IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No: HAC 66 of 2017

BETWEEN:			THE STATE

AND:				SETAREKI VUKICANAGAUNA

Counsel: 	Ms A Vavadakua for State
		Ms K Boseiwaqa for Accused

Date of Hearing: 	   04 and 05 June 2018
Date of Summing Up:  06 June 2018
Date of Judgment:       06 June 2018

JUDGMENT

[1]	After a two-day trial, two assessors have found the Accused guilty of rape while one  	assessor has found the Accused not guilty.  The charge is a representative count of 	rape. 

[2]	It is not in dispute that at the material time, the complainant was 12 years old and 	incapable of giving a valid consent to sexual intercourse. The Accused is her cousin. 	The complainant gave evidence that between 26 December 2015 and 8 January 2016, 	the Accused had sexual intercourse with her on two occasions at his farmhouse in 	Lekutu. She did not complain about the incidents to anyone until September 2016 	when she confided in her teacher that the Accused had sexual intercourse with her. 	Her teacher gave evidence of the complaint that the complainant had made to her.  	The complainant’s father gave evidence of a traditional apology presented to his 	family by the Accused’s family in which the Accused was present and was crying. 

[3]	The defence led evidence from two cousins of the Accused, Jale Valetino and Pita 	Koroi, who said that the Accused was with them at Namukalau Village between 25 	December 2015 and 31 January 2016 attending a function.  The Accused elected to 	remain silent and I draw no adverse inference against him for remaining silent. He 	does not have to prove anything. The prosecution carries the burden to prove guilt 	throughout the trial. 
[4]	The resolution of the charge against the Accused depends on whether the complainant 	was a truthful and reliable witness. Obviously, the majority assessors have accepted 	her account that the Accused had sexual intercourse with her on at least one occasion 	between 26 December 2015 and 8 January 2016 at Lekutu and rejected the account of 	the two defence witnesses that the Accused was with them on a different location at 	the material time.  
[5]	When the complainant gave evidence, she struck me as an honest and reliable witness. 	Her reluctance to report the incident to her parents is understandable. The Accused 	was an adult male and a relative of the victim.  The victim was a child and a primary 	school student when the incident occurred. She confided in her teacher almost nine 	months later. I believe her evidence that the Accused had sexual intercourse with her 	in his farmhouse at Lekutu when she was visiting her farm with her parents and 	siblings during the Christmas period in 2015. I don’t believe that the Accused was 	with his cousins in Namukalau at the material time. The Accused presented himself in 	the traditional apology ceremony crying before the complainant’s family after the 	alleged incident was reported to police.  
[6]	I am satisfied that the prosecution has proved guilt beyond a reasonable doubt. The 	Accused is convicted of rape as charged. 

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused