State v Kenawai - Summing Up [2020] FJHC 546; HAC402.2018 (15 July 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 402 of 2018

STATE

V

MELI KENAWAI

Counsel : Ms. Swastika Sharma for the State
Ms. Shantel Hazelman with Ms. Maria Cabona for the Accused

Dates of Trial : 6-9 July 2020
Summing Up : 15 July 2020

The name of both complainants are suppressed. Accordingly, the 1^st complainant will be referred to as “IM” and the 2^nd complainant will be referred to as “JT”.

SUMMING UP

Madam Assessor and Gentlemen Assessors,

[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.

[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.

[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinions. You must take all evidence into consideration, before you proceed to form your opinions. There are no items of evidence which could safely be ignored by you.

[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.

[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] In this case, the evidence is what the witnesses said from the witness box, the documents tendered as prosecution and defence exhibits and any admissions made by the parties by way of admitted facts.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submissions made by the State Counsel and closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, a matter which will be of primary concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.

[14] The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.

[15] According to the evidence you heard in this case, the 1^st complainant, IM, was between 14 and 15 years of age at the time of the alleged incidents, and was 18 years old when he testified in Court [His date of birth is 13 March 2002]. The 2^nd complainant, JT, was between 13 and 14 years of age at the time of the alleged incidents, and was 17 years old when he testified in Court [His date of birth is 12 July 2003]. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the two complainants have given you a truthful and a reliable account of their experience concerning the offences the accused is charged with.

[16] Furthermore, the experience of the Courts is that victims of sexual offences react to the incident in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, may not complain or go to the authorities for some time. There is, in other words, no classic or typical response by victims of sexual offences.

[17] In this case the grandmother of the 1^st complainant, Sera Rogonasau testified in Court and said that the 1^st complainant had informed her on Saturday 20 January 2018 that he does not wish to go to the Assembly of God Church Agape any longer. When asked the reason the witness said that IM had told her that Meli used to give him money for IM to suck Meli’s male private part. She said: “Meli used to force IM by pushing his head to suck his male private part.” The witness said that by male private part she was referring to Meli’s penis.

[18] You must bear in mind that a late complaint does not necessarily signify a false complaint; any more than an immediate complaint necessarily demonstrates a true complaint. In this matter, it is for you to determine regarding the lateness or belatedness of the complaint and what weight you attach to it. It is also for you to decide, when eventually the 1^st complainant did complain to his grandmother, the genuineness of the said complaint.

[19] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to perceive (or know) the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.

[20] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in their evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This could be in relation to the testimony of the witness given in Court or in comparison to any previous statement made by that witness.

[21] A statement made to the Police by a witness can only be used during cross-examination to highlight inconsistencies or omissions. That is, to show that the relevant witness on a previous occasion had said something different to what he or she said in Court (which would be an inconsistency) or to show that what the witness said in Court was not stated previously in the statement made to the Police (which would be an omission). You have to bear in mind that a statement made by a witness out of Court is not evidence. However, if a witness admits that a certain portion in the statement made to the Police is true, then that portion of the statement becomes part of the evidence.

[22] This is how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible or fragile and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.

[23] However, if there is no acceptable explanation for the inconsistency or omission, which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistency or omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency and consider the witness to be reliable.

[24] Madam Assessor and Gentlemen Assessors, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[25] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[26] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not to the charges. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[27] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged.

[28] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[29] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. This is also referred to as circumstantial evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[30] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary fact and the inferences that could be drawn from them.

[31] I must emphasize, it does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.

[32] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.

[33] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.

[34] I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or degree of proof, as expected by law?

[35] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason. The doubt must only be based on the evidence presented before this Court.

[36] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.

[37] You must not let any external factor influence your judgment. You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainants or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must also not speculate about what evidence there might have been. You must adopt a fair, careful and reasoned approach in forming your opinions.

[38] I must also explain to you as to the reason for permitting a closed court proceedings when the two complainants gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when it is closed court proceedings, the complainants are relieved of any mental pressure or any form of embarrassment they may have to describe the often unpleasant incidents which they alleged happened to them. However, please bear in mind that you must not infer that such a protection to the witnesses was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.

[39] Let us now look at the charges contained in the Amended Consolidated Information.

[40] There are seven charges preferred by the Director of Public Prosecutions (DPP), against the accused:

COUNT ONE

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, unlawfully and indecently assaulted IM, by touching his penis.

COUNT TWO

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (c) of Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, penetrated the mouth of IM with his penis, without his consent.

COUNT THREE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, penetrated the anus of IM with his penis, without his consent.

COUNT FOUR

Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, attempted to penetrate the mouth of JT with his penis, without his consent.

COUNT FIVE

(Representative Count)

Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, attempted to penetrate the anus of JT with his penis, without his consent.

COUNT SIX

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, penetrated the anus of JT with his finger, without his consent.

COUNT SEVEN

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

MELI KENAWAI, between the 1^st day of January 2017 and the 31^st day of December 2017, at Nasinu, in the Central Division, unlawfully and indecently assaulted JT, by touching his penis.

[41] As you would observe Counts 1-3 are in relation to the 1^st complainant; while Counts 4-7 are in relation to the 2^nd complainant. The accused has been charged with two counts of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act No. 44 of 2009 (Crimes Act) (Counts 1 and 7); one count of Rape, contrary to Section 207 (1) and (2) (c) of the Crimes Act (Count 2); one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act (Count 3); one count of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act (Count 6); and two counts of Attempted Rape, contrary to Section 208 of the Crimes Act (Counts 4 and 5).

[42] Let me first explain the elements of Counts 1 and 7, the offence of Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act.

[43] Section 210 (1) (a) of the Crimes Act reads as follows:

(1) A person commits an indictable offence (which is triable summarily) if he or she—

(a) unlawfully and indey assaulssaults another person;

[44] Therefore, in order for the prosecution to prove the first count of Sexual Assault, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Unlawfully and indecently assaulted IM, by touching his penis.

