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High Court of Fiji |
THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 301 of 2022
THE STATE
V
LORIMA BOGIONO
Counsel: Ms N Ali & Ms K Dugan for the State
Mr N Tuifagalele for the accused
Hearing: 6 & 7 May 2024
Closing addresses: 10 May 2024
Judgment: 15 May 2024
JUDGMENT
[1] The complainant has been granted name suppression. Therefore, any public record of these proceedings must not contain any information that may lead to the identity of the complainant. She is referred to as ‘RK’ in this Judgment. I have deliberately avoided identifying details that may lead to identifying the complainant, such as the name of her parents or the name of her village.
[2] The accused, Mr Lorima Bogiono, is charged with the following two counts:
Count 1
Statement of Offence
Rape: Contrary to Section 207(1) & (2)(c) of the Crimes Act 2009
LORIMA BOGIONO on an unknown date between the 1st day of September 2021 and the 31st day of December 2021 at Nasinu in the Central Division, penetrated the mouth of RK with his penis without her consent.
Count 2
Statement of Offence
Sexual Assault – Contrary to Section 210(1)(b)(ii) of the Crimes Act 2009
LORIMA BOGIONO on an unknown date between the 1st day of September 2021 and the 31st day of December 2021 at Nasinu in the Central Division, procured RK without her consent to witness an act of gross indecency by masturbating in the presence of the said RK.
[3] Mr Bogiono denies having committed the offences.
[4] Mr Bogiono is alleged to have raped the complainant on a date between 1 September 2021 and 31 December 2021 by penetrating the mouth of the complainant with his penis without the complainant’s consent. Mr Bogiono is also alleged to have sexually assaulted the complainant over the same period by procuring the complainant to witness him masturbating in her presence without her consent.
Count 1 – Rape
[5] The offence of rape has three elements: the penetration of a complainant’s vagina, anus or mouth by the accused with their penis, finger or an object, the complainant not consenting to sexual penetration, and the knowledge of the accused that the complainant was not consenting.
[6] Pursuant to s 207(2)(c) of the Crimes Act, the offence of rape occurs where a person penetrates the mouth of another person with the person’s penis without the other person’s consent. The slightest penetration is sufficient to establish the element of penetration.
[7] According to s 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, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. Consent obtained by force or threat or intimidation, will not be considered as consent freely and voluntarily given. Consent or the absence of consent can be communicated by the words or acts of the complainant. The knowledge of the accused that the complainant did not consent is a matter for inference from all the proven facts.
[8] To establish the offence of rape, the prosecution must prove the following elements beyond a reasonable doubt:
Count 2 – Sexual Assault
[9] Sexual assault is an offence contrary to s 210(1)(b) and (2) of the Crimes Act.
[10] To establish the offence of sexual assault, the prosecution must prove the following elements beyond a reasonable doubt:
Burden of proof and assessment of the evidence
[11] Mr Bogiono is presumed to be innocent until he is proven to be guilty. As a matter of law, the onus or burden of proof rests on the prosecution throughout the trial, and it never shifts to Mr Bogiono. There is no obligation or burden on Mr Bogiono to prove his innocence. Mr Bogiono chose to remain silent. He has a right to do so. No adverse inference will be drawn from this.
[12] The burden is on the prosecution to prove the charges beyond a reasonable doubt. Each element of the charge must be proved but not every fact of the story. If there is a reasonable doubt, so that the Court is not sure of Mr Bogiono’s guilt, or if there is any hesitation in my mind on any of the elements, Mr Bogiono must be found not guilty of the charges and, accordingly, acquitted.
Approach to the assessment of the evidence
[13] I approach the evidence dispassionately, without sympathy or value-laden rules regarding how men and women should conduct themselves. It is entirely a matter for me to decide which witnesses are credible and reliable and which part of their evidence I accept as true.
[14] The prosecution’s case is dependent upon the complainant’s evidence. She is 17 years old. Her evidence does not require corroboration. If her account of the alleged incidents are true, then Mr Bogiono is guilty of the charges. However, if her account is false or may be false then Mr Bogiono is not guilty.
[15] The identity of Mr Bogiono is not an issue in this case. If I am sure that Mr Bogiono committed the two acts, penetrated RK’s mouth with his penis and masturbated in her presence respectively, then consent is also not in issue. The complainant did not consent to these acts and Mr Bogiono would have known that this was the case. My determination of Mr Bogiono’s guilt will turn on whether I accept that the prosecution has proven beyond a reasonable doubt that Mr Bogiono committed the two acts on the complainant.
Evidence
[16] The accused did not admit any facts. That is his right. The prosecution must establish every element of the offence beyond a reasonable doubt.
