State v Roba [2023] FJHC 167; HAC265.2022 (3 March 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 265 of 2022

STATE

vs.

JEREMAIA ROBA

Counsel: Ms. K, Semisi for the State
Ms. M. Singh for Accused

Date of Hearing: 14^th February 2023
Date of Closing Submission: 16^th February 2023
Date of Judgment: 03^rd March 2023

JUDGMENT

1. The Accused is charged with two counts of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act and one count of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act. The particulars of the offences are that:
   

COUNT 1

Statement of Offence

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

Particulars of Offence

JEREMAIA ROBA, on an unknown date between the 1^st day of January 2020 and the 2^nd day of April 2020 at Nasinu in the Central Division, unlawfully and indecently assaulted ASINATE LAWANIQOLI TAWATATAU by touching her breast.

COUNT 2

Statement of Offence

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

Particulars of Offence

JEREMAIA ROBA, on an unknown date between the 1^st day of april 2020 and the 31^st day of May 2020 at Nasinu in the Central Division, unlawfully and indecently assaulted ASINATE LAWANIQOLI TAWATATAU by kissing her on the lips.

COUNT 3

Statement of Offence

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

Particulars of Offence

JEREMAIA ROBA on an unknown date between the 1^st day of April 2020 and the 31^st day of May 2020 at Nasinu in the Central Division, penetrated the vagina of ASINATE LAWANIQOLI TAWATATAU with his finger without her consent.

2. The Accused pleaded guilty to the two counts of Sexual Assault but pleaded not guilty to the count of Rape. Hence, the hearing proceeded in respect of the count of Rape. The hearing commenced on the 14th of February, 2023 and concluded on the same day. The Prosecution presented the evidence of the Complainant while the Accused gave evidence for the Defence. Subsequently, the Court heard the oral submissions of the learned Counsel for the Prosecution and the Defence. In addition to their oral submissions, both Counsel filed their respective written submissions. Having considered the evidence presented during the hearing and the respective oral and written submissions of the parties, I now pronounce the judgment.
   

Burden and Standard of Proof

3. The Accused is presumed to be innocent until proven guilty. The burden of proof of the charge against the Accused is on the Prosecution. It is because the Accused is presumed to be innocent until proven guilty. The standard of proof in a criminal trial is "proof beyond reasonable doubt". The Court must be satisfied that the Accused is guilty of the offence without any reasonable doubt.
   

Elements of the Offences

4. The main elements of the offence of Rape as charged are that:
   

i) The Accused,

ii) Penetrated the vagina of the Complainant with his finger,

iii) The Complainant did not consent to the Accused to penetrate her vagina with

his finger,

iv) The Accused knew or believed or reckless that the Complainant was not
consenting for him to insert his finger in that manner.

5. The first element is the identity of the Accused. It is the onus of the Prosecution to prove beyond a reasonable doubt that the Accused committed this offence against the Complainant. There is no dispute about the correctness of the identification. The Accused and the Complainant are known to each other. The Accused admitted that he was in the house with the Complainant on that particular day.
   
6. Evidence of the slightest penetration of the vagina of the Complainant with the fingers of the Accused is sufficient to prove the element of penetration.
   
7. Consent is a state of mind that can take many forms, from willing enthusiasm to reluctant agreement. In respect of the offence of Rape, the Complainant consents if she had the freedom and capacity to make a choice and express that choice freely and voluntarily. Consent obtained through fear, threat, the exercise of authority, use of force, or intimidation could not be considered consent expressed freely and voluntarily. A submission without physical resistance by the Complainant to an act of another person shall not alone constitute consent.
   
8. If the Court is satisfied that the Accused had penetrated the vagina of the Complainant with his fingers and she had not given her consent, the Court is then required to consider the last element of the offence. That is whether the Accused honestly believed, knew, or was reckless that the Complainant was freely consenting to this alleged sexual act. The belief in consent differs from the hope or expectation that the Complainant was consenting.
   