[45] Similarly, in order for the prosecution to prove the seventh count of Sexual Assault, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Unlawfully and indecently assaulted JT, by touching his penis.

[46] Let me now elaborate on these elements together in respect of Count 1 and Count 7.

[47] The first element is concerned with the identity of the person who committed the offences. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offences.

[48] The second element relates to the specific time period during which the offences were committed. The third element relates to the place at which the offences was committed. The prosecution should prove these elements beyond any reasonable doubt.

[49] The accused would be guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainants. The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As such, it is for you as Assessors to consider and decide whether the act of touching the 1^st complainant’s penis by the accused (In Count 1) and whether the act of touching the 2^nd complainant’s penis by the accused (In Count 7), is an indecent act and thereby amounts to Sexual Assault.

[50] Let me now explain the elements of Count 2 which is a count of Rape contrary to Section 207 (1) and (2) (c) of the Crimes Act.

[51] Section 207(1) of the Crimes Act reads as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

[52] Section 207(2) (c) of the Crimes Act is reproduced below.

(2) A person rapes another person if —

(a)......;

(b)......;

(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

[53] Therefore, when Section 207(1) is read with Section 207(2) (c) it would read as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

(2) A person rapes another person if —

(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

[54] Therefore, in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Penetrated the mouth of the 1^st complainant, IM, with his penis;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not he was consenting.

[55] Let me now explain the elements of Count 3 which is a count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act.

[56] Section 207(1) of the Crimes Act reads as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

[57] Section 207 (2) (a) of the Crimes Act is reproduced below.

(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; or

[58] Therefore, when Section 207 (1) is read with Section 207 (2) (a) it would read as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

(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.

[59] In layman’s terms, having carnal knowledge with or of the other person, as stated in Section 207 (2)(a), means having penile sexual intercourse with that other person or having sexual intercourse with the use of the penis. The law also provides that "Carnal knowledge" includes sodomy, which is anal intercourse.

[60] Therefore, in order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Penetrated the anus of the 1^st complainant, IM, with his penis;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not he was consenting.

[61] Let me now explain the elements of Count 6 which is a count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Act.

[62] Section 207(1) of the Crimes Act reads as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

[63] Section 207(2) (b) of the Crimes Act is reproduced below.

(2) A person rapes another person if —

(a) ....

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or

(c) .....

[64] Therefore, when Section 207(1) is read with Section 207(2) (b) it would read as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

(2) A person rapes another person if —

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent.

[65] As you can observe, Section 207(2) (b) refers to a person penetrating the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent.

[66] Therefore, in order for the prosecution to prove the sixth count of Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Penetrated the anus of the 2^nd complainant, JT, with his finger;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not he was consenting.

[67] Let me now elaborate on these elements together in respect of the said three counts (Counts 2, 3 and 6).

[68] The first element is concerned with the identity of the person who committed the offences. The prosecution should prove beyond any reasonable doubt that the accused and no one else committed the offences.

[69] The second element relates to the specific time period during which the offences were committed. The third element relates to the place at which the offences were committed. The prosecution should prove these elements beyond any reasonable doubt.

[70] The fourth element differs in the three counts. In respect of Count 2 it involves the penetration of the 1^st complainant’s mouth; with the accused’s penis. The law states, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration or ejaculation. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the mouth of the 1^st complainant with his penis to any extent.

[71] In respect of Count 3 it involves the penetration of the 1^st complainant’s anus; with the accused’s penis. Again I must emphasize that the law states that the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration or ejaculation. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the anus of the 1^st complainant with his penis to any extent.

[72] In respect of Count 6 it involves the penetration of the 2^nd complainant’s anus; with the accused’s finger. Again I must emphasize that the law states that the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the anus of the 2^nd complainant with his finger to any extent.

[73] The fifth and sixth elements are based on the issue of consent. To prove the fifth element, the prosecution should prove that the accused penetrated the 1^st complainant’s mouth, with his penis, without his consent (For Count 2); that the accused penetrated the 1^st complainant’s anus, with his penis, without his consent (For Count 3); and that the accused penetrated the 2^nd complainant’s anus, with his finger, without his consent (For Count 6);

[74] You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance shall not alone constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances:

(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.

[75] Apart from proving that the 1^st and 2^nd complainants did not consent to the said acts, the prosecution must also prove that, either the accused knew or believed that 1^st and 2^nd complainants were not consenting or he was reckless as to whether or not they consented. The accused was reckless, if the accused realised there was a risk that they were not consenting, but carried on anyway when the circumstances known to him it was unreasonable to do so. Simply put, you have to see whether the accused did not care whether the 1^st and 2^nd complainants were consenting or not. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove these elements beyond any reasonable doubt.

[76] A child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As I have stated before, the 1^st complainant in this case was between 14 and 15 years of age at the time of the alleged incidents, and the 2^nd complainant in this case was between 13 and 14 years of age at the time of the alleged incidents and, therefore, they had the mental capacity to consent.

[77] Let me now explain the elements of Counts 4 and 5 which are counts of Attempt to Commit Rape contrary to Section 208 of the Crimes Act.

[78] Section 208 of the Crimes Act reads as follows: “Any person who attempts to commit a rape commits an indictable offence (which is triable summarily).”

[79] Therefore, in order for the prosecution to prove the fourth count of Attempt to Commit Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Attempted to penetrated the mouth of the 2^nd complainant, JT, with his penis;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not he was consenting.

[80] Similarly, in order for the prosecution to prove the fifth count of Attempt to Commit Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 1 January 2017 and 31 December 2017);

(iii) At Nasinu, in the Central Division;

(iv) Attempted to penetrated the anus of the 2^nd complainant, JT, with his penis;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not he was consenting.

[81] Let me now elaborate on these elements together in respect of the two counts.

[82] The first element is concerned with the identity of the person who committed the offences. The prosecution should prove beyond any reasonable doubt that the accused and no one else committed the offences.

