State v Ali - Judgment [2012] FJHC 1120; HAC235.2011 (15 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 235/2011

BETWEEN:

THE STATE

AND:

MOHAMMED IMTIAZ ALI

COUNSEL: Ms. Madanavosa for the State
Accused in Person

Date of Hearing: 08-10/05/2012
Date of Summing Up: 14/05/2012
Date of Judgment: 15/05/2012

Name of the victim is suppressed. She will be referred to as RN

JUDGMENT

01. MOHAMMED IMTIAZ ALI has been charged with the following charge on amended information dated 04th day of May, 2012.

First Count (Representative Count)

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code Cap.17.

Particulars of Offence

MOHAMMED IMTIAZ ALI between the 29th day of December 2009 to the 31st day of January 2010 at Suva in the Central Division had unlawful carnal knowledge of RN, without her consent.

Alternative Count (Representative Count)

Statement of offence

Defilement of a girl between 13 and 16 years of age contrary to section 156(1) of the Penal Code. Cap. 17.

Particulars of Offence

MOHAMMED IMTIAZ ALI between the 29th day of December 2009 to the 31st day of January 2010 at Suva, in the Central Division, had unlawful carnal knowledge of RN a girl being above the age of 13 years and under the age of 16.

02. After trial on the charge, the assessors returned unanimous opinions of not guilty against 1st count and the alternative count. Their findings are merely their opinions based on their views of the facts of the case. They have no power to try and convict the accused. Their duty is to offer their opinions which might assist the trial judge. The trial judge has the power to accept or reject their opinions.

03. I direct myself on my own summing up and on looking at the evidence in its entirety I accept the assessors' majority opinions on count number 01. However, as the trial judge I reject the assessors' unanimous opinions on the alternative count. I find the opinion of the assessors on the alternative count appears to be perverse.

04. In this case this victim (RN) gave evidence first. According to her she had been raped thrice by the accused. But she did not inform this to her mother or anybody else. She only informed the incident to her neighbour once she became pregnant. She had not gone to the police first. She had gone to CWM Hospital first and then gone to the police. The victim (RN) was 15 years and 09 months old at the time of first incident. She had number of opportunities to tell this to her mother or any other person. She said that she was threatened with death and her family. The Accused is the cousin of the victim (RN).

05. The mother of the victim (RN) corroborated her daughter's evidence and tendered victim's (RN) birth certificate to prove the age.

06. Police officers from Valelevu Police Station gave evidence regarding the arrest, recording of caution interview and charging the accused. No evidence led on behalf of the accused that accused was subjected to intimidation, threat or assault during the arrest, recording of caution interview and charging. Accused had met the police officer as per their request before his arrest.

07. Medical Report of the victim (RN) has been tendered to this court to prove the fact that victim (RN) was subjected to sexual intercourse.

08. In this case accused elected to remain silent and called witnesses. Alfaz Mohamed and Sanchana Devi gave evidence in order prove that the accused and the victim (RN) were lovers. They had seen the behaviour of the couple during relevant period.

09. In this case accused did not challenge his caution interview statement. He took up the position that he had sexual intercourse with consent of the victim (RN). He had taken up the same position in his caution interview statement as well. To prove his case he called witnesses. Victim (RN) was 15 years and 09 months old at the time of first incident.

10. In this case the accused is charged for rape contrary to sections 149 and 150 of the Penal Code, Cap 17. Alternatively he has been charged for defilement of a girl between 13 years and 16 years of age contrary to section 156(1) of the Penal Code, Cap 17.

11. Considering all the materials before the court, I find the accused Mohammed Imtiaz Ali not guilty to the charge of Rape and acquit him accordingly.

12. Further, I find that the Prosecution had established a prima facie case against the accused on the alternative charge of Defilement of a girl between 13 years and 16 years of age.

13. Accordingly, I convict the accused on the alternative charge of Defilement of a girl between 13 years and 16 years of age contrary to section 156(1) of the Penal Code, Cap 17.

14. That is the Judgment of the Court.

P.Kumararatnam
JUDGE

At Suva
15/05/2012