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State v Ali [2022] FJHC 157; HAC356.2019 (20 April 2022)

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

CRIMINAL CASE NO: HAC 356 of 2019

STATE

1. SHAFIL SHIMRAAZ ALI

2. MOHAMMED JAVED

3. MOHAMMED NAUSHAD

Counsel : Ms. Shirley Tivao for the State

Mr. Jiten Reddy with Ms. K. Dugan, Mr. Y. Kumar and Ms. S. Begum for the Accused

Dates of Trial : 12 & 15 October 2021; 2, 3, 14 & 15 December 2021; 28 February 2022 and 1 March 2022

Closing Submissions : 7 March 2022

Judgment : 20 April 2022

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “RTC”.

JUDGMENT

[1] As per the Information filed by the Director of Public Prosecutions (DPP), the three accused above-named are charged with the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SHAFIL SHIMRAAZ ALI, on the 23^rd day of October 2019, at Nakasi, in the Central Division, penetrated the vagina of RTC, without her consent.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SHAFIL SHIMRAAZ ALI, on the 23^rd day of October 2019, at Nakasi, in the Central Division, penetrated the vagina of RTC, with his finger without her consent.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

MOHAMMED JAVED, on the 23^rd day of October 2019, at Nakasi, in the Central Division, penetrated the vagina of RTC, without her consent.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

MOHAMMED NAUSHAD, on the 23^rd day of October 2019, at Nakasi, in the Central Division, penetrated the vagina of RTC, without her consent.

[2] The three accused pleaded not guilty to the respective charges and the ensuing trial was held over 8 days. Thereafter, the Learned Counsel for the State and Defence made their closing submissions.

The Burden of Proof and the Standard of Proof

[3] Section 57 of the Crimes Act No. 44 of 2009 (Crimes Act) provides that the prosecution bears a legal burden of proving every element of an offence. The Section reads as follows:

(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

(3) In this Decree (Act)—

"legal burden", in relation to a matter, means the burden of proving the existence of the matter.

[4] Section 58 (1) of the Crimes Act stipulates that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

Legal Provisions and the Elements of the Offences

[5] As could be observed the 1^st accused is charged with one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act; and one count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Act. The 2^nd and 3^rd accused are each charged with one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act.

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

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

[7] Section 207(2) of the Crimes Act is reproduced below:

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person’s consent; or

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

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

[8] Section 207 (2) (a) makes reference to carnal knowledge, which is an archaic or legal euphemism (synonym) for sexual intercourse. In layman’s terms, having carnal knowledge with or of the other person, as stated in Section 207 (2)(a), means having penile-vaginal sexual intercourse with that other person or having sexual intercourse whereby the man penetrates his penis into the vagina of the woman.

[9] In terms of Section 206 (5) the term carnal knowledge is said to include sodomy or anal sexual intercourse as well.

[10] In the instant case, as per counts 1, 3 and 4, the three accused have been charged separately for penetrating the vagina of the complainant. This would mean penetrating the vagina of the complainant with the penis.

[11] Therefore, in order to prove the first count of Rape against the 1^st accused, the prosecution must establish beyond reasonable doubt that;

(i) The 1^st accused;

(ii) On the specified day (in this case the 23 October 2019);

(iii) At Nakasi, in the Central Division;

(iv) Penetrated the vagina of the complainant RTC, with his penis;

(v) Without the consent of the complainant; and

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

[12] Similarly, in order to prove the third count of Rape against the 2^nd accused, the prosecution must establish beyond reasonable doubt that;

(i) The 2^nd accused;

(ii) On the specified day (in this case the 23 October 2019);

(iii) At Nakasi, in the Central Division;

(iv) Penetrated the vagina of the complainant RTC, with his penis;

(v) Without the consent of the complainant; and

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

[13] Similarly, in order to prove the fourth count of Rape against the 3^rd accused, the prosecution must establish beyond reasonable doubt that;

(i) The 3^rd accused;

(ii) On the specified day (in this case the 23 October 2019);

(iii) At Nakasi, in the Central Division;

(iv) Penetrated the vagina of the complainant RTC, with his penis;

(v) Without the consent of the complainant; and

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

[14] Section 207 (2) (b) makes reference to a person penetrating the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent. In the instant case, the 1^st accused has been charged in count 2, for penetrating the vagina of the complainant with his finger.

[15] Therefore, in order to prove the second count of Rape against the 1^st accused, the prosecution must establish beyond reasonable doubt that;

(i) The 1^st accused;

(ii) On the specified day (in this case the 23 October 2019);

(iii) At Nakasi, in the Central Division;

(iv) Penetrated the vagina of the complainant RTC, with his finger;

(v) Without the consent of the complainant; and

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

[16] To further elaborate upon these elements in respect of the counts of Rape. The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the relevant accused and no one else committed the said offence.

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

[18] In relation to counts 1, 3 and 4, the fourth element involves the penetration of the complainant’s vagina, with the accused’s penis (Count 1-1^st accused; count 3-2^nd accused and count 4-3^rd accused). It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration or ejaculation. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the relevant accused penetrated the vagina of the complainant with his penis to any extent.

[19] In relation to count 2, the fourth element involves the penetration of the complainant’s vagina, with the 1^st accused’s finger. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the 1^st accused penetrated the vagina of the complainant with his finger to any extent.

[20] The fifth and sixth elements are based on the issue of consent. In respect of counts 1, 3 and 4, to prove the fifth element, the prosecution should prove that the relevant accused penetrated the complainant’s vagina, with his penis, without her consent. In respect of count 2, the prosecution should prove that the 1^st accused penetrated the complainant’s vagina, with his finger, without her consent.

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

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

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

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

[22] Apart from proving that the complainant did not consent for the relevant accused to penetrate her vagina with his penis (for counts 1, 3 and 4), and for count 2 apart from proving that the complainant did not consent for the 1^st accused to penetrate her vagina with his finger, the prosecution must also prove that, either the accused knew or believed that complainant was not consenting or they were reckless as to whether or not she consented. The accused were reckless, if the accused realised there was a risk that she was not consenting, but carried on anyway when the circumstances known to them it was unreasonable to do so. Simply put, whether the accused did not care whether the complainant was consenting or not. Determination of this issue is dependent upon who Court believes, whilst bearing in mind that it is the prosecution who must prove it beyond any reasonable doubt.

[23] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was 13 years and one month of age at the time of the alleged incident, and therefore, she had the mental capacity to give consent. [Her date of birth being 22 September 2006].

The Agreed Facts

[24] Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), deals with “Admission of facts”. The Section is reproduced below:

135. — (1) An accused person, or his or her lawyer, may in any criminal proceedings admit any fact or any element of an offence, and such an admission will constitute sufficient proof of that fact or element.

