State v Vocevoce [2022] FJHC 154; HAC 53 of 2019 (13 April 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 53 of 2019

STATE

V

MOROTIKEI VOCEVOCE

Counsel : Ms. S. Naibe for the State.
: Ms. A. Bilivalu for the Accused.


Dates of Hearing : 07, 08, 11 April, 2022
Closing Speeches : 12 April, 2022
Date of Judgment : 13 April, 2022

JUDGMENT

(The name of complainant is suppressed she will be referred to as “A.T”)

1. The Director of Public Prosecutions charged the accused by filing the following information:
   

Statement of Offence

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

Particulars of Offence

MOROTIKEI VOCEVOCE on the 9^th day of November, 2017 at Clopcott, Ba in the Western Division, had carnal knowledge of “A.T”, without her consent.

2. In this trial, the prosecution called two witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer in respect of the offence of rape as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
   

ELEMENTS OF THE OFFENCE

4. To prove the above count the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:
   

(a) The accused;

(b) Penetrated the vagina of the complainant “A.T” with his penis;

(c) Without her consent;

(d) The accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.

5. In this trial, the accused has denied committing the offence of rape. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his penis without her consent and the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
   
6. The first element of the offence is concerned with the identity of the person who allegedly committed this offence.
   
7. The second element is the act of penetration of the complainant’s vagina by the penis.
   
8. The third element is that of consent, which means to agree freely and voluntarily and out of her free will. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority, then that consent is no consent at all. Furthermore, submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
   
9. If this court is satisfied that the accused had penetrated the vagina of the complainant with his penis and she had not consented, then this court is required to consider the last element of the offence that is whether the accused knew or believed that the complainant was not consenting or did not care if she was not consenting at the time.
   
10. To answer the above this court will have to look at the conduct of both the complainant and the accused at the time and the surrounding circumstances to decide this issue.
    
11. If this court is satisfied beyond reasonable doubt that the prosecution has proven beyond reasonable doubt that the accused had penetrated his penis into the complainant’s vagina without her consent then this court must find the accused guilty as charged.
    
12. If on the other hand, there is a reasonable doubt with regard to any of those elements concerning the offence of rape, then this court must find the accused not guilty of either or both offences.
    
13. The slightest of penetration of the complainant’s vagina by the accused penis is sufficient to satisfy the act of penetration.
    
14. As a matter of law, I direct myself that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means, if this court is satisfied with the evidence given by the complainant and accepts it as reliable and truthful then this court is not required to look for any other evidence to support the account given by the complainant.
    

ADMITTED FACTS

15. In this trial, the prosecution and the defence have agreed to certain facts titled as admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
16. I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.
    

PROSECUTION CASE

17. The complainant informed the court that on 9^th November, 2017 at around 9 am she was having tea at her home with Emosi her husband’s cousin and Melai her neighbour. Melai’s house was about three steps away from hers. After a while the accused who is Melai’s brother came so Melai left. The complainant knows the accused since the wife of the accused is her husband’s cousin sister.
    
18. The accused would visit his sister Melai and the complainant’s family knew him as a police officer. After sometime, Melai came to the house of the complainant and asked for some food for the accused which she gave. Melai was going to Nadi, so she asked the complainant to close the doors and windows of her house after the accused leaves.
19. The complainant went to Melai’s house and met the accused while Melai was having her shower. Both were sitting, conversing and joking with each other and laughing. After Melai finished her shower the complainant went to her home.
20. After sometime, the complainant went outside to get some water to wash the dishes. The accused called the complainant asking her to come and close the doors and windows of Melai’s house. The complainant responded by saying that she will attend to it later, however, the accused kept on insisting that she closes the doors and windows immediately since he did not want any problem of things missing from the house.
21. As soon as the complainant entered the house through the kitchen door, she got a shock when the accused pulled her inside, at first she thought the accused was joking but this was not to be because the accused started touching her vagina. The complainant was wearing swimming togs, shorts and a t-shirt.
    
22. The accused made the complainant lie on the floor, she tried to push him but could not. She then requested the accused not to do this to her. In response the accused told her not to care about anything, not to say anything, not to be frightened and he will help her family with their case. The accused was able to remove her shorts, push aside her swimming togs and then penetrated his penis into her vagina. The complainant told the accused that she will tell her husband about what he was doing to her. The complainant did not scream since she remembered her immediate neighbours were her enemies against whom she had a case.
    