[83] The second element relates to the specific time period during which the offences were committed. The third element relates to the place at which the offences were committed. The prosecution should prove these elements beyond any reasonable doubt.

[84] The fourth element differs in the two counts. In respect of Count 4, the prosecution must prove beyond reasonable doubt that the accused attempted to penetrate the mouth of the 2^nd complainant with his penis. In respect of Count 5, the prosecution must prove beyond reasonable doubt that the accused attempted to penetrate the anus of the 2^nd complainant with his penis.

[85] The fifth and sixth elements are based on the issue of consent. To prove the fifth element, the prosecution should prove that the accused attempted to penetrate the 2^nd complainant’s mouth, with his penis, without his consent (For Count 4); and that that the accused attempted to penetrate the 2^nd complainant’s anus, with his penis, without his consent (For Count 5).

[86] As I have stated before, consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance shall not alone constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances:

(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.

[87] Apart from proving that the 2^nd complainant did not consent to the said acts, the prosecution must also prove that, either the accused knew or believed that 2^nd complainant was not consenting or that he was reckless as to whether or not he consented. The accused was reckless, if the accused realised there was a risk that the 2^nd complainant was not consenting, but carried on anyway when the circumstances known to him it was unreasonable to do so. Simply put, you have to see whether the accused did not care whether the 2^nd complainant was consenting or not. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove these elements beyond any reasonable doubt.

[88] It is also my duty to mention another relevant legal requirement concerning Count 5. Count 5 is titled as a representative count. This representative count of Attempt to Commit Rape against the accused is based on an act or series of acts done during a specified time period (In this instance between 1 January 2017 and 31 December 2017). Such a charge is described generally as a representative count in legal terminology. The prosecution is expected to prove just one incident of Attempt to Commit Rape (Attempt to penetrate the anus of the 2^nd complainant with the accused’s penis), which falls within this period in respect of that count. They need not prove a continuous or a series of incidents of Attempt to Commit Rape in support of a representative count.

[89] It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Rape, Attempt to Commit Rape and Sexual Assault are obviously considered as Sexual Offences. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.

[90] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, unlawfully and indecently assaulted the 1^st complainant, by touching his penis, then you must find him guilty of the first count of Sexual Assault.

[91] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the first count of Sexual Assault.

[92] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, penetrated the 1^st complainant’s mouth with his penis, without the consent of the 1^st complainant and the accused knew or believed that the 1^st complainant was not consenting, or the accused was reckless as to whether or not he was consenting, then you must find him guilty of the second count of Rape.

[93] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the second count of Rape.

[94] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, penetrated the 1^st complainant’s anus with his penis, without the consent of the 1^st complainant and the accused knew or believed that the 1^st complainant was not consenting, or the accused was reckless as to whether or not he was consenting, then you must find him guilty of the third count of Rape.

[95] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the third count of Rape.

[96] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, attempted to penetrate the 2^nd complainant’s mouth with his penis, without the consent of the 2^nd complainant and the accused knew or believed that the 2^nd complainant was not consenting, or the accused was reckless as to whether or not he was consenting, then you must find him guilty of the fourth count of Attempt to Commit Rape.

[97] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the fourth count of Attempt to Commit Rape.

[98] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, attempted to penetrate the 2^nd complainant’s anus with his penis, without the consent of the 2^nd complainant and the accused knew or believed that the 2^nd complainant was not consenting, or the accused was reckless as to whether or not he was consenting, then you must find him guilty of the fifth count of Attempt to Commit Rape.

[99] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the fifth count of Attempt to Commit Rape.

[100] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, penetrated the 2^nd complainant’s anus with his finger, without the consent of the 2^nd complainant and the accused knew or believed that the 2^nd complainant was not consenting, or the accused was reckless as to whether or not he was consenting, then you must find him guilty of the sixth count of Rape.

[101] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the sixth count of Rape.

[102] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, unlawfully and indecently assaulted the 2^nd complainant, by touching his penis, then you must find him guilty of the seventh count of Sexual Assault.

[103] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the seventh count of Sexual Assault.

[104] However, in relation to the third count of Rape, if you find that the prosecution although failing to establish beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, penetrated the 1^st complainant’s anus with his penis, without the consent of the 1^st complainant and the accused knew or believed that the 1^st complainant was not consenting, or the accused was reckless as to whether or not he was consenting, has satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, attempted to penetrate the 1^st complainant’s anus with his penis, without the consent of the 1^st complainant and the accused knew or believed that the 1^st complainant was not consenting, or the accused was reckless as to whether or not he was consenting; as an alternative, you are then allowed to look at the lesser offence of Attempt to Commit Rape (In terms of Section 208 of the Crimes Act), though the accused is not formally charged in the Amended Consolidated Information for that offence in Count Three.

[105] I have already explained to you the relevant elements of the offence of Attempt to Commit Rape when explaining to you the charge contained in Count Five (which was a charge in relation to the 2^nd complainant). The same elements would be applicable now, but in relation to the 1^st complainant.

[106] Similarly, in relation to the fourth count of Attempt to Commit Rape, if you find that the prosecution although failing to establish beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, attempted to penetrate the 2^nd complainant’s mouth with his penis, without the consent of the 2^nd complainant and the accused knew or believed that the 2^nd complainant was not consenting, or the accused was reckless as to whether or not he was consenting, has satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at Nasinu, unlawfully and indecently assaulted the 2^nd complainant by forcing him to masturbate his penis; as an alternative, you are then allowed to look at the lesser offence of Sexual Assault (In terms of Section 210 (1) (a) of the Crimes Act), though the accused is not formally charged in the Amended Consolidated Information for that offence in Count Four.

[107] I have already explained to you the relevant elements of the offence of Sexual Assault when explaining to you the charges contained in Counts One and Seven (which were charges of Sexual Assault in relation to the 1^st complainant and the 2^nd complainant, respectively). The same elements would be applicable now, but in relation to the 2^nd complainant. It is for you as Assessors to consider and decide whether the act of forcing the 2^nd complainant to masturbate the accused’s penis, is an indecent act and thereby amounts to Sexual Assault.