Admitted Facts

9. The Prosecution and the Defence tendered the following Admitted Facts pursuant to Section 135 of the Criminal Procedure Act; they are that:
   
   1. That person charged in this matter is Jeremaia Roba.
      
   2. The Complainant in this mater Asinate Tawatatau is the inece of Jeremaia Roba. There is no dispute about identity.
      
   3. The Complainant and Jeremaia Roba resided together at Matanikoro Settlement Wainibuku from January 2020 to May 2020
      
   4. That there was a funeral held during the year 2020 for a relative, namely, Tua Bete at Matanikoro which the Complainant attended.
      

Prosecution’s Case

10. The Complainant was seventeen years old in 2020 and came to Suva from her home island in Lau to attend school. She initially stayed with the Accused and his wife. The Accused is the cousin of the Complainant’s mother. However, after certain incidents of sexual assault, the Complainant moved to her cousin’s place, where she was living with her cousin and his wife. One day, somewhere between the 1st of April 2020 and the 31st of May 2020, she attended a funeral at Matanikoro. She helped to prepare the food and then wanted to have a shower. However, she found the house was crowded with relatives, so she went to the Accused’s house to shower and change her clothes. According to the Complainant, no one was in the Accused’s place when she entered. She went to the room and removed her t-shirt. Then she felt that someone was coming behind her. That person pulled her pants and undergarment down. She turned back and found that the Accused had pulled her pants and undergarments down. She tried to pull up her pants and undergarment, but the Accused held her with one of his hands and penetrated her vagina with his fingers. He threatened her not to shout and also not to tell anyone. She did not like what he did and was scared. When he was doing it, there was a sound coming from outside. The Accused then stopped it. The Complainant put her pants and undergarment back and went out of the house. She went back to the funeral house. Later, the Complainant came back with two children and had her shower.
    
11. According to the Complainant, she had not told anyone about this incident. The Complainant explained that she thought if she told her family about this incident, people would think she was having an affair with her uncle. After a while, when she attended a family function, she heard the relatives talking about the Accused, alleging him that he had done the same things to another female family member. She then asked one of her school friends how to report this matter. The friend advised her to go to the Police and report it. She accordingly went to the Police Station and reported this matter.
    

Accused’s Case

12. The Accused denies this allegation, stating that he never penetrated her vagina with his fingers. However, the Accused admitted in his evidence that he went to his house on that day around midday and found the Complainant was inside the house. He had asked the Complainant whether he could kiss her, to which she refused and walked away. She then came back with a few boys and had her shower.
    

Evaluation of the Evidence

13. In view of the evidence presented by the Accused and the Complainant, it appears that the different versions of evidence presented by the Complainant and the Accused. In such circumstances, the Court must consider the evidence adduced in the trial, including the evidence of the Accused, to determine whether the Prosecution has proven beyond reasonable doubt that the Accused had committed this crime. The task of the Court is not to decide who is credible between the Complainant and the Accused. (vide; Liberato and Others v The Queen ((1985) [1985] HCA 66; 159 CLR 507 at 515) R v Li [2003] NSWCCA 386; (2003) 140 A Crim R 288, at 301, Goundar v State [2015] FJCA 1; AAU0077.2011 (the 2nd of January 2015).
    
14. The Accused is not required to give evidence. He does not have to prove his innocence as his innocence is presumed by law. However, in this case, the Accused decided to provide evidence. Therefore, such evidence presented by the Accused needs to be considered when determining the facts of this case.
    
15. If the Court believes the evidence given by the Accused is true or may be true, then the Court must find the Accused not guilty of the offence. Even if the Court rejects the Accused version, that does not mean that the Prosecution has established that the Accused is guilty of the crime. Still, the Prosecution has to satisfy that it has established, on its evidence, beyond a reasonable doubt, that the Accused committed this offence as charged in the information.
    
16. In evaluating the evidence, the Court should first look into the credibility or the veracity of the evidence given by the witness and then proceed to consider the reliability or accuracy of the evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide Matasavui v State [2016] FJCA 118; AAU0036.2013 (the 30th of September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).
    
17. The Accused admitted that he was alone in his house with the Complainant on that particular day. He further admitted that he made a sexual advancement, asking her if he could kiss her, but denied that he penetrated her vagina with his fingers without her consent. Accordingly, it appears that the Accused found an opportunity where the Complainant was alone at home and made a sexual advancement on her. During the cross-examination, the Accused admitted that he had sexually assaulted the Complainant twice previously, for which he was charged and pleaded guilty. I shall now proceed to evaluate the probative value of the above-explained evidence of the Accused.
    
