State v S E [2011] FJHC 736; HAC266.2011 (28 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 266 OF 2011

BETWEEN:

THE STATE

AND:

S.E.

Counsel: Ms. S. Hamza & Ms. L. Koto for the State
Accused In Person

Date of Summing Up: 28th October 2011

Date of Judgment: 28th October 2011

JUDGMENT

1. Name and identity of the victim and others were suppressed due to the suppression order issued by me on the request of Counsel.
   
2. The Accused S.E. was charged with 2 Counts of Sexual Assault and one Count of Rape punishable under section 210 (1) (2) and section 207 (1) of the Crimes Decree respectively.
   
3. Trial commenced on 24th and concluded on 28th October 2011.
   
4. At the conclusion of the trial all 3 assessors unanimously found that the Accused is guilty on all three Counts.
   
5. I adjourned the case till this afternoon to consider my judgment.
   
6. Prosecution called six witnesses to prove the case. The Accused exercising his rights by remained silent.
   
7. The virtual complainant is a 4 year old small girl. Her evidence was taken in a child friendly environment. She told the Court that the Accused 'Kuku' (grandfather) had removed her clothes, lifted her legs and licked her vagina and the anus on the 1st occasion.
   

On the second occasion the Accused forced opened her mouth and inserted his penis into her mouth.

On the third occasion she had seen the Accused masturbating or playing with his penis in the bathroom infront of the child. This last incident had been seen by the mother of the child.

8. There is no physical injury caused to the child and there is no report of the child's psychological impact.
   
9. Prosecutor relies on direct evidence and not produced the cautioned interview statement to prove the case for the Prosecution.
   
10. The evidence of the virtual complainant and the other witnesses were unchallenged by the Accused.
    
11. I considered the evidence of the virtual complainant and compared the same with other witnesses. I find that the child is telling the truth in Court. Considering all evidence of the witnesses I find the Prosecution had proved the case beyond reasonable doubt.
    
12. I direct myself with my summing up I gave the assessors today. I find the verdict of the assessors were not perverse. It was open to them to reach such a conclusion on the evidence. I accept their verdict.
    
13. Considering all I find the Accused S.E. guilty on the 1st Count Sexual Assault, 2nd Count Rape and the 3rd Count Sexual Assault.
    
14. Accordingly, I convict the Accused S.E. under section 207 (1) (a) 2, section 207 (1) (2) (c) and section 210 (1) (b) (ii) of the Crimes Decree.
    

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Accused In Person