[108] I wish to remind you once again that you need to look in the direction of a lesser or alternative count ONLY if you find that the prosecution has failed to establish any of elements constituting the offences of Rape and Attempt to Commit Rape beyond reasonable doubt in respect of Counts Three and Four, respectively. If you are satisfied that the prosecution has established all the elements constituting the offences of Rape and Attempt to Commit Rape beyond reasonable doubt, then you must find the accused guilty of Rape and Attempt to Commit Rape as charged in respect of Counts Three and Four.

[109] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

[110] In terms of the provisions of Section 135 of the Criminal Procedure Act No 43 of 2009 (Criminal Procedure Act), the prosecution and the defence have consented to treat the following facts as “Admitted Facts” without placing necessary evidence to prove them:

1. The complainants are IM (PW1) and JT (PW2).

2. The accused is Meli Kenawai and he is 28 years old.

3. Meli Kenawai’s father is Esava Ditoko and he is a Pastor at the Assembly of God Church.

[111] Since the prosecution and the defence have consented to treat the above facts as “Admitted Facts” without placing necessary evidence to prove them you must therefore, treat the above facts as proved beyond reasonable doubt.

Case for the Prosecution

[112] The prosecution, in support of their case, called the 1^st complainant (IM), the 2^nd complainant (JT), and 1^st complainant’s grand-mother Sera Rogonasau. The prosecution also tendered to Court the Birth Certificate of the 1^st complainant as Prosecution Exhibit PE1 and the Birth Certificate of the 2^nd complainant as Prosecution Exhibit PE2.

[113] Evidence of the 1^st complainant IM

(i) The 1^st complainant stated that he is now 18 years of age. His date of birth is 13 March 2002. A copy of his birth certificate was tendered to Court as Prosecution Exhibit PE1.
(ii) The witness testified that he currently lives at Vunisinu Settlement in Tacirua. He lives there with his aunt Mereani. His parents are said to be living in the village – Gau.
(iii) The witness said that in 2017 he was living in Muanikoso Village in Laqere. At the time he was living there with his grandmother, Sera Rogonasau and his aunt Alumeci.
(iv) In 2017 he was schooling at William Cross Primary School. He was in Class 8. At the time he was 14 years old. He had stopped schooling after Form 4. The witness said that now he is a farmer by occupation.
(v) The complainant testified that he knows the accused Meli Kenawai (Meli), since they went to the same church. He referred to the church as the Agape Church in Laqere. He has known the accused for a very long time
(vi) It is an agreed fact that Meli Kenawai’s father is Esava Ditoko and he is a Pastor at the Assembly of God Church (AOG).
(vii) The witness was then asked the following questions:

17. How did you and Meli Kenawai get along?
1. It was bad.
   

Q. What do you mean?

A. When he did that kind of act.

Q. What do you mean that kind of act?

A. Act of gay he used to do.

Q. Can you explain?

A. When he did indecent acts like lying on us.

Q. Can you tell us when did this happen?

A. 2017.

Q. What did he do?

A. He called us to come to the back room for us to sleep together. While we were lying down he showed us bad movies – videos of gay (people) and after that he touched our balls (polo).

Q. Who is this us?

A. Myself and JT (2^nd complainant).

Q. Where were you when he called you and JT?

A. We were both inside the room.

Q. Whose room?

A. Meli’s.

(viii) The complainant explained that Meli’s father had told JT and him to sleep over at his house since it was dark. JT and he had been lying down in the sitting room of the house. Meli was in his room. At the time the witness, JT, the accused Meli, Meli’s father and mother were at home.
(ix) The witness testified that his house and Meli’s house were close to each other. He said they were neighbours in Laqere.
(x) The witness said that when Meli called JT and him, they had gone to Meli’s room. They had been sleeping on a mattress inside the bedroom. Meli had been watching gay videos on his phone. When asked to explain the witness said the videos showed men kissing each other. Meli had shown the videos to them.
(xi) Thereafter, Meli had started touching their balls (polo). When asked whether he knew any other names for balls or polo, the witness said soresore meaning testicles. The witness demonstrated as to how Meli was touching their balls.
(xii) At the time the witness was wearing trousers and pocket sulu on the outside. Meli had used his right hand to touch his balls. When asked whether Meli touched his balls from inside the clothes or outside, the witness said from inside. The witness said that he was scared at the time. After touching his balls, the accused had then touched JT’s testicles.
(xiii) At the time the accused was touching JT, the witness said that he tried to escape but found the door locked. He said Meli had locked the door.
(xiv) The witness was then asked the following further questions:

Q. What happened after that?

A. He then told for us to suck.

Q. What did he say for you to suck?

A. His balls (polo).

Q. What did you do then?

A. I refused.

Q. And then?

A. He forced my head like this (witness demonstrates).

Q. Where did he force your head to?

A. To his soresore (meaning testicles).

Q. And then what did you do?

A. Then I pushed his stomach.

Q. What was Meli wearing at this moment?

A. He was naked.

Q. Which position was Meli in?

A. He was standing.

Q. Which position were you in?

A. I was on my knees.

Q. Can you tell us did you suck his testicles?

A. Yes. Just a little bit, then I pushed his stomach.

Q. For how long did you suck his testicles?

A. Just a short time.

Q. When you were sucking his testicles, how did you feel?

A. I wanted to vomit.

Q. Did you give your consent to Meli for you to suck his testicles?

A. No.

Q. What happened after that?

A. Then he forced JT. And then he pushed JT’s head like that as well.

Q. At this moment what were you doing?

A. I wanted to go home.

Q. What did you do?

A. Tried to open the door but it couldn’t.

Q. And then?

A. Then Meli told us to bend.

Q. Did you bend?

A. No.

Q. What did you do?

A. And then he kept on telling us to bend.

Q. In which manner was Meli talking to you?

A. He was luring us with money. He said he will give the money if we bend.

Q. Then what happened?

A. He then forced JT to bend.

Q. And then?

A. Then he asked me to have sex with him.

Q. What was your response?

A. I refused. And then he bent to me. He then told me for him to (that he

will) give me money to have sex with him.

Q. You said he kept on telling you to bend?

A. Yes.

Q. Did you bend?

A. Yes. Just a little bit.

Q. Can you tell us how did you bend?

A. I was refusing to bend – then he pushed me and lay on me.

Q. At this moment what were you wearing?

A. He pulled my trousers down all of a sudden.

Q. When did he do this?

A. In the afternoon.

Q. Did he pull your trousers before laying on you or after laying on you?

A. Before laying on me.

Q. When he laid on you, how did you feel?

A. It was painful because he was heavy.

Q. Then what did you do?

A. Then he wanted to penetrate my butaqu (buttocks or bum) with his balls.

Q. Then what did you do?

A. I then pushed him.

Q. How did you push him?

A. I kicked him.

Q. You said he laid on top of you. Could you tell us were you facing up or facing down when he laid on top of you?

A. I was facing down.

Q. If he was on top of you, could you describe how you kicked him?

A. The witness demonstrated how he did this.

Q. Did he manage to penetrate your bum with his balls?

A. A little bit.

Q. How did you feel when he penetrated your bum with his balls?

A. It was painful.

Q. What did he do after that?

A. Then he did it to that boy JT.

Q. What did he do to JT?

A. Inserted his stick (kau).

Q. What is kau?

A. Soresore or ball.

Q. Can you tell us the English word for kau?

A. Stick and ball.

Q. Do you know any other word for stick in English?

A. I don’t know. Later the witness said dick.

Q. What do boys normally do with their dick?

A. Is it to make it big...later the witness said I don’t know.

Q. What do you usually do with your dick every day?

A. To urinate.

Q. You have been telling us about ball and polo. Is it the same as the word ‘dick’ you have mentioned?

A. Yes. Polo is dick.

Q. You told us that Meli will give you money to have sex with him. How much money did he say he will give you?

A. $10.00.

Q. Did he give you $10.00?

A. Yes.

Q. When did he give you $10?

A. By the time it was done to me.

(xv) The complainant said that thereafter, he had gone straight home. JT had also left with him.
(xvi) When asked to state the time he went home, the witness said it was 6.00 o’clock in the afternoon. It had been dark outside.
(xvii) The complainant said that he had informed his grandmother about what Meli did to him. When asked as to when he had informed his grandmother, the witness said he can’t recall.
(xviii) The witness further testified that what he meant by soresore or testicles, is the same as the word ‘dick’.
(xix) The witness clearly identified Meli Kenawai as the accused in this case.
(xx) The complainant was cross examined at length by the defence. The defence also put several suggestions to the complainant.
(xxi) The complainant agreed that Pastor Esava’s house was close to the house he was staying. He agreed that Pastor Esava’s wife is Elenoa, and that his two son’s names are Meli and Jone. He further agreed that since he moved to Muanikoso, he would often go to Pastor Esava’s house. Pastor Esava and his family treated him like their own son. Pastor Esava and his wife were very approachable and he could go to them for anything.
(xxii) The witness also agreed that Meli had treated him like his own brother. When asked if Meli was a humble man, the witness replied “only sometimes”.
(xxiii) The witness further agreed that his uncle Maku was an Assistant Pastor at the AOG Church in Agape. His uncle Maku was married to his aunt Elenoa, who was a Police Officer. He also agreed that his uncle Maku got suspended as a Church Pastor in May 2017. Thereafter, his uncle Maku stopped coming to the Agape AOG Church. He formed his own congregation in Nakasi and most of the church members of the AOG Agape Church left to join the new congregation.
(xxiv) The witness testified that even the 2^nd complainant JT, and his family started going to the new congregation. He agreed that he too wanted to go to the same church that JT went to. However, his grandmother Sera had told him that he had to continue to go to the Agape AOG Church, because it was next to his house.
(xxv) It was suggested to the witness that he had told his grandmother that Meli did these bad things to him so that she will stop him from going to the AOG Church in Agape and that he could then go to the other church that JT goes to.
(xxvi) The witness also testified that a few months after the report was made to the Police that JT and he had gone to Pastor Esava’s house and that they had been standing outside at the porch when Meli’s mother had asked them to come into the house. However, he denied that JT and he had gone to Pastor Esava’s house to apologize or to say sorry for what happened. The witness said: “She (Meli’s mother) asked us to say our sorry but we refused”. The complainant also said: “She (Meli’s mother) gave money to us to change our statement.”
(xxvii) It was suggested to the complainant that what he said in his evidence of what happened in Meli’s room never happened and that he made up the story. The witness denied this suggestion and said the incident happened.

[114] Evidence of the 2^nd complainant JT

(i) The 2^nd complainant stated that he is now 17 years of age. His date of birth is 12 July 2003. A copy of his birth certificate was tendered to Court as Prosecution Exhibit PE2.
(ii) The witness testified that he currently lives at Laqere Settlement with his family – his father, mother, uncle, aunty and 3 sisters. His mother is Setaita Matatuni and his father is Mosese Matatuni.
(iii) The witness said that he is attending Naiyala High School and is in Form 5.
(iv) The witness said that even in 2017 he was living at the same place in Laqere. He was 13 years old at the time. He was attending Kalabu Primary School and was in Class 8.
(v) The complainant testified that he knows Meli Kenawai since they go to the same church. He agreed that Meli Kenawai’s father is Esava Ditoko and he is a Pastor at the Assembly of God Church (AOG).
(vi) In 2017, Meli lived at Muanikoso in Narere, together with his mother, father and brother.
(vii) The witness said that he knows the 1^st complainant IM, who was living in Muanikoso.
(viii) He testified to an incident which took place at Meli’s house in 2017, when the witness was in Class 8. The witness said that there was a church service at night. (After the church service) Meli’s father had told IM and him to sleep over at his house.
(ix) The witness said that they slept in the living room. After that Meli had called the two of them to sleep with him in the bedroom. Meli, IM and the witness had been sleeping on one mattress, which was placed on the floor of the room. IM and he had fallen asleep. Then Meli had woken them up and showed videos of men on his phone. When asked what the men were doing in these videos, the witness said: “Gay is porn”. When asked to explain further the witness said: “Climbing each other and they were kissing each other.”
(x) The witness was then asked the following questions:

Q. What did Meli do after he showed you the videos?

A. And then he laid over us and started kissing us. We tried to turn, but he was on top of us, and he started touching our private parts.