[17] The State called one witness, being the complainant. The State made two preliminary applications in respect to the complainant’s evidence; being, that the evidence be provided in closed court and that a screen be placed between the complainant and the accused while the complainant provided her evidence. The accused did not object. The orders were granted.
[18] The complainant’s evidence in examination-in-chief was as follows:
My friends in school, form 6 and form 7, they are starting to notice that I don’t talk a lot to them. And they always see that I go to the toilet and cry there. And during lunch they had called me to join them for lunch...And they were asking me what happened and I lied to them so I could be brought to the police station.[2]
She was asking me and I was crying and she just told me to just tell her the truth. And she knew that whatever I have told in school wasn’t the truth and she wanted me to tell her the truth. And she asked me if anything had happened at home and then I told her yes.
[19] In cross-examination, RK provided the following evidence:
And the story that you related there, for the history that you were grabbed and drugged by 5 Itaukei students, yesterday afternoon while returning by a short cut from school there was no recollection of what was done to her, you agree with me that is what is written there.
This statement [being the police statement] I had made in 2021. When I went for the school holidays to the village my parents knew that I had made this statement in 2021. When I cam back to school in the beginning of form 4 then they printed this, and they changed it to be like this.
[20] In re-examination, RK stated:
[21] At the close of the prosecution case, the Defence argued there was no case to answer. I determined that there was a case to answer. After a brief adjournment, Mr Tuifagalele informed the Court that the accused had decided not to provide evidence or call any witnesses. That is, of course, his right.
Summary of the Evidence
[22] RK was only 15 years old when the events in question are alleged to have happened. She had been brought up in her village and only moved to Suva in January 2021 in order to attend a new school. She moved to her paternal uncle's house which had six bedrooms. The house was full of relatives. However, it does not appear that RK was familiar with or close to these relatives.
[23] Between September and December 2021 she describes two incidents that occurred to her in the house. The first incident occurred at about 7.30pm after she had returned home from church. There were a number of people at the house, most of them sitting on the porch. Some relatives also appeared to be home although RK’s aunty was sleeping in one of the bedrooms. The accused asked RK to set up a mosquito coil. As RK was placing the coil in the bedroom, the accused who was lying on the bed, pulled RK onto the bed and proceeded to physically force her to suck his penis until he ejaculated. She tried to resist but he did not relent.
[24] The second incident occurred in RK’s bedroom. She was sitting on her bed when the accused came into her room pulled the curtains and proceeded to unzip his trousers, pull out his penis and masturbate in front of her until he ejaculated. She did not like what he had done and did not consent to it. The accused told RK to take her clothes off which she refused. RK left the bedroom, then left the house and went, the same day, to stay with another relative in Cunningham.
[25] RK did not scream or raise the alarm with the occupants in the house on either occasion. She stated that the reason was that she was scared of the accused. Also, it was not her house and she did not know how the occupants would react.
[26] It was sometime later, probably August 2022, that RK reported the matter. She did not do so of her own volition. The report arose because older students saw RK crying in the toilets and enquired about this. RK initially fabricated a story about being kidnapped by five boys. The students reported the matter to the Assistant Principal who escalated the matter to the police.
[27] The police spoke to RK the same day and arranged a medical examination. The next day the police advised RK that they did not believe her story and it was at this point RK told the police about the two incidents by the accused. This appears to be the date that RK first reported the alleged crimes that are the subject of this prosecution. RK stated in evidence that she reported the matter to the police in 2021 but her written statement to the police is dated 2 August 2022. Given the date of the written police statement, it is likely that she first reported the alleged offending in August 2022.
Analysis of Evidence and Determination
[28] I remind myself that the burden to prove the accused’s guilt beyond a reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. The Defence did not call any evidence. That is the accused’s right.
[29] I keep in mind the following factors when determining the credibility and reliability of a witness such as: promptness, spontaneity, probability, improbability, consistency, inconsistency, contradictions, omissions, interestedness, disinterestedness, bias, and the demeanour and deportment in court - see Matasavui v State [2016] FJCA 118; AAU0036.2013 (30 September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).
[30] I heard from only one witness in this trial, being the complainant. If I accept her evidence as true, then the accused is guilty of the two offenses for which he has been charged. The evidence as provided by RK is as follows:
[31] I found RK's evidence to be believable. She gave her evidence in a manner that I considered to be natural and genuine and in keeping with a person of her age. RK was visibly embarrassed talking about the male anatomy and the circumstances pertaining to the first incident. RK was emotional at the times I would have expected her to be when retelling the two incidents. She was particularly emotional when she had to identify the accused in the courtroom. Her tears were genuine as was her emotion. In cross-examination RK was resolute and firm.
