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State v Navau [2024] FJHC 669; HAC192.2020 (11 November 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


CRIMINAL CASE NO HAC 192 OF 2020


STATE


V


VILITATI NAVAU


Counsel : Ms B. Navunicagi with Ms E. Cabemaiwai for State
Mr A. Barinisavu with Ms K. Vulimainadave for Defence


Dates of Hearing: 05 - 08 November 2024
Date of Judgment: 11 November 2024


(The name of the Complainant is suppressed. She is referred to as MT)


JUDGMENT


  1. The Accused is charged with two counts of Rape, one count of Sexual Assault and two counts of Indecent Assault. The information reads as follows:

Count One


Statement of Offence


INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.


Particulars of the Offence


VILITATI NAVAU, between the 27th of October 2020 and the 28th of October 2020, at Lovu, Lautoka in the Western Division, unlawfully and indecently assaulted MT by kissing her.


Count Two


Statement of Offence


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


Particulars of Offence


VILITATI NAVAU, between the 27th of October 2020 and the 28th of October 2020, at Lovu, Lautoka in the Western Division, unlawfully and indecently assaulted MT by licking her vagina.


Count Three


Statement of Offence


INDECENT ASSAULT: Contrary to section 212 (1) of the Crimes Act 2009.


Particulars of Offence


VILITATI NAVAU, between the 27th of October 2020 and the 28th of October 2020, at Lovu, Lautoka in the Western Division, on an occasion different from count one, unlawfully and indecently assaulted MT by kissing her.


Count Four


Statement of Offence


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


Particulars of Offence


VILITATI NAVAU, between the 27th of October 2020 and the 28th of October 2020, at Lovu, Lautoka in the Western Division, had carnal knowledge of MERELESITA TANOA without

her consent.


Count Five

Statement of Offence


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


Particulars of Offence


VILITATI NAVAU, between the 27th of October 2020 and the 28th of October 2020, at Lovu, Lautoka in the Western Division, penetrated the vagina of MERELESITA TANOA with one of his fingers, without her consent.


  1. The matter proceeded to trial when the Accused pleaded not guilty to all charges. At the ensuing trial, The Prosecution presented the evidence of the Complainant and another witness and closed its case. At the end of the Prosecution’s case, the Court found no evidence to maintain the fourth count, which alleged that the Accused had carnal knowledge of the Complainant. Therefore, the Accused was acquitted of Rape on count four as charged. However, the Court was satisfied that there was evidence to maintain a charge of Attempt to Commit Rape contrary to Section 208 of the Crimes Act. The Accused was put to his defence on counts one, two, three, and five and on the charge on Attempt to Commit Rape. Upon being explained the rights in defence, the Defence called the Accused and three other witnesses. 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.
  2. The Prosecution bears the burden to prove all the elements of each count. The proof must be discharged beyond a reasonable doubt. This 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.
  3. On counts one and three, the Accused is charged with Indecent Assault. To prove these charges, the Prosecution must prove that the Accused unlawfully and indecently assaulted the Complainant. For the assault to be indecent, it must be accompanied by a circumstance of indecency. A conduct is unlawful when it is done without a lawful excuse. A conduct is indecent when it is such that ordinary people would so describe it considering prevailing standards of morality and, more specifically, whether the victim has consented to the conduct in question.
  4. On count two the Accused is charged 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 grossly indecent.
  5. On count four, the Accused is charged with carnal knowledge. According to Section 207(2)(a) of the Crimes Act, a person commits the offence of Rape if that 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 without her consent.
  6. On count five, the Accused is charged with digital rape. According to Section (2)(b) of the Crimes Act, a person rapes another person if — the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent. In the context of this case, The Prosecution must prove the Accused penetrated the vagina of the complainant with his fingers.
  7. 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. The submission without physical resistance by a person to an act of another person shall not alone constitute consent. Consent obtained by force, threat, intimidation etc. will not be considered as consent freely and voluntarily given.
  8. 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.
  9. I shall now summarise the salient parts of evidence led in this trial.

