State v Roligalevu [2012] FJHC 1091; HAC052.2011 (17 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 052 of 2011

BETWEEN:

THE STATE

AND:

PENIAME ROLIGALEVU

Counsel: Ms A. Vavadakua for State
Ms M. Savou for State

Hearing: 14 – 17 May 2012
Judgment: 17 May 2012

JUDGMENT

[1] The majority opinions of the assessors are that the Accused is guilty of rape as charged on count 1. The unanimous opinions of the assessors are that the Accused is guilty of defilement as charged on count 2. It seems that the assessor who has expressed not guilty opinion on the charge of rape has entertained reasonable doubt as to the issue of lack of consent by the complainant.

[2] I direct myself in accordance with the law and evidence contained in my summing up.

[3] At the time the alleged incidents arose, the complainant was 14 years old and resided with her mother, Apikali and her stepfather, Filipe at Narocake village in Rewa. The Accused is the elder brother of Filipe. The age of the complainant at the time of the alleged incidents is not an issue. The issue is whether the alleged offences were in fact committed by the Accused. The Accused denies the allegations of rape and defilement.

[4] The prosecution case substantially rests on the acceptance of the complainant's evidence as true. The complainant's evidence on the charge of rape is that the Accused grabbed her and threw her on the ground. While she was on the ground, he penetrated her vagina with his penis. He pinned her down using his hand and thighs and prevented her from screaming by covering her mouth with his hand. If accepted, the account given by the complainant shows she was raped on the night of 3 September 2010.

[5] On the charge of defilement, the complainant said the Accused had sexual intercourse with her in her bedroom on the night of 25 November 2010.

[6] The defence case is that the allegations were fabricated by the complainant when her mother confronted her after hearing rumors. According to the defence witnesses the complainant and her mother apologized to the Accused and his family after realizing their mistake.

[7] In my mind, I am convinced that the complainant gave truthful evidence. The veracity of her evidence is not affected by the lack of early complaint and inconsistencies in her police statement. I find the inconsistencies are immaterial.

[8] I am satisfied beyond reasonable doubt that the Accused had unlawful sexual intercourse with the complainant without her consent on 3 September 2010, and he knew she did not consent. I find the Accused guilty of rape as charged on count 1 and I convict him accordingly.

[9] I am satisfied beyond reasonable doubt that the Accused had unlawful sexual intercourse with the complainant on 25 November 2010 when she was under the age of 16 years. I find the Accused guilty of defilement as charged on count 2 and I convict him accordingly.

Daniel Goundar
JUDGE

At Suva
17 May 2012

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