State v Nawalu [2026] FJHC 8; HAC152.2024 (15 January 2026)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 152 OF 2024

STATE

vs

KITIONE TAVAGA NAWALU

Counsel: Ms. U. Ratukalou for State
Ms. A. Bilivalu for Accused.

Date of Hearing: 20^th October 2025
Date of Closing Submission: 23^rd October 2025
Date of Judgment: 15^th January 2026.

___________________________________________________________________________

JUDGMENT

___________________________________________________________________________

1. The name of the Complainant is suppressed for reporting and publication.

2. On 17^th June 2024, the Acting Director of Public Prosecution filed this Information, charging the Accused, Mr. Kitione Tavaga Nawalu, with one count of Rape, contrary to Section 207 (1) and (2) (a) or (b) of the Crimes Act 2009. The particulars of the offence are:
   

Particulars of Offence

KITIONE TAVAGA NAWALU on 01^st March 2024 and 31^st March 2024 at Nasinu in the Central Division penetrated the vagina of FG with his penis or a part of his body that is not a penis or some other object, without her consent.

3. The Accused pleaded not guilty to the offence; accordingly, the matter proceeded to

trial. The trial commenced on the 20th of October 2025 and concluded on the same day. The Prosecution called two [2] witnesses, including the Complainant, while the Accused gave evidence for the Defence. Subsequently, the Court heard the closing submissions of the Learned Counsel for the Prosecution and the Defence. The Learned Counsel for the parties also filed their respective written submissions. Having considered the evidence presented and the respective oral and written submissions of the parties, I now pronounce the Judgment on this matter.

Burden and Standard of Proof

4. I first drew attention to the burden of proof and the standard of proof. The Accused is

presumed innocent until proven guilty. The burden of proof of the charge against the Accused lies with the Prosecution. The standard of proof in a criminal trial is "proof beyond reasonable doubt". The Court must be satisfied that the Accused is guilty of the offence beyond reasonable doubt.

Elements of the Offence

5. The main elements of Rape under Section 207 (1) (2) (a) of the Crimes Act 2009 are:
   
   1. The Accused,

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

3. The Complainant did not consent to the Accused penetrating her vagina

with his penis,

4. The Accused knew or believed or was reckless that the Complainant was not

consenting for him to insert his penis in that manner.

6. The first element concerns the identity of the Accused. It is the Prosecution's onus to

prove beyond reasonable doubt that the Accused committed this offence against the Complainant. There is no dispute about the correctness of the identification. The Accused and the Complainant are known to each other. The Accused never raised the issue that the Complainant was mistaken in identifying the alleged perpetrator.

7. Evidence of the slightest penetration of the Complainant's vagina by the Accused's penis

is sufficient to prove the element of penetration.

8. Section 206 (1) of the Crimes Act 2009 defines consent as:
   

"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.”

9. Accordingly, consent is a state of mind that can take many forms, from willing enthusiasm

to reluctant agreement. In respect of the offence of Rape, the Complainant consents if she has the freedom and capacity to make a choice and to express that choice freely and voluntarily. Consent obtained through fear, threat, the exercise of authority, the use of force, or intimidation cannot be considered consent expressed freely and voluntarily. A submission without physical resistance by the Complainant to an act by another person shall not alone constitute consent. Accordingly, "capacity" is essential to making free and voluntary choices about consent.

10. If the Court is satisfied that the Accused had penetrated the Complainant’s vagina with

his penis and that she had not consented, the Court is then required to consider the final element of the offence. That is, whether the Accused honestly believed, knew, or was reckless as to whether the Complainant was freely consenting to this alleged sexual act. The belief in consent differs from the hope or expectation that the Complainant was consenting.

Admitted Facts

11. The Defence tendered the following admitted facts under Section 135 of the Criminal

Procedure Act 2009.

1. The Complainant’s name is FG (hereinafter referred to as "FG").
2. The Accused name is Kitione Tavaga Nawalu (hereinafter referred to as

"Kitione").

3. Kitione is the maternal uncle of the Complainant.
4. Kitione is married to FG’s mother’s younger sister namely Barbara.
5. Kitione and Barbara resides in Lot 191 Pritam Singh road in Makoi.
6. In February 2024, FG came to stay with Barbara and Kitione at their residence at Lot 191 Pritam Singh road in Makoi.
7. On the night of the alleged incident, Kitione and Barbara was drinking

alcohol with their friends.

8. Barbara then went to sleep in the sitting room.
9. FG also drank some beer and white wine afterwards.
10. FG was lying on the garage floor beside the tank at Kitione and Barbara’s

house

11. FG stayed with Barbara and Kitione till 3^rd May 2024 at their residence

and then moved in with her friend Jack.

12. FG lodged a report against Kitione on 7^th May 2024 alleging that he raped

her.

13. On 21^st May 2024, Kitione was arrested and caution interviewed for

allegedly raping FG.

