State v Vakatawa [2024] FJHC 548; HAC116.2022 (12 September 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 116 of 2022

STATE

V

JOELI VAKATAWA

Counsel : Mr. L. Baleilevuka for the State.
: Ms. S. Shafique and Ms. S. Pillay for the Accused.

Dates of Hearing : 09 and 10 September, 2024
Closing Speeches : 12 September, 2024
Date of Judgment : 12 September, 2024

JUDGMENT

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

1. The Director of Public Prosecutions charged the accused by filing the following information dated 16^th September, 2022:
   

(REPRESENTATIVE COUNT)

Statement of Offence

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

Particulars of Offence

JOELI VAKATAWA between the 1^st day of July, 2020 and the 31^st day of December, 2020 at Sigatoka in the Western Division, had carnal knowledge of “M. T” without her consent.

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

BURDEN OF PROOF AND STANDARD OF PROOF

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

ELEMENTS OF THE OFFENCE

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

(a) The accused;

(b) Penetrated the vagina of the complainant with his penis;

(c) Without her consent;

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

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

ADMITTED FACTS

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

PROSECUTION CASE

17. The complainant informed the court that in July, 2020 she was doing Bachelor of Science degree in Forestry. In the same month she came to Vavanaqiri settlement, Nadroga since her brother Tevita Sasina lived in this settlement had asked for some seeds.
    
18. For a few weeks she stayed at her brother’s house. According to the complainant she was suffering from a condition of being possessed by an evil spirit. The complainant went to her aunt Keasi’s house which was located in the same settlement.
    
19. Aunt Keasi had arranged for a Talatala (priest) to pray for the complainant. The accused is her cousin brother who was also living with her aunt, another Talatala Tams and Vereniki. The house of her aunt had one bedroom and in the sitting room there was a curtain to divide the room. One side of the curtain was used as a sleeping room and the other as a sitting room.
    
20. The accused was asked by the Talatala to look after her. The complainant used to sleep with the accused on one side of the curtain while her aunt and Vereniki slept on the other side being the sitting room side.
    
21. One night the complainant was lying in the curtained portion of the sitting room but she could not sleep with the lights on. The accused told the complainant to go and sleep in the bedroom. At this time the complainant’s aunt was not at home.
    
22. The complainant went into the bedroom shortly after she slept facing downward on the bed. When she woke up she was facing up with the accused on top of her, he parted her legs, pulled her panty to one side and then he inserted his penis into her vagina. The complainant also stated that before having sexual intercourse the accused told her not to shout otherwise he will hurt her.
23. The complainant did not consent for the accused to have sexual intercourse with her. The complainant did not do anything because she was really weak at the time and also scared.
    
24. Furthermore, the complainant stated that near her aunt’s house there is a vacant green house which her family members from Lautoka would occupy. The complainant wanted to be away from the accused so she went to stay at the green house.
    
25. One night the accused came and told her that he wants to sleep with her. The complainant told the accused to sleep in the room on the bed which was on the other side. After sometime the accused came over to the complainant and said that he wanted to have sexual intercourse. When questioned what happened next the complainant said “I really don’t care, like I really didn’t mind just laid down tried to sleep. When I was trying to sleep, I could feel that he was pulling my skirt up.”
    
26. The complainant was unable to push the accused away, he was able to use his knee to spread her thighs, pulled her skirt and pushed her panty to one side and had sexual intercourse with her. The complainant did not consent for the accused to have sex with her. When questioned why she did not scream the complainant said “I feel like I don’t want to shout.”
    
27. The complainant got pregnant and she gave birth to a baby girl. A DNA was done which showed that the accused was the father of the child. The DNA result dated 10^th March, 2022 was marked and tendered as prosecution exhibit no. 1.
    
28. In cross examination the complainant agreed that the accused, his brother Tabua and Vereniki also stayed at Keasi’s house. The complainant also agreed that after one week of sleeping in the sitting room the accused moved to the bedroom and told her to go into the bedroom as well. When suggested that she had followed the accused into the bedroom the complainant disagreed. The complainant, however, agreed that her aunt had stopped her from going and sleeping in the bedroom. When questioned that she had told the court earlier about the light in the sitting room the complainant said “I told him that the light inside the sitting room was so bright, he then told me for us to go to the bedroom.”
    