23. The complainant started to cry, she could not believe what the accused was doing to her when she asked him why he was doing this to her, the accused said he just wanted to shut her mouth. The complainant explained the accused had forcefully made her lie down, and then inserted his penis into her vagina.
    
24. After this the accused stood up and put on his clothes, the complainant once again told the accused that she will tell her husband about what he had done to her.
    
25. The accused again said that what he had done to her was to just shut her mouth. The complainant could not make out what the accused meant. When the complainant went home she told Emosi that she wanted to lie down because she was having a headache, she did not tell anything to Emosi because she was embarrassed. The complainant was afraid of people talking and creating rumours so she waited for her husband to recover from his sickness so that she could tell him.
    
26. Her husband was asthmatic, had heart problems and was a diabetic. It was after 2 days of the incident she told her husband if he could sit and be calm since she was about to tell him what the accused had done to her.
    
27. Whilst telling her husband, the complainant noticed he was furious so she said “I will tell you another time”. At this time, her husband punched her and she got injured.
    
28. Someone from the neighbour called the police, so when the police came the complainant informed them that they had resolved the matter. At this time, her husband calmed down and the complainant told him everything the accused had done to her. Her husband felt sorry for her and he suggested the matter be reported to the police.
    
29. However, before the matter was reported, the complainant was taken by her husband to the wife of the accused so that she would be aware of what the accused had done.
    
30. In cross examination, the complainant agreed that it was after 2 days of the incident she had told her husband that the accused had raped her. The complainant did not go to the police immediately after the incident since she wanted to tell her husband first. If her husband tells her to go and report then she would do so.

31. The witness agreed she had reported the matter to the police after 9 days of the incident, she had every opportunity to go and report the matter but she did not since she was resolving her family problem. The complainant denied they had any business dealings with the accused. The complainant also denied that on the day she was assaulted by her husband she had gone looking for the accused requesting for his help.
    
32. When questioned why she did not scream or shout, the complainant stated that she did not scream because she knew there were enemies beside her house. The accused was also telling her not to shout, although the accused was shorter than her he was strong, she could not escape at the time because the accused had blocked her at the kitchen doorway.
    
33. When asked how she was pulled into the house the complainant said, “he pulled me by my t-shirt and my hand inside, I thought he was just playing with me, I didn’t know that he was serious about what he was doing.” When asked that she could have escaped the ordeal the complainant said she did not want her neighbours to know about what had happened to her since it would have been shameful and she did not want to be embarrassed.
    
34. The complainant maintained that the accused had done what she told the court and if this was not the truth she would not have the reported the incident to the police and also she would not have told her husband.
    
35. The complainant also maintained that she did not lie or make up a story against the accused. After the incident the complainant did not contact the accused, but had seen him a few times walking past her and her husband. The complainant also said that she did not have any business dealings with the accused.
    
36. The final witness Leone Ratoto the husband of the complainant informed the court that the accused was a police officer and the brother of his neighbour Melai. In November 2017 the witness recalled his wife told him that she wanted to tell him something but was scared to do so. He kept asking her about what she wanted to tell him. The complainant told him the accused had called her into Melai’s house, kissed her and had sexual intercourse with her. The complainant also said, “I only gave my body because I was afraid of the accused because he is a police officer.”
    
37. The witness was hurt when he heard this and he punched her, the neighbours called the police, the complainant was injured, however, the police left after they were told the matter between them had been resolved. The accused and his wife who is his cousin were called by the witness to discuss the allegation but they did not come. The complainant and the witness went to their house, the accused was not at home so they informed his wife and then reported the matter to the police.
    

RECENT COMPLAINT DIRECTION

38. Complainant’s of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
    
39. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight is to be given to the fact that the complainant told her husband Leone Ratoto that the accused had sexual intercourse with her because she was afraid of him since he was a police officer.
40. This is commonly known as recent complaint evidence. The evidence given by Leone is not evidence of what actually happened between the complainant and the accused since he was not present and he did not see what had happened between the complainant and the accused.
    
41. This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told her husband Leone about what the accused had done to her two days after it had happened.
    
42. Furthermore, the prosecution submits that the complainant was not able to tell her husband immediately after the incident since she was scared of him and also he was sick so she had to wait for the opportunity to do so which she eventually did after two days.
    
43. The prosecution is also asking this court to consider that the complainant did relay relevant and important information to Leone. Furthermore, it was the accused who had sexual intercourse with the complainant she was afraid of the accused since she knew he was a police officer and therefore she is more likely to be truthful.
    
