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State v Lagilagi [2019] FJHC 1007; HAC149.2014 (1 July 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

High Court Criminal Case No. HAC 149 of 2014

BETWEEN

STATE

AND

PENISONI LAGILAGI

Counsel : Mr Seruvatu for the State
Ms Vulimainadave for the Accused

Dates of Hearing : 25 & 27 June 2019
Closing Speeches : 27 June 2019
Date of Summing up: 28 June 2019
Date of Judgment : 01 July 2019
(The complainant will be referred to as RT)

JUDGMENT

1. The Accused is indicted for the following counts;

First Count (Representative count)

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 44 of 2009.

Particulars of Offence

Penisoni Lagilagi between the 28^th day of April, 2014 and 2^nd day of May, 2014 at Ra in the Western Division, unlawfully and indecently, assaulted RT.

Second Count ( Representative count)

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 44 of 2009.

Particulars of Offence

Penisoni Lagilagi between the 12^th day of May, 2014 and 31^st day of October 2014 at Nadi in the Western Division, unlawfully and indecently assaulted R T.

Third Count

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 44 of 2009.

Particulars of Offence

Penisoni Lagilagi on the 01^st day of November 2014, at Nadi in the Western Division, penetrated the vagina of R T, a 9 years old girl, with his finger.

2. The Accused pleaded not guilty to all three counts and the prosecution called 3 witnesses to prove the charges against the Accused. After the prosecution case was closed the Accused exercised his right to remain silent and no witnesses were called for the defence.
   
3. After summing up the case to the assessors, they unanimously found the Accused guilty to all three counts.
   
4. Having directed myself in accordance with the summing up I will now review the evidence presented by the prosecution to pronounce my judgement.
   
5. The first two counts against the Accused are representative counts. The assessors were directed on law as to how the evidence should be evaluated in considering representative counts. The complainant gave evidence regarding two incidents allegedly happened between 28 April 2014 to 2 May 2014. In one incident the Accused had touched her legs on top of her clothes and in the other incident the Accused had touched her under her clothes.
   
6. The complainant gave evidence regarding three other incidents allegedly happened between 12 May 2014 and 31 October 2014. She said that in those three incidents the Accused touched her vagina.
   
7. Although the complainant was cross examined at length by the defence counsel the evidence of the complainant could not be challenged. She gave evidence in a very convincing manner. I am satisfied that she gave credible and truthful evidence in respect of the first and second counts. Further I am satisfied that the separate incidents that she related to are sufficient to prove the elements of indecent assault. I accept the evidence given by the complainant. Accordingly, I decide that the prosecution has proved the first and the second counts beyond reasonable doubt.
   
8. The complainant gave evidence regarding an incident which allegedly occurred on 01 November 2014. She gave evidence that the Accused inserted his finger into her vagina. It is an admitted fact that the complainant was 9 years at the time of the alleged offence. Therefore, consent is not an issue as far as the third count of rape is concerned. Her evidence could not be discredited by the defence. Although it was suggested by the defence that no such incident took place, the complainant consistently confirmed that the Accused penetrated her vagina with his finger. I have observed the demeanour of the complainant and I am convinced that her testimony is credible and reliable. She gave clear and consistent evidence. I am satisfied that the prosecution proved the third count beyond reasonable doubt.
   
9. For the foregoing reasons I am of the view that the opinions of the assessors are not perverse, and their unanimous opinion can be justified in all circumstances. As such, I concur with their opinion.
   
10. I decide that the prosecution has proved the two counts of indecent assault and one count of rape beyond reasonable doubt. I find the Accused guilty to the first, second and third counts.
    
11. Accordingly, I convict the Accused for all three counts.
    

30 days to appeal to the Court of Appeal

Rangajeeva Wimalasena
Acting judge

Solicitors:

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