Crim. Case No: HAC 187 of 2020
- The Accused has been charged with one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, one count of Rape,
contrary to Section 207 (1) and (2) (b) of the Crimes Act and one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes
Act. The particulars of the offences are that:
COUNT ONE
Statement of Offence
SEXUAL ASSAULT:
Particulars of Offence
MOHAMMED FARIYAZ HUSSAIN on the 14th day of May, 2020 at Nasinu in the Central Division, unlawfully and indecently assaulted SHAZIA SHAINAZ BI by sucking the unclothed breasts of the said SHAZIA SHAINAZ BI.
COUNT TWO
Statement of Offence
RAPE: Contrary to Section 207 (1) and 2 (b) of the Crimes Act 2009.
Particulars of Offence
MOHAMMED FARIYAZ HUSSAIN on the 14th day of May, 2020 at Nasinu in the Central Division, penetrated the vagina of SHAZIA SHAINAZ BI with his fingers, without the consent of the said SHAZIA SHAINAZ BI.
COUNT THREE
Statement of Offence
RAPE: Contrary to Section 207 (1) and 2 (a) of the Crimes Act 2009.
Particulars of Offence
MOHAMMED FARIYAZ HUSSAIN on the 14th day of May, 2020 at Nasinu in the Central Division, penetrated the vagina of SHAZIA SHAINAZ BI with his penis, without the consent of the said SHAZIA SHAINAZ BI.
- Consequent to the plea of not guilty entered by the Accused, the matter proceeded to the hearing. The hearing commenced on the 6th
of December 2021 and concluded on the 9th of December 2021. The Prosecution presented the evidence of four witnesses, including the
Complainant. The Defence adduced the evidence of five witnesses, including the Accused. Subsequent to the hearing, the learned Counsel
for the Prosecution and the Defence filed their respective written submissions. Having carefully perused the evidence presented during
the hearing and the respective written submissions of the parties, I now proceed to pronounce the Judgment as follows.
Prtsecution's Case
- The cution alleges that the Accused had sexually assaulted and raped the Complainant when she wshe was alone at the flat occupied
by her mother's family on the 14th of May 2020. The Accused is the stepbrother of the Complainant. The Complainant has been studying
at a boarding school since 2018. Her parents are separated. Her mother had been living with the Accused's father in a flat at Davuilevu
Housing. Due to the lockdown caused by the Covid pandemic in March 2020, the Complainant had gone to her mother's place to stay.
She had been with her mother since March 2020. The Complainant, her mother, stepfather, her brother had been living in the flat which
is just annexed to the flat occupied by Razil Housain. Razil is one of the sons of the Complainant's stepfather's brother. The Accused
used to visit the flat occupied by the Complainant, and sometimes he stayed there. The Accused had been teasing the Complainant,
saying he wanted to marry her one day. The Complainant had complained this to her mother, but she had told her to ignore him.
- On the 14th of May 2020, after 1.30 pm, the mother and the stepfather went to the town. Before they left, the mother had asked the
Accused to go and stay at Razil's place until they returned as the Complainant was alone at their flat. The Accused had gone to Razil's
flat accordingly. The Complainant had attended to the house chores after her parents left.
- In a while, she had heard the sound of the shower of the bathroom o Razil's flat. The Complainant had thought it was the AccusAccused
who was having a shower. She then hurriedly went out to drop the garbage. Once she dropped the garbage, the Accused came and held
her hand behind. He then pushed her to the bedroom and threw her onto the bed. She fell on the bed, facing downward. The Accused
had turned her up and covered her mouth when she tried to scream. She had tried to push him away, but he had overpowered her. He
then removed his clothes with one hand while covering her mouth with his other hand. He then got on top of her stomach and stayed
in a sitting position. While staying in that position, he had forcefully removed her thigh pants and undergarment. Meanwhile, she
had tried to scream, but he had slapped her to stop it. He then, using both hands, pulled up her long dress. Her lips and mouth got
injured due to the slapping of the Accused. She was bleeding from her mouth. The accused had then kissed her lips and then sucked
both breasts. He then inserted his fingers into her vagina. The Complainant had tried to push him away, but he pushed her back on
the bed and continued his act. The Accused then lay on top of her and penetrated her vagina with his penis. He did it for a while
and then got out of the bed. The Accused left the bedroom, leaving the Complainant alone. She stayed in bed for a while and then
got up and went to the bathroom.
