IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

					Criminal Case No. HAC 002 of 2016

STATE

V

WAISALE ROVA LAVETA

Counsels	:	Mr. M. Vosawale with Mr. S. Seruvatu for the State

	:	Mr. M. Yunus for the Accused

Date of Summing Up	:	20 June 2016

Date of Judgment	:	21 June 2016

JUDGMENT

(The name of the complainant is suppressed; the complainant will be referred to as “SS”).
	
1.	The three assessors had returned with a unanimous guilty opinion that the accused was guilty of both the counts namely rape and sexual assault.

2.	Obviously they had accepted the prosecution witnesses evidence as reliable and credible which also meant they had rejected the accused’s version of events and evidence.

3.	I adjourned to consider my judgment.  I direct myself in accordance with my summing up and the evidence adduced at the trial.

4.	On the evidence before the court, it was open to the assessors to reach such a conclusion.

5.	As members of the community, assessors are there to assist the trial judge come to a conclusion on the guilt or otherwise of the accused.On the evidence and on the credibility of the witnesses, I accept the unanimous opinions of the three assessors.  I, like them, find the prosecution witnesses to be credible and reliable witnesses and I accept their evidence and version of events.

6.	Even though the complainant told her grandmother when asked what had happened in the bathroom as “nothing happened” and thereafter agreeing she had sexual intercourse with the accused is in my view not a significant inconsistency in the complainant’s conduct affecting her reliability and credibility as a witness.

7.	It is quite natural for a child of 15 years to be affected after such an incident hence informing the grandmother that nothing happened and then agreeing to a suggestion from the grandmother that she had sexual intercourse when there was in fact no sexual intercourse at all is an important consideration on the totality of the evidence. The inconsistencies in the evidence of the complainant and with her police statement were also not significant to adversely affect the reliability and credibility of the complainant. In respect of the count of sexual assault the grandmother informed the court that on the day of the incident at the Police Station the complainant had told her that the accused had touched her breasts. The complainant had described in detail what the accused had done to her in the bathroom behind closed door. When they entered the bathroom, the accused told the complainant that he did not like how her father had taken away her sister from him. 

Thereafter he started to touch her breasts, then her vagina and he kissed her lips.  He used his left hand to touch her breasts, with the right hand he was closing her mouth as a result she was not able to shout.

8.	The accused had locked the door, pushed her against the wall, pulled up her skirt and touched her vagina.The complainant said she could feel his left hand under her skirt. The accused moved closer to her as she tried to resist him.  At this time she felt his three fingers going into her vagina. She further said that she did not agree to him touching her breasts or inserting his three fingers into her vagina.  

9.	The complainant was honest and truthful whilst giving her evidence. 

10.	Furthermore on the day of the incident, the complainant was medically examined by a Doctor.  The Doctor testified that in her professional opinion there were fresh injuries to the external genatalia being abrasion and contusion which appears to have been sustained within the last few hours that is two (2) to three (3) hours before she was brought to the hospital.  There was a fresh abrasion in towards the hymen and a fresh contusion on the opening of the vagina.  The Doctor further said that the complainant was not menstruating and also that forceful penetration into the vagina could not be ruled out.

11.	The accused was caution interviewed on 7th December, 2015 there was no suggestion by the accused that the answers given in his caution interview were not given voluntarily.  The following questions and answers in the caution interview are important:

Q49. It was alleged as stated by “SS” that you pulled up her t-shirt and start touching her breast.  What can you say about it?
A.	Yes, it’s true.

Q50.  It was alleged as stated by “SS” that after touching her breast you touched her private parts.  What can you say about it? 
A.	Yes. It’s true.

Q51. It was alleged as stated by “SS” that while touching her private part you inserted your fingers into her vagina.  What can you say about it?
A.	Yes, it’s true.”

12.	The accused in his evidence told the court that he only touched the left breast of the complainant and her vagina with her consent.  He further informed the court that he took the complainant to the bathroom and not anywhere else in the house so that nobody could see them in the bathroom if the door was closed.  

13.	When he touched her vagina, he felt blood in his hand which he had wiped on the vest she was wearing.  The accused denied that he forced his three (3) fingers into the vagina of the complainant and/or that he unlawfully and indecently touched her breast.  He maintained that he only touched her left breast and her vagina but with her consent.

14.	The accused was not a reliable and a credible witness he contradicted his own caution interview answer to question 51. Furthermore the accused was in conflict with the Doctor who had observed fresh injuries on the external genatalia of the complainant within hours of the incident. According to the Doctor forceful penetration into the vagina could not be ruled out. 

Furthermore the Doctor said the complainant was not menstruating. The accused was not telling the truth and this was obvious to the assessors and the court.  

15.	I am satisfied beyond reasonable doubt on the count of rape that on the 4th day of December 2015, the accused had penetrated the vagina of “SS” with his fingers without her consent.  

I also accept that the accused knew or believed she was not consenting or didn’t care if she was not consenting at the time.  On the count of sexual assault, I am also satisfied beyond reasonable doubt that on the same day as above, the accused unlawfully and indecently assaulted “SS” by touching her breast.

16.	In view of the above I find the accused guilty as charged and I convict him for the offence of rape and the offence of sexual assault.

17.	This is the Judgment of the Court.

Sunil Sharma
       Judge

At Suva
21 June 2016

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