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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 103 OF 2025
STATE
V
YOHAN SHARMA
Counsel: Ms U Ratukalou, Ms K Dugan and Ms S Bibi for the State
Ms S Chand for the Accused
Date of Hearing: 29 November 2025
Date of Judgment: 23 January 2026
JUDGMENT
[1] The High Court, constituted as the Juvenile Court under the Juveniles Act 1973, determined the question of guilt or otherwise of the accused, Yohan Jaresh Sharma, aged 14 years old.
Charges and Legal Elements
[2] The State alleges that on 21 March 2025 at Newtown, the accused, unlawfully and intentionally penetrated the anus of the complainant, a child under the age of 13 years, with his penis (Count 1), and on the same occasion he unlawfully and intentionally penetrated the complainant’s mouth with his penis (Count 2), thereby committing two counts of rape contrary to section 207 (1) and (2) (a) and (c) of the Crimes Act 2009.
[3] For each count, the prosecution must prove, beyond reasonable doubt:
[4] It is not necessary to prove the lack of consent, or that the accused knew there was no consent, because the complainant was under 13 years of age at the relevant time and therefore did not have the legal capacity to consent to sexual activity.
Burden and Standard of Proof
[5] The burden of proof rests throughout on the prosecution. The accused, as a juvenile, bears no obligation to prove anything, and he is presumed innocent unless and until the Court is satisfied that the Prosecution has proved each element of each charge beyond reasonable doubt.
[6] If, after considering all of the evidence, there is a reasonable doubt as to the guilt of the accused on a particular count, the Court must give the benefit of that doubt to the accused and return a verdict of not guilty on that count. Only if the Court is sure of the accused’s guilt, having carefully assessed the evidence as a whole, may a verdict of guilty be returned.
Summary of the Evidence
Evidence of the Complainant, Riyanshi Sharma (PW1)
[7] Riyanshi aged 13 years (born on 13 January 2013) is the younger sister of the accused, Yohan. At the relevant time, she resided with her mother and Yohan in a one-room hut at Newtown, which contained a kitchen and a bathroom.
[8] She described 21 March 2025 as a school day on which both she and Yohan remained at home because Yohan was unwell and their mother had gone to Valelevu to take food to her de facto partner, who begs near BSP. She was 12 years old at the time.
[9] While she was doing her homework on the bed, Yohan, who had just bathed and was wearing a towel, asked her to take his clothes from under the bed. When she did so, he pushed her onto the bed so that she was lying face down, removed her pyjama shorts and underwear down to her knees, and, after the towel was removed so that he was naked, put his “private part” into her “bum”. She used dolls and a body-map diagram to demonstrate that she was lying face down on the bed, that he stood behind her, and she circled the male genital, the penis as his “private part” and her anal region as the ‘bum’. She said she felt pain “where I pass urine”, and she screamed because it was painful. She could not give an exact duration but described it as a “short time”, after which he stopped and stood up.
[10] She then turned around; he tried to sit in front of her, held her hands while her legs were free, and she used her legs to push him away. She put her pyjamas back on and went to the washroom to urinate, with the washroom door open. While she was there, Yohan entered naked. When she asked, “Brother, what are you doing here?”, he placed his “private part” (the same body part she had earlier indicated on the diagram as the penis) into her mouth for a short time while standing still. She again used dolls to demonstrate their positions in the washroom.
[11] Afterwards, when she heard her mother’s voice, Yohan left, put on a red underwear and wiped his tongue. She then went to the wash tub outside and washed her face and tongue because she did not like the taste and did not feel good. When her mother asked why she was washing her tongue, she did not tell the truth. Instead, she said she had been playing with camphor, had accidentally put it into her mouth, and that she was “brushing” her tongue.
[12] She explained that she did not immediately disclose what had happened because Yohan had told her that if she told their mother he would hit her, and she was afraid of him. Later, after their mother brought snacks and juice, Yohan asked to go out and play. When he left the house, she checked that he had really gone, closed the door, and then told her mother what had happened. She described the bed incident—removal of her pyjamas and underwear to her knees, his private part in her “bum”, her shouting and his stopping—and his attempt to put his private part in front of her when she turned, which she resisted by pushing him with her legs. She said she told her mother these matters in a serious way and was not joking.
[13] Under cross-examination, she accepted some confusion regarding time. She initially suggested that she had washed her mouth in the morning, but when asked how her mother could have seen that if the mother was away, she corrected herself and said she washed her mouth in the afternoon when her mother had returned. On re-examination she clarified that when the incident occurred the wall clock showed the big hand at 12 and the small hand at 8, and she said the event happened in the morning, before lunch. When she later washed her mouth, the big hand was at 12 and the small hand at 3, which she understood to be around 3 p.m., after her mother had returned and after her brother went down to help carry groceries.