14. On 22^nd May 2024, Kitione was formally charged for raping FG.
    

Prosecution’s Evidence

12. The Complainant is the daughter of the Accused’s wife’s elder sister. She stayed with

the Accused’s family, comprising the Accused, his wife, and two young children, while pursuing tertiary education and training to join the British Army. The Complainant left home for her training at 5 a.m. and returned home at approximately 7 a.m. She then went to her tertiary education in the Accused’s car. On the way, the Accused dropped off his two [2] children at the school before dropping off the Complainant.

13. On one of the days during her stay with the Accused and his family, the Accused and

his wife hosted their neighbours and one of his wife’s workmates for a drinking party, during which they drank beer and wine with curry lamb. The Accused’s wife and her friend, after consuming alcohol, fell asleep on the living room floor, and the neighbours also left. The Accused then approached the Complainant, who was in the room, and asked her to join him for a drink. As outlined in the evidence, the Complainant was initially hesitant, as both the Accused and his wife had not allowed her to have alcohol before. However, the Accused insisted, saying he wouldn’t tell her aunt. The Complainant then joined the Accused and consumed three [3] and a half [½] long-neck beer bottles, followed by a bottle of wine. Before she started drinking the wine, she vomited a little but still consumed and finished the wine.

14. The Complainant explained that she was not completely drunk after consuming beer

and wine, as she could still feel and understand what was happening around her. When she began to throw up, the Accused asked her to do so behind the car, as it would wake her aunt. She moved to the back of the house to vomit. The Accused came and began massaging her back while she was throwing up. He then put his arm around her hip and body and assisted her in walking back to the house. Once they reached the back door near the fridge, he bent her over the fridge and began touching her breasts and thighs with his hands. She felt dizzy and weak but knew what was happening. The Accused then pulled her shorts and undergarments down and penetrated her vagina with his penis from behind. He continued for about ten [10] minutes. Afterwards, he pulled her shorts and underwear up, put his arm around her hip, and took her to the bedroom.

15. The following morning, as they were preparing to leave, the Accused asked the

Complainant whether she could recall what had happened the previous night. The Complainant feared that if the Accused knew she could remember the events of the previous night, he might do something to her, so she replied that she could not. The Complainant did not inform anyone of the incident and continued to live with the Accused and his family until May. She then moved to a friend's place without informing the Accused or her mother. She stayed there the whole weekend before meeting her mother. However, a few days before she met her mother in person, she messaged her to say that the Accused had touched her. When the Complainant met her mother, she told her what the Accused had done to her. According to the mother's evidence, the Complainant had already reported the matter to the Nasinu Police Station before the Complainant related the incident to her.

16. In her evidence, the Complainant explained that she feared the Accused and therefore

did not disclose the incident to anyone until she moved out of his house. She further asserted that she had to remain at the Accused’s residence until May because she wanted to continue her studies.

Accused’s Evidence

17. In his evidence, the Accused vehemently denied the allegation, asserting that he had

never penetrated the Complainant’s vagina with his penis without her consent. According to the Accused’s evidence, he only asked the Complainant to clean the porch after the drinking party and never invited her to join him for drinks. After asking her to clean the porch, he went to check on his children in the room and fell asleep for a while. Later, he got up and went to check whether the Complainant had cleaned the porch, but he found only that she was drinking beer instead of cleaning. He told her to finish it and then clean. He went back to the room to sleep. He woke up again to go to the toilet. He then saw that the back door was still open. When he went to check the back door, he found the Complainant lying on the floor near the water tank. He pulled her up and then returned her to her room. The Complainant then started to throw up. He took her out and helped her to vomit and then went back to sleep.

Evaluation of Evidence

18. According to the evidence adduced by the Prosecution and the Defence, the Accused

denied the allegation, stating that the alleged incidents had never occurred, and that the Complainant had fabricated this false allegation for mala fide motives. Under such circumstances, the Court must consider all the evidence adduced at the trial, including the evidence of the Accused, to determine whether the Prosecution has proven beyond reasonable doubt that the Accused committed this crime. In doing so, the Court must evaluate the evidence presented in the Court. The Accused is not required to give evidence. He does not have to prove his innocence, as his innocence is presumed by law. However, in this case, the Accused decided to provide evidence. Therefore, the evidence presented by the Accused needs to be considered when determining the facts of this case.

19. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that:
    

"If an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution.”

20. Accordingly, if the Court believes the evidence given by the Accused is true or may be

true, the Court must find the Accused not guilty of the offences. If the Court rejects the Accused’s version, that does not mean the Prosecution has established that the Accused is guilty of the crime. The Prosecution must still satisfy the Court that, on its evidence, it has established beyond reasonable doubt that the Accused committed the offence as charged in the Information.

21. In evaluating the evidence, the Court must determine the testimonial trustworthiness of

the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide; Matasavui v State [2016] FJCA 118; AAU0036.2013 (the 30th of September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).

