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State v Koroivosa - Judgment [2015] FJHC 1003; HAC215.2014 (10 December 2015)

IN THE HIGH COURT
OF SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 215 OF 2014

STATE

vs

TOMASI KOROIVOSA

Counsel: Mr Y Prasad and Ms S Serukai for the State
Ms S Prakash for the Accused

Date of Trial : 8/12/2015 & 9/12/2015
Summing Up : 9/12/2015
Judgment : 10/12/2015

JUDGMENT

[1] The Accused, TOMASI KOROIVOSA is charged under Section 207(1), (2)(a) and (3) of the Crimes Decree No. 44 of 2009 for committing Rape on ILIESA TAWAKE, a child under the age of 13 years.
[2] Upon his plea of not guilty, the trial commenced and Prosecution led three witnesses in support of their case. The Accused gave evidence for the defense.

[3] After the summing up, the three assessors unanimously found the Accused guilty of Rape.

[4] I direct myself in accordance with the law and evidence which I discussed in my summing up to the assessors.

[5] Prosecution case was primarily based on the evidence of the complainant. The complainant said that on 7th June 2014, the Accused called him to get a story book. They lived in adjoining houses and are related to each other. He had then gone to the Accused's house. When he went into the house, the Accused told him to lie down on bed. He laid on the bed facing the mattress and then the Accused had put his penis into his anus. He felt pain and the Accused continued for about 5 minutes. Thereafter, the Accused went to play Volleyball and the complainant related the incident to his mother who returned from work.

[6] The prosecution called Dr. Merelesia Ranatawake, who examined the complainant on the following day. She had observed blisters in the perianal area of the complainant and expressed her opinion that it could be due to the friction or rubbing or penetration of anus by an object like a penis. According to her, the injury seen on the perianal area of the complainant could have happened within 24 hours from the time of examination.

[7] The Accused in his evidence said that on that day, the complainant came into his house when he called him in. They chatted for a while. They were seated about 5 meters apart in the hall. Then the complainant got up and came towards him. He then, having stopped about 1/2 meter away from the Accused, removed his clothes. When the Accused asked him what he was doing, the complainant told him to be quiet. Then the naked complainant tried to sit on him. He pushed the complainant away. At that time the complainant's little sister had peeped through a door. When the complainant saw her he wrapped himself in a curtain. He denied the charge.

[8] The Accused further said that when he tried to explain the incident, he was chased away by complainant's mother. He and his father made an attempt to reconcile with the family of the complainant, not as an admission of guilt but to repair the strained relationship.

[9] The assessors were directed how to assess truthfulness of these two conflicting versions of events in view of some inconsistencies of the complainant's evidence. They have accepted the prosecution's version of events and the position advanced by the Accused was rejected. They have accepted the complainant's version that the Accused had penetrated his anus by the Accused's penis. As the complainant was below 13 years, issue of consent was irrelevant.

[10] In my view, the assessor's opinion was not perverse as they found the complainant's evidence as a truthful and reliable account. His evidence is also supported by the medical witness, although corroboration is not required by law. It was open for them to reach such conclusion on the evidence. I concur with the opinion of the assessors.

[11] I am satisfied that the evidence led by the prosecution is sufficient to establish the guilt of the Accused beyond reasonable doubt on the count of Rape, he is charged with.

[12] Considering the nature of the evidence before the Court, I am convinced that the prosecution had proved its case beyond a reasonable doubt.

[13] I find the Accused guilty as charged on the count of Rape, contrary to Sections 207 (1), (2)(a) and (3) of the Crimes Decree No.44 of 2009. I convict the accused TOMASI KOROIVOSA on the count of Rape.

[14] This is the Judgment of the Court.

Achala Wengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.