolmington v DPP (1935) AC 462 held that "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.
[64]. The Accused person is presumed to be innocent until the Prosecution proves beyond reasonable doubt that he is guilty.
Law
[65]. Section 207 (1) (2) (a) (c) of the Crimes Act, 2009 states as follows;
207.- (1) Any person who rapes another person commits an indictable offence.
Penalty-Imprisonment for life
(2) A person rapes another person if-
(a) the person has carnal knowledge with or of the other person without the other person's consent;
(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.
Elements of the Offences
[66] In State v Josefa Tukai HAC 12/03S and Anetikini Kuruvoli (2006[ HAA 22/06S 15 June 2006 Madam Justice Shameem held that "the offence of rape is made up of two elements. One is carnal knowledge and other is lack of consent". Court note first is "guilty act" which is called as Actus reus and latter is "guilty mind" which is called Mens rea.
[67]. The elements for the Counts I and 3 of Rape are as follows;
(i). The Accused,
(ii) Penetrated the mouth of the Complainant with his penis,
(iii) Without her consent
[68]. The elements of the Counts 2 and 4 of Rape are that:
(i) The Accused,
(ii) Penetrated the vagina of the complainant with his penis,
(iii) Without her consent.
[69]. Both parties do not deny that they had sexual intercourse whereby the accused penetrated the complainant's mouth and vagina with his penis. The only issue here was that the complainant denied having consensual sex with the accused.
Analysis
[70]. For the Prosecution to prove the offence of rape the prosecution should not only prove that the complainant did not consent but should also prove that the accused knew or believed that the complainant did not consent or that the accused was reckless as to whether or not the complainant consent. Whether the accused knew, believed or was reckless about the complainant's consent can only be decided based on the circumstances under which the alleged penetration took place.
[71]. In this case the complainant states that the accused asked her to sit on the bed and she did. Accused took off her bra. She stood up and went and sat on the chair. She asked the accused to return her dress but he refused. He instead asked her to return to the bed and she did. Accused requested her to suck his penis and she did for 4 minutes until it ejaculated. She did not consent to sucking the accused's penis.
[72]. The accused again told her to lie on the bed. She complied. The accused sucked her breast until his penis became firm again. Accused then laid on the bed and penetrated his penis into her vagina. The accused did not say anything to her. She kept telling him to stop whilst he was penetrating her vagina. Again she said that she did not consent to the accused's actions.
[73]. The accused then asked her to suck his penis and she did so for one minute. When the accused penis was fully erected, he asked her to face down whilst his penis penetrate her vagina from her rear. The accused penis penetrated her vagina for about 11/2 minutes. She did not consent to sucking the accused penis nor did she consent for the accused to penetrate his penis into her vagina.
[74]. The complainant's version of events were not denied by the accused. However, with count 4, he said that his penis was not able to penetrate the complainant's vagina because it was not erect.
[75]. In addition to that, the accused denied forcing the complainant to engage in sexual intercourse. He said that the complainant consented to sucking his penis and for him to penetrate his penis into her vagina. They had consensual sex and they enjoyed it.
[76]. If there was evidence that the complainant was unconscious or she was in a state of motionless and was unable to perform any controlled functions then there is no doubt that she was not in a position to give her consent. In this instance case, there was no evidence that the complainant was in such a state.
[77]. According to the evidence in this case, the complainant responding well to the accused when they were conversing. She agreed to all the accused's request. The accused did not force her to suck his penis nor did she show any resistance when the accused penetrated his penis into her vagina.
[78]. Furthermore, she had the opportunity to walk out of the house or call for help from the people who were at the Seventh Day Adventist Church next door. She did not do so. The complainant in her evidence said that she was in the house for quite sometimes. There was also no evidence of forced sexual intercourse.
[79]. In assessing the credibility of the witnesses, in White v. R., [1947] S.C.R. 268, Estey J. identified some of the factors that are relevant to the assessment of credibility;
The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law ... Anglin J (later Chief Justice) in speaking of credibility stated;
"By that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge and powers of observation, judgment and memory Bin a word, the trustworthiness of their testimony, which may have depended very largely on their demeanor in the witness box and their manner in giving evidence... The foregoing is a general statement and does not purport to be exhaustive. Eminent judges have from time to time indicated certain guides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavoring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness' general conduct and demeanor in determining the questions of credibility. "
[80]. Given the duration of time and other circumstances under which the complainant was inside the room with the accused at the time in question, the complainant's evidence concerning the four counts of rape seems improbable.
[81]. Th is court prefers the evidence of the accused.
Conclusion
[82]. In the considering the aforesaid reasons, I find that the prosecution has failed to prove the above charges against the accused person beyond reasonable doubt.
[83]. I find the accused not guilty of the two counts (Counts 1 and 3) of Rape contrary to section 207(1) and (2)(c) of the Crimes Act, 2009 and the other two counts (2 and 4) of Rape contrary to section 207(1) and (2)(a) of the said Act, 2009.
[84]. The charges against the accused are dismissed and he is acquitted forthwith.
Appeal Period
[85]. 30 days to appeal to the Court of Appeal.
Waleen M George
Acting Puisne Judge
Dated at Suva this 5th day of September 20
Solicitors
Office of the Director of Public Prosecutions for the State
O'Driscoll & Co for the Accused
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