The Complainant had not told her mother athis incident. The accused had told her during this alleged sexual assault not to tell her
her mother about this incident. Furthermore, the accused had told her that he did this as she would not be able to marry anyone
now. The Complainant explained that her relationship with her mother was not close. She feared that if she told her mother about
this incident, it would eventually lead to her separation from her partner, the Accused's father. With this fear in her mind, the
Complainant had not informed her mother about this incident. She had gone back to school on the 17th of May 2020. The Complainant
had told her best friend Ayesha Bibi about this incident when they met. The Complainant had requested Ayesha Bibi not to tell anyone
as she was scared of her future. Irrespective of her friend's request, Ayesha had relayed this matter to her mother, who had informed
the Principal of their school. The matter was then eventually reported to the Police, and the Complainant was medically examined
on the 24th of June 2020.
De'ence's Case
- The Accused denies the allegation, stating that he was not present at his father's flat on the 14th of May 2020, when this alleged
incident allegedly occurred. According to the Accused, he had gone to his cousin Riaz's place at Cunningham in the evening of the
13th of May 2020. He had spent the night there. The following day, which was the 14th of May 2020, the accused worked at Riaz's place.
According to Riaz and his father, the Accused was at their place on the evening of the 13th of May 2020. In order to establish his
Defence of alibi, the accused called four witnesses. Jessamine Bibi, the wife of Razil, stated in her evidence that the accused was
not present at her flat on the 14th of May 2020, and no one went out from the second flat during the day. The Accused father said
in his evidence that if he went out with his wife, they used to take the Complainant and her brother as well. Usman, the father of
Riaz, stated that the Accused stayed at his place doing work during the whole day on the 14th of May 2020. According to the evidence
given by Riaz, he had gone to work on the 14th of May 2020. However, he went home during his lunch break to drop the welding rod.
When he went home during the lunch break, he saw the accused was still working at his place.
Burden aden and Standard of Proof
- Having briefly stated the evidence presented by the Prosecution and the Defence, I draw my attention to the issue of burden and standard
of proof. The Accused is presumed to be innocent until he is proven guilty. The burden of proof of the charge against the Accused
is on the Prosecution. It is because the Accused is presumed to be innocent until he is proven guilty.
- The standard of proof in a criminal trial is "proof beyond reasonable doubt". It means that the Court must be satisfied that the accused
is guilty of the offence without any reasonable doubt. In this case, the Accused raised the Defence of alibi. It means that he claims
that he was elsewhere when the alleged offence took place. If the Accused relies on the Defence of alibi, he bears the burden of
proving the Defence of alibi. The Accused is not required to prove his Defence of alibi beyond reasonable doubt. The burden of the
Accused to prove his alibi is an evidential burden. It means that the Accused has to adduce or point to evidence that suggests a
reasonable possibility that he was somewhere else when this alleged offence took place.
- Even though the Accused have put forward the Defef alibi, the burden of proving the case against the accused beyond reasonable doubt
still rill remains on the Prosecution. The Prosecution must prove that the Accused was present at the crime scene and committed these
three offences as charged in the information. In doing that, the Prosecution has to disprove the alibi defence put forward by the
Defence. That does not mean the Prosecution is required to provide specific evidence to disprove that the Accused was not at his
cousin Riaz's place. If the Court believes and accepts the evidence of the witnesses of the Prosecution as credible, reliable and
truthful beyond reasonable doubt, then the Prosecution has discharged its duty of disproving the alibi defence of the Accused.
Elementsments of the Offences
- I noceed to discuss the main elements of the three offences as s as charged in the information.
- The main elements of the offence of Sexual Assault are that:
- The Accused,
- Unlawfully and Indecently,
Assault the Complainant.
- The word "unlawfullyfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the
act as indecent. It is the onus of the Prosecution to prove that the Accused had unlawfully and indecently sucked the breast of the
Complainant beyond reasonable doubt.
- The main elements of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Act are that:
- The Accused,
- Penetrated the vagina of the Complainant with his fingers,
- The Complainant did not consent to the accused to penetrate her vagina with his fingers,
- The Accused knew or believed or reckless that the Complainant was not consenting for him to insert his fingers in that manner.
- The main elements of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act are that:
- The Accused,
- Penetrated the vagina of the Complainant with his penis,
- The Complainant did not consent to the Accused to penetrate her vagina with his penis,
- The Accused knew or believed or reckless that the Complainant was not consenting for him to insert his penis in that manner.
- The first element is the identity of the Accused. It is the onus of the Prosecution to prove beyond a reasonable doubt that it was
the Accused who committed these offences to the Complainant. There is no dispute about the correctness of the identification. The
Accused and the Complainant are known to each other as they are step-siblings. The dispute is that whether this alleged incident
actually happened involving the Accused.
