PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Nauru
You are here:  PacLII >> Databases >> Supreme Court of Nauru >> 2025 >> [2025] NRSC 34

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

  Download original PDF

Republic v Gucake [2025] NRSC 34; Criminal Case 16 of 2024 (18 July 2025)


IN THE SUPREME COURT OF NAURU
AT YAREN

[CRIMINAL JURISDICTION]

Criminal Case No. 16 of 2024

BETWEEN: THE REPUBLIC


PROSECUTION


JOJI GUCAKE

ACCUSED


BEFORE: Keteca J


Date of Hearing: 17th March – 16th April 2025
Closing Submissions: 18th June 2025

Date of Judgment: 18th July 2025

Catchwords: Indecent Acts in Relation to a Child under 16 years old: Contrary to Section 117 (1) (a) (b) (c) Crimes Act 2016
Appearances:


Counsel for the Prosecution: S. Shah
Counsel for the Accused: V. Clodumar


JUDGMENT


BACKGROUND

  1. The accused is charged with two counts of indecent acts in relation to a child, contrary to Section 117(1)(a) (b) (c) of the Crimes Act 2016.
  2. For Count 1, it is alleged that between 01st - 13th August 2024, he intentionally touched the complainant by licking her neck, the touching was indecent, the accused was reckless about that fact, and that the complainant is a child under 16 years old.
  3. For Count 2, between the same dates, it is alleged that the accused intentionally touched the complainant by kissing her neck, the touching was indecent, the accused was reckless about that fact and that the complainant is a child under 16 years old.
  4. The prosecution called the following witnesses:
    1. PW1- - the complainant;
    2. PW2- Voliti Vakacegu Seruvatu;
    3. PW3 Const Darg Dagego;
    4. PW4- Livai Saukuru Sovau
  5. The Defence called the following witnesses:
    1. DW1-Joji Gucake
    2. Ignatius Sharko Bill;
    3. Susana Loloma.

PROSECUTION CASE

  1. The complainant testified as follows:

In cross-examination she said:

On Re- Examination she said:

Questions from the Court

  1. PW2 Voliti Vakacegu Seruvatu testified as follows:

On Cross- examination he said:

  1. PW3- Constable Darg Dagego was the investigating officer. Inspector Sereima recorded the complainant’s statement. He went to the accused’s house. He explained the allegations to him. He explained his right to remain silent. He arrested the accused and took him to the police station. He did the record of interview (ROI) of the accused. He charged the accused and applied for him to be remanded.
  2. PW4 Livai Saukuru Sovau works for the Department of Women & Social Welfare- advisor to Minister of Women and Acting Director Child Protection. He’s been serving in Nauru since 2014. In September 2024, he received a text message from a teacher seeking advice on how to report a matter of alleged sexual harassment. His team looked at possible support system for the complainant. He received a letter from PW2 on the allegations of the complainant and the fact that her mother said that she’ll handle the matter. Considered and executed bringing the complainant to the safe house- a house for victims of domestic violence, child victims of sexual assault and neglect. He lodged a criminal complaint with Nauru Police on 17th October 24. The complainant’s mother, Susana Loloma had entered the compound of the safe house and started screaming at the complainant. Susana Loloma was told to leave. The complainant was kept at the safe house for close to a month. In their assessment, the most reasonable option was for her to be with her biological father in Melbourne. The District Court granted orders that her passport be released and for her to fly and meet her father in Fiji. Interim custody/ guardianship was granted to the biological father, PW2. The complainant was escorted to Fiji by child protection officer Josie-Ann Bill and Inspector Sereima.
  3. Under cross examination- The complainant had told her mother about the allegations and she did nothing. The complaint from PW2 also involved allegations against the accused regarding her older sister in Fiji. They did not speak to the complainant’s mother before she was brought to the safe house as her mother was a person of interest. They spoke to the complainant’s mother when she was brought to the safe house. He reported the alleged crime as after following the processes under the Child Protection & Welfare Act 2016, as the Acting Director under the Act.

Ques- The family should have been providing support to the complainant?

