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State v Sulua [2016] FJHC 291; HAC157.2014 (15 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 157 OF 2014

STATE

vs

TIMOCI SULUA

Counsels : Ms M Chowdhury for the State

Mr A Chand for the Accused

Dates of Trial : 11th -13th April 2016

Summing Up : 14th April 2016
Judgment : 15th April 2016

JUDGMENT

[1] The accused is charged by the DPP for Rape of Anne Botitu Rokocoko, contrary to Section 207(1) and (2)(b) of the Crimes Decree No. 44 of 2009.

[2] The accused pleaded not guilty to the charge and after trial the assessors, by their unanimous opinion, found the accused not guilty to the count of Rape, but found him guilty to the alternative count of Sexual Assault.

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

[4] Prosecution case was essentially based on the evidence of the complainant and the admissions made by the accused in the agreed facts. The prosecution case is that the complainant was asleep after a long drinking session of beer, having consumed substantial amount of alcohol. In the early afternoon of 13th September 2013, the complainant was sleeping in her house with a female friend. The accused has come in to her house. He saw the complainant was asleep. He had then removed the complainant's pants and her panties. She was woken up with the pulling down of her pants, and then she felt someone "playing with" her vagina. When she opened her eyes, she saw the accused licking her vagina. She got up and had punched the accused. The accused fled.

[5] The accused denied the claim that he licked her vagina, but admitted that he wanted to have sexual intercourse with the complainant when he saw her in that afternoon. He then removed her clothing and saw that she had a pad on. The accused inferred that she is having her menstrual period and was "disgusted". According to him, then only she got up and punched him.

[6] The assessors were directed that the prosecution must establish lack of consent and penetration as the elements of the offence of Rape as there was no dispute on identity. They were also directed if they believed the complainant but entertain a reasonable doubt whether there was penetration, then they should proceed to consider the alternative count, whether the accused is guilty of Sexual Assault.

[7] The assessors, having observed the demeanour of the witnesses' for the prosecution and the accused, obviously have accepted the prosecution evidence as true but would have thought the prosecution has failed to establish element of penetration beyond a reasonable doubt.

[8] I am in agreement with the opinion of the assessors. The prosecution did not clarify beyond the complainant's assertion that he licked her "vagina". There was no evidence as to the specific area in which the complainant felt the sensation in her vagina. It is unclear whether the complainant referred to the general area around her vagina, just outer area of her vagina or inside of her vagina when she referred to "vagina". The absence of medical evidence had no effect on the complainant's evidence as it is she, who must offer clear evidence on this vital element of the offence of Rape.

[9] In the circumstances, it is the considered opinion of this Court that the prosecution failed to prove beyond a reasonable doubt of penetration of the vagina of the complainant by tongue by the accused.

[10] In my view, the assessor's unanimous opinion in finding not guilty to the offence of Rape and finding the accused guilty to the offence of Sexual Assault was not perverse. It was open for them to reach such a conclusion on the evidence. I concur with the opinion of the assessors as there is no cogent reason to hold otherwise.

[11] I am also satisfied that evidence of the prosecution presented through the complainant and the admissions made in the agreed facts, if found to be truthful and reliable, is sufficient to establish the guilt of the accused to the offence of Sexual Assault beyond a reasonable doubt.

[12] I find the accused not guilty to the count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Decree No. 44 of 2009. I therefore convict the accused Timoci Sulua to the alternate count of Sexual Assault.

[13] This is the Judgment of the Court.

AchalaWengappuli
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.