< - Evidence of the slightest penetration of the vagina of the Complainath the penis and the fingers of the Accused is sufficient tent
to prove the element of penetration.
- I shall now briefly discuss the element of consent. Consent is a state of mind that can take many forms, from willing enthusiasm to
reluctant agreement. In respect of the offence of Rape, the Complainant consents if she had the freedom and capacity to make a choice
and express that choice freely and voluntarily. A consent obtained through fear, threat, the exercise of authority, use of force,
or intimidation could not be considered as the consent expressed freely and voluntarily. A submission without physical resistance
by the Complainant to an act of another person shall not alone constitute consent.
- The Complainant must have the freedom to make a choice. It means that she must not be pressured or forced to make that choice. Moreover,
the Complainant must have a mental and physical capacity to make that choice freely. The consent can be withdrawn at any time. The
consent is an ongoing state of mind and is not irrevocable once given. It should not be an optional choice. The consent of a person
should not be assumed.
- If the Court is satisfied that the Accused had penetrated the vagina of the Complainant with his penis/fingers and she had not given
her consent, the Court is then required to consider the last element of the offence. That is whether the Accused honestly believed
or knew or was reckless that the Complainant was freely consenting for this alleged sexual act. The belief in consent is not the
same as hope or expectation that the Complainant was consenting. It must be determined whether the Accused knew either that the Complainant
was not in a condition or a position to make a choice freely and voluntarily, or the Complainant had made no choice to agree to the
sexual act.
Defence of Alibi
- Having discussed the main elements of these offences, I shall now proceed to analyse the evidence with the applicable law. I first
draw my attention to the Defence of alibi raised by the Defence.
- The Accused in his evidence stated that he was at Riaz's place during the whole day on the 14th of May 2020; hence, he was not at
the alleged crime scene. The Defence adduced the evidence of four witnesses to establish the Defence of alibi.
tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='23' value="23">The Prosecution sought leave of the Court
to use the Accused's statement s caution interview to impeach the credibility of the AccusAccused's evidence. The Defence conceded
to the application. It is prudent to briefly discuss the legal approach in using the statement made by the Accused in his caution
interview in evidence. - Any statement made by the Accusedide the Court is not allowed to adduce in evidence against the Accused as it amounts to heao hearsay
evidence. The exception to this rule is an admission made by the Accused outside the Court.
- The England Court of Appeal (Criminal Division) in Storey awar v R (1968) 568) 52 Cr. App. R 334) had discussed the eviary vary value of a statement made by an Accused, which contains the explanation and excuse no direct admission
to the alleged offence. Widgery LJ in J in Storey (supra) held that:
&>“We think it right to recognise that a statement made by the accused to the police, although, it always forms evidence in the
case against is not in itself evidence of the truth of the fact stated.ated. A statement made voluntarily by an accused person to
the police is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the
incriminating facts. If, of course, the accused admits the offence, then as a matter of shorthand one says that the admission is
proof of guilt, and, indeed, in the end it is. But if the accused makes a statement which does not amount to an admission, the statement
is not strictly evidence of the truth of what was said, but is evidence of the reaction of the accused which forms part of the general
picture to be considered by the jury at the trial.”
- According to the above passage of Widgrey LJ in , a statemeatement of an Accused which does not contain an admission is not evidence of the truth of the facts. Still, it could be
used as evidencthe reaction of the Accused when he was encountered with thth the allegation.
- The Court of Appeal of England in R v Pearce () 69 Cr App App R 365, CA) had summarised the principles of admissibility of the statement made by the Accused outside the Court in evidence, where Loief Justice
held that:
- A statement which contains an admission is always admissible as a declaration against the interest and is evidence of the facts
admitted. With this exception a statement made by an accused person is never evidence of the facts in the statement.
- A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it. This however is
not to be limited to a statement made on the first encounter with the police. The preference in Storey to the reaction of the accused
‘when first taxed’ should not be read as circumscribing the limits of admissibility. The longer the time that has elapsed
after the first encounter the less the weight which will be attached to the denial. The judge is able to direct the jury about the
value of such statements,
- A statement that is not in itself an admission is admission if it is made in the same context as an admission, whether in the course
of an interview, or in the form of a voluntary statement. It would be unfair to admit only the statements against the interest while
excluding part of the same interview or series of interviews. It is the duty of the prosecution to present the case fairly to the
jury; to exclude answers with are favourable to the accused while admitting those unfavourable, would be misleading,
- The prosecution may wish to draw attention to inconsistent denials. A denial does not become an admission because it is inconsistent
with another denial. There must be many cases however where convictions have resulted from such inconsistencies between two denials.
