State v Tahir [2023] FJHC 287; HAC137.2019 (8 May 2023)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CRIMINAL JURISDICTION

CRIMINAL CASE NO : HAC 137 OF 2019

STATE

v

MOHAMMED TAHIR

Counsel : Ms. S. Swastika with Mohammed I. Rafiq for Prosecution

Ms S. Begum for Defence

Dates of Hearing : 2-3 May 2023

Date of Judgment: 8 May 2023

JUDGMENT

1. The accused is charged with one representative count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009 and one count of Sexual Assault contrary to Section 210 (1)(a) of the Crimes Act. The information is read as follows:
   

Count One

Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1) of the Crimes Act, 2009.

Particulars of Offence

MOHAMMED TAHIR between the 1st day of January 2018 and the 30th day of June 2018 at Buabua, Lautoka in the Western Division unlawfully and indecently assaulted SHAREEN SHARUL BANO, by biting her breast/chest.

Count Two

Representative Count

Statement of Offence

RAPE: Contrary to section 210 (1) and [2] [a] of the Crimes Act, 2009.

Particulars of Offence

MOHAMMED TAHIR between the 1st day of January 2018 and the 30th day of June 2018 at Buabua, Lautoka in the Western Division had carnal knowledge of SHAREEN SHARUL BANO, without her consent.

2. The matter proceeded to trial when the accused pleaded not guilty to the charges. At the ensuing trial, The Prosecution presented the evidence of the Complainant, her father Mohammed Shariff and closed its case. The accused was put to his defence when the Court found a prima facie case against the accused. Only the accused presented evidence for the Defence. The counsel from both sides tendered written submissions. Having carefully considered the evidence presented at the trial and the submissions filed by the counsel, I now proceed to pronounce my judgment as follows.

3. The Prosecution bears the burden to prove all the elements of each offence and that proof must be discharged beyond reasonable doubt. The burden never shifts to the accused at any stage of the trial. The presumption of innocence in favour of the accused will prevail until the charge is proved beyond reasonable doubt.

4. According to the Information, the accused is charged on Count 1 with Sexual Assault. A person commits the offence of Sexual Assault if he/she unlawfully and indecently assaults another person; the word “unlawfully” simply means without lawful excuse. An act is indecent if a right-minded person would consider the act indecent.
   
5. On count 2, the accused is charged with Rape. Section 207(2)(a) of the Crimes Act defines the offence of Rape as follows: a person rapes another person if the person has carnal knowledge with or of the other person without the other person’s consent. In the context of this case, ‘carnal knowledge’ could be defined as an act of penetration of the vagina of the complainant with the penis of the accused. The Prosecution alleges that the accused between 1 January 2018 and 30 June 2018 penetrated the vagina of the complainant on multiple occasions.

6. A slightest penetration is sufficient to prove the element of penetration. According to Section 206 of the Crimes Act, the term consent means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent.

7. The submission without physical resistance by a person to an act of another person shall not alone constitute consent. A consent obtained by force or threat or intimidation etc. will not be considered as consent freely and voluntarily given. To establish the fourth element of Rape, the Prosecution must prove that the accused knew or believed that the Complainant was not consenting or that he was reckless as to whether the Complainant was consenting or not.

8. I shall now summarise the salient parts of evidence led in this trial.
   

Shareen Bano (The Complainant))

9. In 2018, Shareen was residing in Buabua with her father Mohammed Sharrif who is a carpenter. Ever since her mother passed away, she has been living with her father. She was attending Lovu Sangam School only up to class 6. She had to stop schooling and she stayed home thereafter.

10. She gave birth to a child in 2018. When the child was born she was 28 years old. Johnny, who was her neighbour is the father of her child. She used to call him Bhaiya (brother). She knew Johnny for quite a long time as he used to come to her house.

11. Between January and June 2018, Johnny was frequently visiting her when her father was away at work. One day, Johnny entered her house and pulled her to the bed. He took off her clothes and put her on the bed near the sitting room. She told him not to do this. She pushed him away, but he didn’t stop or comply. She said to him “get out of my house”. But he didn't comply. He then inserted his private part inside her private part and started to move up and down. She told him she did not want it. But he didn’t listen to her. When Johnny was doing this, she told him to go out of her house. But he didn’t stop. She felt pain in her private part and felt bad. Johnny bhaiya was doing this to her for 1 ½- 2 hours.