Q. Can you describe how he lay over you?

A. Like he jumped on us and laid over our backs.

Q. When he woke you up to show the videos, what position were you in?

A. I was lying straight on my stomach.

Q. And when he jumped on you and laid over your back, in which position were you in then?

A. That same position.

Q. In which position was IM in?

A. We were in the same position.

Q. You said he started kissing us – where did he kiss you?

A. On our necks.

Q. When he was kissing on your neck, what were you doing?

A. I wanted to shout out loud.

Q. Did you shout out loud?

A. No.

Q. Why?

A. I was scared.

Q. Why were you scared?

A. The reason why I did not shout was, because his father and mother were in the sitting room. But I really wanted to shout. But I was hesitant.

Q. What made you hesitant to shout?

A. Because when I will be asked why I shouted, I won’t be able to know what to tell his parents.

Q. When he was kissing your neck, what was IM doing?

A. I couldn’t see IM at that time.

Q. You also said he started touching our private part. What do you mean our private part?

A. Our thing in front he started to touch.

Q. What do you call that thing?

A. Kau (which is stick). Later the witness said penis.

Q. At this moment what were you wearing?

A. My pocket sulu and my t-shirt. I took off my shirt and I was wearing shorts inside.

Q. When he was touching your penis, were you still wearing clothes?

A. Yes.

Q. Did he touch your penis from inside your clothes or from outside?

A. Outside.

Q. You said Meli was touching your penis. At that time was he still lying on you?

A. Yes. He was still lying on us.

Q. Describe how he was able to touch your penis if he was laying on top of you?

A. He forced his hand.

Q. What did you do when he forced his hand?

A. I then wanted to push his hand away.

Q. Did you push his hand away?

A. I tried to push him away but he was still forcing his hand to touch my penis.

Q. How were you pushing his hand away?

A. I was pushing it away – witness demonstrated how he did so.

Q. Do you know which hand did Meli use to touch your penis?

A. His right hand.

Q. Then what happened?

A. Then he kept on kissing us until we said enough.

Q. And then?

A. After that he said for us to go and have dinner.

Q. Whilst in Meli’s bedroom other than touching your penis and kissing you, what else happened?

A. No.

Q. You said he kept on kissing us. Where did he keep kissing you?

A. On my neck and on my cheeks.

Q. That night what else happened in Meli’s room when you and IM were there?

A. That’s all.

...........

Q. What else happened to you and IM that night in Meli’s bedroom?

A. That day he just kissed us and nothing else.

Q. What do you mean by this – did something happen on some other occasion?

A. Yes. Another day he did something else.

Q. What did he do?

A. One night me and IM went to sleep at their house. And his mother said for us to sleep together with her in the living room.

Q. Then what happened?

A. Then he was calling us to come and sleep in the room. And we said we don’t want to.

Q. Who called you to sleep in the room?

A. Meli.

Q. And then what happened?

A. And then we slept and suddenly we felt that someone came to us and it was Meli. He brought his blanket to sleep with us.

Q. Where were you sleeping?

A. In the sitting room.

Q. Then what happened?

A. And then he said for us to suck one by one and IM was to suck first under the blanket. I didn’t know what happened at that time. I didn’t know whether IM sucked or not.

Q. Then what did you do?

A. And then he said he will give us $10.00 on that day if we do it.

Q. Did you suck?

A. No. When he covered me with the blanket, I did not suck. I made my hands slimy and did his penis as if I am sucking it.

Q. How did you make your hands slimy?

A. With my saliva – as if it is inside my mouth.

Q. Can you describe what you mean by this?

A. He forced me to do it. And what I did was I made my hands slimy and then masturbate it as if I’m doing it.

Q. How did he force you?

A. He said to be fast/to do it fast because if not someone might see us because his mother was just lying nearby,

Q. Why did you follow whatever he was telling you to do?

A. Because of what he said about the $10.00.

Q. Did you agree to masturbate his penis?

A. No. Because if he had not said about the $10.00, I wouldn’t have.

Q. What else did he do?

A. That’s the first day for him to insert his stick (kau). Later the witness said penis.

Q. Where did he insert his penis?

A. He inserted it in my anus (the witness used the word cici).

Q. You are saying him. Are you still referring to Meli?

A. Yes Meli. I was lying down on my stomach and when he tried to insert it, I moved forward and his penis slide down between my thighs and it did not went (go) inside.

Q. Can you say where exactly this was happening?

A. In the living room beside his mother.

Q. Did you agree for him to try to insert his penis in your anus?

A. No.

Q. And when he was doing this to you, where was IM?

A. IM was lying down.

Q. Lying down where?

A. Beside us.

Q. Could you tell us how far you were away from each other in the sitting room?

A. Me and Meli were here (near the witness box), IM was where the Assistant Court Officer is sitting, and Meli’s mother was near the Prosecutor’s chair (first chair).

Q. When all this was happening to you, why didn’t you wake Meli’s mother?

A. I was embarrassed.

Q. Then after that what happened?

A. Then after his penis slide between my thighs, Meli said that someone passed by outside and he asked IM to go and check, and when IM went to check, he was poking my anus.

..........