- Although in practice most statements are given in evidence even when they are largely self-serving, there may be a rare occasion
when an accused produces a carefully prepared written statement to the police, with a view to it being made part of the prosecution
evidence. The trial judge would mainly exclude such a statement as inadmissible.
- According to the above comprehensive guideline, a statement made by the Accused outside the Court could be used in evidence only on
the following instances that:
- If the Statement contains admissions or confessions, then the admission or the confession in the Statement could be used against
the Accused as evidence of the truth of facts admitted,
- A statement made to the Police, which contains no admissions or confessions, could be used as evidence of the Accused's reaction when
the Police encountered him. The Statement is not evidence of the truth of facts stated in it. It is evidence of the behaviour of
the Accused when he is encountered with the allegation by the Police,
- Mixed Statement, which contains admissions and also the exculpatory explanation or excuses. If the Prosecution relies on the mixed
Statement, the Court is allowed to take into consideration the whole of the Statement including the admissions as well as the exculpatory
explanation in order to determine whether the Statement contains admissions or confession and then the truthfulness of such admissions
or confessions,
- The Prosecution could use such a Statement made by the Accused, which contains the denial of the allegation, to draw the attention
of the inconsistent with another denial. Under these circumstances, the denial in the Statement does not become evidence of the facts
stated in the Statement. It is only evidence of inconsistency that could impeach the Accused's credibility as a witness.
- The Accused is not allowed to use a statement that contains a self-serving statement to prove his consistency. Under the rules of
evidence, such statements are considered prior consistent statements and are inadmissible. (Kumar v State [2014] FJCA 151; AAU0126.2013 (19 September 2014).
- In this case, the Prosecution sought leave of the Court to use the caution interview made by the Accused in order to establish the
inconsistent denial made by the Accused, thus impeaching the Accused’s credibility as a witness. The Court shall not proceed
to determine the truth of the denial as stated in the interview.
- The Accused, in his evidence, stated that he went to Riaz’s place on the evening of the 13th of May 2020 and spent the night
there. He then woke up in the morning and started to work at Riaz’s place. He had worked the whole of the day and not gone
anywhere else. According to the Accused, he had left Riaz’s house on the 15th of May 2020. However, the Accused had stated
in his caution interview that he had gone to Riaz’s home on the morning of the 14th of May 2020. When confronted with this
inconsistent statement during the cross-examination, the Accused said that he meant that he woke up at Riaz’s place and started
to work at 8 am.
- Moreover, the Accused said in his evidence that he didn’t tease or like the Complainant. However, he had referred to the Complainant
in his statement in the caution interview as his girlfriend. The Accused explained that he referred to her as his girlfriend in the
caution interview because he liked her. In contradicting his above explanation given during the cross-examination, the Accused tried
to suggest, during the re-examination, that he didn’t understand the questions posed to him during the caution interview as
it was done in English, and he spoke in Hindi. It creates confusion, whether the explanation given by the Accused in his cross-examination
or the explanation given in the re-examination is correct.
- According to the accused, he had left Riaz’s house onay the 15th of May 2020. Usman, the father of Riaz, stated that the Accused
stayed the whol whole of the Friday at Riaz’s place. Having carefully observed the manner and how Usman gave evidence, I find
him a witness who was trained to remember or memorise specific facts. Usman could not remember the dates where the Accused came and
worked at his son’s place; however, he could conveniently recall the days when the Accused came to work at his son’s
home. According to Usman, the accused had come to his place sometimes in the afternoon of the Wednesday and stayed there in the night.
However, when the learned Counsel for the Accused asked him, “Do you know if he came to your house on Thursday?” Usman
affirmatively said, “Yes, My Lord, he worked at my house on Thursday”. If the Accused had actually come to his house
in the afternoon of Wednesday and stayed overnight, there is no reason for Usman to affirmatively say “Yes” when he was
asked if the Accused came to his house on Thursday. This answer supports the proposition that the evidence of Usman is untrue, thus
making him an unreliable witness.
- I have noticed with disdain the learned Counsel for the Defence, despite the warning given by the Court, continuously asked leading
questions from the Defence witnesses, suggesting to them the preferred or the expected answers or assuming the existence of disputed
facts. Hence, it is prudent to discuss the scope of the leading questions and the evidential weight of the answers obtained.