Ans- Ascertained that the complainant would on some occasions be looking after her younger sister whilst the accused and her mother would be on drinking binges. There was also domestic violence at home with the accused being the perpetrator against the complainant’s mother- Susana Loloma. The reason they took the complainant, there was no family support for her in Nauru- it was non- existent.

Ques- Mother written off?

Ans- No. Based on the assessments of the of Child Protection Officers- it’s never about the mother but the best interest of the child. Information obtained included social habits of the complainant’s mother. She could have interfered with the complainant.

Ques- Has the mother been charged?

Ans- Not yet.

Ques- From your experience, you agree that the mother will be the best one to assess if a child is harassed/ abused in a household?

Ans- For sexual harassment cases, for a child to come forward, it’s usually because of some trauma to the mother- leads to ‘coercive control.’ i.e- a person who has power over someone else usually wields it in a manner that is emotional, psychological, financial, even physical. My experience- some form of ‘coercive control’ by the perpetrator- usually the men in the relationship. In general, not the mother. Reports usually come independently. When mothers report, we provide the support because of ‘coercive control.’

Ques- Maybe mother didn’t do anything because nothing happened?

Ans- I can’t answer that.

On his conversation with the complainant’s mother- the mother said that she knew of the allegations. She asked for time as they were supposed to fly out in November to Fiji. When the police officers went to see Susana about the complainant being taken to the safe house- she said- ‘He (biological father PW2) should have just waited.


DEFENCE CASE

  1. The accused opted to give sworn evidence. He testified as follows;

On Cross- Examination

Questioned by the Court

  1. DW2- Susana Loloma is a school teacher and is married to the accused. She is the complainant’s mother. PW2 is her first husband and is the complainant’s father. She testified that:

On Cross- Examination

Questioned by the Court

SUBMISSIONS BY THE PROSECUTION

  1. In a rather brief submission, Mr Shah did not address each of the elements of the offence and how the evidence applies to all the elements. The absence of any reference to case-law to provide guidance on what the elements of the offence mean is a noteworthy omission on the prosecutions part. In particular, Counsel has not covered the element of ‘whether the kissing / licking of the complainant’s neck amount to ‘touching that is indecent.’ Counsel did not even mention Section 117(6) of the Crimes Act on the standard of ‘an ordinary person’ when dealing with the question of whether the ‘touching’ is ‘indecent.’

SUBMISSION BY THE DEFENCE

  1. Mr Clodumar highlighted some inconsistencies in the evidence for the prosecution and looked at the following:
    1. Elements of Section 117- Indecent Act in relation to a child under 16 years old
    2. The definition of ‘touching under Section 117(5)
    3. The definition of ‘intention’ under Section 17
    4. The definition of ‘Recklessness’ under Section 19
    5. What amounts to indecent assault? - R v Doguape [ 2021] NRSC 27; Criminal Case 13 of 2021 (27th July 2021); R v Hartman [2020] NRSC 7; Criminal Case 16 of 2019) 04th March 2020)
    6. Counsel argues – ‘his act of picking up the complainant, as he did, had no sinister motive or indecency to it.’
    7. R v Debao [2019] NRSC 5; Case 21 of 2017 (19th March 2019)- on the credibility of the complainant ‘and the mother’s doubt (DW2- complainant’s mother) as to the veracity of her daughter’s allegation.
    8. The accused is to be found not guilty and be acquitted.

DISCUSSION

  1. The elements of Section 117 (1) (a)(b)(c) Crimes Act 2016 are:
    1. The accused
    2. Touched the complainant
    3. The ‘touching was ‘intentional ‘and ‘indecent’
    4. The accused was reckless about the indecent touching
    5. ES was under 16 years old
  2. On both counts, there is no dispute as to the identity of the accused. The allegations refer to two incidents where the accused ‘intentionally touched’ the complainant. The nature of the touching is ‘licking ‘of the complainant’s neck in Count 1 and ‘kissing’ of her neck in Count 2.
  3. Count 1- It is alleged that the accused touched the complainant by ‘licking her neck.’ The accused does not deny ‘touching’ the complainant. He disputes the nature of the touching as described in the information and denies ‘licking’ her neck. Instead, the accused says that he ‘hugged and kissed’ the complainant on her cheek and her forehead. Who is the court to believe?
  4. Count 2-it is alleged that the accused touched the complainant by kissing her neck. The accused does not deny kissing the complainant. He denies kissing her neck. He admits kissing her cheek and forehead instead. The element of the offence that the accused touched the complainant as per the meaning of ‘touching’ under Section 117(5) of the Crimes Act 2016 is satisfied for both Counts. Did the accused ‘intentionally ‘kiss the complainant? Section 17(1) of the Crimes Act 2016 defines ‘intention’ as-