The Case for Prosecution


MT (The Complainant)


  1. MT testified that back in 2020, she was 15 years old. In 2020, she resided in Samabula, Suva. In October 2020, she and her aunt came to Vunitogoloa in Rakiraki to attend a church service that was going on for one week. During that period, she was staying at his uncle Vilitati Navau’s house. Her uncle was living with his wife and son. After the church service, she stayed with her uncle Vilitati, while her aunt went back to Suva. She stayed because her uncle asked her if she could stay back and help him and his wife.
  2. On 27 October 2020, she was at home with her uncle, helping him do the washing because his wife had gone to school with their son. When she was cleaning her uncle’s room, her uncle entered the room and closed the door. He hugged and kissed her and told her to take off her clothes. He was kissing her from the side of her face, going down in motion. When he was still doing that, somebody who had attended the church came outside, so her uncle opened the door and went outside the room. She didn’t try to ask for help because her uncle had told her not to tell anybody what had happened, and if she did, he would do something to her. She was really scared at that time.
  3. Her aunt had returned home from school after 10 a.m. She told her aunt that she wanted to go to her sister in Ba. Her uncle gave her the bus fare ($3) only to go to Tavua and told her to wait there and he would come and pick her up at Tavua. She didn’t tell her aunt about the incident because her uncle had earlier told her not to tell anybody what had happened and, if she did, he would do something to her. She left the house at 11 a.m. and went to Tavua by bus. She waited one hour for her uncle to come and pick her up from there. Her uncle came in his vehicle (seven-seater van) at around 1 p.m. and picked her up. She asked him if he could take her to her cousin (sister) in Ba. When they reached Sasa, Ba, where her cousin resides, she told him to take a turn, but he refused to take her to Miha Maha Jan where her sister resides. He told her that he was going to Lautoka to get his vehicle fixed. He parked the van somewhere in Lautoka Town to wait for the mechanic to come. When the mechanic arrived, they had a conversation, and the mechanic sent them to the mechanic’s house. The mechanic arrived later with a carton of beer. She saw only the mechanic and his wife in that house.
  4. The van was parked just one meter away from the mechanic’s house. Her uncle closed both the doors in the front and made her sit on the side of the van, which could not be opened. Her uncle sat on the other side that could be opened. The mechanic was sitting outside of the van, in front of her uncle. They started drinking at around 6 p.m. While they were still drinking, she got sleepy and fell asleep inside the van.
  5. While she was sleeping in the van, she felt somebody lying on top of her. She tried to push him away, but he got hold of both of her hands while he was on top of her. He started kissing her mouth and neck, going downwards. It was around 11 p.m. at night during curfew. She managed to identify the person on top of her through the tube light shining brightly onto the car from the mechanic’s house. It was her uncle. He had pulled her dress up and taken off her underwear. She was wearing a long dress with a panty inside. He had only removed his trousers and underwear, while still wearing his shirt. He held both of her hands and started licking her vagina. She could feel his tongue in her vagina. He then inserted his fingers into her vagina. She tried to stop her uncle, but he was a big man.
  6. The mechanic saw all that her uncle was doing but was not attempting to do anything. The mechanic went back inside his house. She did not try asking for help by screaming because she was scared. Her uncle tried to insert his ball (penis) inside her vagina. She kicked his penis so that he could not insert his penis inside her vagina. He was drunk and knocked out right there. She ran out of the vehicle trying to escape leaving her underwear in the van.
  7. That was after midnight. When she was walking down the road, she saw a boy who showed her the direction to town. A taxi stopped, and she boarded the taxi. She asked the driver to take her to the town. The driver asked her what had happened. She could not tell him the story, she was just crying.
  8. The first person she told this story was Repeka Nene (Nene), her cousin’s aunt. She told Nene that her uncle did bad things to her in Lautoka. Nene did not believe her. When asked for the second time, she told Nene that her uncle was kissing her, telling her to take off her clothes and licking and inserting his finger inside her vagina. Then she came with Nene to Miha Maha Jan to tell her sister what had happened and to report the matter to the police.
  9. Under cross-examination, MT said that after both her parents passed away, she used to stay together with her uncle Vilitati Navau in Vunitogoloa, Rakiraki, when she was still small (5 years old). Vilitati is her mother’s cousin. Having agreed that the church people were at her uncle’s house that morning, MT said that, after breakfast, they went to cut sugarcane. She denied that she was worried and concerned about something when her uncle approached her and questioned why she felt emotional. She denied informing her uncle that she wanted to go to Nailaga in Ba to see Sakaraia, her boyfriend. She admitted that her uncle had said that he didn’t have any money and was waiting for her aunt to come back so that she would be able to give her bus fare. She agreed that she insisted and continued to pack her bags as she wanted to leave her uncle’s house to see her sister.
  10. MT said that she wanted to complain to the church member who was present there but was scared that her uncle had threatened that if she did tell someone of what had happened, he would do something bad to her. She didn’t tell her aunt because she was embarrassed to tell her. She also thought that her aunt would not believe her. But she did not have that feeling when she later told the police, though they were not familiar with her. She did not alert the mechanic’s wife because she was scared, and the mechanic was sitting beside them watching without doing anything to help her.
  11. MT agreed that she had not told in her statement to the police that she had received such a warning from her uncle. She denied that the only reason she came up with this allegation was because she had refused to live with her uncle so that she could live with her boyfriend Sakaraia. She agreed that she was aware in 2020 that a DVRO was put by Sakaraia but she denied that she lodged a false report against her uncle. She did not sacrifice her uncle to prove that she loved Sakaraia more.