12. When a photograph of a male human body was shown, she circled where the penis is to describe his private part. When a female photograph was shown, she circled where the vagina is.

13. Johnny also bit her on her naked breast. She felt pain and told him not to do that. But he did not listen to her. After that he pulled out and went away. He asked her not to tell this to anyone and threatened to assault her. He made her scared. He also promised to help her. She did not tell anyone that Johnny bhaiya put his private part into her private part. He did the same thing several times almost weekly.

14. Johnny stopped coming home in July 2018 and stopped doing what he was doing when she had a baby. The baby was born at the Lautoka hospital. He is 4 years old now. He is being looked after by a new mother in Nadi. She gave the baby to the new mother because there was no one to look after him. Johnny had left the area in 2019.

15. Under cross examination, the complainant said that she met Johnny for the first time in January 2018. He came to her house for the same reason. When Johnny came to her house, she did not welcome him. He pushed the door and entered the house by force. He came directly to her. He pushed him several times out of the house, but he kept on coming inside. When Johnny was doing what he did she screamed and called for help. But no neighbour came for help. She was not allowed to run away.

16. There are a lot of houses in the neighbourhood. One house is situated 7, 8 metres away. She denied that she had consented to have sexual intercourse with the accused. She said that the accused slapped her. When it was suggest that she had never told police that she was assaulted or slapped, she did not give an answer.
    
17. She did not tell Johnny at any time that she was pregnant. She came to know of her pregnancy only when she was informed at the hospital. Her father took her to hospital when her body was swollen. Johnny never proposed to marry her.
    

Mohammed Sharif

18. Sharif is the father of the complainant. In 2018, she was living in Buabua with her daughter Shareen. She stopped schooling because she was not literate. She was a slow learner. She could not read or write. She used to talk less. Her social interaction with public was very low. After she dropped out of the school she stayed home and did house work.
    
19. He worked as a carpenter from 8 am till 5 pm. Only Shareen was staying home during day time. On 5/12/2018, he noticed that Shareen’s leg was swollen. He called his relatives to talk to her because Shareen was very close them. He took her to the Punjas Health Centre and then to the Lautoka hospital because the symptoms were still present. When a scan was done at the hospital, it was revealed that she was 32 weeks pregnant. When he inquired about this, she said she is not married. She did not say anything other than that. Then the doctor went away and allowed him to talk to her. Upon being questioned repeatedly, she said Johnny bhaiya made her pregnant. He knew Johnny. He was renting in the neighbourhood for about four years. Johnny’s real name is Mohammed Tahir.
    
20. In the year 2018, Johnny used to come home very often because his 3 vehicles were parked in his backyard where he used to repair vehicles. When he learned that her daughter had been impregnated by Johnny, he asked the doctor to call police. He then made a report with police.
    
21. After the baby was born, Shareen told him that she cannot look after the baby. Then he decided to give the baby for adoption. The baby was a bit sick. He had to look after the baby and do everything for four months before being given for adoption through Social Welfare. After this matter was reported, Johnny never spoke to him.
    
22. Under cross examination Shariff admitted that, before this incident, his relationship with the accused was good. Johnny’s mother was just like his sister. He didn’t know the accused was visiting his house in his absence. He didn’t and even the doctor notice that Shareen was pregnant.
    
23. In 2020, Johnny had sent his boss Saiyad to his house to talk a settlement. A sum of $10,000 was offered. He informed that the matter is now in the hands of police and courts. Johnny is married with two daughters. He never proposed to marry his daughter.
    

Defence case

Mohammed Tahir (The accused)

24. Tahir moved to Saweni when this case began. He is a mechanic by profession, working in a private company. He used to rent beside Shareen’s’s house, and also repaired her father’s vehicle. He was in a relationship with Shareen. They used to love each other. Shareen never used to call him bhaiya. She knew him as Johnny. He used to call Shareen’s father, ‘mama’ or uncle. He used to meet Shareen every morning and they talked to each other and had meals together.
    
25. Whenever he went to switch on power to fill water in his tank, Shareen would come and sit on the bench call him. She would hold his hands and make him sit there. She would tell him that her father is not home and that she is alone.
    