‘A person has ‘intention’ with respect to conduct, if the person means to engage in the conduct.’

  1. It is clear from the testimony that the accused ‘meant to engage in the conduct of ‘hugging, lifting the complainant up and kissing her. The complainant says that the accused ‘licked’ and kissed her neck and not her cheek or forehead. Once again, as in para [17] above, who is the court to believe? In R v Bill, [2024] NRSC 25; Criminal Case 1 of 2023 (24th September 2024), I said:

‘At common law, the credibility of a witness generally depends on the following factors:

  1. Knowledge of the facts on which the witness gives evidence;
  2. Impartiality;
  3. Integrity; and
  4. Truthfulness.
  1. In the present case, the issue of ‘truthfulness’ arises. Am I to believe the complainant or the accused as to whether she was kissed and licked on the neck or forehead and cheek? In THE STATE OF WESTERN AUSTRALIA -v- COATES [2007] WASC 307, BLAXELL J at [54] said this-

‘The determination of a witness' credibility on the basis of demeanour does not require the exercise of any legal skill, and is not something which can be the subject of reasoned analysis. It is largely a semi-intuitive process, and most ordinary members of the community have the life experiences which equip them to make such an assessment.’


At [ 57], he said:

‘Obviously, the assessment of each witness' credibility will be a matter of critical importance in arriving at my findings of fact. It may be that I accept the whole of a witness' evidence or that I reject it all. It may also be that I accept part of what a witness has had to say but reject the rest. The fundamental question in relation to each witness, and in relation to each matter the subject of his or her testimony, is whether or not I believe the evidence. The answer to this question will turn on my evaluation of a number of factors, including the truthfulness of the witness, the reliability of the observations made by him or her at the material time, and the accuracy of his or her recollections’


At [58] Justice Blaxell said:

‘Matters to be taken into account in this evaluation include the witness' general demeanour whilst testifying, the consistency of the evidence (both within itself and with other evidence in the trial), personal characteristics such as powers of expression and apparent levels of intellect, the possible impact of alcohol or drugs, and the emotional state of the witness at the material time. In the end, I should carefully assess all relevant matters and decide whether or not I can accept the witness' evidence on a particular issue as being truthful and correct.”

(My emphasis)


  1. In Excelerate Technology Ltd v Cumberbatch & Another [2015] Lexis Citation 6, Queens’s Bench Division, at paragraph [9], Justice Simon Brown QC said this:

‘ . The most compendious judicial statement on this is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431: ''Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others?


He added:

‘Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."


  1. For the present case, the fundamental question in relation to the testimonies of the complainant and the accused is whether or not I believe their evidence. From the questions raised by Justice Simon Brown QC in Excelerate Technology Ltd v Cumberbatch & Another [2015] above, I pose the following:
    1. Is the complainant a truthful or untruthful person? The complainant, although growing up in a rather unsteady family surrounding, was clear and firm in her testimony. She was unwavering and steady, even under cross- examination. She testified that on happy occasions, the accused would hug and kiss her. When the accused entered her room, she testified- He asked to hug me. It was weird. I didn’t want to hug him. He started to kiss my neck and started licking it. I pushed him away. The accused pointed at her mattress and told her to lie down there with him. She said -No. She told him to get out of her room. He did.’ I found the complainant to be a credible witness and a truthful person.
    2. Is the accused a truthful or untruthful person? The accused was equally clear in his testimony. There were a few inconsistencies though. He testified that the complainant’s mother told him to peep through the window of the complainant’s room and check whether she was using her phone. This is denied by DW2, the complainant’s mother. He testified that he hugs and kisses the complainants on happy occasions. DW2, the accused’s wife, to the contrary, said this-

• Ques- Normal for accused to hug, kiss and lift your daughter in your presence?