Cross on evidence (10th Edition, 17150 p; 54) has defined two forms of leading questions. One form of the leading question suggests
thes the desired or expected answer. The question assuming the disputed facts is the other form of leading question. Cross on evidence
(supra) has given a comprehensive explanation of these two-forms of leading questions with examples, where it has stated that:
“The0;The leading question is one which either suggests the answer desired, or assumes the existence of disputed facts. An
example of the type would be the following question put to one of the plae plaintiff’s witnesses in a running-down case; “Did
you see another coming very fast from the opposite direction?”....
Typical examples of the second type of leading question would be “what did you do after Smith hit you?” or asking why
a person did something before having established that he did it, or asking how much was paid before proving that payment had been
made, or asking when a man stopped beating his wife without establishing that he had started doing so”. (vide; Cross on Evidence
10th Edition, 17150 p; 541,542.”
- In view of this definition and explanation given in Cross on Evidence, a question that requires the answer “Yes” or “
No” is not necessarily a leading question. The Supreme Court of Western Australia in Sounders v R ( 1985) 15 A Crim. at 118) held that:
“A question can, I think, be formulated so as to call for a Yes or No answer which make no assumption of facts and without slightest
implication that Yes rather than No is the hoped for answer.”
- Accordingly, a question becomes a leading question based on how it is formulated rather than how it is answered. Wherefore, a question
that suggests the desired or expected answer or assumes the existence of the disputed fact is considered a leading question.
- The answers obtained to the leading questions are not inadmissible in evidence. However, the objectionable manner by which those answers
are obtained would reduce the evidential weight of those answers. (vide; Cross on evidence10th Edition,17150 p;541,542). The Court of Appeal of England in Moor v Moor (1954) 1 W.L.R.927) had criticised the irregular manner of obtaining answers to a series of leading questions. Sir Raymond Evershed M.R. in Moor v Moor ( supb>  held that:
&>“From time to time, this court.... have drawn the attention to the way in which in cases of this character evidence is given
by answering “Yes’ or “No” to ies of leading questions, wns, which every experienced advocate knows to be
irregular and to have the effect of making the answers either not at all impressive or far less impressive than they otherwise would
be.”
- Burt CJ in Sounders v R (Supra) had outlined the evidential weigh of the answers obtained to leading questions, where Burt CJ held that:
“It is, of course, well established that counsel should not upon any matter in dispute ask his witness a leading question and
if objected to a question of that kind should be disallowed by the trial judge. If not objected to and answered then the answer is
evidence in the case (Clark v Sutton (1960) NZLR 829 at 834) although it may be little weight and if it be the case the questions of that kind continue to be asked and answered it may
well be the case that at end of the day in a criminal case the evidence implicating the accused would be so devoid of weight as to
render it unsafe to convict upon it.”
- Though the Sounders (supra) guidelines focus on the Prosecution's evidence, it could apply in the same manner to the evidence presented by the Defence. Accordingly,
the answers to the leading questions are evidence in the case, but they carry a less and unimpressive evidential weight. It is not
safe to make a conclusion or a decision based on such tainted evidence.
- In this case, one of the primary disputes is whether someone was at the flat one when this allincident took place. According to the
Complainant, her moth mother had told her that Razil had gone for his taxi driving and his wife had gone to work. Another critical
issue is whether the Accused was at Davuilevu Housing on the 14th of May 2020. Moreover, the Defence disputed that the Accused was
not asked to go to the Flat one by the Complainant's mother when they were going to the town.
- The Defence called Jessamine Bibi, Razil's wife, to establish that she was at Flat one on the 14th of May 2020, and the Accused did
not come to her Flat during the day. Jessamine Bibi struggled to recall her off days during May 2020. She said that sometimes she
used to get three days off and two days off, but she couldn't tell exactly which days she had days off in May. However, she suddenly
recalled that she had days off on the 13th, 14th and 15th of May 2020. The learned Counsel then asked the following questions:
A: I stayed home,
Q: Did you go anywhere on the 14thay?
A: No I stayed Home,
Q: Did you go anywhere on the 15th 15th of May?
A: I stayed home.
- These three questions assumed that she was at home on the 13th, 14th and 15th, which is a disputed fact of this case. It also suggested
to her the desired and expected answer. The primary purpose of calling Jessamine Bibi as a witness is to establish that she was at
home on the 14th of May 2020.
The learned Counsel then asked the witness that:
Q: Now, if somebody goes out of the 2nd flat and goes out somewhere are they visible or would you be able to know?
