State v Bala [2022] FJHC 126; HAC101.2020 (4 March 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 101 OF 2020

STATE

V

RAJNESH BALA

Counsel: Ms S Shameem & Ms P Mishra for the State

Mr K Gosai & Ms S Singh for the Accused

Date of Hearing: 21 February – 24 February 2022
Date of Judgment: 4 March 2022

JUDGMENT

The charges

[1] The Accused is charged with one count of sexual assault (count one) and one count of rape (count two). Both are representative counts involving the same complainant. The prosecution alleges that between 1 February 2016 and 31 March 2018 the Accused committed numerous sexual assaults, and that between 1 March 2018 and 30 November 2019, the Accused committed numerous rape, against the same complainant.

Burden and standard of proof

[2] It is for the prosecution to prove the charges against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. The prosecution must prove its case beyond reasonable doubt.

[3] It is not necessary for the prosecution to prove all the episodes of sexual assault and rape. The prosecution must prove beyond reasonable doubt at least one incident of sexual assault and one incident of rape. That is the essence of a representative charge.

Elements of sexual assault and rape

[4] To prove sexual assault as alleged on count one, the prosecution must prove the following elements:

1. The Accused on the said daid date and place assaulted the complainant,

2. Tha assaalt wla unlawful nful ndecent,

3. That the assault was withhut the consent of complainanainant,

4. Thated thatcomalainant wast was not consenting.

>

[5] T[5] To prove the charge of rape as alleged on count two, the prosecution must prove the fing ets:

1. That the Accused had sexual intercourse with the complainant, that is, he penetrated her vagina with his penis.
2. That the complainant did not consent to the penetration.
3. That the Accused knew the complainant did not consent.
   

[6] An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain. Ths no suggestion in n in the present case that, if the Accused touched the complainant as the prosecution alleged he did, the tou was lawful.

[7] Trd ̶“indecent” means contrary to the othe ordinary standards of respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. If an accused touches the complainant’s body or uses in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent.

[8] Consent involves the conscious and voluntary permission by the complainant to the Accused to touch the complainant’s body in the manner that he did or to have sexual intercourse with him. Consent or the absence of consent can be communicated by the words or acts of the complainant. The knowledge of the Accused that the complainant did not consent is a matter for inference from all the proven facts.

[9] The Accused’s knowledge that the complainant did not consent is a subjective matter. The prosecution must prove that the Accused was aware that the complainant did not consent.

Agrectsfacts

[10] The following facts are not in dispute. The complainant’s date of birth is 20 January 2002. The Accused is the complainant’s step-father. The Accused was in a de-facto relationship with the complainant’s mother. The complainant resided with her mother and the Accused at Lot 135 Lakeba Street, Samabula.

The prosecution case
[11] The prosecution called four witnesses.

[12] At the time of the alleged incidents, the complainant was a child and was under the care of her mother and the Accused. She called the accused uncle.

[13] In relating about the first incident she said that her mother had moved her to Suva to school and live with the Accused at Lakeba Street, while her mother remained in Lautoka. Her mother moved to Suva after few months.

[14] At the time the Accused’s son, who was one or two years older than the complainant, was also living with his father. The house that they occupied consist of two bedroom and was located in a squatter. The complainant occupied one bedroom, the Accused’s son occupied the other room and the Accused slept in the sitting room.

[15] The complainant said that the first incident occurred on a weekday late March 2017 after 8 pm when she was in her bedroom and the Accused’s son was in his bedroom. She said that that the Accused entered her bedroom and touched her breast on top of her clothes while she was lying on her bed facing the ceiling. She told him to go away and when he didn’t, she started crying. He did not say anythinger. her. He then grabbed her breast from underneath her clothes. She tried to shove his hand away but when she couldn’t, sarted crying the second time, and he left the room. She did not give permission to him to t to touch her breast.

[16] The complainant said that she did not call out to the Accused’s son to alert him of the incident because she did not know him well and was not close to him.

[17] The complainant said that another incident occurred sometime in late March or early April, when she was home alone with the Accused during the day on a Saturday. She was watching television on the sofa in the sitting room with the Accused when he grabbed her hands and forced her to bend down on the sofa. He pulled down her shorts to her knees. He pulled down his shorts to his knees and started masturbating. He had a tigip of her hand hands and when she resisted and told him to let go off her, he responded saying that ‘you wait let it become hard’. On this occasion,id not penetrate her, but he masturbated until he ejaculateulated.

[18] The complainant said these two incidents occurred when the Accused was not working. He said there were many other incidents of similar nature committed on her by the Accused.

[19] The complainant spoke about an incident that occurred on a Saturday in May 2018. She puts a time frame of the incident after 12 noon. She accepts that the Accused, if not working, played soccer on Saturdays but at different times. She said that her mother and step brother were not home on this day. She was home alone with the Accused when he grabbed her while she was sitting on the sofa in the sitting room. He removed his shorts and came on top of her. He put her on a bend position and he pulled her underwear and shorts to her knees. He shook he penis to make it erect, put his saliva as lubricant and then penetrated her vagina for about five minutes until he ejaculated on the sofa. She cried and told himet glet go of her but he did not listen.

[20] The complainant said this was the first time the Accused penetrated her vagina with his penis. After s done she grabbed her clothes and went inside the bathroomhroom. She noticed that she bled from her vagina. She said other similar incidents occurred mostly in the weekends when her mother and stepbrother were not at home. She said that the last incident was before her Fiji Year 12 Certificate Examination in 2019.

[21] She said that she was too scared to tell anyone about the incidents because she feared her mother and family would not believe her because the Accused had threatened her that he would put the blame on her for trying to seduce him. She said that the Accused on numerous occasions had threatened her of the consequences of complaining. She said that she did not report the incidents to her teachers because she feared that she would be removed from her home and placed under the care of the Department of Social Welfare.