• Ans- No, only hugging.

• Ques- Picking the complainant from the knees- is that normal?

• No. He said he expressed his excitement by lifting the complainant up.

• Ques- He expresses the same excitement in your presence?

• Ans- No.

  1. When the accused was cross examined about the family meeting, this transpired:
  2. In contrast, DW2, the complainant’s mother said:
  3. On every detail of the complaint- when questioned by the court, the complainant said-
  4. On being questioned about the number of times the family takes their laundry to Menen Hotel, the accused had different versions. In cross examination, he said:
  1. Paragraphs [24] (ii)- (vi) show some inconsistencies in the accused’s evidence. I find that the accused, though appearing to be a truthful person in his steady and clear answers, he was being selective and telling something less than the truth on the nature of his ‘touching’ the complainant, being asked by DW2 to peep through the complainant’s window, the details of what his wife asked him at the family meeting regarding the allegations of the complainant and the number of times they had been taking their laundry to Menen. I therefore find the accused to be an untruthful person and I don’t believe his evidence as regards the allegations of the complainant. I find, that the accused touched the complainant by ‘licking her neck’ in Count 1. I also find that the accused touched the complainant by ‘kissing’ her neck as in Count 2. On both Counts, I find that the accused ‘meant to engage’ in the ‘licking’ and the ‘kissing’ of the complainant’s neck as per the definition of ‘intention’ in Section 17 of the Crimes Act 2016.
  2. I now have to consider whether the touching by ‘licking’ and ‘kissing’ of the complainant’s neck were ‘indecent.’ Section 117(6) of the Crimes Act 2016 provides:

‘The question whether touching or any act is indecent is one of fact to be determined by applying the standards of an ordinary person.’

  1. In Republic v Doguape [2021] NRSC 27; Criminal Case 13 of 2021 (27 July 2021), Fatiaki CJ observed:
    1. In R v Stanley [1965] 2 QB 327 Lord Parker CJ ruled that to be “indecent” the publication in that case would need to be highly offensive against the recognised standards of common propriety. In Nauru, however the standard is that “...of an ordinary person”.
    2. In most cases the indecent nature of the act(s) complained about presents no difficulty. Most often, the act is of a sexual nature involving the victim’s breasts and/or genitalia or it may be an act of intimacy that offends the modesty of the victim such as uninvited caressing or kissing or it may even include exposure of the male genitalia and/or masturbation as occurred in Republic v Hartman [2020] NRSC 7.
    3. In this regard the House of Lords in R v Court (1988) 2 ALL ER 221 explained:

“To decide whether or not a right-minded person might think that the assault was indecent, the following factors were clearly relevant: the relationships of the accused to his victim (were they relatives, friends or virtually complete stranger?) how had the accused come to embark on this conduct and why was he behaving in this way?....”


  1. At [43] Fatiaki CJ said”

‘43. Of greater relevance however, to the circumstances of the present case, are the observations of Lord Griffiths where he said ibid (at p 223):

“The gravamen of the offence of indecent assault is the element of indecency. It is this element...that distinguishes the offence from common assault ...


...By indecency is meant conduct that right-thinking people will consider an affront to the sexual modesty of a woman.


Although the offence of indecent assault may vary greatly in its gravity.....there is agreement that the offence cannot be committed accidentally..... Once this concession is made it is apparent that some extra mental element is required than that necessary for common assault..... this mental element should be that which constitutes the essence of the offence, namely an intent to do something indecent to a woman in the sense of an affront to her sexual modesty..... Indecent assault is after all a sexual offence appearing in (Our PART 7 - SEXUAL OFFENCES) and one should on general principle look for a sexual element as an ingredient of the offence.”


