State v Vakadranu - Judgment [2016] FJHC 899; HAC57.2015 (26 September 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 057 OF 2015

[CRIMINAL JURISDICTION]

STATE

V

IOWANE VAKADRANU

Counsel : Ms. S. Navia and Mr. S. Seruvatu for State
Mr. S. Tinivata for Accused
Dates of Hearing : 19^th-21^st September 2016
Date of Summing up : 23^rd September 2016
Date of Judgment : 26^th September 2016

JUDGMENT

1. The accused is charged with the following offences;
   

FIRST COUNT

[Representative Count]

Statement of offence

Rape: Contrary to section 207 (1) and (2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 1^st day of October 2012 and the 31^st day of December 2013, at Labasa in the Northern Division, had carnal knowledge of Selai Tabua, without her consent.

SECOND COUNT

[Representative Count]

Statement of offence

Rape: Contrary to section 207 (1) and (2)(c) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 1^st day of January 2014 and the 31^st day of August 2014, at Labasa in the Northern Division, penetrated the mouth of Selai Tabua, with his penis, without her consent.

THIRD COUNT

[Representative Count]

Statement of offence

Rape: Contrary to section 207 (1) and (2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 30^th day of September 2014 and the 31^st day of August 2015, at Tailevu, in the Central Division had carnal knowledge of Selai Tabua, without her consent.

FOURTH COUNT

Statement of offence

Rape: Contrary to section 207 (1) and (2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 1^st day of September 2013 and the 31^st day of October 2013, at Labasa in the Northern Division, had carnal knowledge of Siteri Tino, without her consent.

2. After trial the assessors have returned with a unanimous opinion that the accused is guilty of all the counts above.
3. I direct myself in accordance with the summing up delivered to the assessors on 23^rd September 2016 and the evidence adduced during the trial.
   
4. Even though it was not part of the admitted facts, in his evidence, the accused admitted the element based on penetration in respect all four counts. Therefore, the two elements based on consent were the only disputed elements in each of the four counts of rape.
   
5. The two girls who were alleged to have been raped by the accused, namely, Ms. Selai Tabua (“Ms. Tabua”) and Ms. Siteri Tino (“Ms. Tino”) gave evidence for the prosecution and the accused gave evidence on behalf of the defence.
   
6. The first, second and the third counts relates to the first prosecution witness Ms. Tabua and the fourth count relates to the second prosecution witness Ms. Tino.
   

First, second and the third counts

7. The time of offence specified in first count is the period between 01/10/12 to 31/12/13. The time period referred to in Ms. Tabua’s evidence pertaining to the incidents in Labasa which is relevant to the first count is 01/10/12 to 31/08/14. The time of offence specified in second count is the period between 01/01/14 to 31/08/14. The time period referred to in Ms. Tabua’s evidence pertaining to the incidents in Labasa which is relevant to the second count is again from 01/10/12 to 31/08/14. According to her, she sucked the accused’s penis as instructed by the accused after he penetrated her vagina in Labasa and the same thing happened again.
   
8. According to the accused, he clearly admitted that he told Ms. Tabua to suck his penis and Ms. Tabua did suck his penis in Labasa, but he said this happened before he penetrated her vagina. He also admitted that the same thing happened a few weeks later. Therefore, there is variance between the time of offence referred to in the charge and the evidence in respect of the first two counts. However, as the accused admitted penetrating Ms. Tabua’s vagina with his penis in Labasa in relation to the first count and the accused admitted penetrating Ms. Tabua’s mouth in Labasa with his penis in relation to the second count, I consider that this variance with respect to time of offence pertaining to the first two counts is immaterial.
   
9. Ms. Tabua said in her evidence that she consented for the accused to penetrate her vagina in respect of the first and the third counts and for the accused to penetrate her mouth in respect of the second count. However, she also said in her evidence that she consented because she believed in the accused who was the leader of the church she is a member of, who told her that he is preparing her for a mission where she has to preach the word of God to the world and she cannot preach something she has not experienced. Ms. Tabua said that it was her own choice.
   
10. The defence did not challenge her evidence with regard to the issue of consent. The accused took up the position that Ms. Tabua gave full consent.
    
11. Therefore, in respect of the first three counts, the issue is whether the prosecution has proven beyond reasonable doubt that the consent which Ms. Tabua said she gave was given freely and voluntarily within the meaning provided in the definition of the term ‘consent’ in section 206 of the Crimes Decree 2009; and whether the accused knew or believed that she was consenting or, whether the accused was reckless as to whether or not Ms. Tabua was consenting. Whether the accused had any sexual motive or intent is irrelevant. (Naveed Tabassum [2000] EWCA Crim 90; [2000] 2 Cr. App. R. 328)
    
12. Ms. Tabua in her evidence clearly demonstrated that she still believes in the accused and she trusts in him. According to her evidence she joined the church ‘Back to Eden Church Ministry’ where the accused is the founder and the leader, in the year 2007. All her family members are still members of this church where her father was an assistant pastor and her mother a church stewardess. She left school in the year 2012 because she became sick that year and attended a home school run by the accused since then. She had heard the accused saying during one of his sermons that they should leave school and follow Jesus. The accused had been her only teacher in the home school she attended since 2012. During the time material to the case she was the assistant youth leader and the secretary of the health ministry of this church.
    