29. The complainant further stated that she felt comfortable with the accused knowing that the accused was her cousin brother. The complainant agreed that she lay on the same bed with the accused.
    
30. The complainant denied kissing the accused and both getting undressed she maintained that it was a forceful sex that night. The complainant stated that she did not yell or call for help or run out of the bedroom because she was weak. The complainant denied consenting to have sex with the accused.
    
31. The complainant did not tell her aunt Keasi about what the accused had done because she was scared. The complainant maintained that the accused had threatened her. When it was suggested that both the accused and the complainant had sexual intercourse during day time as well as night time when no one was at home the complainant denied this and said they had sex on two occasions only.
    
32. The complainant also did not agree that the accused only had sexual intercourse with her at aunt Keasi’s house. She stated that it happened once at her aunt’s house and then at the green house. According to the complainant her brother lived in the flat next to the green house. The complainant did not tell anyone or her brother the same night or the next day about the incident.
    
33. When the complainant was staying at the green house her boyfriend used to visit her but she did not inform him about the alleged incidents. Upon further questioning the complainant stated that her aunt was caring and loving but she did not inform her aunt about the incidents as well. The complainant denied the suggestion that she did not inform her aunt or her boyfriend because she had consented to have sex with the accused. It was in October, 2020 the complainant told one Amele who told her aunt Keasi about the complainant’s pregnancy. At no time had the complainant told Amele and her aunt Keasi that the accused had forceful sexual intercourse or had raped her.
    
34. According to the complainant when her pregnancy became known in October, 2020 she told her boyfriend. The complainant denied that she was blamed for bringing shame to the family but agreed that at the time of her pregnancy she was not married. The complainant agreed that she had her medical checkup in January, 2021 after about 5 or 6 months of the allegation.
    
35. The complainant denied that she had raised a false allegation against the accused after everyone in the village found out that she got pregnant whilst not married. The complainant maintained that she did not consent for the accused to have sexual intercourse with her.
    
36. In re-examination the complainant was asked to clarify why she continued to stay at her aunt’s house after the first incident. The complainant said she had moved out to the green house, however, she was unable to recall when she had moved to the green house. When asked to explain what she had told her boyfriend the complainant said whatever the accused had done to her and also that she had missed her menses.
    
37. The final witness Sabolo Waqavou informed the court that in October, 2020 the complainant had called him and he saw her sitting under the mango tree. The witness saw the complainant crying, she told him one night the accused did something to her, she was so weak that she did not resist. The accused had grabbed her arms and legs closed her mouth and sexually abused her.
    
38. In cross examination the witness stated that the complainant was residing at her aunt’s house. Upon further questioning the witness said after the complainant told her the above she also told him not to tell anyone and that she will tell her other family members.
    

RECENT COMPLAINT DIRECTION

39. Complainants of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A complainant’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
    
40. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for this court to determine what weight is to be given to the fact that the complainant told her boyfriend Sabolo Waqavou when her pregnancy became known in October, 2020 about what the accused had done to her.
    
41. This is commonly known as recent complaint evidence. The evidence given by Sabolo is not evidence of what actually happened between the complainant and the accused since he was not present and he did not see what had happened.
    
42. This court is, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told her boyfriend about three months after the allegation that the accused had sexually abused her.
    
43. Thereafter the matter was reported to the police. The prosecution is also asking this court to consider the fact that the complainant had relayed relevant and important information about the conduct of the accused to Sabolo which shows she is more likely to be truthful.
    
44. On the other hand, the defence says the complainant only told Sabolo after her pregnancy became known to avoid shame and be looked down upon by the family members. The evidence of the complainant about what the accused had allegedly done and what Sabolo told the court are at odds with each other and therefore the complainant should not be believed.
    