Q. Who was poking your anus?

A. Meli.

Q. What did he use to poke your anus?

A. His hand.

Q. Which part of his hand did he use?

A. I couldn’t tell because I was lying down. I couldn’t see.

Q. What did you feel that he poked your anus with?

A. His finger – like one of his fingers.

Q. When he was poking with one of his fingers, did it go inside?

A. It was painful.

Q. And when he was doing this, what were you doing?

A. I was so angry.

Q. Why were you angry?

A. When he was poking my anus.

Q. Other than being angry what else did you do?

A. I hated what he did.

Q. And what did you do when you say you hated what he did?

A. I couldn’t do anything else.

Q. Why couldn’t you do anything else?

A. When he was laying on me at that time, Meli was fat and I couldn’t do anything.

Q. When he was putting his finger in your anus, was his mother still there in the sitting room?

A. Yes. She was fast asleep.

Q. JT why didn’t you wake her up?

A. I couldn’t wake her up because of what’s happening.

Q. What do you mean by that?

A. I couldn’t say it because of how embarrassed I was at that time.

Q. Did you agree for Meli to insert his finger in your anus?

A. No.

Q. After this what happened?

A. When he was poking me it was painful and I told him to stop. After that he told us to go to the porch outside and that’s where he was telling us about bad things.

(xi) The complainant said that thereafter, they had gone and slept in the living room. At the time the complainant, IM, Meli and his mother were sleeping in the living room together.
(xii) The witness was also asked as to the clothes he was wearing at the time this incident in the living room took place. The witness said that at the time Meli had asked him to suck his penis, the complainant was wearing shorts and t-shirt. Meli had been wearing a short Lee trousers and a vest. Meli had taken off his trousers up to his ankle.
(xiii) At the time the witness was lying down on his stomach and Meli was trying to insert his penis in his anus, the witness said he was wearing shorts and underwear. He says it was up to his knees. When asked how the shorts and underwear reached up to his knees, the witness said: “When he tried to have sex, he said to take it off up to the knees” and that the accused had taken the complainant’s clothes off up to his knees.
(xiv) The complainant also testified to an incident which took place inside Meli’s twin-cab when they were returning home from Albert Park. Inside the twin cab Meli, IM and the witness had been there. Meli was driving the twin cab and the witness was seated in the front passenger seat. IM was seated at the back seat. The witness was fast asleep. He said he got a shock when IM had kicked his seat from behind. The witness said: “Then I saw Meli’s hands was going inside my trousers to touch my penis. When I looked he withdrew his hands from my trousers.”
(xv) When asked whether Meli managed to touch his penis, the witness said: “His hands were inside and he was just about to touch my penis when IM kicked my seat from behind.”
(xvi) The complainant further testified to another incident which took place in the accused’s house. He said it was one night and there was heavy rain. There was a rugby match between Fiji Bati and Australia. The complainant said that he was going to take shelter at Meli’s home and wanted to watch the game a little bit.
(xvii) The complainant said that Meli had called him over from his room. At the time Meli was only wearing a towel. Meli had given the complainant his mobile phone to play with. So the witness had gone into Meli’s room and was playing with Meli’s phone. Thereafter, Meli had closed the door and taken his towel off. He was naked. The complainant said: “And then after that, he laid over me. I was facing upwards and he started kissing me from my neck and down my chest and stomach. And he lied down facing upwards and he said for me to sit on his penis. At that time I started feeling scared and I didn’t know what to do. And he said ‘only a little bit’ and I said ‘no that’s enough’. And then he said ok for him to bend and for me to fuck him from behind. Then I felt disgusted because it is men to men and I asked him to go and watch the game inside.”
(xviii) The complainant said at the time of this incident he was wearing shorts and a t-shirt. The accused had pulled up his t-shirt up to his neck at the time he was kissing the complainant’s chest and stomach. At the time Meli had asked the complainant to sit on his penis, the complainant had only been wearing his underwear. The complainant had taken his trousers off himself, because the accused had forced him to do so.
(xix) The witness clearly identified Meli Kenawai as the accused in this case.
(xx) The complainant was cross examined at length by the defence. The defence also put several suggestions to the complainant.
(xxi) During the cross examination, an omission was highlighted by the defence between the testimony given by the witness in Court and the statement made by him to the police. During his testimony in Court the witness described in detail the incident which took place in the sitting room of the accused’s house, at the time the accused’s mother was also sleeping in the sitting room. However, in his statement made to the police, no mention has been made that the said incidents took place in the sitting room of the accused’s house.

[115] Evidence of Sera Rogonasau

(i) She is the grand-mother of the 1^st complainant. Currently she is residing at Muanikoso Village, Narere, with her husband.
(ii) She testified that in the year 2017 she was living at the same place. At the time the 1^st complainant IM was staying with her. The witness said that IM’s mother is her daughter and that she had remarried. IM’s father had passed away. So she’s the one who raised him up.
(iii) The witness testified that in 2017 her grandson attended Meli’s church. One day IM had come and told her that he is scared of Meli and he doesn’t want to go to the church. She said it was a Friday night and on Saturday morning IM had told her about Meli. This was in January 2018.
(iv) The witness said that IM had told her that Meli used to give him money for IM to suck Meli’s male private part. “Meli used to force IM by pushing his head to suck his male private part.” The witness said that by private part IM was referring to Meli’s penis.
(v) The witness further said that according to IM on this occasion the 2^nd complainant was also present.
(vi) The witness testified that she had then gone with IM and reported the matter to the Nasinu Police Station. That was on 20 January 2018. She confirmed that on the same Saturday that the 1^st complainant told her about the incident, she had gone to the police.
(vii) The witness further testified that Meli’s family brought tabua for bulubulu – which is the traditional way of asking forgiveness. She said that they did not accept them.
(viii) The defence highlighted the following inconsistency in the testimony given by the witness in Court vis-à-vis her statement made to the police. Although the witness said that she had reported the matter to the police the same day the complainant had informed her about it, in the statement made by the witness to the police it is stated as follows: “I recall a few days ago my grandson IM told me that he does not want to go back to attend the church service on every Sunday at Assembly of God Church...”.