PW 2 Repeka Nene


  1. In 2020, Nene was residing in Nailaga, Ba, with her youngest son. On 28 October 2020, she was at home with her son when MT came home in the morning. MT told her that her uncle had done something bad to her. She took it very lightly and was not concentrated on what MT said. Then MT told the story to her son, who then asked her, “Mum, are you listening to the story she is telling you”? When asked, MT said that her uncle had got hold of her and touched her private areas and raped her. She could not believe it because, in Fijian culture, uncles are very close to them, and she did not believe that her uncle would do that to her. She was a bit scared because they saw the uncle’s vehicle keep going up and down. When they were still in a conversation, a police vehicle went past. They stopped the police vehicle and told the driver of the problem. After that, they went and reported the matter to the police.
  2. Under cross-examination, Nene agreed that her statement to the Police was given 25 days after MT had reported the matter to the Police. She could not remember that her son Sakaraia filed a DVRO against MT. She agreed that MT had first explained to her son and that MT was not able to tell her all the details of what had happened. After MT had told Sakaraia everything, she called MT again and told her to tell the whole story because she noticed a difference in MT’s walk as if she was limping. Eventually, she believed what MT told her, that is the reason why they went to lodge a report at the station and went to the hospital.

The Case for Defence


DW1 - Vilitati Navau (The Accused)


  1. In October 2020, Vilitati was residing in Vunitogoloa, Rakiraki. He is a Pastor for the Pentecostal denomination at Oneness Church, which is situated beside his house. On the morning of 27 October 2020, he was at home with his wife and his niece, MT, who had come for two weeks to attend the church service. Some of his church members, Paula, Bale, Sitiveni and Pailato, joined him in having breakfast as usual. They had breakfast together at around 8 a.m. and then cleaned the compound until lunchtime. His wife turned on the washing machine and asked him to watch the laundry because she had to go out to attend a meeting. He was sitting on the porch doing his writing. MT was in her room, far from where the washing machine was.
  2. MT was staying with Sakaraia in Ba. The police had chased her a few times because she was underage, after which she was taken to Suva. When MT came in October 2020 to his house, her sister wanted MT to stay back and help his wife, who had had broken arm from an accident.
  3. On 27 October 2020, he and other church members noticed MT becoming emotional. MT insisted that she wanted to go to Ba. He suspected she wanted to go to her boyfriend in Ba and told her, ‘You still in DVRO, you will not be able to go to Ba’. MT said that she wanted to go to her sister. He told MT to wait for his wife as he had no money. He also informed her to wait till the afternoon because he was supposed to go to get his vehicle fixed in Lautoka. But she still insisted on going to her sister in Ba. He managed to collect $4 and gave it together with a bus card for her to go to Ba. MT boarded the last bus at 4 p.m.
  4. In the evening, he packed MT’s dirty clothes, which she had left behind as she didn’t have a bag, so they could be delivered to MT’s sister’s place in Ba. At around 6 p.m., he left home in his van, which was driven by Paula. Paula got off at Tavua. He proceeded to Lautoka, and reached Lautoka before curfew at 9 p.m.
  5. He rested at the mechanic’s place and slept in the van as the curfew was on. On the following morning (28th), they went to Navula to get his vehicle fixed. After fixing the vehicle, they went to Ba and gave MT’s dirty clothes to Repeka. He denied the allegations levelled against him by MT.
  6. Under cross-examination, Vilitati said he went to Lautoka late because the mechanic was busy during the daytime. MT knew about the mechanic because the mechanic used to come to his house.