(2) Every admission made under this section must be in writing and signed by the person making the admission, or by his or her lawyer, and—

(a) by the prosecutor; and

(b) by the judge or magistrate.

(3) Nothing in sub-section (2) prevents a court from relying upon any admission made by any party during the course of a proceeding or trial.

[25] Accordingly, the prosecution and the defence have consented to treat the following facts as “Admitted Facts”:

ADMITTED FACTS (1^st accused)

RTC [the complainant] is a 14 year old student.
SHAFIL SHIMRAAZ ALI, [A1] the accused is 27 years old and on 23^rd October 2019 worked at Ansh Furniture Works.
A1 is charged together with Mohammed Javed [A2] and Mohammed Naushad [A3].
On the 23^rd October 2019, A1 worked together at Ansh Furniture Works together with Mr. Rajnil Kumar, A2, and A3.
That the vehicle registration no. FM 787 belongs to A1’s employer, Parnish Swamy.
On 23^rd October 2019, in the afternoon the complainant and her aunt Ms. Timaima Wati were together inside vehicle registration no. FM 787 (the vehicle) with Mr. Rajnil Kumar, A1, A2 and A3.
After they dropped Mr. Rajnil Kumar, A1, A2, A3, and the complainant proceeded to ‘cruise’ in the vehicle towards Nausori.
While still in the vehicle going for a cruise, the group stopped the vehicle.
While inside the vehicle A1 inserted his finger in the complainant’s vagina, after A1 and the complainant had sexual intercourse i.e. A1’s penis penetrated the complainant’s vagina.
After the complainant was dropped off at the Valelevu Bus Stop.
On 24^th October 2019, the complainant was medically examined by Doctor Evelyn Tuivaga.

ADMITTED FACTS (2^nd accused)

1. RTC [the complainant] is a 14 year old student.

MOHAMMED JAVED, [A2] the accused is 27 years old and on 23^rd October 2019 worked at Ansh Furniture Works.
A2 is charged together with Shafil Shimraaz Ali [A1] and Mohammed Naushad [A3].
On the 23^rd October 2019, A1 worked together at Ansh Furniture Works together with Mr. Rajnil Kumar, A1, and A3.
That the vehicle registration no. FM 787 belongs to A2’s employer, Parnish Swamy.
On 23^rd October 2019, in the afternoon the complainant and her aunt Ms. Timaima Wati were together inside vehicle registration no. FM 787 (the vehicle) with Mr. Rajnil Kumar, A1, A2 and A3.
After they dropped Mr. Rajnil Kumar, A1, A2, A3, and the complainant proceeded to ‘cruise’ in the vehicle towards Nausori.
While still in the vehicle going for a cruise, the group stopped the vehicle.
Inside the vehicle A2, had sexual intercourse with the complainant i.e. A2’s penis penetrated the complainant’s vagina.
After the complainant was dropped off at the Valelevu Bus Stop.
On 24^th October 2019, the complainant was medically examined by Doctor Evelyn Tuivaga.

ADMITTED FACTS (3^rd accused)

1. RTC [the complainant] is a 14 year old student.

MOHAMMED NAUSHAAD, [A3] the accused is 25 years old and on 23^rd October 2019 worked at Ansh Furniture Works.
A3 is charged together with Shafil Shimraaz Ali [A1] and Mohammed Javed [A2].
On the 23^rd October 2019, A1 worked together at Ansh Furniture Works together with Mr. Rajnil Kumar, A1, and A2.
That the vehicle registration no. FM 787 belongs to A2’s employer, Parnish Swamy.
On 23^rd October 2019, in the afternoon the complainant and her aunt Ms. Timaima Wati were together inside vehicle registration no. FM 787 (the vehicle) with Mr. Rajnil Kumar, A1, A2 and A3.
After they dropped Mr. Rajnil Kumar, A1, A2, A3, and the complainant proceeded to ‘cruise’ in the vehicle towards Nausori.
While still in the vehicle going for a cruise, the group stopped the vehicle.
A3 had sexual intercourse with the complainant i.e. A3’s penis penetrated the complainant’s vagina.
After the complainant was dropped off at the Valelevu Bus Stop.
On 24^th October 2019, the complainant was medically examined by Doctor Evelyn Tuivaga.

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

Case for the Prosecution

[27] The prosecution, in support of their case, called the complainant (RTC), who was their sole witness.

[28] Evidence of the complainant RTC

(i) The complainant’s evidence was conducted over a period of 5 days. Since she was not vaccinated (against the coronavirus disease), on the first two days (12 and 15 October 2021), she gave her evidence from another room, which was in close proximity to the Court Room. Thereafter, on the 2, 3 and 14 December 2021, it was decided that she gives evidence in the usual manner in the Court Room. Her entire evidence was recorded in a closed court. Court also permitted the Investigating Officer, Woman Inspector Moimoi, to sit beside the complainant as a ‘support person’, during the time her evidence was recorded. When the complainant’s evidence was recorded in the Court Room a screen was placed so that the complainant could not see the accused.
(ii) The complainant testified that she is currently 15 years old. She confirmed that her date of birth was 22 September 2006. She is residing at Urau Place, Nadawa with her mum and small sister, who is 1 year old. Her father is residing at Nasole, she has two more siblings- one brother (11 years) and one sister (8 years) who stay with her father in Nasole.
(iii) The witness testified that on 23 October 2019, she was staying in Nasole, with her father, mother and her siblings. At the time she was schooling at Rishikul Primary at Valelevu.
(iv) On the said day (which she said was a Wednesday) she had gone to school. After coming back home she had changed into her home clothes, cleaned up the house with her brother and then gone to play. She said it was 3.30 p.m. when she left school and it was 4.00 p.m. when she reached home.
(v) She and her brother had gone to play at the Volleyball Court besides the Temple in Nasole. The Volleyball Court is about 3 minutes walking distance from her home. After reaching the Volleyball Court she and her brother started to play volleyball. She had then met one Aunty Wati, who had told her that she wanted to go to Valelevu and wanted the complainant to go with her. The witness and Aunty Wati had walked to Valelevu. When the complainant was asked: “How close are you related to your Aunty Wati?”, she replied: “I don’t know”.
(vi) They went to a grog shop besides the Valelevu Health Centre. It took 10 minutes to walk to the grog shop from the Volleyball Court. At the grog shop, they had been waiting for a man. The man had given $10.00 to Aunty Wati. The witness said she doesn’t know who the man was.
(vii) Thereafter, they took a short cut and went straight to the taxi base. There the witness said that Aunty Wati had told her to ask another man to buy fish and chips for her. However, that man had not bought the fish and chips because he said he didn’t have money.
(viii) The complainant said, that thereafter, she and Aunty Wati went to the Caqiri Shop to buy ‘roll’ (meaning cigarette). After buying the cigarette they started to stroll together to go to her house in Nasole. On the way they had stopped near the bus stop, as Aunty Wati had wanted to go to a shop next to the road. The witness said: “We stop near the bus stop and she said we go and stand beside the Temple. She said she wanted to buy some marijuana .......... after that she asked me if I know any place. I said no.” This conversation happened near the Temple.
(ix) At this point they saw a van. The van parked near her and Aunty Wati. Then Aunty Wati spoke to the persons in the van. There were three people in the van. It was around 7.00 p.m. at the time. Then she and Aunty Wati had got into the van.
(x) Inside the van Aunty Wati had told them that she was looking for a place where they sell marijuana. Then those three people in the van took them to Duvula. The witness was asked to describe the van. She said it was red and white in colour. There was no seat at the back. Only the driver’s seat and the passenger’s seat. She had sat at the back of the van together with Aunty Wati (on the floor at the back of the van). One of the three people who were in the van had also being sitting at the back of the van at that time.
(xi) When asked why she got into the van the witness said: “Because Aunty Wati said they will drop me home.”
(xii) The complainant said that she had seen the three people before. However, she didn’t know their names.
(xiii) When they had arrived in Duvula, the driver asked Aunty Wati to go and buy the marijuana. The complainant testified that: “Aunty Wati lied to the driver that she didn’t have any money.”
(xiv) Thereafter, they had gone to Secala Place in Nasole. The witness said: “Aunty Wati told the man to drop Aunty Wati and she told the driver to keep me in the van and for her to go home and have a shower and come and pick her again.”