26. He never forced her to have sexual intercourse with him. Everything happened with her consent. When he was having sexual intercourse with Shareen, she would never ask him to stop. They used to have sexual intercourse in a room beside the kitchen. This relationship lasted for about two and a half years till she got pregnant.
    
27. When Shareen informed him that she was pregnant, he wanted to go and talk to her father and propose to have Nikhar with her. But she stopped him and told that, if he told her father, he would kill her. When he noticed her legs swollen, he proposed her to go to hospital with him, but she refused.
    
28. Tahir denied that he had hit her or threatened her. He never asked her not to tell anyone about their sexual relationship. He used to tell her that if she is good with him and she lives with him, he will support her. He used to provide her with undergarments and anything she wanted to eat. He never at any point felt that she is weak and intellectually not stable. She was always normal to him.
    
29. He denied raping her. He said that he is married with three daughters. Despite being married he fell in love with Shareen so he maintained this extra marital sexual affair intending to marry her.
    
30. When the police officers came and arrested him, he informed about this affair to his wife. His wife did not say anything but was a bit angry on him. His wife came to court to bail him out. He had a good relationship with Shareen’s father. He did not even say anything when he came to know about his daughter’s pregnancy. He had no idea when Shareen delivered the baby. He admits that the baby is his.
    
31. Under cross-examination, Tahir admitted that in 2018, Shareen was 20 years younger to him. He admitted that, in 2018, between January and June, he had had sexual intercourse with Shareen. He agreed that Shareen used to be alone at home when he visited her.
    
32. Tahir admitted stating to police in his caution interview that he did not know where the complainant’s bedroom in which the sexual intercourse took place was. In evidence in Court, he specifically mentioned the exact place where he had had sexual intercourse with the complainant, which is beside the kitchen. He said he knew where Shareen’s bedroom was but he did not have sexual intercourse with her. He said in Court that whatever he had said in the interview is the truth. Then he admitted what he had told police in his answer to question 70 was a lie. He lied to police because he was scared of police. He agreed that he made an inconsistent statement in Court.
    
33. He really loves the complainant to date. He had no idea when Shareen delivered the baby as nobody informed him. That’s the reason why he didn’t go to the hospital for Shareen’s delivery.
    
34. He admitted that he never applied for the custody of the child although he really wanted his child. The reason being that when the police arrested him he was informed that he can’t have any contact with the complainant. Once bailed, he did not seek custody of the child because of the bail condition prohibiting any contact with her family. He was not advised that he could apply for custody despite the non-contact order. He never fought or contested the application for adoption at the Magistrates Court because, Shareen’s father was very angry on him. He had no knowledge that adoption proceeding was on and that they had given the baby to somebody else.
    
35. He could not tell his wife that he had impregnated somebody until the police came and arrested him. He denies that he behaved in such a manner because he wanted to save his relationship with his wife. He denies that if he were really in love with the complainant, he would have done everything in his power to be with the complainant and not with his wife. He said- from the day one of this case, he was not staying together with his wife. He admitted that it is a mistake that he did not inform his wife in advance.
36. Under re-examination, the accused said that he really wanted to marry the complainant but he was not given an opportunity to do so.
    

Analysis

37. There is no dispute as to the identity of the accused and that the accused penetrated the vagina of the complainant with his penis several times over the period mentioned in the information. The accused in his evidence admits that he frequently visited the complainant’s house when her father was away and was having sexual intercourse with her. He also admits that he is the father of the child the complainant gave birth to. The only dispute is whether the sexual intercourse took place with the consent of the complainant.
    
38. To prove the charges, the Prosecution called the complainant and Mohammed Shariff, her father. Describing apparently the first incident, the complainant said that the accused forcefully entered her house during day time when her father was away at work; that he undressed her and took her to the bed near the sitting room. She told him not to do this and she pushed him away. But he didn’t stop or comply. She said to him- “get out of my house”. But he didn't comply. He then inserted his private part inside her private part and started to move up and down. (There is no dispute that the words ‘private part’ connotes the respective sexual organs). She felt pain in her private part and felt bad. When he was doing all these, she told him that she did not want it and told him to go out of her house. But he didn’t comply. Once done, he warned her not to tell anyone and if she did, he will assault her. He threatened and made her scared. He did the same thing several times almost on weekly basis.
    