[32] That said, deliberately telling lies in court can also evoke strong emotions from a witness. It is, therefore, critical for the court to consider all the evidence to assess the veracity and truthfulness of a witness' evidence.
[33] The Defence argue that RK cannot be believed. They point to several inconsistencies in RK’s evidence but the primary reason being the story RK fabricated about being kidnapped by five boys. The Defence argue that this story demonstrates that RK cannot be believed and has a propensity for storytelling.
[34] The Defence has identified the following inconsistencies:
Mr. Tuifagalele: Did you at any other time get up or stand up after you were lying on the bed?
RK: No My Lord.
Mr. Tuifagalele: So if you were unable to stand up from your position when you were lying down, I put it to you, and according to my instructions, that it will be very, very impossible for my client to actually do what you have alleged that he did on that particular night.
Clerk: Can you just repeat the question?
Mr Tuifagalele: If you had said yes to your position on the bed at that time, I put it to you, I put it to you, and my instructions, that it would be impossible for you to make that allegation against my client for what you said that he did that night. Yes or no?
RK: Yes.
It is not possible to take anything meaningful from RK’s affirmative answer to the last question.
[35] This Court is permitted to take into consideration any inconsistencies to consider whether a witness is believable and credible. It is obvious that the passage of time can affect one’s accuracy of memory. It cannot be expected that every detail will be the same from one account to the next. If there is an inconsistency, it is necessary to decide, firstly, whether the inconsistency is significant and, secondly, whether the inconsistency affects adversely the reliability and credibility of the witness. If it is significant, then it is for this Court to consider whether there is an acceptable explanation. If there is an acceptable explanation for the change, then this Court may conclude that the underlying reliability of the witness’ evidence is unaffected. If the inconsistency is fundamental, then it is for this Court to decide to what extent it influences the reliability of the witness’ evidence. As the Court of Appeal observed in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.2011 (2 October 2015) at [16]:
[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra):
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;
[36] It also useful to set out the following passages from the recent decision by Rajasinghe J in State v Chand [2024] FJHC 108 (23 February 2024):
[37] It is necessary when assessing the veracity of a witness’ evidence to look at the totality of the picture. As I do so, there are several aspects of RK’s evidence that are perplexing. The most obvious, and concerning, is the story RK fabricated about the kidnapping. RK accepts that this story was untrue. However, she told and re-told the story on at least three occasions on the day in question (to older students, the Assistant Principal and then to the Police). She did not resile from this story until the next day. It was only after a police officer advised RK that she did not believe her that RK finally revealed the complaint against the accused. This does not reflect favourably on RK’s credibility.
[38] In order for the Court not to arrive at an adverse finding on RK’s credibility arising from the fabricated story, requires a compelling explanation from RK for creating the story. She states that she did so in order for the true story to come out. However, the simpler way for this to have happened was for RK to reveal the accused’s alleged offending from the outset when the students approached her. The fact that RK did not change her story until the police rejected the kidnapping story is not consistent with RK wishing to bring the two incidents to light.
[39] The other aspect to this is that this Court is not aware why the police did not believe RK’s story about the kidnapping. Also not provided in evidence are the details as to how the conversation between RK and police officer developed so as to reveal the two incidents with the accused. The police officer may have shed light on this, but the prosecution did not call the police officer to provide evidence.
[40] RK’s story about the kidnapping creates a reasonable doubt about the veracity of her allegations against the accused. Her explanation for the fabricated story is difficult to believe, only serving to seed further doubts. The delay making the complaint is not damaging to RK’s credibility. It is perfectly understandable that a person of RK’s age would be afraid to report the sexual offending of a relative. However, what is damaging to RK’s credibility is the story she created about the kidnapping and her subsequent failure to tell the police the allegation against the accused until after the police rejected her story.
Conclusion
[41] I must be satisfied beyond a reasonable doubt that RK is telling the truth about the two incidents in 2021. For the reasons stated, I am left with considerable doubt. I cannot be sure that RK is being truthful about the allegations against the accused.
[42] Accordingly, the Court is not satisfied beyond a reasonable doubt that the accused committed either of the offences contained in the two counts.
[43] In view of the above, I find the accused not guilty of count one of rape contrary to s 207(1) and (2)(c) of the Crimes Act, and not guilty of count 2 of sexual assault contrary to s 210(1)(b)(ii) of the Crimes Act. He is, accordingly, acquitted.
............................
D.K.L Tuiqereqere
JUDGE
Solicitors:
To: Office of Director of Public Prosecutions for the State
Tuifagalele Legal for the Accused
[1] Namely, the uncle who was the owner of the house.
[2] It was not clear from the question or RK’s answer when she had this conversation with the students.
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