45. It is for this court to decide whether the evidence of recent complaint helps this court to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. It is for this court to decide whether the complainant is reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
46. This was the prosecution case.
    

DEFENCE CASE

47. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination and also called another witness. This court must also consider the defence evidence and give such weight as is appropriate.
    
48. The accused informed the court that in July, 2020 he was residing at the house of his aunt Keasi with his cousin brother Tabua, nephew Vereniki and the complainant. The accused and the complainant are cousins. The complainant stayed at aunt Keasi’s house for two weeks.
    
49. The complainant had come with a condition of being possessed by an evil spirit. As a result of prayers the complainant got healed in the first week so the accused told his aunt that he will now be sleeping in the bedroom. The complainant also started sleeping in the bedroom with him. According to the accused their aunt Keasi had stopped the complainant from sleeping in the bedroom but the complainant did not listen.
    
50. One night on the bed both started kissing each other and then they removed their clothes and had sexual intercourse. He did not force the complainant in anyway and she did not do anything to stop him but liked what he was doing. The other family members were in the sitting room.
    
51. After having sexual intercourse both slept on the same bed. The next day no one was at home, so during the day and night for a week they had sexual intercourse.
    
52. The accused maintained that he had sexual intercourse with the complainant only at Keasi’s house and with her consent. After one week the complainant told him that she was pregnant. The complainant stated that they cannot get married, however, the accused was happy to keep the child.
    
53. When questioned why the complainant would report being raped the accused responded “during the time she got pregnant the people living in the community were so concerned that she is bringing trouble and shame in the community.”
    
54. The accused was arrested by the police in 2022 on a 2020 allegation.
    
55. In cross examination the accused stated that due to the condition of the complainant he was asked by Talatala Tevita to look after, take care and control the complainant if she got aggressive due to the possession of an evil spirit. When it was put to the accused that it was irresponsible of him to have sexual intercourse when the complainant had such a condition and she would be weak when she comes out of the evil spirit possession, the accused said at the time of sex the complainant was not weak since she had fully recovered.
    
56. The accused, however, agreed that it was irresponsible of him to have sexual intercourse with the complainant who was a guest of the family at that time. The accused did not agree that under the Itaukei culture the complainant found it difficult to speak out against what the accused had done. The accused further stated that the complainant was not new in the house and she was very familiar with everyone.
    
57. Upon further questioning that on the first night the complainant did nothing to stop him because she was weak from her condition, the accused explained the complainant did nothing because she was freely giving herself for him to have sex. The accused said he only had sex with the complainant at aunt Keasi’s house and nowhere else.
    
58. The accused agreed the allegations of rape in a community brings problem to the community. He also agreed that it did not make sense that despite his good relationship with the complainant she would make an allegation of rape. The accused maintained that the complainant had consented for him to have sexual intercourse with her.
    
59. In re-examination the accused stated that he said yes to the question that the complainant was in good terms with him then why would she say she was raped. The accused explained that during the time they began their relationship they were having sex and both were in good terms. He never dreamt that she will be reporting him.
    
59. The final defence witness Keasi Qainasa informed the court that in July, 2020 the complainant had come to reside with her, the accused, Pastor Tabua and her grandson. The witness is the aunt of the complainant and the accused. The complainant stayed at the house of the witness for two weeks.
    
60. The complainant came to her house with a condition which had healed during the first week. The witness treated the complainant like her daughter and at no time had the complainant complained to her about anything.
    
61. According to Keasi her house was a small one so anybody shouting from the bedroom would be heard in the sitting room. It was after the complainant got healed that she went and slept in the bedroom with the accused.
    
62. In cross examination the witness agreed that the relationship between the complainant and the accused was of a brother and a sister which was a restricted relationship. The witness agreed that the complainant sleeping with the accused in the bedroom was “taboo” culturally. When questioned why she had allowed this to happen the witness said ”I didn’t allow them to sleep together, however, during the time she was possessed with the evil spirit she always wants to be around with the boys and most of the time when she comes from outside she goes straight to the bedroom.”
    
