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State v Nagaqia - Judgment [2015] FJHC 975; HAC126.2015 (8 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 126 of 2015

STATE

v.

LASARO NAGAQIA

Counsel : Ms. S. Kant with Mr. E. Samisoni for State
Ms. L. Ratidara for Accused

Date of Hearing : 4th and 7th December 2015
Date of Summing Up : 8th December 2015
Date of Judgment : 8th December 2015

JUDGMENT

[Name of the victim is suppressed. The victim will be referred to as 'E.S.B.']

1. The accused is charged with 1 count of Rape contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree 2009.
   
2. After trial 3 assessors unanimously opined that the accused is guilty of the offence of Rape as charged. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. The particulars of the offence say that the accused penetrated the victim's vagina with his finger.
   
4. It is an agreed fact that the complainant was 10 years old at the time of the incident. Therefore in terms of section 207 (3) of the Crimes Decree, she is incapable of giving consent.
   
5. There is no dispute about the identity of the accused, as the accused in his own evidence while denying the allegation said that he was at the scene.
   
6. The complainant in her evidence clearly said as to how the accused pulled her hand and put his hand inside the undergarments and touched inside her vagina. She said that it was painful when he did that.
   
7. The doctor who examined the complainant on the following day testified about 2 injuries in her vagina, a bruise and a tear in the labia minora area. She said that the injuries could have caused by penetration of a finger or a slender object.
   
8. Accused denying the allegation said that he was only talking to the complainant 'E.S.B.' when her mother came, and that he did not do anything else. Complainant's mother's evidence was that she saw the accused hugging her daughter inside the grandmother's kitchen when she came.
   
9. In his caution interview statement which was admitted in evidence, accused had admitted committing the offence and also in his evidence in court he said that it was the truth that he told the police in his caution interview statement, but it was because he was threatened and forced. Police officer who caution interviewed the accused denied any kind of threat or force on the accused.
   
10. I find that the police officer was truthful and forthright when he said that the accused made the statement voluntarily.
    
11. I also find that the evidence of the complainant was truthful when she said that the accused touched inside her vagina (in her words 'kaji'). She said it was painful when he did so. I have observed her demeanour and deportment when she gave evidence and I have no reason to disbelieve her. The medical doctor who examined her also observed the injuries, which she said the probable cause would be by penetrating a finger or a slender object.
    
12. I also find that the accused was not truthful when he said that he only talked to the victim 'E.S.B.' and did nothing else.
    
13. On the evidence before the court, I find that the prosecution has proved beyond reasonable doubt that the accused penetrated the victim 'E.S.B's vagina with his finger and therefore I find that the prosecution has proved the charge of Rape beyond reasonable doubt. I agree with the unanimous opinion of the assessors that the accused is guilty of Rape as charged. Therefore I find him guilty of Rape as charged and convict him accordingly.
    

Priyantha Fernando
Judge
At Suva
08th December 2015

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