IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 14 of 2016

STATE

v

TAUSIA FUATA FABIANO

Counsels:		Ms A. Vavadakua for the State
			Mr. I. Rakaria with Miss M. Kumar 						(L.A.C.) for the accused

Date of Summing Up	: 19 April 2017
Date of Judgment	: 20 April 2017

JUDGMENT

1.	The accused was charged with the following offence:

Statement of Offence

	RAPE: contrary to section 207(1) and 2(a) of the Crimes Decree 	2009
Particulars of Offence

	TAUSIA FUATA FABIANO, on the 12th day of March 2016 at 	Namawa Estste, Vatudamu, Cakaudrove, in the Northern 	Division, had carnal knowledge of (name suppressed) without 	her consent. 

2.	After trial in this Court the three assessors returned with a 	majority opinion of guilty.

3.	The thrust of the prosecution case came from the alleged victim 	of the rape, a 27 year old woman who being mentally 	handicapped had, according to her mother, a similar mental 	age to that of her 7 year old grand daughter.

4.	As a result the eliciting of evidence from the victim witness was 	extremely difficult. 

5.	Her mother had given evidence before her and the mother told 	the Court of the difficulties her victim daughter had faced, 	initially in her primary education and subsequently in her 	interaction in a social milieu within the family. She occupies 	herself mainly in household chores but can be moody and very 	willful.

6.	It was very apparent when hearing the lady victim’s evidence 	that she was mentally challenged. Her mother sat with her 	during her evidence to comfort her. She was able to answer 	simple questions in chief about her life and in particular about 	this sexual episode in her life; however when confronted in 	cross-examination with more complex questions and 	propositions, she was unable to cope. She would answer a 	question put to her both in the affirmative and the negative, and 	at one stage in response to quick fire questions from Defence 	Counsel she appeared to agree with everything he put to her; 	propositions that would not make any sense to agree with.

7.	She told the Court of the day in question when she had been left 	alone with her first cousin, the accused, and how he had called 	her into a bedroom of the house, stripped her of her clothing 	and had proceeded to have sexual intercourse with her.

8.	The actual act of the intercourse had been agreed by counsel 	before trial, so the only issue at trial was whether this lady 	victim was consenting or not. 

9.	The lady was adamant in chief that she didn’t want the accused 	to “do this bad thing”. She didn’t tell the full story to her 	mother when she returned because she was weak and 	frightened; however she told an aunt and the village crime 	committee some ten days later leading to the report of the crime 	to the authorities.

10.	The accused gave evidence in his defence and consistently with 	the answers given in his caution interview, he told the Court 	that when they had been left alone the lady had come to him 	and insisted that they have sex. She led him to the bedroom, lay 	on the bed and exposed herself to him inviting him to penetrate 	her which he did. He told the Court that during the act the lady 	was enjoying it and telling him so. 

11.	The two diametrically opposed versions of this incident 	obviously caused the assessors some difficulty in that they were 	deliberating for an unusually lengthy time, yet they returned 	with a majority opinion of guilty of rape, clearly believing the 	victim but not the accused.

12.	Despite the unusual manner in which the lady victim delivered 	her evidence, the Court was impressed with her forthright 	insistence that she was not a willing party to this incident. Her 	seeming reversal of that position in cross-examination was not 	brought about by skillful questioning but clearly by 	misunderstanding and confusion. 

13.	With that confidence in the prosecution case in mind, the 	Court turns to the evidence of the accused to determine if his 	version might cause the Court to doubt the prosecution 	evidence. 

14.	The accused’s version of events is unconvincing and 	implausible. He says that he resisted the lady’s strenuous 	invitations to treat for 20 minutes before succumbing to her 	advances. This is a 19 year old man who on his own evidence 	had never had sex before. A young man’s libido and sexual 	urges could never resist such an offer. He admits in his 	evidence that he was aware of the lady’s mental deficiency and 	had been most of his life, having lived near or in the family. 	That being so, the Court cannot accept his version of events to 	be true. He has said nothing to cast doubt on the prosecution 	case.

15.	In the premises therefore the Court accepts the majority opinion 	of the assessors and finds the accused guilty of rape and he is 	convicted of the offence.

16.	That is the Judgment of the Court. 

	P. K. Madigan
	Judge
At Labasa
20 April 2017