(xv) The following questions were then asked from the witness and she answered as follows:

What happened after you arrived at Secala Place?

We were parking beside this house at Secala Place, the colour of the house was purple. We were waiting for somebody. Then after that he was having a conversation with this man. The driver was having a conversation with another man. I didn’t see him.

Was it any of the man that were inside the van with you?

No. I didn’t hear the conversation....... Then the driver came at the back and sat beside me.

When you reached Secala Place, where was Aunty Wati?

She got off. When she got off she left me alone with these three men in the van.

Why didn’t you get off at that time?

Aunty Wati told me, when she goes home she’ll have her shower and to come and pick her.

You said the driver came to the back seat and sat beside you. What happened after that?

The driver asked me for us to go for a cruise. I said no because we have to go and pick Aunty Wati. Then they said we will go and pick Aunty Wati (later). So we then went for a cruise.

How long were you parked at Secala Place?

5 minutes.

................

You said we went for a cruise? ‘We’ meaning?
Me and the three boys who were with me.
Where did you go?
I don’t know the name of the place.
This driver who came to the back to sit with you, can you describe him?
Yes, he has a tattoo on his neck.
Do you know what kind of tattoo?
No.
How big was it?
A little bit big.
Other than the tattoo, any other description?
A little bit long hair. The witness indicated that it was shoulder length hair.
Any other description?
He is a little bit tall and skinny.
Any other description of this particular person?
No.
You said when you sat at the back seat with Aunty Wati, there was another man at the back (originally). Can you describe him? Can you tell us how he looked like?
He has poky poky hair. He has a tattoo on his hand. He is short. He is black. His skin colour is black.
Can you describe the third person who was with you in the van?
He has long hair. He is fair. Only that much.
Anything else you noticed?
No.
You said from Secala Place, you went for a cruise?
Yes.
Where did you all go?
To Nakasi.
How long did it take to go from Secala Place to Nakasi by van?
I don’t know.
Where were the three men sitting?
Two were sitting in front, one was sitting at the back with me.
Out of the three you described, who was sitting at the back with you? The one with the tattoo on the neck or the one with the tattoo on the back or the fair person with long hair?
The one with the tattoo on the neck, was seated at the back with me.
So the two in front, which one was driving?
The fair person.
While you were cruising, did any of these boys speak to you?
Yes.
Who spoke to you?
The boy that was sitting with me.
What did you two talked about?
He asked me how many boys I slept with........ He asked me if I slept with any boys.
So he asked you two things?
Yes.
Did you know what that meant (how many boys you slept with)?
No.
How did you answer?
I wasn’t with any boys. I haven’t slept with any boys.
What else did you talk about during your cruise?
I forgot.
You said you cruised to Nakasi. What happened when you arrived at Nakasi?
I forgot the place name.
Where did you stop? Was it at a shop, at someone’s home? Do you remember?
Yes, we stopped at the house.
What happened?
We went to see somebody.
Do you know who you went to see?
No.
Did any of the boys get off the van to go and see this person?
No.
Then what happened?
Then we went straight somewhere else again.
Did anyone else come inside the van?
No.
When you left Nakasi, did you know where you went to?
No.
After you left Nakasi, what is the next thing you remember?
They tried to force me.
Who is ‘they’?
I mean the boys tried to force me.
What did they try to force you?
To have sex with me.
How did they try to force you to have sex with them?
They tried to make me lie down.
How did they try to make you lie down?

At this stage the witness became emotional and wanted an adjournment.

.................