A: Yes.
- This question suggested the witness the desired answer expected. One of the purposes of calling this witness is to establish that
the Complainant's parents, who lived in the 2nd flat, did not go anywhere on the 14th of May 2020. The above question suggested the
desired answer expected from the witness.
- The aforementioned leading questions are directly linked to the disputed issur which this particular witness was called to give evidencedence.
Hence, I do not find much probative value in those answers given by Jessamine Bibi.
- Be that as it may, Jessamine Bibi said during the evidence in chief that she did not see anyone from flat two was going out or coming
in during the daytime on the 14th of May 2020. However, during the cross-examination, she admitted that she could have missed or
not seen someone going out or coming into flat two. Moreover, she said she did not hear any scream or shout coming from flat two.
This piece of evidence supports the evidence of the Complainant, where she said that the Accused either covered her mouth or slapped
her whenever she tried to scream.
- Mohammed Feroz is the father of the Accused. The Defence called him to give evidence to establish that he did not go out with his,
leaving the Complainant aant alone at home in the afternoon of the 14th of May 2020. I find Mohammed Feroz struggled in remembering
the dates and times during his evidence. The learned Counsel for the Defence once again asked a leading question suggesting the preferred
and expected answer and assuming the existence of the disputed fact. He asked the witness that:
ow during ting the time of 14th May, when Shazia was at home, did you and your wife go to town leaving Shazia?
The lehe learned Counsel for the Prosecution objected to this question, hence, the learned Counsel for the Defence rephrased question
and asked that:
Q: Now on any occasions if you and your wife go out of the house for any purpose?
- This question was also not allowed as it suggested the preferred answer. Though these questions were not allowed, the struggling witness
had an opportunity to understand the preferred answers expected from him. The witness then stated that they used to take both the
children with him whenever he went out with his wife.
- The last witness of the Defence is Mohammed Riasein. He is the cousin of the accused. According to the accused, Riaz had gone to work
on t on the 14th of May 2020 and came home between 12. 30 p.m to 1.00 p.m. He then went back. When Riaz came to give evidence, the
learned Counsel for the Defence asked him that:
Q: Di go h go home any time on that day?
A: On the 14th of May.
Q: Yes?
A: Yes.
- The learned Counsel did not elicit from Riaz what he did on the 14th of May 2020 or whether he had gone somewhere on the 14th of May
2020 before asking this particular question. The main dispute of the matter is whether the Accused was at Riaz’s place doing
some work or at Flat two and committed this alleged offence. The Defence called Riaz to establish that the Accused was at Riaz’s
home in the afternoon of the 14th of May 2020. The Prosecution presented the evidence of Mr. Ajesh Vinay Dutt, establishing Riaz
was at the FBC office doing his work on the 14th of May 2020 between 8.11 a.m to 4.12 p.m. He had gone out of his office on several
occasions during working hours. Under these circumstances, asking Riaz whether he went home on that day without establishing that
he went to work and what he did at work is undoubtedly a leading question.
The learned Counsel then asked Riaz, without asking him what he did ahe came home, that:
A: I returned back before 2 p.m.
- This question had assumed that Riaz had gone back to the office after visiting his home. This is another leading question that directly
relates to the main dispute of the matter. Accordingly, I find the answers to these leading questions are materially linked to the
main disputes in this matter. In view of how these answers were elicited from the witnesses, I find less evidential value in these
answers.
- Be that as it may, I now proceed to evaluate theence of Riaz. He had gone home between 12.42 p.m. to 1.39 p.m. to give the welding
rod for for the welding tubing grill. According to Riaz, he was at home on the night of the 13th of May 2020. He had gone to the
office at 8.11 a.m. and then went out at 8.21 a.m. to park his car. Then came back to the office at 8.33 a.m. and went out again
at 11.13 a.m. for an official matter. Riaz had then left the office at 12.42 p.m. and returned at 1.39 p.m. He explained that he
went through Rewa Street, BSP, and then the main road to reach home.
Accordingly, Riaz had not gone anywhere or stopped at any place to buy or pick this welding rod. Neither Riaz stated that the welding
rod was already in his car when he left home in the morning. If it was in his car, why did he take it with him to the office when
he already knew the Accused was at his home to attend to the repair work. In view of this evidence, the only conclusion that I could
reach is that Riaz's evidence is untrue. - In view of the above-discussed reasons, I find the Defence of alibi raised by the Accused is untrue and cannot be acd. Hence, the
Defence has fhas failed to discharge their evidential burden in establishing the Defence of alibi. Moreover, the Defence of alibi
raised by the Defence has failed to create any reasonable doubt about the Prosecution's case.