13. In her evidence she said that she gave her consent pertaining to all incidents relevant to the first three counts because she believed that it was necessary for the particular mission of spreading the word of God to the world. She believed this based on what the accused had told her. However, it was revealed during the trial that Ms. Tabua was not sent for any mission even after about three years since the first incident.
    
14. In my view, the evidence suggests that the accused had made a false and fraudulent representation to Ms. Tabua about the nature and purpose of inserting his penis into her vagina (pertaining to first and the third counts) and to her mouth (pertaining to the second count) for the following reasons inter alia;
    1. she has been made to believe that she has to commit adultery in order to preach the word of God and tell the others not to commit adultery. Would this mean that she cannot preach not to commit a sin or an offence without first committing same? Then, what about killing another, or stealing from another?
    2. she was not sent for any mission even after about three years since the first incident;
    100. the accused continued to have sexual intercourse with her without sending her for the purported mission;
    4. while the accused had made her believe that she has to have sexual intercourse with him because she cannot tell the world about something she had not done; at the same time the accused had also told her not to tell anyone about these incidents that took place during the one-on-one sessions as it was between the two of them.
       
15. Further, in my view, at the time material to the three counts, Ms. Tabua’s ability to think independently was compromised due to the grooming that had taken place for about five years since Ms. Tabua joined the church in 2007. She had failed to understand that this reason given by the accused about a mission and her having to experience adultery for her to preach to the world against adultery is a false and a fraudulent representation about the nature and the purpose of the act of penile penetrations the accused committed on her and she fails to realise it even now.
    
16. I also note that Ms. Tabua said in her evidence during cross examination that in their church there is a way to solve if something wrong had happened and there was reconciliation with regard to everything that had happened and it ended there. According to the law, the offence of rape cannot be reconciled.
    
17. The fact that the accused had deceived Ms. Tabua is further confirmed based on the following;
    1. the accused’s own admission during his evidence that he did not send Ms. Tabua for any mission even after about 3 years;
       
    2. accused said in his evidence that once he does it [have sexual intercourse] with the complainants, they are ready for the mission and that ends there. However, he continued to have sexual intercourse with Ms.Tabua for about 3 times (in addition to the oral penetration) after the first incident. If the requirement is to teach her what is adultery and she was ready for the mission once it is done, why was the need to repeat and also to make her suck his penis?
       
    100. the reasons the accused had given during his evidence for the penile penetrations he committed on Ms. Tabua as outlined in paragraph 68 of the summing up do not appear to be consistent.
         
18. The word ‘consent’ is defined under section 206 of the Crimes Decree as follows;

“(1) The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person’s consent to an act is not freely and voluntarily given if it is obtained —

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner”

19. Black’s law dictionary (6^th edition) provides the following definition to the word ‘consent’;

“A concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; approval; permission; the act or result of coming into harmony or accord.

Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers.”

20. Therefore, in my view, the prosecution has proven beyond reasonable doubt that Ms. Tabua did not freely and voluntarily give her consent as it was obtained by the accused due to the false and fraudulent representation about the nature and purpose of the act and by exercising his authority over her. The reason for her conviction that she consented and that she made the correct decision can be understood considering the influence and the authority the accused would have on her as outlined in paragraph 12 of this judgment. However, even though Ms. Tabua has failed to understand that she had been deceived, the unanimous opinion of the assessors that the accused is guilty of the first three counts shows that those three representatives from the society have unanimously decided that Ms. Tabua had been deceived and the consent Ms. Tabua said she gave in respect of each count was not freely and voluntarily given.
    
21. Taking into account that it is proven that the accused deceived Ms. Tabua, it is also evident that the accused knew and believed that she was not consenting freely and voluntarily.
    
22. Therefore, in my view, the prosecution has proved all the elements of counts one, two and three beyond reasonable doubt.
    

Fourth count

23. Ms. Tino in her evidence said that she did not consent for the accused to insert his penis into her vagina, but she did not resist as the accused was her pastor whom she respected and as she would do anything the accused would tell her to do.
    