39. The accused denies raping the complainant. His position is that the complainant, having consented and enjoyed sexual encounters with him, made up this story to save herself from embarrassment when she learnt that she had become pregnant. Most of the points of argument advanced by the Defence concern the stereotypes of a woman vis-a-vis rape allegations, generally advanced in a rape case such as lack of recent complaint and ‘hue and cry’.
    
40. Before discussing all those contentions, it is pertinent, in view of the evidence led in this trial, for me to satisfy myself if the complainant had the necessary mental capacity to give consent to a sexual activity. In this regard I took into consideration the evidence of the complainant, that of her father and the accused and my own observations of her during the trial.
    
41. There is no dispute that the complainant was an adult (29y) at the time of the alleged offence. According to her evidence, she had attended school only up to class 6. After that, she did not want to go to school.
    
42. Shariff, father of the complainant, confirmed that her daughter stopped schooling upon reaching class 6 because she was a slow learner; she was illiterate and she could not read or write. She used to talk less and her social interaction with public was poor. After she dropped out of the school she stayed home and did house work.
    
43. Before the alleged incident came to light, Shariff’s relationship with the accused was good. This was confirmed by the accused himself. I do not see any reason why I should reject Shariff’s evidence.

44. The complainant had no idea that she was pregnant until it was confirmed by the doctor that she was 32 weeks (8 months) pregnant. She appears to have had the understanding that only the married women can become pregnant when she said, ‘I am not married’ when she was first informed that she was pregnant. After the birth of the child, she told her father that she is unable to look after the baby. Then he decided to give the baby away up for adoption. The baby was a bit sick after birth so her father had to look after the baby for four months on his own before being given up for adoption through the Social Welfare Office.
    
45. The accused said he never at any point felt that the complainant is weak or intellectually not stable. She was always normal to him, he said. Defence Counsel contends that the Prosecution failed to produce a medical report or medical history to show that the complainant was mentally handicapped. It is also stated that the complainant had done housekeeping and cooking etc. and was capable of understanding the questions and providing answers like a normal person thus should have had full mental capacity to give consent to a sexual intercourse. I am unable to agree. The way the complainant was giving evidence in Court was far from normal. She was giving short answers while smiling at the same time. I do not need the evidence led in trial to be supplemented by medical evidence in order to conclude that the complainant is intellectually handicapped. I am convinced that the complainant did not have necessary mental capacity to give informed consent to a sexual intercourse.
    
46. It is in that setting that the contentions advanced by the Defence should be determined. It is true that the complainant had not made any complaint to anyone until the doctor confirmed that she was 32 weeks pregnant- that was nearly 8 months after the alleged incidents. When questioned by her father, she appears to have finally realised the connection between her pregnancy and what the accused had been doing to her. She eventually opened up and named the accused the father of the child.
    
47. In addition to that, the complainant provided acceptable reasons as to why a prompt complaint was not made to anyone. The accused had warned her not to tell anyone about what he had been doing to her. His warning appears to be capable of sending mixed signals, both soft and hard, in terms of compliance. He used to tell her that if she is good with him and lives with him he will support her. He had promised to support her in every possible way, even to buy things like undergarments. Those promises would have incentivised her to keep everything under the carpet. The hard warning had come in the form of threat of assault. In the circumstances of this case, the belated complaint does not in my opinion discredit the version of the complainant.
    
48. Under cross- examination, the complainant in an answer to a leading question expanded the scope of the threat and said that she was assaulted or rather slapped. It was suggested that she had never told police in her statement that she was assaulted. The Defence Counsel contends that this is a material contradiction that goes to the root of the matter. I am unable to agree. Her witness statement had been a very brief one consisting only of a few lines and even in that brevity, she had mentioned how she was threatened. That inconsistency, if at all it is a contradiction, does not in my opinion discredit the version of the complainant.
    
49. It was further argued that if the complainant had screamed or shouted as she said, somebody from her neighbourhood must have heard her shout and intervened to save her. The Defence appears to say that complainant had not raised any alarm because everything had happened with her consent.
    
50. There is evidence that there are houses in her neighbourhood. If they were occupied at the times when the offence took place, the attention of the neighbours should have been drawn to the screams if the complainant in fact had raised alarm. However, I am unable to agree that a non-intervention of anybody from the neighbourhood to save her must necessarily suggest that she had never raised alarm or that she was never raped. It is possible that, being confronted with such a situation, the complainant had frozen or muted. There is no set form of behaviour how a person faced with such a situation would react. Different people react differently and specially a woman of her caliber. Given the intellectual capacity of the complainant and her demeanour which I observed in court, I am convinced that the complainant was telling the truth in Court.
    