Do you remember if a fourth person had got into the vehicle during the cruise?
No.
Did you eat or drink anything before that (before they forced you)?
Woodstock.
Does Woodstock have alcohol?
Yes.
Where did you get the Woodstock from?
From a shop nearby – I didn’t know the name of the shop.
Do you know who went to the shop to buy the Woodstock?
No I don’t know.
While you were cruising, did they stop at the shop to buy the Woodstock?
Yes.
Once the Woodstock was brought, who gave it to you?
The guy who was sitting beside me.
The person sitting beside you was the one with the tattoo on the neck?
Yes.
Did he say anything before he gave you the Woodstock?
He asked me, do you drink and I said no. So then he forced me.
When you say he forced you, can you explain or described how he forced you?
He was telling drink, drink, drink and I said no. After I just took the drink and drank it.
How much of Woodstock did you drink?
One can.
How were you feeling at that point?
I was feeling dizzy.
Were you still aware of your surroundings?
The witness nodded and later said yes.
When you were drinking the Woodstock, the vehicle was still cruising (it was not stopped)?
Yes.
And at that point in time when you were drinking the Woodstock, there was no one else at the back (other than the boy with the tattoo)?
Yes.
Other than drinking Woodstock, did you drink anything else?
Marijuana.
Can you explain to us, did you smoke it?
Yes.
Was this before or after you had drunk the Woodstock?
Before.
Who bought the marijuana?
I don’t know.
Can you explain to us how you smoked the marijuana?
He forced it in my mouth – the boy sitting beside me – the one with the tattoo on his neck.
How did he forced it in the mouth?
He told me to breath in the air.
Can you explain – breath in the air from what/where?
From the bottle.
Can you explain how you were smoking from the bottle?
No.
Why did you listen to him? When he told you to breath in the air.
Because I was scared.
Why were you scared?
That he will do something bad to me.
Why did you think that he will do something bad to you?
The witness pondered a lot but didn’t provide an answer to this question.
You said you smoked the marijuana and drank one can of Woodstock?
Yes.
How did you feel?
I was feeling dizzy, I was weak.
Were you still able to know what was happening around you?
Yes.
After this, only the person with the tattoo on the neck had asked you if you had slept with boys?
Yes.
The entire time this was happening the van was still cruising?
Yes.
Did this person asked you anything else?
No he tried to kiss me.
Can you explain?
He tried to kiss me on my mouth.
What did you do?
I tried to push him back and then he still wanted to kiss my mouth.
Can you describe or explain how you pushed him back?
The witness demonstrated how she did so.
During all this time, when all this was happening, you and the person beside you were sitting on the ground inside the van?
Yes.
Was it a hard push or soft push?
Hard push.
What was his reaction to that?
He was angry.
Did he say anything to you?
No.
What happened after you pushed him back?
Then he tried to take off my pants.
How did he try to take off your pants?
He was pulling it down to my thigh.
What was your reaction to him pulling down your pants to your thigh?
I was scared.
Did you say or do anything?
I told him to stop pulling my pants. Then he got angry again.
How were you able to see that he was angry?
He had an angry face on him.
How were you able to see his angry face? Where was the light coming from?
There were flickering lights on in the van. That’s how I saw his face.
These flickering lights were they on throughout the cruise from the beginning?
No.
Can you tell us when the flickering lights were on?
When they played the song – the music.

...................

What happen at the back of the van (you said the person with the tattoo on his neck was at the back of the van)?
He started to kiss me on my mouth and on my neck.
What did you do?
I tried to push him away. But then he forced me and keep on kissing me.
Can you explain what he did to force?
He like pushed me close to him, held my back tightly and started to kiss me.
What did you do when he did this?
I didn’t do anything.
Then what happened?
Then he pushed me for me to lie down.
Then what happened?
Then he started to pull my pants down.
What did you do?
I tried to pull my pants up again.
Did he manage to pull your pants down?
Yes.
Then what happened?
Then he started to take off my t-shirt and my bra.
What were you doing?
I couldn’t do anything.
Why couldn’t you do anything?
Because I was weak.
Did he say anything to you at the time (when taking your clothes off)?
No.
Did you say anything to him?
No.
Then what happened?
Then he took off my panty.
Then what happened after that?
Then he started to have sex with me.
Did you want him to have sex with you?
No.
When he was taking off your panty – before he had sex with you – did you do anything?
I tried to push him away, but then he still wanted to do it.
Can you describe how you tried to push him away?
The witness demonstrated in Court as to how she did so.
How long did he have sex with you?
10 to 15 minutes. Only thing he told me was that my hole is small.
Did you know what hole he was referring to?
My private part.
What’s the name of this private part?
My vagina.
10 to 15 minutes when he was having sex with you, what were you doing?
I was in pain.
Why were you in pain?
Because he was putting his hand inside my vagina.
Did you tell him anything while he was doing this?
No.
Can you tell what happened after he had put his hand inside your vagina?
He started to have sex.
When you say he started to have sex – he put his penis in your vagina?
Yes.
What was your reaction when he started to have sex with you?
I didn’t do anything.
Why didn’t you do anything?
Because I have nothing to do.
Can you explain?
I couldn’t do anything when he was having sex with me.
Why couldn’t you do anything?
Because he was already on top of me.
When he was having sex with you, did you say anything in that 10 to 15 minutes?
No.
Can you tell us what happened after he had sex with you?
Then he called the next person to come and have sex with me.
Before he called the next person, can you tell us how you felt?
I was weak.
What made you feel weak?
The smoke they gave me.
Did you consent to the person with the tattoo on his neck – did you consent for him to put his hand inside your vagina?
No.
Did you consent for him to have sex with you/did you want him to have sex with you?
No.
Did at any point of time, did you tell him you didn’t want this?
Yes.
What did you tell him?
When he force me I told him that I don’t want him to do this.
Was this right at the beginning when he was kissing you?
Yes.
This person who had done this to you was the person with the tattoo on his neck?
Yes.
You said then he call the next person to have sex with you?
Yes.
Do you remember the specific words he used?
No.
When he call the next person, where were you?
I was still lying down.
At the back of the van?
Yes.
Can you tell us what happened thereafter?
After he call the next person, then the next person wanted to do it with me.
What did the next person look like?
He had a tattoo on his hand.
Was this the same person you had earlier described with a tattoo on his hand?
Yes.
At the time where was this person with the tattoo on his hand?
He was sitting in the front on the passenger seat.
What happen after this man came to the back?
He came and he did the same thing.
What did he do? What is the first thing he did after he came to the back?
The first thing he did was he put his penis into my vagina.
Did he say anything to you before he did that?
No.
Did you say anything to him?
No.
How long did he have sex with you for?
10 minutes.
While he was doing this to you, what were you doing?
I was doing nothing.
Can you tell us why?
Because I couldn’t do anything – because he was on top of me.
Can you explain how he was on top of you?
He was on my chest.
Can you tell us what happen after he had sex with you?
The third person came at the back.
The person with the tattoo on hand – did you consent to him to put his penis into your vagina?
No.
Did at any point of time you tell him this?
Yes.
When did you tell him this?
When he came at the back
What happen/when did you tell him?
Before he put his penis into my vagina.
You mentioned after that that the third person came to the back – did anyone call him to the back?
Yes the second one.
Do you remember what he said?
No.
Where was this third person at the time the second person was putting his penis into your vagina?
He was the driver.
Where was the first person?
He was already in front.
So the third person came to the back?
Yes.
Can you describe him?
He has long hair at the back.
What were you doing at the back of the van?
I was still lying down.
The third person came and what happened?
He did the same thing.
What do you mean he did the same thing?
He put his penis into my vagina.
How long did he do this for?
10 minutes.
In the 10 minutes he was doing this – what were you doing?
Nothing.
Why were you doing nothing?
Because I was weak already.
What position was he in?
Same position.
Can you clarify?
On top of my chest.
Did you consent or agree for this third person to put his penis in your vagina?
No.
Did you tell him that you did not want him to do this to you?
Yes.
When did you tell him?
Before he put his penis.
When you were with the third person, where were the first and second persons?
They were sitting in the front. The one with the tattoo on his neck was driving and the one with the tattoo on his hand was sitting beside the driver.
Is there any partition between the driver’s and passenger’s seat and the back of the van?
No.
While this was happening to you at the back, were the people in the front able to see and hear?
Yes.
At the time, was the vehicle being driven or stationary?
It was moving.
When the first person with the tattoo on the neck was having sex with you was the vehicle moving?
Yes.
When the first person called the second person to come to the back was the vehicle still moving?
Yes. Still moving.
How did the second person come to the back?
The third person was driving when the second person came to the back.
How did he come to the back of the vehicle if the vehicle was still moving?
He jumped from the front to the back.
Did the first person also jump to the passenger seat?
Yes.
What happened when the second person had called the third person to come to the back?
The vehicle was still moving.
How was the third person (the driver) able to come to the back?
The third person came to the back, the first person started driving the car and the second person sat beside him.
After the third person had done this to you what did you do?
After that I started to wear my clothes and they started to wear their clothes. And then they asked me where to drop me.
What did you tell them?
I told them to drop me to Valelevu.
Did they drop you to Valelevu?
Yes.
Did you say anything or they say anything while they were taking you?
They told me not to tell anyone.
Who told you?
The first person.
Did you reply to that?
No.
What were you feeling on the ride back to Valelevu?
I was really in pain.
Why were you in pain?
Because what they did to me in the van. I was really in pain and I couldn’t feel my body.
They dropped you at Valelevu after that?
Yes.
Where did you go?
I went to Nasole. When I reached Nasole I was scared to go home.
Why were you scared?
Because I couldn’t tell mum about what happened.
Why couldn’t you tell mum about what happened?
I just couldn’t
So where did you go?
I went to my grand-father’s place in Nadera.
How did you go to Nadera?
I walked.
What time was it?
It was about 9.00 in the night.
How did you go to Nasole from Valelevu?
I walked.
What happened when you arrived at your grand-father’s place at Nadera?
There was nobody at home. So I slept over there.
How did you go into the house?
The house was already opened.
Who normally stays there?
My grand-father and my mum’s brother, his wife and his children.
So at the time none of them were there in the house?
Yes.
So these three boys that has done this to you if you see them again would you be able to recognize them?
Yes
At the time you spent with them in the van did you get a good look at their faces?
Yes.