24. The accused’s position again was that Ms. Tino gave full consent. It was pointed out in his defence by the accused that Ms. Tino herself removed her cloths and got onto the bed and she did not resist in any manner. Further, the defence says that there are inconsistencies in Ms. Tino’s evidence and she took two years to complain when she had enough opportunities to make a complaint. According to the defence, Ms. Tino only complained because of her mother and if the mother did not question, she would not have complained regarding this matter.
    
25. Therefore, in respect of the fourth count, the question is whether the prosecution has proven beyond reasonable doubt that the accused penetrated Ms. Tino’s vagina without her consent and whether the accused knew or believed that she was not consenting or, whether he was reckless as to whether or not she was consenting.
26. Ms. Tino joined the accused’s church in 2011. She also left school based on the accused’s teaching that it is no use going to school in this world. She was the youth leader of the accused’s church at the time of the incident and her mother was a church member. The accused had taught her that he is their doctor and he is their spouse. Just before the incident in question which took place in 2013 where he inserted his penis inside her vagina, the accused told her that he is going to perform on her what God had appointed him to do. Then she was told by the accused to remove her cloths and to get onto the bed. Ms. Tino removed her cloths and got onto the bed. Then accused penetrated his penis into her vagina. Ms. Tino did not physically resist.
    
27. The above facts pertaining to the fourth count is not disputed. What is disputed is Ms. Tino’s evidence that she did not consent for the accused to penetrate her vagina with his penis.
    
28. I believe Ms. Tino’s evidence when she said that she did not consent for the accused to penetrate her vagina with his penis and that she did not physically resist because at that point in time she saw the accused as her pastor and she will do whatever he tells her to do. In that, I am satisfied beyond reasonable doubt that her submission to what the accused performed on her without physical resistance does not amount to consent. I find that the accused had exercised his authority over her as her pastor whom she believed and trusted since 2011 and by saying that he is going to perform on her what God has appointed him to do.
    
29. The inconsistency in her evidence with regard to the time she noticed blood is not material and significant to the issue whether or not she consented for the accused to penetrate her vagina. Her evidence that she was preaching on the principles of the church though she did not believe in those principles or the fact that she did not complain about the matter for about two years until her mother questioned her does not affect the credibility and the reliability of her evidence on the issue of consent. I accept her evidence that she wanted to tell her mother, but she was afraid and was not sure when to tell her and that she was afraid because of her respect for the accused and the authority he had over her.
    
30. Based on the evidence, I am also satisfied beyond reasonable doubt that the accused knew or believed that Ms. Tino was not consenting for him to insert his penis inside her vagina though she did not physically resist. That is why he told her that God has appointed him to perform that act on her. He knew that Ms. Tino respected him as her pastor and would do anything he would tell her to do. Further, the same conduct of the accused also shows that he was aware of the risk that Ms. Tino may not be consenting for him to insert his penis inside her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate Ms. Tino’s vagina with his penis.
    
31. Considering the totality of the evidence, it is pertinent to note the accused continued to have sexual intercourse with Ms. Tabua and also made her suck his penis, whereas Ms. Tino was not approached by the accused after the first incident. Ms. Tabua said that she consented and she still believes in the accused. However, Ms. Tino said she did not consent for the accused to insert his penis into her vagina. In my view, this evidence further supports Ms. Tino’s evidence that she did not consent and the fact that the accused knew or believed that she did not consent.
    
32. Therefore, I am satisfied beyond reasonable doubt that the prosecution has proved all the elements of the fourth count beyond reasonable doubt.
    
33. I consider it appropriate to make a note on the relevance of the accused’s references to the Bible in his evidence, in deciding whether the accused is guilty or not guilty of the offences he is charged with. The accused took up the position that he has not made false representations to Ms. Tabua and his teachings were based on the Bible. In my view, facts highlighted in paragraphs 14 and 17 above clearly demonstrates that the accused had in fact made a false and a fraudulent representation to Ms. Tabua about the nature and purpose of what he did to her. Therefore, there was no necessity in this case to consider whether his teachings are in fact based on the Bible or not.
    
34. Further, the accused cannot take up the position that he thought he was allowed to commit the offence of rape or any other offence based on his own interpretation of the Bible as he says that he is not prohibited by the Bible to commit adultery based on his interpretation. A person’s own interpretation of the Bible or any other religious text cannot be given as an excuse to violate an existing law. A mistake or ignorance of law is not a defence. However, no defence based on mistake of either fact or law was taken in this case.
    
35. I am therefore convinced that the unanimous opinion of the assessors in finding the accused guilty of the four counts of rape was not perverse and it was open for them to reach that conclusion based on the evidence.
    
36. I concur with the unanimous opinion of the assessors that the accused is guilty of the four counts of rape as charged.
    
37. I find the accused guilty of all four counts of rape as charged and I convict the accused accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Toganivalu & Valenitabua Barristers & Solicitors, Suva.