DW 2- Paula Ravitu


  1. Ravitu was a member of the church of which Vilitati was the Pastor. After being baptised, he decided to camp at the church. On 27 October 2020, he was in church. He remembers this day because the Pastor had been taken to Court. At around 8.30 a.m., he had breakfast with the Pastor and two other church members (Pailato and Sitiveni) who camped together in church. The Pastor’s house was very close (20 m) to the church. They would go and have breakfast at the Pastor’s house. After having breakfast, which the pastor’s wife prepared, they went to the church. In the afternoon (5-6 p.m.), he drove Pastor down to Tavua, where he dropped himself off to do some shopping, and returned to Rakiraki. Pastor proceeded to Lautoka.

DW 3 Joeli Baleisuva


  1. In October 2020, Joeli was at the Pentecostal Church in Vunitogoloa of which Vilitati was the Pastor. On 27 October 2020, he prayed with Pailato, Paula, and Brother Sit in the church just five steps away from the Pastor’s house. The pastor was at his table on the porch of his house. They would stay around the church and go to Pastor to converse. Between 8 – and 10 a.m., he was praying in church. He has no special reason why the events of 27 October 2020 are still fresh in his mind.

DW 4 Pailato Qarau


  1. In October 2020, Pailato was also residing in the church of which Vilitati was the Pastor. On 27 October 2020, he would pray, stay around the church and clean the compound around the church, which is about 30 m away from the Pastor’s house. The Pastor was doing his laundry. He still remembers the events of this morning because he was brought to Court regarding the allegation against the Pastor. He had given the police the same information.