- Even though I reject the Defence of alibi raised by tcused, that does not mean that the Prosecution has established that the accused
is guilty olty of these offences. Still, the onus is on the Prosecution to establish on its own evidence beyond reasonable doubt
that the Accused has committed these offences as charged in the information.
Prosecutsecution's Case
- Accordingly, I shall now turn on to the case of the Prosecution to determine whether the Prosecution has proven the accused guilty
of these offences beyond reasonable doubt. <
- In his written submissions, the learned Counsel for the Defence emphd three main factors that have undermined and discredited tted
the evidence of the Complainant, thus making them unreliable and untrue. They are that; the probability of this incident, the delay
in reporting and not complaining to her mother about this incident, and the inconsistent nature of the Complainant's evidence.
- During the evidence in chief, the Complainant stated that she hurriedly went out to drop the garbhen she heard the sound of the shower
of the bathroom of thof the adjacent Flat. However, she did not explain during the evidence in chief why she had hurried to drop
the garbage when she heard the sound of the shower. Anyhow, the learned Counsel for the Defence extensively cross-examined the Complainant
by taking her through incident by incident, thus allowing her to explain these incidents in detail.
- The Complainant explained during the cross-examination that there is a door to the bathroom; hence, it does not require to go through
the flat of Razil to enter the bathroom. This evidence establishes that the Complainant was concerned about the movements of the
Accused while she was alone at her Flat. This portion of evidence must be taken into consideration with some other evidence presented
during the hearing.
- The Accused, in his evidence, admitted that he liked her, but the Complainant treated him like her brother. This admission of the
Accused corroborates and supports the Complainant's evidence where she stated that the Accused used to tease her, saying that he
wanted to marry her one day and she had complained to her mother about it. Moreover, the above admission of the Accused further supports
the fact that the Complainant was concerned about the movements of the Accused when she was alone at the flat on the 14th of May
2020.
- Furthermore, the above admission of the Accused supports the evidence of the Complainant that her mother had asked the Accused to
go and stay at Razil's Flat until they return home on the 14th of May 2020, because the mother knew the Accused was interested in
Complainant.
- The learned Counsel for the Defence, in his writtemissions, urged that it is not probable to drag someone from her behind. Hence,
the Complaimplainant's evidence stating that the accused held her from behind and then dragged her to the bedroom is not probable;
therefore could not be considered as reliable and credible evidence.
In her evidence in chief, the Complainant said that the Accused came and held her hand from behind. He then dragged her to the bedroom
and threw her to the bed. She was lying facing upward when the Accused removed his clothes. At the conclusion of the evidence of
chief, there were several ambiguities and unclearness. Was she dragged backwards? Otherwise, how did the Accused drag her if he held
her hands from behind? How did she land on the bed facing upward if she was dragged backwards? - However, during the lengthy cross-examination, the Complainant expd in detail this incident. She explained that the Accused held her
hands from behind. He thHe then pushed her and did not drag her to the bedroom. She was landed on the bed facing downward. The Accused
then turned her around, making her face upward.
- The learned Counsel further submitted that it is impossible for the Accused to remove his clothes and the Complainant's with one hand
while covering the Complainant's mouth with the other hand.
According to the evidence given by the Complainant, the Accused had covered her mouth when she tried to scream. He removed his clothes
while covering her mouth with one hand. The Accused had then got on top of her stomach and seated and removed her thigh pants and
the underwear using one hand. He was still covering her mouth with his other hand. She tried to push him and also screamed. He forcefully
pushed her back and slapped her on her face when she tried to scream. He then used both of his hands to pull up the long dress she
was wearing. The evidence given by the Complainant, especially during the cross-examination, explained that the Accused did not cover
her mouth throughout this ordeal but covered her mouth only when she tried to scream. He had also slapped her to stop her screaming.
The Complainant explained how she tried to resist and push him but failed to succeed. He then started to kiss her lips and then sucked
her breasts. He penetrated her vagina with his fingers while still sitting on top of her stomach. He then laid on top of her and
inserted his penis into her vagina. - Considering the above-discussed reasons, I am inclined to accept that it was possible and probabl the Accused to push her to the bedroom
from behind and thed then throw her on the bed. Moreover, it was possible and probable to remove his clothes and her clothes as he
had used his hand to cover the Complainant's mouth only when she tried to scream. In addition to that, I accept the probability of
penetrating her vagina with the fingers and then with the penis of the accused during the incidents explained by the Complainant.