  1. In Republic v Ignazio-Iyongo Aubiat, Criminal Case 15 of 2023, I referred to

“In R v Harkin (1989) 38 A Crim R 296 (NSW CCA) Lee J said:

‘[I]f there be indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are relevant areas...’

  1. From the above, I note that the offence of indecent assault cannot be committed accidently. For touching to be indecent- (a) It has to be of a sexual nature or have a sexual connotation OR (b) It must have the intent to do something indecent to a woman OR (c) The area of the body of the perpetrator and the victim- involved in the touching, are relevant. The genitals and anus of both male and female and the breast of the female are relevant areas...’OR (d) conduct or touching that right- thinking people (in Nauru- it’s the ordinary person’) will consider an affront to the sexual modesty of a woman.’
  2. In the present case, the ‘touching’ involved the ‘licking’ and the ‘kissing ‘of the complainant’s neck. Are those acts indecent? I note that according to both the complainant and the accused, he had hugged the complainant in the past. He had kissed the complainant in the past too. According to the complainant, the previous kisses were on her forehead. According to the accused’s wife, DW2, she had seen the complainant hug her daughters before. Kissing? No.
  3. What is different about the “licking’ and ‘kissing’ of the complainant’s neck on this occasion? On a ‘kiss’ as an example of indecent assault- R v Pahuja (No 2) [1989] SASC 1434; (1989) 50 SASR 551; 40 A Crim R 252 (CCA) White J said at (553; 254)

‘Whatever might be the situation where a young girl misinterprets the manner or the reason for massaging her chest in the breast area, there could not be any like immature misinterpretation of a kiss and / or the insertion of the tongue into her mouth. If either or both these two latter things happened they would necessarily constitute indecent assaults.’


  1. In R v Leeson (1986) 52 Cr App R 185 (CA) Diplock LJ said (at 187):

‘This court has no doubt that where an assault of this kind involving the kissing of a girl against her will is accompanied by suggestions that sexual intercourse should take place or that sex play should take place between them, the assault is an indecent one.’


  1. In the present case, the complainant clearly said that she did not want to hug the accused. When she was kissed and licked on her neck and lifted up by her thighs, she was asked:

Ques- How did you feel?

Ans- I was scared and felt disgusted.

She told him to put her down and to leave his room.

This clearly shows that the accused kissed and licked the complainant’s neck against her will.


  1. Do the ‘licking’ and ‘kissing’ of the neck have any sexual connotations? After ‘touching’ the complainant, this transpired:

‘My mattress was on the floor. He pointed to my mattress and told me to lie down there with him. I said-No and told him to get out of my room.

Ques- How did you feel?

Ans- I was angry and scared.


  1. The prosecution did not establish the actual words used by the complainant during this exchange. In applying the standards of an ordinary person under Section 117 (6), I find that the accused, in hugging, licking and kissing the complainant’s neck- accompanied by the suggestion that she lie with him on her mattress- there is a sexual element here. I find that this amounts to the ‘touching’ being sexual in nature in both Counts 1 and 2. I conclude that the accused intentionally kissed and licked the complainant’s neck. Coupled with the accused’s suggestion that the complainant lie next to him on her mattress, this makes the two incidents of touching – of licking and kissing the neck of the complainant- indecent. Thus the element of indecency which is the gravamen of the offence of indecent assault, is satisfied here. I further find that the accused was reckless in his conduct and that the complainant is under 16 years old.
  2. I remind myself that the burden of proof under Section 25 of the Crimes Act 2016 rests with the prosecution. Am I satisfied beyond reasonable doubt that the accused committed the offences as charged? What does the term ‘beyond reasonable doubt mean? In Keeley v Brooking [1918] ArgusLawRp 125; 1979) 143 CLR 162; 25 ALR 45 Barwick CJ said:

‘To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.’


CONCLUSION

  1. Considering in totality the evidence in this case, I am certain that the accused committed the offences in both Counts 1 & 2.
  2. My findings are:
    1. Count 1- Guilty;
    2. Count 2- Guilty.

DATED this 18th of July 2025.


Kiniviliame T. Keteca

Judge.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/nr/cases/NRSC/2025/34.html