Evaluation / Analysis


  1. It is the case of the Prosecution that the Accused, on 27-28 October 2020, indecently assaulted the complainant by kissing her in Vunitogoloa in Rakiraki and then in Lautoka and that he licked her vagina and penetrated her vagina with his penis as well as with his fingers without her consent.
  2. The Accused completely denies these allegations. The Defence says that the Complainant maliciously made up these allegations against the Accused to save herself from a potential violation of a DVRO with her boyfriend and to be with her boyfriend. The case turns on who told the truth in Court. However, the overall burden is on the Prosecution to prove the charges beyond reasonable doubt.
  3. The Prosecution substantially relies on the Complainant’s testimony, which it claims to be the truth. To support its assertion, the Prosecution relies on recent complaint evidence of Repeka Nene.
  4. It is not disputed that the Complainant was 15 years old at the time of the alleged incident and that she is the Accused’s niece. The first alleged incident occurred at the Accused’s house in Rakiraki during the daytime. The second alleged incident occurred inside the van, which his uncle drove her to Lautoka. The van was parked very close to the mechanic’s house, whose tube light lighted the van. From that light, the Complainant could identify the man on top of her to be her uncle Vilitati, whom she identified as the Accused in Court. The identity of the Accused was never disputed by the Defence.
  5. The Complainant said that when she was cleaning the room, the Accused came and closed the door, hugged and kissed her and told her to remove her clothes. It was contended by the Defence that the alleged incident could never have happened when the Accused’s wife and some church members were also present at the house that morning.
  6. The Complainant does not deny that some church members were present that morning having breakfast with the Accused. Her evidence was that by the time the Accused approached her in the room, the Accused’s wife had left home early in the morning with their son, and so did the church members after having breakfast. She said that when the Accused approached her in the room, somebody who had attended the church came outside, thus thwarting the Accused’s plan to assault her. The evidence of the witnesses called by the Defence could not create any doubt on this version of events of the Prosecution’s case.
  7. The Defence further contended that the Complainant could have asked for help from the church member and complained to her aunt when she returned home. The Complainant explained that she was really scared at that time and didn’t try to ask for help because her uncle had told her not to tell anybody what had happened, if not, he would do something to her. She didn’t tell her aunt about the incident for the same reason. This explanation is logical and acceptable.
  8. In her police statement, made soon after the alleged incident, the Complainant had not told that she had received such a warning from her uncle. It was submitted that the Complainant is not consistent and not telling the truth, and that is why this warning is not reflected in her previous statement.
  9. The Complainant was a fifteen-year-old child at the time of the offence. She would have been traumatized after the incident. Under those circumstances, she must have forgotten to tell everything to the police unless she was questioned in the manner the legal counsel would do in a trial. Therefore, I would not regard this omission to be a martial contradiction to discredit the Complainant.
  10. The Complainant had stayed back at the Accused’s house after the church service because her uncle asked her if she could stay back and help him and his wife. The Accused admitted that the Complainant came only for two weeks to attend the church service, and her sister wanted her to stay back and help his wife, who had had a broken arm. If that was the case, why then she wanted to leave the Accused’s house immediately without staying there for two weeks? The Accused admitted that the Complainant did not want to stay at his place until the evening, even when she was informed that he was supposed to go past Ba to get his vehicle fixed in Lautoka. The sudden insistence of the Complainant for her to leave the Accused’s house immediately suggests that the alleged harassment occurred.
  11. The explanation by the Accused as to why the Complainant wanted to leave his house is not rational and thus not acceptable. He said that the Complainant wanted to go to Ba to see her boyfriend Sakaraia. Having frankly admitted that Sakaraia was her boyfriend, the Complainant denied wanting to see her boyfriend. She said she wanted to go to her cousin’s place in Ba. If there was a DVRO against the Complainant obtained by Sakaraia, would she ever want to go to Sakaraia’s place? Why would she ever want to fabricate not only one but a series of allegations against the Accused even when he had acceded, albeit reluctantly, to her demand to leave for Ba. I am sure she did not want to stay at the Accused’s house any longer because she felt threatened after being indecently assaulted.
  12. The second alleged incident occurred in Lautoka when the Accused drove the Complainant to the mechanic’s house in Lautoka. According to the Complainant, the Accused, after consuming alcohol, had come on top of her and digitally raped her inside the van. It was argued that the Complainant did not make any hue and cry when she knew that the mechanic’s wife was home because this incident never occurred. The Complainant explained that she did not alert the mechanic’s wife because she was scared and that the mechanic was just sitting beside them, watching without doing anything to help her.
  13. The Complainant had already received a warning from the Accused after the incident in Rakiraki. The Accused was drunk by that time. He was big, and his physique was highly disproportionate to that of hers. Under these circumstances, it was reasonable for her to keep quiet and be surrendered to the Accused. She had run away from the van only when her uncle was knocked out after being kicked on his penis.
  14. The Prosecution relies on Repeka Nene’s evidence to show that the Complainant made a complaint of a sexual nature soon after the alleged incident (recent complaint) and therefore she was consistent in her conduct and that the penetration was never consensual. The Complainant said that she made her way to Nene’s house and made a complaint that she was sexually assaulted and raped. Nene gave evidence and confirmed that she received the complaint on the early morning of 28 October 2020.
  15. I have no reason to reject Nene’s evidence. Her evidence is consistent with that of the Complainant. It was argued by the Defence that the Complainant had not relayed the alleged incident to Nene, but to her son. I wouldn’t agree with this proposition. The Complainant in her first conversation with Nene had just told her that her uncle had done something bad to her and had not gone into details. The reason why she didn’t tell her aunt the full details was because she was embarrassed to tell her aunt, and she also thought that her aunt would not believe her. Nene confirmed this and said she did not take what she heard from the Complainant seriously because she thought it was just an assault. However, the Complainant had relayed the full details to Nene’s son who in turn had alerted his mother of what he heard from the Complainant. It was then that Nene had received the full details of the sexual assault/ rape. Even then Nene could not believe the Complainant’s words because, in Fijian culture, uncles are very close to their nieces. However, Nene was assured that the Complainant told the truth when she noticed the different walking style of the Complainant and that made her believe that the Complainant was raped. That’s why they went to the police and the hospital.