- The learned Counsel for the Defence cross-examined the Complainant suggesting that she had a crush on the Accused a was one-sided
liking, whic which the Complainant denied. By suggesting that, the learned Counsel for the Defence proposed to the Complainant that
she made up this false allegation because the Accused declined to accept her the way she wanted. In doing that, the Defence attempted
to suggest that the Complainant had a revengeful motive to make up this false allegation. Despite that, in his evidence, the accused
admitted that he actually liked her, and the Complainant treated him only as a brother, contradicting the said suggestion of bad
motive of the Complainant. Hence, I do not find any male-fide motive of the Complainant to make up a false allegation as suggested by the Defence.
The learned Counsel for the Defence rigorously cross-examined the Come Complainant on the issue of not informin mother about this
incidentident. In his written submissions, he then submitted that her failure to inform her mother suggests that she was hiding something.
The learned Counsel further submitted that if a person is sexually assaulted or raped in the manner alleged by the Complainant, she
would have related the whole story to someone. Her failure to entirely relate the entire incident to her mother or best friend Ayesha
makes her an untruthful witness. - There is no stereotype of circumstances or reaction of rape, rapist or a victim of rape. Eperson has a way of coping with such an
incident. Victims oims of such sexual assaults react to such situations in different ways. It would be wrong to assume that every
person who has been the victim of a sexual assault will report it as soon as possible. The victims of sexual offences can react to
the trauma in different ways. In distress or anger, some may complain to the first person they see. Others, who respond with shame
or fear or shock or confusion, do not complain or go-to authority for some time. It takes a while to re-assert self-confidence. There
is no classic or typical response. A late complaint does not necessarily signify a false complaint; likewise, an immediate complaint
does not necessarily demonstrate a true complaint.
- The Complainant explained why she had not informed heher. She feared that her mother would separate from her stepfather if she informed
her abou about this incident. As she had feared, her mother had actually separated from the stepfather after this incident surfaced
in a manner that the Complainant did not expect. This supports that her fear of not telling her mother was reasonable.
- The Supreme Court of Fiji in Raj v State [2014] FJ; C12; CAV0003.2014 (20 Aughe 20th of August 2014) has discuthe scope ofpe of e of the evidence of recent complain and its evidential value. Gates CJ hhat:
“In any case evidence of recent cent complaint was never capable of corroborating the complainant’s account: R v. Whitehead (1929) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant’s conduct, and
as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v. The State Crim. App. 12 of 1989; Jones v. The Queen [1997] HCA 12; (1997) 191 CLR 439; Vasu v. The State Crim. App. AAU0011/2006S, 24th November 2006..........
The complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant
with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
The complaint need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful
sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the unlawful sexual
conduct, provided it is capable of supporting the credibility of the complainant’s evidence. The judge should point out inconsistencies.
- The Complainant had related this incident to her best friend Ayesha Bibi when she met her at the school on the 17th of May 2020. According
to Ayesha's evidence, the Complainant had told her that the Accused had sucked her breasts and then penetrated her vagina with his
penis. She had not spoken about the allegation that the Accused had penetrated her vagina with his fingers. I do not find this omission
materially discrediting the credibility of the Complainant's evidence. The Complainant had told Ayesha the main allegation of the
sexual assault and the Rape.
- The evidence of Doctor Losana Burua, explaining the medical findings that she found during tmplainant's medical examination, further
supports the versiversion of the event explained by the Complainant.
- I have observed the evidence given by the Complainant was straight, consistent, and coherent in explaining the incident she had encountered.
She. She has been consistent during the arduous cross-examination by the learned Counsel for the Defence, explaining in detail the
incident coherently and persistently.
Conclusion
- Having carefully considered the reasons discussed above, I find the Complainant is a truthful, credible and reliable witness, thus
accepting her evidence as truth. Consequently, it is my considered opinion that the Prosecution has proven beyond reasonable doubt
that the accused had committed these three offences on the Complainant as charged in the information.
In conclusion, I find the Accused guilty ofcount of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, one count of
Raof Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act and one count of Rape, contrary to Section 207 (1) and (2) (a)
of the Crimes Act and convict to the same accordingly.
.......................................................
Hon. Mr. Justice R.D.R.T. Rajasinghe
At Suva
21st December 2021
Solicitors
Office of the Director of Public Prosecutions for the State.
Jiten Reddy Lawyers for the Accused.
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