(xvi) The complainant identified the three accused in the dock. She identified the 1^st accused as the first person who she described with a tattoo on his neck; the 2^nd accused as the second person who she said had a tattoo on his hand; and the 3^rd accused as the third person who she said was the one with long hair at the back.
(xvii) The complainant said that this incident has affected her. She cannot sleep in the night. When asked why she said: “I always feel that it is still happening to me”. When asked to further elaborate she said: “I can’t eat, I always feel pain”.
(xviii) The complainant was cross examined at length by the defence. The defence also put several suggestions to the complainant.
(xix) The complainant clarified that the 1^st accused inserted his finger into her vagina. In this regard she was asked the following questions:

When you say the 1^st accused inserted his hand, what do you mean by that?

Poking my vagina.

What do you mean by hand?

His finger.

So you mean the 1^st accused inserted his finger and not his hand into your vagina?

Yes.

(xx) The complainant further clarified that Aunty Wati had worked as their house girl. She agreed that Aunty Wati and her family stayed on the same street as she was residing in Nasole.

(xxi) The witness said that her grandfather’s name is Pio Kaberi Raisele. He is her mother’s father and he is also known as Pio. Her uncle’s name is Beniamino (her mother’s brother). Her mother’s name is Aleta Raisele and her father’s name is Rajesh Chand.
(xxii) It was suggested to the witness that her mother and father came looking for her to her grandfather’s house three times that night. She denied the suggestion and said she didn’t know that they had come looking for her. In this regard she was asked the following further questions:

Don’t you know that your grandfather came back around 12 midnight after church service?

I don’t know.

I suggest to you that your parents searched the house and did not find you inside the house at all?

I don’t know.

I suggest to you that your grandfather did not find you inside the house but found your wet clothes and canvas?

Yes.

So you were not at home – only your wet clothes and shoes were there and you were missing. Is that right?

Yes.

Are you able to tell us your whereabouts that night?

I went to my friend’s house. For her to take me to the Police Station on Thursday.

But you reached your friend’s place at 6.45 in the morning of Thursday. Isn’t that correct?

Yes.

So where were you that night (since you were not at your grandfather’s)?

A. I can’t remember.

(xxiii) The complainant agreed in cross-examination that after going to the Police Station she was taken to the doctor for medical examination. She also agreed that during the medical examination it had been Woman Inspector Moimoi who had given the doctor the history of the alleged incident.

(xxiv) Based on the complainant’s medical examination report, she was asked whether anyone from the time she went to her grandfather’s house to the

time she was examined by the doctor, penetrate her anus. The witness said no.

(xxv) She was further asked:

Did anyone make love bites on the right side of your neck and over your right breast during this period?

Yes.

So that means, that night you were with some other person as well?

No.

(xxvi) The witness agreed that soon after the alleged incident, she did not complain to her mother, her father or to Aunty Wati about the incident and explained why she did not do so.
(xxvii) The complainant said that after the alleged incident, she went to the Police Station with her friend Adi’s father. He was working at the CID. At the Police Station, her statement had been recorded by Woman Inspector of Police Moimoi.
(xxviii) The witness was questioned about the statement she made to the police, which was made by her on 25 October 2019, two days after the alleged incident.
(xxix) The complainant agreed that when the van (in which the accused were) stopped where they were, she is the person who had spoken to the driver of the van. The witness said that the 1^st accused was driving the van at that time. It was suggested to the witness that it was not the 1^st accused but the 3^rd accused who was driving the van at that time. She denied the suggestion.
(xxx) The witness agreed that when they were going on the cruise (joy ride) the van lights were switched on and it created an atmosphere like a nightclub inside the van. There was also loud music being played at the time.
(xxxi) The complainant agreed that while they were cruising they had smoked marijuana and drank 2 cans of liquor. She said she was forced to smoke the marijuana. However, it was suggested to her by the defence that she voluntarily smoked the marijuana with the three boys.
(xxxii) The witness said that one person in the van had been dropped off at Farm Road. She didn’t know the name of that person. However, she said that after that person was dropped off, the three persons who raped her had remained in the van. [It has been agreed by way of Admitted Facts that on 23 October 2019, the complainant and her aunt Timaima Wati were together inside vehicle registration number FM 787 (the vehicle), with Mr Rajnil Kumar and the three accused persons. It has also been agreed that after they dropped Rajnil Kumar, the three accused and the complainant proceeded to cruise in the vehicle towards Nausori].
(xxxiii) The complainant said that at the time of incident, she had been wearing a

light green t-shirt and a light grey ¾ pants. She had also been wearing a panty and a bra inside. The 1^st accused had removed all her clothes before having sex with her.

(xxxiv) It was suggested to the witness that she herself had removed all her clothes by herself. She denied the suggestion. It was also suggested to her that she gave her consent freely for the 1^st accused to have sex with her and to insert his finger in her vagina. She denied the suggestions. It was further suggested that she had then invited the 2^nd accused to come and have sex with her and that she had allowed or consented for the 2^nd accused to insert his penis into her vagina. She denied the suggestions. It was further suggested that she had then invited the 3^rd accused to have sex with her and that she had consented to the 3^rd accused to have sex with her. The complainant denied these suggestions as well.
(xxxv) The complainant agreed that while the 1^st, 2^nd and 3^rd accused were having sex with her, that she did not scream, she did not punch them or scratch them with her hands or that she did not bite any of them.
(xxxvi) The Defence highlighted two inconsistencies in the testimony given in Court by the witness vis a vis her statement made to the Police on 25 October 2019:

In her testimony in Court, the witness said that the 2^nd accused had sex with her for 10 minutes.

However, in her statement made to the Police, it is recorded as follows:

“He did this for about 5 minutes”.

The complainant maintained that the 2^nd accused had sex with her for 10 minutes.

In her testimony in Court, the witness described the 3^rd accused as the person with long curly hair.

However, in her statement made to the Police, it is recorded as follows:

“This guy with long blonde hair was the last person to have sex with me”.

The complainant maintained that the 3^rd accused had long curly hair.

(xxxvii) The following further questions were asked from the witness in cross-examination and she answered as follows:

I suggest to you that from the very beginning of that afternoon you enjoyed their (the three accused’s) company?

No.

You enjoyed cruising with them?

No.

You allowed them to have sex with each of them?

No.

And you enjoyed smoking marijuana and Joskeys beer with them?

No.

I suggest to you that all the above are the reasons that you did not complain to your mother?

Yes.

Finally I put it to you, that on many occasions before the day of the offence, you and all three accused had met and smoked marijuana and drank beer?

No.

I suggest to you that on many occasions before this day, you and the three boys met to smoke cigarettes?

No.

(xxxviii) In re-examination, the State Counsel attempted to clarify from the witness the answers given by her in cross examination.
(xxxix) When asked to clarify why she had gone along with aunty Wati, although she said that she was not close to aunty Wati. The witness said: “She was our house girl – that’s why I followed her”.
(xl) When asked to clarify why she did not complain to her mother immediately after the incident, the witness said she did not do so because she was scared.
(xli) The witness also said that she could not punch the boys, scratch them or bite them because she was scared.
(xlii) The complainant was also asked the following questions in re-examination:

Do you remember the love bites on the right side of your neck? You said you got them from the time you went to your grandfather’s house and the time you went to the doctor. When did those love bites happen?

A. When I was with these three boys.

When you say these three boys, do you mean the three boys in this matter?

A. Yes.

You said in cross-examination that there was a love bite on your right breast? When did that happen?
When the first boy was on top of me.
Is there any reason why you didn’t tell this to us earlier?
I forgot.

[29] At the end of the prosecution case Court decided to call for the defence of all three accused. The accused were then explained their legal rights. I explained to them that they could address Court by themselves or their Counsel. They could also give sworn evidence from the witness box and/or call witnesses on their behalf. They could even remain silent. They were given these options as those were their legal rights. I explained to the accused that they need not prove anything. The burden of proving their guilt rests entirely on the prosecution at all times.

[30] Each of the accused decided to testify on their own behalf.

Case for the Defence

[31] Evidence of Shafil Shimraaz Ali

(i) The witness testified that he is 30 years old. His date of birth is 26 September 1991. He is currently residing at Salim Street, Nakasi. He is a Joiner by occupation.
(ii) The witness testified that on the morning of 23 October 2019, he went to work at Ansh Furniture at Valelevu. He was at work the whole day. He had knocked off from work between 5.00 and 5.30 in the afternoon and then gone to his boss’s place at Secala Place, Nasole. He had gone there with Mohammed Javed (2^nd accused).
(iii) The witness said that he and the 2^nd accused went to massage his boss since he was having a body pain. He had massaged him for maybe 1 hour. The name of his boss is Parnish Swamy. He was waiting for his two workmates to come there. The two went to Samabula to drop food at Belo Street. Then the two came back after dropping the food. He named the two persons as Mohammed Naushad (3^rd accused) and Rajnil Kumar.
(iv) When the 3^rd accused and Rajnil Kumar came there, the witness had told his boss that he was leaving. He took $10.00 from his boss and came and sat down on the driver’s seat (of the van). The 2^nd accused Mohammed Javed too came into the van and sat on the speaker at the back of his seat.
(v) He had then started the van and turned around at Nasole round about. As soon as they reached Salala Junction, he said that he had turned the radio on. At this point in time, the 2^nd accused had told him that there is a girl inside the van. Then the witness had stopped at the bus stop and seen that there was a girl at the back. He said “I asked the girl, where are you going. She said I want to cruise in the van”.
(vi) The witness said that thereafter they went on a ride (cruise) to Nakasi New Subdivision at the back of Rups Complex. The complainant, the witness, the 2^nd and 3^rd accused and Rajnil were in the van at the time. Rajnil was sitting in the front passenger seat beside him.
(vii) While they were cruising, the 2^nd accused had asked $10.00 from him. When he had asked the 2^nd accused why he wanted the money, the 2^nd accused had said that the complainant had wanted to drink Woodstock thus he had stopped at the Black Market at Nakasi. Thereafter, the 2^nd accused went to buy Joskey.
(viii) Thereafter, they had gone and dropped Rajnil at Farm Road beside Savusavu Kava. After that they had proceeded towards Koronivia. After Rajnil got down, the 3^rd accused came and sat in the front passenger seat.
(ix) When they were travelling inside Koronivia Road, he had turned towards the back of the van. He had seen the 2^nd accused and the complainant having sex. When he had asked what was happening, the 2^nd accused had said that the complainant had wanted Joskey to have sex.
(x) The witness said: “After that we were still there inside Koronivia Road. Then RTC told me and Naushad to look in front. After Javed finishes then I will call you people”.
(xi) After the 2^nd accused had sex with the complainant, she had called the 3^rd accused. Then the 2^nd accused came and sat in the passenger seat beside him and the 3^rd accused was in the back with the complainant. After the 3^rd accused had sex, then the complainant had called him to come and have sex with her. So he had sex with the complainant. When he was having sex with the complainant, the 3^rd accused was driving the van.
(xii) When the witness was asked if he had forced the complainant, he answered: “No, I didn’t force her. She invited me as her hubby to come and have sex with her”.
(xiii) After having sex with the complainant, the witness came back to the driver’s seat. He had driven back to Nasole to drop the complainant. He was going to drop her at Salala Road. Then she had told him to drop her at Rishikul bus stop in Valelevu.