[14] She accepted that she and Yohan sometimes fought, that he was sometimes “naughty”, did not listen to their mother and that the mother often became angry with him, had chased him out of the house and locked him outside. She denied, however, the propositions that she had threatened to spread rumours about him, that her mother told her to say she had been raped because they wanted him out of the house, and that Yohan had not put his private part into her anus or mouth. She consistently insisted that “he put it” in her “bum” and “he did it” in her mouth and said that the truth was what she told the Court in her own account.
Evidence of the Mother, Radika Krishna
[15] Radika Krishna is the complainant’s mother and the accused’s mother. She has an adult step-daughter, followed by Yohan and then Riyanshi. At the time of the alleged offending, she was living in the Newtown Hut with Yohan and Riyanshi. She has since moved to Suva Point with her partner and her daughter.
[16] In relation to 21 March 2025, she said that on that morning she left the hut to take food to her de facto partner and returned later that day. In evidence-in-chief she estimated her return as about 11 a.m., but under cross-examination, when confronted with her police statement, she accepted that, because she had also gone shopping, she likely returned at about 1 p.m. She agreed that both children had stayed home and had not gone to school because Yohan was sick.
[17] She described that when she came back up the steps to the house she called to Riyanshi. The main door was closed. Riyanshi opened it, came out and rinsed her mouth at the wash tub next to the main door, putting water in her mouth and spitting it out. At the same time Yohan was standing near the main door. Radika asked Riyanshi why she was rinsing her mouth. The child said “just like that”. Radika said the child appeared normal but scared. Radika then entered and did household chores. She said that inside the hut there were two rooms, a kitchen and the bedroom. Yohan was lying on a rug in the bedroom while Riyanshi lay on the bed.
[18] After she finished her chores, Radika said she joined the children in the bedroom and used her phone while Yohan used her partner’s phone. Around 3 p.m., according to her, Yohan asked if he could go out to play with his friends and she agreed, telling him to return early. As soon as he left the house, Riyanshi closed the main door, came to her and said, “Mom, I want to tell you something.”
[19] Riyanshi then disclosed that, while the mother was away, she had been lying on the bed when Yohan, wearing a towel after his shower, came into the room, lay on top of her, took off her pants and panties and inserted his private part into her private part; he locked her hands and legs, and when she shouted, he stopped and left. She further told her mother that after that she went to the washroom and Yohan followed her there and inserted his private part into her mouth. The purpose of recent complaint evidence in sexual offence cases is not to prove that the allegation is true, but to demonstrate consistency in the complainant’s conduct, which may assist in determining whether the complainant’s account is consistent and credible.
[20] Radika said that when Riyanshi was telling her this she was about to cry. Radika then took steps which ultimately led them to Hut Home and the Valelevu Welfare Office, and ultimately to this prosecution.
[21] In cross-examination, Radika accepted that she had previously reported Yohan to the police when he had hit Riyanshi, and that police had told her that she was going to spoil her son’s future. She also accepted that she struggled to manage him as a single mother: she often swore at him, had chased him away from the house and locked him out, and she did not like his naughty behaviour. She denied, however, that she had ever hit him with a rolling pin or knife, or that she instructed or pressured Riyanshi to say she had been raped in order to have Yohan removed from the home. She said she still felt sorry for Yohan, visited him at the Boys Centre and cried for him, but fears that if he returns home, he may repeat such behaviour, and she expressed concern that agencies had not helped her enough to manage him.
Assessment of Credibility and Reliability
Complainant
[22] The complainant is a young child, giving evidence about intimate acts with her older brother, in a context of obvious emotional strain. The Court therefore approaches her evidence with great care and without sympathy or prejudice. The principal criticisms raised in cross-examination, and which the Court must consider, relate to (a) inconsistencies in timing, (b) the overall family dynamics, including conflict between the mother and Yohan, and (c) the alleged possibility of coaching or fabrication.
[23] As to timing, the complainant in cross-examination initially said that she washed her mouth in the morning, which created an apparent inconsistency with her mother’s evidence that the mother observed her rinsing her mouth upon returning in the afternoon. When pressed, the child accepted she had made a mistake and corrected herself, stating that the washing of her mouth occurred in the afternoon when her mother was home. On re-examination she clarified the times by reference to the wall clock, describing the incident as occurring when the small hand was at 8 and the big hand at 12, which the Court accepts as her childlike way of indicating 8 a.m., and the later washing of her mouth as when the small hand was at 3 and the big hand at 12, that is, about 3 p.m.