63. The witness agreed that the accused was raised by her and she depended on the accused for financial support. The witness does not want the accused to go to prison and she also did not know the complainant and the accused were having sexual intercourse in her house.
    

64. This was the defence case.

ANALYSIS

65. The prosecution submits that the complainant and the accused are cousins and at the time of the allegation the complainant was 20 years of age. In July, 2020 the complainant came to Vavanaqiri settlement, Nadroga.
66. For a few weeks she stayed at her brother’s house. The complainant was suffering from a condition of being possessed by an evil spirit. The complainant went to stay at her aunt Keasi’s house which was located in the same settlement.
    
67. Aunt Keasi had arranged for a Talatala to pray for the complainant. The accused was also living with aunt Keasi. The accused was asked by the Talatala to be with the complainant and look after her. The complainant used to sleep with the accused on one side of the sitting room which was divided by a curtain while her aunt and Vereniki slept on the other side.
    
68. One night due to the lights in the sitting room the complainant could not sleep. The accused asked the complainant to go and sleep in the bedroom. At this time the complainant’s aunt was not at home.
    
69. The complainant went into the bedroom shortly after she fell off to sleep on the bed facing downwards. When she woke up she was facing up with the accused on top of her. The accused told her not to shout otherwise he will hurt her.
    
70. The accused parted her legs, pulled her panty to one side and then he had forceful sexual intercourse with the complainant. The complainant did not consent for the accused to have sexual intercourse with her. The complainant did not do anything because she was scared of the accused and weak at the time.
    
71. As a result of the above incident the complainant wanted to be away from the accused so she went to stay at the vacant green house which was close to aunt Keasi’s house.
    
72. One night the accused came and told the complainant that he wanted to sleep with her. The complainant allowed the accused to sleep in the room. After sometime the accused came over the complainant, she was unable to push him away. The accused was able to have forceful sexual intercourse. The complainant did not consent for the accused to have sex with her on both occasions. The complainant got pregnant and she gave birth to a baby girl. A DNA screening was done which showed that the accused was the father of the child.
    
73. In October, 2020 the complainant told her boyfriend Sabolo Waqavou about what the accused had done to her. Thereafter the matter was reported to the police.
    
74. On the other hand, the defence says the allegation is a made up story by the complainant, in all honesty the accused had consensual sexual intercourse with the complainant not only on two occasions but on several occasions during the second week of the complainant’s stay at aunt Keasi’s house. The complainant and the accused were in a relationship and the complainant liked what the accused was doing.
    
75. Initially, in the sitting room the complainant was sleeping with the accused. After the complainant got healed in the first week the accused moved into the bedroom to sleep. The complainant against the advice of aunt Keasi also went into the bedroom and was sleeping on the same bed as the accused.
    
76. The reason why the complainant had moved places was because she was comfortable with the accused. Moreover, had there been any force used on the complainant she could have yelled or shouted or called for help but she did not. It was a small house and any resistance by the complainant would have alerted the other occupants of the house. The reason given by the complainant that she was weak and therefore she could not resist does not make sense because she had been cured and she was well enough to alert the others in the house.
    
77. The complainant was not restrained by the accused she was free to move around. She did not tell her aunt Keasi or her brother Tevita who was living next door or the other members of the family who she knew or her boyfriend who was living in the same settlement immediately after the incidents cannot be ignored. It was only in October, 2020 the complainant told one Amele who told her aunt Keasi about the complainant’s pregnancy after her pregnancy had become known.
    
78. The defence further submits that another interesting aspect of this case is that at no time had the complainant told Amele and her aunt Keasi that the accused had forceful sexual intercourse or had raped her.
    
79. When the complainant’s pregnancy became known she had no option but to make up a story of being sexually abused by the accused to avoid shame. The complainant told her boyfriend that she was sexually abused by the accused should not be believed. In reality the boyfriend was of no assistance to the complainant because the complainant had told him not to tell anyone about what she had told him.
    