  16. I am sure the complainant told the truth when she made a complaint to Nene. The conduct of the Complainant is consistent with that of a genuine rape victim. I observed the demeanour of the Complainant. She was confident and straightforward in her evidence. I accept that the Complainant told the truth in Court.
  17. The evidence of the Defence is not appealing to me. The Accused said that he left Rakiraki at around 6 p.m. for Lautoka because the mechanic was busy during the daytime. However, he contradicted himself when he said that the vehicle was taken to Navula on the following morning (on the 28th) to be fixed. The vehicle was roadable, and he had no idea what had to be fixed. It is hardly believable that the Accused went to Lautoka to get his vehicle fixed so late knowing very well that the curfew was to be imposed by 9 p.m.
  18. Although the Accused said that he and the church members had noticed the Complainant becoming emotional, none of the church members who gave evidence for Defence confirmed his evidence. They did not even talk about them having seen the Complainant at the Accused’s house that morning.
  19. The Complainant said she packed up her clothes in a bag and boarded the bus. The Accused said the Complainant had left her dirty clothes behind as she didn’t have a bag and that’s why he went to Nene’s place in Ba on 28th. It is implausible that the Complainant left the Accused’s house leaving her dirty clothes only because there was no bag available. I am sure the Accused made up this story to justify his presence in Ba on 28 October 2020.
  20. The Accused said that he went to Lautoka alone and denied having picked up the Complainant from Tavua. Paula had gotten off at Tavua, and therefore, he is not able to say if the Accused went to Lautoka alone or with the Complainant. The premise that the Complainant acquired knowledge about the mechanic and his house in Lautoka only because she was in Lautoka with the Accused that night is tenable. The Accused said that the Complainant knew the mechanic as he used to visit him in Rakiraki. However, the Complainant had just come for a short stay to attend the church service in Rakiraki, and therefore, there was no opportunity for her to be acquainted with the mechanic and his whereabouts. Furthermore, it was never put to the Complainant that she had known the mechanic before the alleged incident.
  21. None of the witnesses called by the Defence was able to create any doubt in the version of events of the Prosecution’s case. They had not been at the Accused’s house right throughout the morning when the alleged incident occurred. The alleged incident had occurred in a room, and therefore, they were not in a position to confirm if it never occurred. All of them were followers of the church of which the Accused was the Pastor. Therefore, they tended to give evidence favourable to the Defence.
  22. As I said in my analysis of the Complainant’s evidence, the proposition advanced by the Defence to show that the Complainant had an ulterior motive to fabricate these allegations against the Accused is far from logical or believable. I am not convinced that the Complainant lodged a false report against her uncle to prove that she loved her boyfriend Sakaraia more or to go to her boyfriend in Ba.
  23. The Accused was not consistent in his evidence. He was just trying to save his skin in the face of the serious charges levelled against him. The witnesses called by the Defence did not support his evidence in martial. I reject the evidence of the Defence and accept that of the Complainant. The defence failed to create any doubt in the events of the Prosecution’s case.
  24. As I said before, the Accused was acquitted on count four and put to his defence on the count of Attempt Commit Rape. Let me see if the offence of Attempt to Commit Rape is proven. In the Oxford Advanced Learner’s Dictionary, the word “attempt” means “to make an effort or try to do something, especially something difficult”, or “an act of trying to do something, especially something difficult, often with no success” Also the Accused’s conduct must be more than merely preparatory to the commission of the offence[1].
  25. The Complainant said that when the Accused was trying to insert his penis inside her vagina, she kicked his penis so that he could not insert his penis inside her vagina. The Accused was drunk, and she took this opportunity to flee the van when the Accused was knocked out. The conduct of the Accused is more than mere preparatory to the commission of the offence of rape. I am satisfied that the elements of Attempt to Commit Rape are satisfied.
  26. It was contended that the first count of Indecent Assault is not proven. The particulars of the charge alleged that the incident occurred at Lovu, Lautoka, whereas the Complainant said it happened at the Accused’s house in Rakiraki. The Prosecution did not move to amend the information once they heard evidence from the Complainant. However, the Court has power under Section 214(2) of the Criminal Procedure Act to amend the information at any stage of the trial unless the required amendments cannot be made without injustice, having regard to the merits of the case.
  27. I agree that the Prosecution should have proved that the 1st indecent assault occurred in Rakiraki. However, the Court has no reason to believe that the Defence was misled or embarrassed by the fact that the information stated Lovu as the place of the offence. No cross-examination was done or raised any issue on this matter. Instead, all three witnesses were called by the Defence to deny the allegation on the first count knowing very well that it had to defend the Accused on the basis that the first alleged indecent assault never took place in Rakiraki. Therefore, no prejudice was caused to the Accused in defending the case against him. In the circumstances of the case, I beg to differ from the facts of the case cited by the Defence.[2]
  28. There is credible evidence that the Accused indecently assaulted the Complainant twice by kissing her without her consent, licked her vagina and penetrated her vagina without her consent. The Accused knew and had reasons to believe that the Complainant was not consenting. The Prosecution proved Counts 1, 2, 3, 5 and the count on Attempt to Commit Rape beyond a reasonable doubt. I find the Accused guilty on Counts 1, 2, 3, 5, and of Attempt to Commit Rape. The Accused is convicted accordingly.

Aruna Aluthge
Judge
11 November 2024


Solicitors
Officer of Director of Public Prosecutions for State
Legal Aid Commission for Defence

[1] State v Bati -Summing up by Temo J [2020] FJHC 1070 (10 December 2020)
[2] State v Watisoni Serelevu; Suva High Court Case No HAC 228 of 228 of 2012

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