[24] These explanations are coherent and consistent with the mother’s evidence that she returned home in the early afternoon and saw the child rinsing her mouth at the wash tub. The initial confusion about “morning” versus “afternoon” is readily explicable given the child’s age and the stressful nature of giving evidence in court, and the Court does not regard it as undermining her core account of what occurred in the bedroom and washroom.
[25] The complainant’s description of the sexual acts is detailed, specific, and accompanied by demonstrations with dolls and a body-map, which show a level of sensory and positional detail that would be difficult for a child of her age to fabricate convincingly if the events had not occurred. She consistently identified the part of Yohan’s body involved as his “private part”, circling the genital area on the male diagram, and circling the anus area on the female diagram. She also described pain where she passes urine, screaming because it hurt, and disliking the taste in her mouth, which led to her washing her tongue at the wash tub. These aspects are internally coherent and consistent with the physical nature of the acts alleged.
[26] Her narrative is also consistent across the different contexts: what she told her mother on the day, as related by Radika, is materially the same as the version she gave in court. Some embellishment or omission is inevitable in a child’s recall, but the essential features—Yohan’s return from bathing in a towel, pushing her face down on the bed, removal of her clothing to her knees, insertion of his penis into her anal area causing pain and a scream, and the later insertion of his penis into her mouth in the washroom—are consistent.
[27] The defence suggested that she was motivated by dislike of her brother’s behaviour and by a desire, shared with her mother, to have him removed from the house. The complainant accepted that they sometimes fought, that he was naughty and disobedient, and that her mother was often angry with him, but she denied wanting him out of the house or threatening to spread rumours and steadfastly denied that her mother told her to say she had been raped. The Court observes that while these family tensions exist, they are equally consistent with the accused being a difficult adolescent and do not, without more, provide a realistic motive for a child to level such serious and specific allegations of intra-familial sexual abuse, expose herself to cross-examination, and implicate her own brother in a serious criminal trial.
[28] Her explanation for the initial failure to disclose—to the effect that she was threatened with a beating by Yohan if she told their mother, and that she was afraid—resonates with common human experience, particularly in the context of a child in a vulnerable position relative to an older brother in a small household. Her delayed disclosure after ensuring he had left the house also supports her evidence that fear of him inhibited her until she felt momentarily safe.
[29] Overall, having observed the complainant’s account, its detail, its internal consistency on the central acts, the child’s willingness to correct herself when she realised an error about timing, and her firm denial of the defence’s suggestions—the Court finds her to be a credible and generally reliable witness on the essential facts of the alleged offending.
Mother
[30] The mother’s evidence supports important aspects of the complainant’s account, in particular: (a) that she was away from the home during the relevant part of the morning; (b) that both children were at home that day; (c) that upon her return she saw Riyanshi rinsing her mouth at the wash tub outside the door, with Yohan present near the door; and (d) that shortly after Yohan left the house to play, the complainant closed the door and disclosed to her what had happened.
[31] The main criticism of her evidence concerns timing and her police statement. In her statement she is recorded as having taken the children to Valelevu Health Centre at about 8 a.m., whereas in court she denied ever going to the hospital that day, said she merely took food to her partner, and attributed the mention of the health centre to an error in the police statement rather than something she had said. She also initially said in chief that she returned at about 11 a.m., but later corrected this to about 1 p.m. after acknowledging that she had done some shopping.
[32] These inconsistencies are not trivial, and the Court approaches her evidence on timings with caution. However, it is accepted that she is of limited education, cannot read English, and was giving evidence about events some months earlier. It is plausible that the time in the written statement is inaccurate and that she could mis-estimate the exact hour of her return in oral evidence; what is consistent throughout is that she left in the morning, was away for some time, and returned in the early afternoon, by which stage Riyanshi and Yohan were at home, and that she saw Riyanshi washing out her mouth at the wash tub with Yohan nearby.
[33] More importantly, the complainant’s disclosure closely mirrors her own account, detailing Yohan wearing only a towel, lying on top her on the bed, removing her pants and underwear, inserting his “private part” into her “private part”, until her shouting caused him to stop, and his later insertion of his private part into her mouth in the washroom. Such close correspondence is unlikely to arise by chance, and the Court finds no compelling basis to attribute it to coaching, particularly given that the child required guidance in recalling and demonstrating her experiences, and did no appear to be reciting a rehearsed script.