80. The defence is asking this court to consider all the evidence holistically the allegation was in July, 2020 and it was only in October after her pregnancy was known that the complainant started to cry rape. The defence says this is a case of betrayal of trust by the complainant she participated in the act of sexual intercourse willingly but when she became pregnant she quickly blamed the accused. The conduct of the complainant reeks of consent, had she not become pregnant there would not have been any allegation raised.
    
81. The defence further submits that the evidence of the recent complaint witness is clearly inconsistent with the evidence of the complainant about the allegation. The complainant had the opportunity to inform someone immediately after the incidents but she did not, speak volumes about the authenticity of the allegation.
    
82. The accused did not have forceful sexual intercourse with the complainant at any time he told the truth in court, aunt Keasi also told the truth when she said she did not allow the complainant to sleep with the accused yet the complainant did the opposite and slept with the accused.
    
83. Finally, the defence submits that what the complainant told the court does not make sense and is riddled with doubt. The defence is asking this court not to believe the complainant who is falsely implicating the accused. This is a case of consensual sexual intercourse between two consenting adults which only turned sour after the complainant became pregnant.
    

DETERMINATION

84. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
    
85. In this case, there are two different versions, therefore this court must consider all the evidence adduced to decide whether the prosecution has proven beyond reasonable doubt that the accused committed the offence alleged. It is not for this court to decide who is acceptable between the complainant and the accused.
    

86. This court has kept in mind the following factors when determining the credibility and reliability of a witness such as promptness/spontaneity, probability/improbability,consistency/inconsistency,contradictions/omisions, interestedness/disinterestedness/bias, the demeanour and deportment in court [and the evidence of corroboration where it is relevant] see Matasavui v State [2016] FJCA 118; AAU0036.2013 (30 September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).

87. Brennan J in Liberato and Others v The Queen ((1985) [1985] HCA 66; 159 CLR 507 at 515 has discussed the appropriate approach to be taken where there are conflicting versions of evidence given by the prosecution and the defence witnesses. Brennan J held that:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question ( which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

88. This court has also taken into account the observations made by the Court of Appeal in Rokocika v The State [2023] FJCA 251; AU0040.2019 (29 November 2023) regarding what the accused told the court at paragraph 45 as follows:

The Liberato direction covers three points on the spectrum of belief regarding what the accused has said — positive belief (first aspect), positive disbelief (third aspect), and neither actual belief nor rejection of the accused’s account (second aspect): Park v R [2023] NSWCCA 71 at [102]–[103].

89. The only issue in this trial is whether the complainant consented to have sexual intercourse with the accused. There is no dispute that the complainant and the accused are known to each other and were living in the house of their aunt Keasi with other family members. The complainant slept with the accused in the sitting room and also in the bedroom.
    
90. After carefully considering the evidence adduced by the prosecution and the defence, I do not believe the evidence of the complainant as truthful and reliable when she said she did not consent to have sexual intercourse with the accused. The narration by the complainant about forceful sexual intercourse by the accused is not plausible on the totality of the evidence in fact what she told the court is not probable as well.
    
91. From the evidence of the complainant it is obvious to me that she was comfortable in the company of the accused. They used to sleep in the sitting room on one side divided by a curtain and then the complainant went into the bedroom and slept with the accused on the same bed.
    
92. It is important to take a pause and think if the accused had forceful sexual intercourse on one occasion, the complainant who was an adult a tertiary level student would not have allowed the accused to come into the green house to sleep with her for the second time.
    

LATE REPORTING

93. The complainant in cross examination agreed that she had reported the incidents about 5 or 6 months after the allegation in January, 2021. In law the test to be applied in such a situation is known as the totality of circumstances test. The Court of Appeal in State v Serelevu (2018) FJCA 163; AAU 141 of 2014 (4^th October, 2018) had explained this issue as follows:
    

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

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

“[26] However, if the delay in making can be explained away that would not necessarily have an impact on the veracity of the evidence of the witness. In the case of Thulia Kali v State of Tamil Naidu; 1973 AIR.501; 1972 SCR (3) 622:

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

94. On the evidence there is nothing compelling about the circumstances of the complainant that she could not speak out or lodge a complaint against the conduct of the accused in a timely manner. From my observations, the complainant struck me as a bold and strong willed person who could not be forced to do something against her belief and liking.

