IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 61 of 2018

STATE

v

FILIPE KOROI

Counsel	:	Mrs. A. Vavadakua for the State
		:	Mr. J. Koroti with Ms.M. Tuiloma (L.A.C.) for the 				Accused

Dates of Trial		: 	19 and 20 March 2019
Date of Summing Up	: 	21 March 2019
Date of Judgment	:  	21 March 2019

JUDGMENT

1.	The accused has been tried before me and three assessors on 	one count of rape contrary to section 207(1) and 2(a) and (3), 	the particulars of which are that on the 18th July 2018 at a 	village in Cakaudrove he anally raped his 6 year old boy cousin. 

2.	The three assessors returned with unanimous opinions of guilty 	of the offence.

3.	The evidence of the prosecution was led through the young boy 	himself, his mother and a Woman Police Constable. 

4.	The mother told the Court that she had left the two having 	dinner and when she returned, she switched on the light in her 	young son’s bedroom to see the two of them on the bed together. 	The boy’s pants were off. The accused immediately got up and 	left the room and the young boy was crying, telling his mother 	that the accused had “done something to my back side”.

5.	The boy himself gave cogent and specific evidence through the 	sympathetic and careful interpretation by the Court’s itaukei 	interpreter. He told the Court that he remembered the time that 	he and the accused were on the bed together. A direct quote 	from his evidence is this: “He did it on my backside. I felt 	pain. He inserted it inside. He did it for a short time. The 	place where to pass out the stool”. 

6.	In cross-examination however he appeared to contradict himself 	by saying that “he did something on the outside and he tried to 	insert it inside” In my summing up, I told the assessors that it 	was a factual issue for them to resolve. 

7.	The WPC produced the record of interview of the accused under 	caution, the production of which was with the consent of the 	defence. In that interview the accused admitted to being on the 	bed with the victim but then gave the breathtakingly absurd 	explanation, which he repeated in his defence evidence, that the 	boy instigated the sexual activity and positioned himself to 	encourage and enable himself to be penetrated by the accused. 

8.	The accused gave evidence in his defence and called no 	witnesses. In his defence the accused said that after dinner he 	was lying on the bed playing with his phone and the boy came 	and lay beside him. The boy touched him sexually and the 	accused told him not to do that and turned away. The boy then 	jumped over to face him and told the accused to lie face up. He 	undid the accused’s trousers and took hold of his penis. He was 	trying to insert the penis into himself when the mother came 	into the room. 

9.	That was the end of the evidence in the trial. Both Counsel 	exercised their right to make closing speeches. 

10.	Counsel for the defence stressed that the evidence was of 	attempt to penetrate, rather than actual penetration. He also 	relied on his client’s evidence that it was all the boys doing that 	led to penetration.

	Discussion 

11.	Obviously, consent is not an issue when the victim is 6 years 	old and the only issue to be found is whether there was 	penetration or not. Even if one were to believe the absurd 	defence that it was all the boy’s doing it doesn’t matter if as a 	result there was penetration. 

12.	In resolving the seemingly contradictory evidence of the boy 	(outside or inside?) the Court takes the view that for the boy to 	be crying and in pain, penetration must have occurred. The 	Court saw the boy; he was very small and it is preposterous to 	say that he could force a well built 18 year old to do such an act 	against the 18 year old’s will. 

13.	I direct myself on my own summing up and I am acutely aware 	of my duty not to find guilt when I completely discard the 	evidence of the accused. 

14.	The evidence of the young boy is convincing enough however for 	me to be in agreement with the assessors and the Court finds 	the accused guilty of anal rape and convicts the accused 	accordingly. 

15.	That is the judgment of the Court.

16.	Mitigation is called for in advance of sentence.

		P. K. Madigan
		Judge

At Labasa
21 March 2019