18. Goundar JA in Rahman v State [2021] FJHC 289; HAM042.2021 (the 29th of March 2021) outlined a passage from B v The Queen [1992] HCA 68; [1992] HCA 68; (1992) 175 CLR 599, where the High Court of Australia summarized the principles governing the admissibility of evidence at 617-618:
    

“Evidence that an accused has committed offences other than those with which he is charged ought not be admitted if it tends to show only that the accused has a propensity or disposition to commit criminal offences of a particular type or generally. If a propensity or disposition of that kind is all that the evidence tends to show, then its prejudicial nature must be greater than any relevance which it might have. To admit such evidence would be to invite the jury to proceed upon prejudice or suspicion rather than proof. But if the evidence of other offences goes beyond showing a mere propensity or disposition to commit crime or a particular type of crime and points in some other way to the commission of the offences in question, then it will be admissible if its probative value for that purpose outweighs its prejudicial effect. That is not to say that it may not still be evidence of propensity or disposition, but it will then be evidence of propensity or disposition of a particular kind which in the circumstances has a degree of relevance justifying its admission”.

19. Accordingly, the Court should examine whether this evidence goes beyond establishing a mere propensity that the Accused would commit an offence of sexual nature. Then, determine whether the probative value of such evidence outweighs the prejudicial effect on the Accused.
    
20. The Accused admitted that the Complainant had to move and reside with her cousin because of the sexual assaults committed on her by the Accused while she was living at the Accused's house. The Complainant had complained to the Accused's wife about those sexual assaults, instead of reporting them, they had arranged to relocate her with her cousin. This evidence establishes that the Accused had been following the Complainant for his sexual gratification. Hence, this evidence establishes not only the propensity but also the attitude of the Accused towards the Complainant. Therefore, this evidence of the conduct of the Accused is admissible in evidence.
    
21. Considering the Accused's behaviour towards the Complainant, it is improbable to accept that he had merely asked her whether he could kiss her and then withdrawn silently when she refused. He met the Complainant in the house alone. Accordingly, I find the evidence of the Accused denying that he did not penetrate the vagina of the Complainant with his finger is not true. Furthermore, his evidence failed to create any doubt about the Prosecution's case.
    
22. I shall now determine whether the delay in reporting the matter had affected the credibility and reliability of evidence given by the Complainant. Gamlath JA in State v Serelevu [2018] FJCA 163; AAU141.2014 (4 October 2018) has extensively discussed the issue of delay in reporting, where His Lordship found "the totality of the circumstance test" is the correct approach in evaluating the delay in reporting to determine the credibility of the evidence. An unexplained delay does not necessarily or automatically render the Prosecution case doubtful. Whether the case becomes doubtful depends on the facts and circumstances of the particular case.
    
23. The Complainant testified, explaining the reason for not informing anyone at the funeral house about this incident. She thought that if she told them about this incident, people would accuse her of having an affair with her uncle. Moreover, the Court heard the evidence of the Complainant that the elders of the family did not take any action against the Accused when she first complained to the Accused's wife about initial sexual assaults. Instead, they relocated her with her cousin. Under that circumstances, I find the Complainant's decision not to report anyone was reasonable and probable. When she heard that the Accused had done the same thing to another female relative, she reported this matter. Accordingly, I do not find that the delay in reporting this matter has affected the credibility and reliability of the evidence given by the Complainant.
    
24. Furthermore, the Complainant's narration of the event in her evidence was descriptive and coherent. She was not evasive but showed distress while elaborating on the events she had encountered that day.
    
25. Given the above reasons, I find the Complainant's evidence credible and reliable, and I accept it as the truth. Accordingly, I hold that the Prosecution has proven beyond reasonable doubt that the Accused penetrated the vagina of the Complainant with his finger without her consent.
    
26. In conclusion, I find the Accused guilty of one count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Act and convict to the same accordingly.
    

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

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva

03^rd March 2023

Solicitors

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.