95. Moreover, the complainant was close to her aunt, her brother was living next door and there was no direct personal authority or control by the accused. The complainant was comfortable in sleeping with the accused and was freely moving around in and outside the house. I also do not accept that the complainant was scared of the accused. I have kept in mind that delay in reporting is not an indication of a fabricated allegation and that a late complaint does not necessarily mean it is a false complaint (see Moala Bati vs. The State, criminal appeal no. AAU 002 of 2021, paragraphs 8 and 9).
    

96. Despite all the opportunities available to the complainant she did not complain early is quite odd. There is no evidence before the court that the accused had threatened the complainant not to tell anyone about what he had done to her. I do not accept that the complainant was a victim of circumstances which resulted in a delayed complaint of nearly 5 to 6 months after the incidents and therefore she fails the totality of circumstances test.

97. Furthermore, the recent complaint evidence only came out in cross examination. In her evidence the complainant did not say that she told Sabolo Waqavou that she had been raped by the accused. The evidence of Sabolo about what he had been told by the complainant does not add up with what the complainant told the court the accused had done. More importantly the complainant had told Sabolo she had missed her menses. This remark by the complainant supports the defence contention that it was the complainant’s pregnancy that got her to blame the accused.
    
98. Another aspect of Sabolo’s evidence is that he said he saw the complainant crying but the complainant in her evidence did not say anything about calling Sabolo, meeting him under a mango tree and narrating to Sabolo about what the accused had done whilst crying.
    
99. The decisive aspect of the recent complaint evidence is to show consistency of the complainant’s conduct with her evidence given at trial which goes to the credibility of the complainant.
100. I have taken into account the fact that it is not expected of anyone who has had an unexpected sexual encounter to give every detail of the accused unlawful sexual conduct to the person the complaint is relayed to. However, on a review of all the evidence I do not attach any weight to the evidence of the complainant and the recent complaint witness in respect of the allegation raised.
     
101. In my considered judgment the complainant did not give an honest account when she said she did not consent to have sexual intercourse with the accused, what she told the court is not believable and her demeanour was not consistent with her honesty as well. When giving evidence the complainant was smiling every now and then, this gave me the impression that she was not serious.
     
102. The evidence of the complainant brings to fore more questions than answers. When telling Amele and Keasi about her pregnancy the complainant did not inform them that the accused had raped her. The complainant continued to meet Sabolo after the incident, but she did not tell him anything about being raped by the accused until October when her pregnancy became known. I have no reason to doubt that the complainant has falsely blamed the accused of being raped to avoid being shamed by her family members.
     
103. In view of the above, it is unsafe to convict the accused and therefore the benefit of the doubt ought to be given to him. This court is not satisfied beyond reasonable doubt that the accused had committed the offence alleged.
     
103. The accused in his evidence maintained his composure and was able to express himself clearly on what he had done with the complainant. I found him to be a truthful witness. I believe him when he said that he had consensual sexual intercourse with the complainant on more than two occasions in the house of aunt Keasi. He was forthright and revealing both in his evidence in chief and in cross examination as well. The accused was able to withstand cross examination and he was not discredited.
     
104. Keasi was also an honest witness I accept she told the complainant not to go and sleep in the bedroom but it was the complainant who had acted contrary to what her aunt had told her. Although this witness had said that she does not want to see the accused go to prison, was financially dependent on him and she had raised him did not in my considered judgment affect the reliability of her evidence. The complainant did inform the court that her aunt Keasi had stopped her from going and sleeping in the bedroom gives credence to the evidence of Keasi in this respect.
     
105. There is a reasonable doubt in the prosecution case which this court cannot ignore. This court is not satisfied beyond reasonable doubt that the accused is guilty as charged and therefore this court has no option but to acquit the accused of one representative count of rape as mentioned in the information filed.
     
106. This is the judgment of the court.
     

Sunil Sharma
Judge

At Lautoka
12^th September, 2024

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