44. On the other hand, defence says the complainant had made up a story against the accused to implicate him. The police had come to her house after Leone had assaulted her two days after the alleged incident but she did to tell the police anything about what the accused had done to her. The complainant also lied in court when she said that she told her husband that the accused had forceful sexual intercourse with her when she did not say anything in this regard to him and therefore she is should not be believed.
    
45. It is for this court to decide whether the evidence of recent complaint helps this court to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. It is for this court to decide whether the complainant is reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
    
46. In cross examination the witness explained the accused had come to his house to attend to a case where their neighbour used to fight with his wife and daughter. The accused was called by the witness because the accused was a police officer. The accused had come to take the statement of his wife and their children inside their house in 2017. When it was put to the witness that the accused was suspended from the Police Force in 2016 and he was not a Police officer in 2017. The witness stated that he only knows the accused was in police uniform when they spoke.
    
47. The witness was angry because of what the complainant told him, he never suspected that his wife was having an affair with the accused. Upon further questioning the witness said that it was his wife who had told the police that the accused had forceful sex with her. The witness was referred to this police stated dated 18^th November, 2017, line 13 which was read as follows:
    

“So she told me that she was standing outside of the house when Moro was at Melai’s house and he called her there to close the windows and doors of the house of Melai as he was there and he had sex with her there”.

48. The witness denied that he had told the police his wife had told him that she had sex with the accused or that he had assumed that his wife was having an affair with the accused. The witness maintained that his wife had told him the accused had raped her.
    
49. The witness denied he had forced his wife to tell the police that the accused had raped her.
    

PREVIOUS INCONSISTENT STATEMENT

50. This court directs its mind to the fact that the defence counsel during cross examination of Leone had questioned this witness about some inconsistency in his police statement which he had given to the police when facts were fresh in his mind with his evidence in court.
    
51. This court is allowed to take into consideration the inconsistency between what this witness told the court and his police statement when considering whether this witness was believable and credible. However, the police statement is not evidence of the truth of its contents.
    
52. It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
    
53. If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witness. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
    

54. This was the prosecution’s case.

DEFENCE CASE

55. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination. This court must also consider his evidence and give such weight as is appropriate.
    
56. The accused informed the court that in mid of 2016 he left the Fiji Police Force and in the year 2017, he was working for Professional Investigations as a Private Investigator. His sister Melaia Adinimanima lives at Clopcott, Ba and he would visit her about two times in a week, the accused also knows the complainant and her husband.
    
57. On 9^th November, 2017 the accused was assigned to go to Nadi after he left the office he thought of visiting Melaia. When he reached Melaia’s house at around 11am she was at the house of the complainant. In a short while Melaia came and the accused had tea in her house. The accused went to sleep at about 11:45am, he slept for about 2 hours when he woke up Melaia had left. The door at the back kitchen was closed he got his shoes, took his bag and left.
    
58. The accused did not have any conversation with the complainant before he left Melaia’s house. The next day the accused had a conversation with the complainant at about 7 to 8pm. The accused denied the allegation saying that he knows the consequences of committing such an offence. He further maintained that he did not do anything as alleged or have a conversation with the complainant on the 9^th. On the 10^th the complainant had approached the accused she looked afraid saying that she wanted some medicine from him, the accused did not have any with him so he could not assist her.
    
59. The accused denied assisting the complainant and her husband in regards to any police matter since he was not a police officer at the time. The accused stated he did not do such a lowly act he respects the complainant like a sister.
    
60. In cross examination the accused agreed it was the complainant who had provided him breakfast at Melaia’s house. The accused stated that the complainant and her husband knew about the business he was engaged in, however, his business was not legally established. The accused agreed his counsel had not put to the complainant that she was having an affair with him although this proposition was put to Leone about his suspicion that the complainant was having an affair with him. The accused stated that there was never any affair between him and the complainant.
    
61. The accused denied having forceful sexual intercourse with the complainant on 9^th November 2017. He maintained having a good relationship with the complainant and her husband. The accused denied the suggestion that he had taken advantage of his position as a police officer in sexually abusing the complainant.

62. This was the defence case.

ANALYSIS

63. The prosecution alleges that the accused on 9^th November, 2017 had called the complainant into the house of his sister Melai after his sister had left for Nadi. The accused pulled the complainant into the kitchen forced her on the floor removed her shorts and pushed aside her swimming togs and had forceful sexual intercourse with her.
    