(xiv) The witness said that he knows the complainant from the time he started working at Ansh Furniture. He used to travel on Salala Road for 6 to 8 months and used to see her on the street. He said that during this period he and the complainant had become good friends. “She used to stop the vehicle while coming to my boss’s place and ask for roll and ask for money”.
(xv) When asked about the allegations made by the complainant against him, he said: “I did have sex with her but I did not force her”...... “I did not force her to have sex even a bit. In the van she was very happy and she was enjoying”.

[32] Evidence of Mohammed Javed

(i) The witness testified that he is 30 years old. His date of birth is 7 August 1991. He is currently residing at 10 miles in Sasavira. He is a Joiner by occupation.
(ii) The witness testified that on the morning of 23 October 2019, he went to work at Ansh Furniture at Valelevu. He was at work the whole day. He had knocked off from work between 5.00 and 5.30. After work he together with the 1^st accused, 3^rd accused, Rajnil Kumar and his boss had gone to his boss’s house at Secala Place in Nasole. They had travelled in a van – it was a Suzuki closed vehicle.
(iii) At the boss’s house he and the 1^st accused had been massaging the boss, while the 3^rd accused and Rajnil went in the van to Samabula to drop food.
(iv) After he and the 1^st accused had massaged the boss, the vehicle returned. The 1^st accused had told the boss that they are going back home and asked him for $10.00. The 1^st accused had sat in the driver’s seat in the van. The witness had gone and sat at the back of the driver’s seat on the speaker.
(v) After that the 1^st accused had turned the vehicle from the roundabout and turned the radio on. When the radio was on, from the light he saw the complainant sitting at the back. He had informed the 1^st accused that the complainant was sitting at the back. The 1^st accused had parked the vehicle at the bus stop and asked the complainant where she was going. She said that she wanted to go for a cruise with them.
(vi) Thereafter, they had proceeded towards the Nakasi Sub Division. The complainant had asked for Woodstock to drink. So he had asked the 1^st accused for $10.00 to buy Joskeys.
(vii) Thereafter, they went and dropped Rajnil and then proceeded to Koronivia. The witness said that then the girl offered to have sex with her. He said: “She took off her clothing, I took off my clothes. She made me lie down – she was on top of me. After I had sex with her, she then called the 3^rd accused Naushad. After that I went to the passenger seat in front. After Naushad – she called the 1^st accused as her hubby to come and have sex with her. Then the 1^st accused came at the back and the 3^rd accused was driving. I was at the passenger seat”.

(viii) After the incident, they had gone to drop the complainant back at Nasole. However, she had been dropped at the Rishikul bus stop, because she didn’t want to get off at Nasole. When the complainant was dropped, it was between 8.00 p.m and 8.30. p.m.
(ix) The Joskeys that was bought was drunk by all of them together.
(x) The witness denied that he raped the complainant. He said that the complainant gave her consent to have sex with her.

[33] Evidence of Mohammed Naushad

(i) The witness testified that he is 28 years old. He is currently residing at 10 miles in Sasavira. He is a Truck Driver by occupation. He is the brother of the 2^nd accused.
(ii) The witness testified that on the morning of 23 October 2019, he went to work at Ansh Furniture at Valelevu. He had knocked off from work between 5.00 and 5.30. After work he together with the 1^st accused, 2^nd accused, Rajnil Kumar and his boss had gone to his boss’s house at Secala Place in Nasole.
(iii) After dropping his boss and the 1^st and 2^nd accused at the boss’s house, he and Rajnil went to Samabula to drop food. The food was for the owner of Menon’s Rental. He had been driving.
(iv) When they came back to Secala junction, on the way two girls had stopped him. They wanted to go and buy smoke from Secala junction. He knew one of the girls as the complainant. He had taken them to Valelevu to buy the smoke. When they went there, they had told him that they don’t have money (to buy the smoke).
(v) Thereafter, he had gone and parked at his boss’s house. The aunty got off and told him that she will be at the bus stop. After that, the 1^st and 2^nd accused had come to the vehicle. The 1^st accused sat in the driver’s seat in the van. The witness had gone and sat at the back of the vehicle. The complainant was seated at the back near the boot door. The 2^nd accused too had come and sat at the back, while Rajnil was sitting in the front passenger seat.
(vi) Thereafter, the 1^st accused had turned the vehicle and went from Secala junction. The 1^st accused had turned the radio on and the volume of the radio was high. At this stage the 2^nd accused had seen the complainant sitting at the back and informed the 1^st accused. The 1^st accused had parked the vehicle at the bus stop and asked the complainant where she was going. She said that she wanted to go for a cruise with them.
(vii) Thereafter, they had cruised towards the Nakasi Sub Division. They had stopped the vehicle at the Black Market. They stopped there because the 2^nd accused wanted to buy 2 cans of Joskeys.
(viii) Thereafter, they went and dropped Rajnil at his house at Farm Road, 10 miles. At this stage, the witness had come and sat at the front passenger seat. Then they had proceeded to Koronivia. After going a bit further in front, he had seen the complainant on top of the 2^nd accused. He said: “I turned around towards the back and I saw. The girl was on top of the 2^nd accused at the back. After that then I did it.......Had sex.”
(ix) The witness said that after the 2^nd accused had sex with the complainant, she had called him. After him she had called the 1^st accused.
(x) After the incident, they had gone to drop the complainant back at Valelevu. She had been dropped at the Rishikul bus stop. It was around 8.00 p.m.
(xi) The witness denied that he raped the complainant. He said: “She gave it to me willingly..........She herself called me to have sex with her.”

[34] All three accused persons were cross-examined at length by the Learned Counsel for the State and the prosecution version of the case was put to them. During the cross-examination of the 1^st accused, he denied that he inserted his finger into the complainant’s vagina. He only admitted to inserting his penis into her vagina.

Analysis

[35] As stated before, the prosecution, in support of their case, called the complainant (RTC), who was their sole witness. The three accused testified on their own behalf.

[36] The burden of proving each ingredient of the charges rests entirely and exclusively on the prosecution and the burden of proof is beyond a reasonable doubt. Therefore, it is incumbent on the prosecution to prove all the elements of the charges beyond reasonable doubt. I have made reference to the elements that the prosecution has to prove in paragraphs 11, 12, 13 and 15 of this judgment.

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

[38] Based on the said agreed facts it is agreed that on the 23 October 2019, at Nakasi, the 1^st accused inserted his finger in the complainant’s vagina and thereafter that he had sexual intercourse with the complainant (that the 1^st accused’s penis penetrated the complainant’s vagina). It is also agreed that the 2^nd accused had sexual intercourse with the complainant (that the 2^nd accused’s penis penetrated the complainant’s vagina). It is further agreed that 3^rd accused had sexual intercourse with the complainant (that the 3^rd accused’s penis penetrated the complainant’s vagina).