[116] That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could give sworn evidence from the witness box and/or call witnesses on his behalf. He could also address Court by himself or his counsel. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.

[117] In this case, the accused opted to offer evidence under oath in support of his case. The defence also tendered (with the consent of both parties) a rough sketch of the accused’s residence as Defence Exhibit DE 1.

Case for the Defence

[118] Evidence of Meli Kenawai

(i) The accused testified that he is residing at Muanikoso Settlement. He is now 28 years of age. He is a truck driver at Punjas & Sons.

(ii) He testified that in 2017 he was residing at the same Muanikoso Settlement. He lived there with his dad, mum and younger brother. The house belonged to his parents.

(iii) The witness drew a rough sketch of the house which was tendered to Court as Defence Exhibit DE1.

(iv) In 2017 he was attending the Agape Mission Fellowship AOG Church. His father Esava Ditoko is a senior pastor at the AOG Church. The church is located just beside their house.

(v) The witness described in detail as to the programs conducted on a daily basis by the church.

(vi) The witness said that in 2017 he was working for Courts Services.

(vii) He testified that he knows the 1^st complainant IM, because he is a neighbour and since they attend the same church. He treated IM as a family member. The witness testified that he also knows the 2^nd complainant JT, since he too attended the same church.

(viii) The witness said he came to know about the allegations against him on 28 February 2018 when officers of the Nasinu Police had come home and enquired about him.

(ix) The witness testified to an incident which took place in the Agape AOG Church, which led to the suspension of Pastor Isaia Maku. The suspension letter was issued by his father the Senior Pastor.

(x) After his suspension Pastor Maku had taken with him half of the congregation and they formed another congregation in Nakasi.

(xi) The 2^nd complainant JT and his family had continued to come to the Agape AOG Church even after the congregation split. However, prior to the end of 2017 they stopped coming to the church, and went to the new church in Nakasi.

(xii) The witness said that the 1^st complainant had also continued coming to the Agape AOG Church. But after some time he too had followed the 2^nd complainant and joined the congregation in Nakasi. The witness said this was around January 2018.

(xiii) The witness said that all the allegations made by the 1^st complainant IM against him are not true. Likewise, the witness said that all the allegations made by the 2^nd complainant JT against him are also not true.

(xiv) The witness further testified and denied that he and his mother went to offer their bulubulu (or seek forgiveness) to the 1^st complainant IM or his grandmother.

(xv) According to the witness, it was the 2 complainants who had come to his residence to apologize and ask forgiveness for complaining about him. He said the complainants had done so on a day prior to the 23 October 2018, the day on which he was charged.

Analysis

[119] The above is a summary of the evidence led at this trial. The prosecution led the evidence of the 1^st complainant (IM), the 2^nd complainant (JT), and 1^st complainant’s grand-mother Sera Rogonasau in support of their case. The defence relied on the evidence of the accused himself.

[120] As I have informed you earlier, the burden of proving each ingredient of each of the charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.

[121] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.

[122] As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved beyond reasonable doubt.

[123] The accused has testified in Court and totally denies all the allegations against him made by both complainants. He takes up the position that the two complainants have made up the allegations against him.

[124] The defence also showed certain inconsistencies and omissions in the evidence given by the witnesses during their testimony in Court. I have already directed you on how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected. However, if there is no acceptable explanation for the inconsistency or omission, which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question.

[125] To what extent such inconsistency or omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide.

[126] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of seven offences, beyond any reasonable doubt.

[127] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence led on behalf of the accused. You must consider his evidence also for its consistency and also the probability of its version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case.

[128] If you neither believe the evidence adduced by the defence nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charges.

[129] However, I must caution you that even if you reject the evidence of the defence as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you.

[130] You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must necessarily be guilty of the other counts as well.

[131] In summary and before I conclude my summing up let me repeat some important points in following form:

1. If you believe the evidence of the defence, then you must find the accused not guilty of the charges;
2. If you neither believe nor disbelieve the evidence of the defence, then again you must find the accused not guilty of the charges;
3. If you reject the version of the defence, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution;
4. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charges;
5. If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charges of Sexual Assault, Rape and Attempt to Commit Rape have been established beyond reasonable doubt. If so you must find the accused guilty. If not you must find the accused not guilty.
6. As an alternative to the charge of Rape in Count Three, you may consider whether the accused is guilty or not guilty of the lesser charge of Attempt to Commit Rape. Similarly, as an alternative to the charge of Attempt to Commit Rape in Count Four, you may consider whether the accused is guilty or not guilty of the lesser charge of Sexual Assault.

[132] Any re directions the parties may request?

Defence Counsel Ms. Hazelman requested that I remind the Assessors of the following three Question that were put to the 1^st complainant at the tail end of his evidence-in-chief and of the Answers given by him:

Q. Other than on that night did Meli do anything else to you?

A. No

Q. You told us that Meli penetrated your bum with his balls on that night. Can you tell us if he did that on any other day?

A. No.

Q. After that night how often did you meet Meli?

A. We did not see each other – after that I informed.

Accordingly, I informed the Assessors of the aforesaid.

[133] Madam Assessor and Gentlemen Assessors, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions separately on the charges against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.

[134] Your possible opinions should be as follows:

Count One

Sexual Assault- Guilty or Not Guilty

Count Two

Rape- Guilty or Not Guilty

Count Three

Rape- Guilty or Not Guilty

If not guilty,

In the alternative,

Attempt to Commit Rape- Guilty or Not Guilty

Count Four

Attempt to Commit Rape- Guilty or Not Guilty

If not guilty,

In the alternative,

Sexual Assault- Guilty or Not Guilty

Count Five

Attempt to Commit Rape- Guilty or Not Guilty

Count Six

Rape- Guilty or Not Guilty

Count Seven

Sexual Assault- Guilty or Not Guilty

[135] I thank you for your patient hearing.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 15^th Day of July 2020

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.