Recent Complaint

22. The Prosecution presented the evidence of the Complainant’s mother as a witness to the

recent complaint. Gates CJ, in Raj v State [2014] FJSC 12; CAV0003.2014 (the 20th of August 2014), defined the evidence of a recent complaint, outlining its scope and application. Accordingly, the evidence of the recent complaint is not evidence of the facts complained of but evidence that bears on the consistency or inconsistency of the Complainant’s evidence. Hence, the evidence of the recent complaint may enhance the credibility and reliability of the Complainant's evidence. The evidence of the recent complaint does not establish the facts of which the Complainant testified or disprove those facts. It only establishes the Complainant’s consistency, showing that she has stated a similar version of events to the recent complaint witness. The Complainant is not required to disclose the details of the offence, covering all the ingredients. It is sufficient to explain the material and relevant alleged sexual conduct committed by the perpetrator.

23. In this case, the Complainant’s mother testified that the Complainant told her the

Accused massaged her back while she went out to vomit. She was dizzy at the time, having consumed the alcohol given to her by the Accused. The Complainant then felt the Accused massaging her breasts and thigh. She then blacked out and felt nothing. When she finally regained consciousness, she found herself in the room. The Complainant then went to take a bath, where she found her private part swollen and painful.

24. The evidence of the Complainant’s mother regarding the alleged incident that her

daughter complained about is markedly different from the Complainant’s own account. The Complainant told her mother that she blacked out at the back of the house when she felt the Accused was massaging her breasts and thigh, and that she only regained consciousness when she was in the room. Hence, it appears that the Complainant gave a different account to her mother, which vastly contradicts the account she gave in her evidence regarding the alleged penetration of her vagina by the Accused with his penis.

25. It is essential to evaluate how the inconsistency in the evidence between the

Complainant and her mother affects the credibility and reliability of the Complainant’s evidence. This must be assessed in the factual context that existed at the time of the alleged incident. As the Complainant admitted, she consumed three [3] and a half [½] long-neck bottles of beer and then a whole bottle of wine, which, as she claimed, made her drunk and dizzy. It is impossible to rule out the reasonable possibility that she might have lost consciousness and regained it in the room due to the large amount of alcohol she consumed that night.

26. I will now consider how the delay in reporting this matter affects the credibility and

reliability of the Complainant’s evidence. Gamlath JA in State v Serelevu [2018] FJCA 163; AAU141.2014 (the 4th of October 2018) has extensively discussed the issue of delay in reporting. Gamlath J found that "the totality of the circumstances test" is the correct approach to evaluating the delay in reporting and its effect on the credibility of the evidence. An unexplained delay does not necessarily or automatically render the Prosecution case doubtful. Whether the case becomes doubtful depends on the facts and circumstances of the particular case.

27. The delay in reporting the matter cannot be treated as a strict rule to discredit the

authenticity of the Prosecution case. It only cautions the Court to seek and consider a satisfactory explanation for such a delay, and, if the explanation is unsatisfactory or unexplained, to determine whether there was any possibility of embellishment or exaggeration in the facts set out in the evidence. (vide; Masei v State [2022] FJCA 10; AAU131.2017 (3 March 2022))

28. In her evidence, the Complainant explained that she was afraid of the Accused and

therefore, did not tell anyone about the incident. She remained in the Accused’s house and continued her usual life with them until she moved to her friend’s place. There is no evidence that the Accused had threatened her, warning that if she told anyone about the incident, he would do something to her. The only issue was that the Accused was unhappy with the Complainant on the day she left because she had forgotten to put the washed clothes out to dry.

29. Taking into account the cumulative effect of the inconsistency between the

Complainant's evidence given in the Court and her explanation to her mother about this incident, the delay, and her intoxication due to excessive consumption of beer and wine, there remains a reasonable doubt as to whether she actually fell unconscious and blacked out when she felt the Accused was massaging her breasts and thighs, and whether she then speculated or presumed that the Accused might have penetrated her vagina with his penis due to the swollen vagina she noticed with pain.

30. Complainant’s mother, in her evidence, said that a report had already been made to the

Nasinu Police Station by the family of the Complainant’s friend when the Complainant told her about the incident, implying that the Complainant had already reported the incident to her friend or the friend’s family before telling her mother. The Prosecution did not call the friend or any other person to whom she reported the incident.

31. In view of the reasons outlined above, it appears that the Complainant may be a credible

and reliable witness, but that is not sufficient to establish the elements of the offence beyond reasonable doubt in a criminal prosecution. Accordingly, the Prosecution failed to prove that the Accused committed the offence charged in the Information beyond reasonable doubt.

32. In conclusion, I find the Accused not guilty of the offence of Rape contrary to Section

207 (1) and (2) (a) or (b) of the Crimes Act 2009, as charged in the Information, and accordingly acquit him of the same.

33. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

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

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

At Suva
15^th January 2026.

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