[39] Thus the only issue for determination is the issue of consent. The prosecution must prove beyond reasonable doubt that each of the accused penetrated the complainant’s vagina with his penis (and in respect of count two that the 1^st accused penetrated the complainant’s vagina with his finger), without the consent of the complainant and that the accused knew or believed that the complainant was not consenting, or the accused were reckless as to whether or not she was consenting.

[40] I have summarized the evidence of the complainant and the three accused, which was led during the trial.

[41] The three accused have testified in Court and totally deny that they raped the complainant. The defence position is that the complainant consented to have sex with the three of them.

[42] When the complainant gave evidence in Court, she testified that it was the 1^st accused, then the 2^nd accused and finally the 3^rd accused who had raped her in that order. This was her consistent position during the course of her testimony.

[43] When the three accused gave evidence their version was that it was 2^nd accused who had first had sexual intercourse with the complainant, followed by the 3^rd accused who had sexual intercourse with her and finally it was the 1^st accused who had sexual intercourse with her and also inserted his finger into her vagina. However, this version or sequence of the events which took place on 23October 2019, was not suggested or put to the complainant during her cross examination. It is to be noted that the complainant was cross examined at length by the Counsel for the Defence.

[44] Furthermore, during the course of his evidence the 1^st accused denied that he inserted his finger into the complainant’s vagina. However, when the complainant was cross-examined it was suggested to her that that she gave her consent freely for the 1^st accused to have sex with her and to insert his finger in her vagina, a suggestion the complainant denied. Furthermore, in the Admitted Facts signed by the 1^st accused, it is clearly stated at paragraph 9 as follows: “While inside the vehicle A1 inserted his finger in the complainant’s vagina, after A1 and the complainant had sexual intercourse i.e. A1’s penis penetrated the complainant’s vagina.” As I have stated earlier in this judgment the “Admitted Facts” are considered to be proved beyond reasonable doubt.

[45] For the aforesaid reasons, it is my opinion, that the defence version cannot be accepted as truthful and reliable.

[46] The complainant testified at length as to how the three accused had committed the alleged offences on her. At the time she testified in Court the complainant was 15 years of age. She said her date of birth was 22 September 2006. Therefore, on 23 October 2019, the date of offending, she was only 13 years and one month old. Thus, she was merely one month above the statutory age for consenting. In the Admitted Facts it is stated that the complainant is a 14 year old student. The said Admitted Facts were filed in Court on 30 November 2020. It is correct that on that day the complainant was 14 years of age.

[47] The complainant testified that she did not give consent to the 1^st accused or the 2^nd accused or the 3^rd accused to have sexual intercourse with her. She testified that she did not consent to the 1^st accused inserting his finger into her vagina.

[48] She said at the time the three accused committed these acts on her she was feeling weak due to the alcohol and the marijuana that she alleged was forced on her by the accused. It is true that the complainant did not scream out or punch or scratch the accused with her hands or bite the accused at the time. It must be borne in mind that the complainant said she was feeling weak at the time and also the fact that she was confined in the vehicle with the three accused persons. Therefore, it was not reasonably possible for her to do any of the above acts so as to indicate that she was not consenting to the three accused having sexual intercourse with her.

[49] The law provides that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance alone shall not constitute consent. Considering all the facts and circumstances of this case, it is my opinion that the complainant did not freely and voluntarily consent to the three accused having sexual intercourse with her. It is also my opinion that the three accused knew or believed that the complainant was not consenting, or that the three accused were reckless as to whether or not she was consenting. Simply put the three accused did not care whether the complainant was consenting or not.

[50] The Defence tried to impeach the complainant’s credibility during her cross examination. It was suggested that if she had been actually raped by the three accused then she had no reason not to inform her mother about the incident soon after at the time she came close to her house after the incident. The complainant explained that the reason she did not inform her mother immediately and turned away from going home the night of the incident was because she was scared or afraid.

[51] It was also suggested that she did not spend the entire night at her grandfather’s place as testified to by her, but that she spent the night elsewhere. I concede that the complainant did not provide a clear explanation as to where she had spent the night after the incident. She said that she had reached her friend’s place at 6.45 the next morning.

[52] This Court is conscious of the fact that children do not always react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned.

[53] The Defence tried to further impeach the complainant’s credibility by suggesting that the love bites that were found on the right side of her neck and over her right breast (as per her Medical Examination Report) was caused not by the three accused persons, but by someone else, between the time she came to her grandfather’s place and the time she was medically examined. However, she categorically stated that the said love bites were caused during the course of the incident.

[54] Similarly, based on her said Medical Examination Report, the complainant was asked whether anyone from the time she went to her grandfather’s house to the time she was examined by the doctor, penetrated her anus. She clearly said no.

[55] It must be mentioned, that although this Court permitted the Defence Counsel during cross-examination to ask the complainant certain questions based on her Medical Examination Report, the said Report itself has not been tendered as evidence in this case.

[56] The Defence highlighted two inconsistencies in the complainant’s evidence, in comparison with the statement made by her to the police. I am of the opinion that the said two inconsistencies cannot be considered as significant or material and does not in any manner impeach the credibility of the complainant.

[57] Having analysed all the evidence in its totality, it is my considered opinion that the complainant’s evidence, can be accepted as truthful, credible and reliable. The complainant withstood the rigorous cross examination by the Defence and remained consistent throughout her evidence, in relation to the material particulars of this case.

[58] It must also be mentioned that in terms of the provisions of Section 129 of the Criminal Procedure Act, “Where any person is tried for an offence of a sexual nature, no corroboration of the complainant’s evidence shall be necessary for that person to be convicted”.

[59] Considering the nature of all the evidence before this Court, it is my considered opinion that the prosecution has proved its case beyond reasonable doubt by adducing truthful and reliable evidence satisfying all elements of the charges of Rape with which the three accused are charged.

[60] In the circumstances, I find the 1^st accused guilty of the first and second counts of Rape with which he is charged; I find the 2^nd accused guilty of the third count of Rape with which he is charged; and I find the 3^rd accused guilty of the fourth count of Rape with which he is charged.

[61] Accordingly, I convict the 1^st accused of the first and second counts of Rape; I convict the 2^nd accused of the third count of Rape; and I convict the 3^rd accused of the fourth count of Rape.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT LAUTOKA
Dated this 20^th Day of April 2022

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

Solicitors for the Accused: Messrs Jiten Reddy Lawyers, Barristers and Solicitors, Suva.

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