[22] The complainant said when she started her Form 7 in 2020 she had turned 18 years of age. aid that in early Februaryruary 2020 she told her economics teacher and her school principal that the Accused had been touching her body and inserting his penis into her vagina. She also told eachers that she had complaomplained to her mother in 2019 but her mother did not take any action. She explained that she waited until she had turned 18 years of age as she feared she would have been taken by Social Welfare if she reported the abuse when she was a child under the age of 18 years.

[23] The school teacher, Ms Gosai and the principal, Ms Kumar in their evidence confirmed receiving a report of sexual abuse from the complainant on the morning of 21 February 2020. Her report to the school teacher was that her uncle had been molesting her and had even raped her. Her report to the school principal was that her stepfather between 2015 and 2019 had been forcefully touching her private parts and had sexual intercourse without her consent. The principal brought the report of sexual abuse to the attention of the authorities.

[24] On 27 February 2020, the complainant was medically examined at the CWM hospital. The examination found vaginal tears which could have been one to three years old. The injuries could heen caen caused by blunt force trauma including a penetration by penis.

[25] That is a summary of the prosecution case.

The defence case

[26] The Accused chose to give evidence. However, he does not have to prove anything. If the account given by him is or may be true, then he must be found not guilty. But even the account given by him is entirely rejected, that would not relieve the prosecution of its burden of making sure by evidence of the Accused’s guilt.

[27] The Accused’s evidence is that the allegations of sexual assault and rape against him are not true. His evidence is that the allegations have been fabricated by the complainant because he had been strict on her and treated her like her own daughter. He said that he was never home alone with the complainant after she moved to live with him in 2017 until 2020. He said that he was passionate about soccer and that if he was not working overtime, he would be training or playing soccer for a local club after work or in the weekends.

The Accused&#sed’s son, gave evidence consistent with the account of the Accused that the complainant was never alone at home with the Accused as he was m home after leaving school in 2017. He said that the complaomplainant’s mother dropped and picked her from school and not the Accused. He said that the Accused would be either at work or training or playing soccer after work in the afternoons and Saturdays while the complainant would be with her mother.

[29] The Accused’s two neighbours gave evidence of seeing the complainant in the company of other boys either in her home or in parked vehicles near their settlement.

[30] The Accused was employed as a lriver from 17 January 20ry 2018 to 18 March 2020 by Facility Services Limited. During this period the company was involved in many construction projects and the Accused was working mostly overtime with other employees to complete the projects. The Finance Manager of the company gave evidence that the Accused was punctual to work and that he did not take leave, unless he was travelling overseas.

[31] The President of the soccer club the Accused played for said that between 2018 and 2020 the Accused played for the club without missing trainings or matches during the afternoons in the weekdays or the weekends.

Analysis

[32] The identity of the Accused is not an issue. The complainant’s mother was in a live-in relationship with the Accused and that they lived with him in his house at Lakeba Street between 2017 and 2020.

[33] The defence case is that the allegations of sexual assault and rape have been fabricated by the complainant because the Accused was strict with her in terms of her upbringing while she was in his house.

[34] The prosecution case is substantially dependent on the complainant’s credibility. If her account of the sexual assault and rape is true, then the Accused is guilty of the charges.

[35] The prosecution relies upon the complaint made to the school teachers on 21 February 2020 to show consistency on the complainant’s account. The report to the school teachers, of course, is not independent evidence of what happened between the complainant and the Accused, and it therefore cannot of itself prove that the report is true. The report of sexual abuse made to the teachers is certainly not recent complaint.

[36] The late complaint may indicate fabrication on behalf of the complainant but does not necessarily do so in this case. Thplainant’s accountcount is that she did not complain to anyone despite knowing that she could have complained and having ounities to complain because the Accused had instilled fear in her that no will believe her her or that she would be removed from her home by the Social Welfare if she complained. She waited until turning an adult when she reported the abuse to her school teachers. There is consistency on her account.

[37] I believe and accept that the Accused was a dedicated employee and a soccer player and that he did not miss work or soccer trainings or games, but I do not believe that there was no occasion where the Accused and the complainant were alone at their home at Lakeba Street between 2017 and 2020.

[38] There ome some contradictions and inconsistences in the dates and times of the events, but the contradictions and inconsistencies are heral and not material in determining the truth of the charges.

[39] The eventevents took place between 2017 and 2019. Over passage of time, witnesses’ memories fade. That does not mean that the witnesses are not telling the truth.

[40] I consider the truth of allegations against the Accused dispassionately, without sympathy or prejudice. The complainant struck me as an honest witness. Her explanation for not raising alarm is reasonable. She was a child and the Accused was an authority figure over her. She genuinely feared about the repercussions of complaining.

[41] On the representative charge of sexual assault, I believe the account of the complainant that on a weekday in late March at around 8 pm the Accused entered her bedroom and groped her breast without her consent.

[42] I accept that the touching of breast was without lawful excuse and was indecent contrary to the ordinary standards of respectable people in this community. I believe the complainan17#8217;s account that she resisted the Accused and told him leave her alone. I accept that the Accused knew that the complainan not consent.

[43] On the representative charge of rape, I believe the accountcount of the complainant that on a Saturday afternoon in May 2018 the Accused forcefully had sexual intercourse with her on a sofa inside their house, without her consent. I accept that the Accused knew that the complainant did not consent.

[44] I do not believe the Accused’s denial of the allegations.

[45] On both counts, I feel sure of the Accused’s guilt. Accordingly, he is convicted of both charges.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Gosai Lawyers for the Accused