64. The complainant did not consent to what the accused had done to her in fact she had warned the accused that she will tell her husband and for him to stop what he was doing. The accused did not stop but continued to have forceful sexual intercourse with the complainant.
    
65. The complainant informed her husband after 2 days of the incident. Thereafter, the complainant and her husband went and told the wife of the accused about what the accused had done. The matter was then reported to the police after 9 days of the incident.
    
66. On the other hand, the defence says the allegations are lies and a made up story by the complainant. She was in a business dealing with the accused and when the accused did not honour his promise the complainant made up a false story against him. In addition to this, the accused had not helped the complainant with her case against her neighbour so on that day she took advantage of the fact that the accused was alone in the house of his sister and cried rape.
    
67. Finally, the defence submits the complainant did not tell the truth she has framed the accused to get rid of him which she has partially succeeded in by getting him charged for something he has not done. The defence is asking this court not to believe the complainant.
    
68. The husband of the complainant had sensed that something was not right so he had assaulted the complainant hence she had no option but to implicate the accused. The husband of the complainant when the facts were fresh in his mind told the police officer writing his police statement a different version which shows the complainant was not a consistent and a credible witness.
    
69. The accused on the other hand, was forthright in what he told the court. After Melai left her house the accused was sleeping when he woke up he wore his shoes, took his bag and left. He had a business deal with the complainant and her husband which did not go through so the couple concocted a story to implicate the accused. The accused is a former police officer who knows the consequences of doing such acts and he would never be on the wrong side of the law.
    

DETERMINATION

70. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
    
71. After carefully considering the evidence adduced by the prosecution and the defence, I accept the evidence of the complainant as truthful and reliable. She gave a comprehensive and consistent account of what the accused had done to her. The complainant was also able to withstand cross examination and was not discredited as to the main version of her allegation.
    
72. I have no doubt in my mind that the complainant told the truth in court her demeanour was consistent with her honesty. It is also noteworthy that the complainant would not have informed her husband about what the accused had done to her if she was not telling the truth.
    
73. It is also to be expected that individuals differ in terms of how they react towards what is happening to him or her. Some display obvious signs of distress and some not, the fact that the complainant did not shout or run away does not mean that she should not be believed or was consenting to what was being done.
    
74. The circumstance of the complainant was such that she could not shout or run away. I have accepted the explanation of the complainant in this regard and would like to state that the reaction of the complainant was a normal occurrence in the circumstances.
    

LATE REPORTING

75. During the trial the defence had raised the issue of late reporting by the complainant to the police. The delay is about 9 days from the date of the incident. In law the test to be applied in such a situation is known as the totality of circumstances test. The Court of Appeal in State v Serelevu (2018) FJCA 163; AAU 141 of 2014 (4^th October, 2018) had explained this issue as follows:
    

“[24] In law the test to be applied on the issue of the delay in making a complaint is described as “the totality of circumstances test”. In the case in the United States, in Tuyford 186, N.W. 2d at 548 it w it was decided that:-

“The mere lapse of time occurring after the injur the of the complaint is not the test of the admissibility of evidence. The rule requirequires tres that the complaint should be made within a reasonable time. The surrounding circumstances should be taken into consideration in determining what would be a reasonable time in any particular case. By applying the totality of circumstances test, what should be examined is whether the complaint was made at the first suitable opportunity within a reasonable time or whether there was an explanation for the delay.”

“[26] However, if the delay in making can be explained away that would not necessarily have an impact on the veracity of the evidence of the witness. In the case of Thulii v State of Tami Tamil Naidu; 1IR.50IR.501; 1972 SCR (3) 622:

“A prompt first information statement serves a purpose. Delay can lead to embellishment or after thought resu deliberation andn and consultation. Prosecution (not the pthe prosecutor) must explain the delay satisfactorily. The court is bound to apply its mind to the explanation offered by the prosecution through its witnesses, circumstances, probabilities and common course of natural events, human conduct. Unexplained delay does not necessarily or automatically render the prosecution case doubtful. Whether the case becomes doubtful or not, depends on the facts and circumstances of the particular case. The remoteness of the scene of occurrence or the residence of the victim of the offence, physical and mental condition of persons expected to go to the Police Station, immediate availability or non-availability of a relative or friend or well wisher who is prepared to go to the Police Station, seriousness of injuries sustained, number of victims, efforts made or required to be made to provide medical aid to the injured, availability of transport facilities, time and hour of the day or night, distance to the hospital, or to the Police Station, reluctance of people generally to visit a Police Station and other relevant circumstances are to be considered.”

76. The reason given by the complainant for the delay in reporting by her is that she waited for her husband to recover from his sickness so that she could tell him before reporting the matter to the police. When she did inform her husband after two 2 days of the incident it was her husband’s suggestion that the matter be resolved by discussion due to the closeness of the relationship. The wife of the accused was her husband’s cousin sister.
    
    77. I accept that the complainant was restrained by circumstances beyond her control in failing to immediately report the matter to the police. The delay of 9 days is not substantial but within a reasonable time.
        
    78. I also accept the evidence of Leone Ratoto the husband of the complainant as truthful. There was an inconsistency between what this witness told the court in his evidence and his police statement. However, the discrepancy was not significant to adversely affect his credibility or shake the core of the complainant’s testimony.
        
    79. The common law as expressed by Lord Parker CJ in R v Golder; R v Jones; R v Porritt [1960] 1 WLR 1169 at 1172 that “when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should......be directed that the evidence given at that trial should be regarded as unreliable.”
        
    80. In R v Governor of Pentonville Prison; Ex parte Alves [1993] AC 284, Lord Goff of Chieveley, with whom the other Law Lords agreed, stressed that “the credibility of evidence given by a witness inconsistent with a statement previously made was a matter for the jury to consider, subject to a proper warning by the judge as to the weight to be attached to the evidence.”
        
    81. I have taken extreme care in addressing this discrepancy. Firstly, I have taken into account the fact that the police statement of this witness was written by another person and secondly, despite vigorous cross examination this witness maintained under oath that the complainant had told him that the accused had forceful sexual intercourse with her.
        
82. I also accept the explanation of the witness that the complainant had told him at the police station that the accused had forceful sexual intercourse as giving credence to the evidence given by the witness on oath. The defence had taken issue that the witness had not told the police officer writing his police statement that there was forceful sexual intercourse.
    
83. In my view the complainant had given the witness crucial information about what the accused had done to her which was enough to alert the witness that something untoward had happened. The omission of the word “forceful” from the police statement of the recent complaint witness is not significant to affect the credibility of this witness.
84. The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) had made the following pertinent observations about the above at paragraphs 15 and 16 as follows:

[15] It is well settled that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be discredited or disregarded. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witnesses. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of incidents, minor discrepancies are bound to occur in the statements of witnesses.

[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra):

“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”

85. I also reject the defence contention that the complainant and her husband had a motivation to implicate the accused for a business deal gone wrong. The accused in his evidence told the court that he had a good relationship with the complainant and her husband is believable.
    
86. On the other hand, the accused did not tell the truth he gave a version of events which is not tenable or plausible on the totality of the evidence. It is difficult to accept that the accused had nothing to do with the complainant that day. The demeanour of the accused was not consistent with his honesty he did not tell the truth when he said he did not do anything to the complainant that day.
    
87. The accused was also evasive during cross examination there were instances when he did not answer questions in a straight forward manner. He did not tell the truth when he denied the allegation. I reject the evidence of the accused as unreliable and untruthful. The accused informed the court that he had a business dealing with the complainant and her husband in my judgment this was brought up to divert attention away from the allegation.
    
88. In my judgment there was no business dealing between the accused and the complainant or her husband. The accused told the court that he would not engage himself in any illegal activities since he is a former police officer and he knows the consequences yet he told the court that the business he was referring to was about the selling of marijuana.
    
89. The accused had tried his level best to make it look like the complainant and her husband were part of his illegal activity. I accept that the prosecution witnesses were not involved in this venture of the accused.
    
90. This court accepts the evidence of both the prosecution witnesses as reliable and credible. On the other hand, this court rejects the defence of denial as untenable and implausible on the totality of the evidence.
    

91. The defence has not been able to create a reasonable doubt in the prosecution case.

CONCLUSION

92. This court is satisfied beyond reasonable doubt that the accused on 9^th November, 2017 had penetrated the vagina of the complainant “A.T” with his penis without her consent.
    
93. Furthermore, this court also accepts that the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time.
    
94. In view of the above, I find the accused guilty of one count of rape as charged and he is convicted accordingly.
    
95. This is the judgment of the court.

Sunil Sharma
Judge

At Lautoka
13 April, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.