[34] Radika candidly admitted her difficulties with Yohan—frequently swearing at him, previously reporting him to the police for assaulting Riyanshi, having locked him out and chased him away—and did not attempt to minimise those matters. This candour, though it exposes her in a negative light as a parent, tends to support her credibility. If she were bent on falsely incriminating Yohan to remove him from the household, the Court would expect a more sanitised self-presentation. She denied that she had ever struck him with a rolling pin or knife and denied instructing the complainant to allege rape and maintained that she still feels sorry for him and visits him at the Boys Centre, conducts that sits uneasily with the proposition that she is the architect of a malicious fabrication.
[35] The Court accepts that, also certain aspects of her timing evidence are unreliable, her account of the overall sequence— her temporary absence in the morning, return in the early afternoon, observation of the child rinsing her mouth, presence of both children in the hut, Yohan’s departure to play, and the ensuing disclosure—is substantially truthful and is consistent with the complainant’s account on material issues.
Defence Case
[36] The accused did not give evidence. Through cross-examination it was suggested that on the day in question Yohan merely asked for Panadol, inquired about their mother’s whereabouts, was sworn at by Riyanshi, and that she then went out to play, with nothing of a sexual nature occurring. It was further suggested that Riyanshi and her mother wanted Yohan out of the house and that the mother instructed the complainant to say she had been raped in order to achieve that end. Both witnesses denied these propositions.
[37] The defence case is that nothing happened beyond an argument over Panadol and that the complainant went out to play finds no support in the evidence beyond the suggestions put in cross-examination, which both witnesses firmly rejected. The suggestion that the complainant has fabricated the allegations at her mother’s behest is undermined by the nature and detail of the allegations, the immediacy of the disclosure after the mother’s return and the brother’s departure, the complainant’s explanation of fear and threats, and the mother’s evident emotional conflict between supporting her daughter and still caring for her son.
[38] The Court is obliged to consider whether the tensions between Yohan and his mother, and his removal to the Boys Centre, might create a motive for false allegation. The evidence however indicates that those tensions arose from his behavioural problems and prior violence, and that the mother had previously been discouraged from involving the authorities by police who told her that she was spoiling her son’s future. Against that background, her decision to pursue these allegations, fully aware of their gravity, is more consistent with a genuine complaint than with a contrived effort to expel him from the home.
Application of the Law to the Facts
Count 1 – Penile Penetration of Anus
[39] On Count 1, the Court must decide whether it is satisfied beyond reasonable doubt that the accused intentionally penetrated the complainant’s anus with his penis.
[40] The complainant’s evidence is that while lying face down on the bed, with her pyjama shorts and underwear pulled down to her knees, the accused, naked, placed his “private part” into her “bum”, causing pain at which point she screamed, and he stopped. Her demonstration with dolls and the body-map, and together with her circling of the male genital area as the relevant body part, indicate penile penetration of the area between her buttocks, involving the genital/anal region. There is no suggestion of any other object or body part being used, and her reference to his “private part” and pain at the place is consistent with the penile contact described.
[41] The mother’s evidence provides contextual support by confirming that the mother was absent at the relevant time, that both children were alone in the small hut, and that shortly after her return the child appeared unsettled and was rinsing her mouth, which is behaviour more naturally explained by the complainant’s account of sexual abuse than by the alternative “Panadol” narrative.
[42] The Court accepts the complainant’s evidence on this count as credible and reliable, finds that the inconsistencies about timing are adequately explained and immaterial to the core allegation, and rejects the defence suggestion of fabrication. The elements of Count 1 are accordingly proved beyond reasonable doubt.
Count 2 – Penile Penetration of Mouth
[43] On Count 2, the complainant’s evidence is that while she was urinating in the washroom with the door open, the accused entered naked and placed his “private part”, the same body part she had earlier identified on the diagram, into her mouth for a short time. She demonstrated their positions with dolls and explained that after hearing their mother’s voice he left, later putting on red underwear and wiping his tongue. She then washed her own face and tongue at the wash tub because she disliked the taste and did not feel good.
[44] The mother’s evidence that, upon returning home, she observed the complainant rinsing her mouth at the wash tub and that the child could offer no credible explanation (“just like that”) is consistent with the complainant’s description of wanting to rid herself of the unpleasant taste of the accused’s penis. Although the mother did not witness the act itself, her observations and the disclosure she received shortly afterwards is consistent with the complainant’s account in a significant way.
[45] The Court again finds the complainant’s evidence on this count credible and reliable and is satisfied that the elements of Count 2 are proved beyond reasonable doubt.
Conclusion and Verdicts
[46] Having considered all of the evidence, and having carefully assessed the credibility and reliability of the complainant and her mother, as well as the absence of any persuasive alternative explanation or defence evidence, the Court is satisfied beyond reasonable doubt that:
[47] Accordingly, the Court finds the accused guilty on both counts of rape as charged.
.............................................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused
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