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State v Lutunasobasoba - Judgment [2015] FJHC 885; HAC02.2014 (13 November 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 02 OF 2014

BETWEEN:

STATE

AND:

ELIA LUTUNASOBASOBA

Counsel : Ms. S. Kiran for State
Ms. V. Narara for the Accused

Date of Hearing : 9th and 10th of November 2015
Date of Closing Submissions : 12th of November 2015
Date of Summing Up : 12th of November 2015
Date of Judgment : 13th of November 2015

JUDGMENT

1. The accused person is charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009. The particulars of the offence are that;
   

"Elia Lutunasobasoba on the 12th day of December 2013, at Lautoka in the Western Division penetrated the vagina of Salanieta Tanumi with his penis, without the consent of Salanieta Tanumi"

2. The accused person pleaded not guilty for this offence; hence the hearing of this action took place on 9th and 10th of November 2015. The prosecution called three witnesses during the course of the hearing. At the conclusion of the prosecution case, the accused person gave evidence on oath but did not call any witnesses for the defence. Subsequently, the learned counsel for the prosecution and the defence made their respective closing submissions. I then delivered my summing up to the assessors.
   
3. The three assessors returned with unanimous verdict of guilt against the accused person. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
   
4. Having considered the evidence presented during the hearing, respective closing submissions of the prosecution and the defence, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
5. Sections 207 (1) and 207 (2) (a) states that;
   

"Any person who rapes another person commits an indictable offence.

A person rapes another person if-

(a) the person has carnal knowledge with or of the other person without the other person's consent,

6. Accordingly, the main elements of the offence of rape are that;
   
   1. The accused,
      
   2. Inserted into the vagina of the victim with his penis,
      
   3. Without the consent of the victim,
      

7. The prosecution alleges that the accused came into the room while the victim was picking her mattress, pillows and the blanket to sleep. He then offered her $10 if she do some bad things with him. She refused his offer. The accused then pushed her on to the bed and came on top of her. He covered her mouth from one of his hands and removed her pant and undergarment from other hand. He pressed her thighs with his legs, preventing her from escaping. He then removed his pant and penetrated into her vagina with his penis. The accused in his defence denies this allegation and stated that he only kissed her, but never had sexual intercourse.

8. Accordingly, it appears that the prosecution and the defence are presenting conflicting versions of event, which actually took place between the accused and the victim in private. The accused denied having sexual intercourse, but admitted that he kissed the victim as she requested him to do so. The adopted mother of the victim, in her evidence stated that she saw the accused was lying on top of a girl when she looked at his room. She further stated that she heard a sound of the girl, which was like that she was trying to scream when her mouth was gagged. The medical findings of the Doctor confirmed that the victim had a forceful sexual intercourse or penetration of blunt object into her vagina within last 24 hours prior to her medical examination conducted on 13th of December 2013.
   
9. Having considered the evidence presented by the prosecution and the defence, I refuse to accept the evidence of accused as it is less worthy to trust. I am satisfied that the evidence presented by the prosecution has established the guilt of the accused person beyond reasonable doubt. Accordingly, I do not find any cogent reason to disagree with the unanimous guilty verdict of the assessors.
   

10. I accordingly find the accused is guilty for the offence of rape contrary to section 207(1) and 207 (2) (a) of the Crimes Decree and convict for the same.

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
13th of November 2015

Solicitors : Office of the Director of Public Prosecutions
Office of the Legal Aid Commission