51. The accused said that everything happened with her consent. I am not convinced. He admitted that he lied to police in his statement in denying sexual intercourse in her bed room. Apart from his admission of having lied to police, the inconsistency he admitted in Court goes to the root of the matter. It is clear that having denied in his previous statement the fact of sexual intercourse and of his knowledge as to the place where it took place, the accused took a completely different stance in Court. It can reasonably be assumed that being served with the DNA report confirming the paternity of the child, the accused has changed his stance from that of a complete denial to one of partial admission. His explanation that he lied because he was scared of police is far from acceptable in the circumstance of this case. Why should he be scared to deny an allegation of rape if he knew he could defend his action by saying that she consented and if he was really in love with her with the intention of marrying her and raising the child.
    
52. People tell lies for various reasons, may be because of fear or to avoid embarrassment. Sometimes an accused faced with a serious charge would want lie or fabricate things to bolster-up his defence. However, I am sure the accused in this case lied in Court because he is guilty. His demeanour in court is completely consistent with his guilty mind.
    
53. The accused said he is really in love with the complainant even now and he is ready to marry her. If he really loves the complainant, he should have taken care of her when she became pregnant and when she delivered the baby. But he has had no idea when she had delivered the baby. Being the father of the baby, nobody should inform and remind him of his fatherly duties.
    
54. His explanation for not applying for custody of the child and for not intervening in the adoption proceedings is not appealing to me. The non-contact order issued by the court does not prevent him from applying the custody of the child and objecting to the adoption application.
    
55. If the accused is genuine in his claim that he is ready to marry the complainant, he should have informed his intention either to the complainant or to her father before this allegation was levelled against him. He had never done that. His explanation that he was scared of her father is not tenable as he already admitted that he was good with her father.
    
56. The accused had never informed his wife that he had impregnated somebody until the police came and arrested him. If he was truly in a genuine relationship with the complainant and he really wanted to marry her, he should have revealed this fact to his wife without waiting for his arrest.
    
57. If he was in a genuine romantic relation with the complainant, he should have done everything in his power to be with the complainant and not with his wife. Having said that from day one of this case he was not staying together with his wife, who was angry on him, he then said his wife came and bailed him out. It can reasonably be assumed that there had never been a genuine relationship between the complainant and the accused with any prospect of marriage as he claims. It appears that this bogus claim is brought forward by the accused to save his own skin and defend his action.
    
58. The accused said that the complainant was intellectually okay and that she appeared normal to him. Objectively viewed, it does not appear that she is normal. Being a frequent visitor to complainant’s house, the accused should have realised that the complainant is not intellectually normal and that she did not have necessary mental capacity to give consent to sexual activities. I am sure the accused had reasonable basis to believe that the complainant was not intellectually normal. Nevertheless he took advantage and exploited her vulnerability to satisfy his lustful demands. In all the circumstances of this case, the accused should not have taken the risk he has taken in having sex with the complainant who appeared intellectually handicapped.
    
59. Furthermore, the reaction of the complainant she described in her evidence must have sent a clear message to the accused that she was not consenting.
    
60. The version of the accused is not appealing to me. I reject the version of the Defence and accept the version of events of the Prosecution case. The rejection of the Defence version does not mean that the Prosecution has proved the case beyond reasonable doubt. I went further and considered totality of the evidence led in trial for me to satisfy myself that there is no reasonable doubt created in my mind as to the guilt of the accused. Having considered all the evidence led in trial, I am satisfied that the accused penetrated the complainant’s vagina without complainant’s consent.
    
61. I am also satisfied that the accused did bite complainant’s breast and his act of biting the naked breast constitutes the offence of Sexual Assault. The Prosecution proved the offence of rape as charged and the offence of Sexual Assault. Prosecution proved each charge beyond a reasonable doubt.
    
62. I find the accused guilty on each count. The accused is convicted accordingly.
    

Aruna Aluthge

Judge

8 May 2023

Solicitors:

Office of the Director of Public Prosecutions for State

Messrs Zoyab Shafi Mohammed Legal for Defence