State v Drugunalevu [2012] FJHC 1388; HAC217.2011 (26 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 217 OF 2011

BETWEEN:

STATE

AND:

EPI DRUGUNALEVU

Counsel :Mr. L. Sovau for the State
Accused – In Person

Date of Summing Up : 26th October, 2012
Date of Judgment : 26th October, 2012

JUDGMENT

1. The Accused Epi Drugunalevu was charged with one count of Rape, one count of Attempted Rape and one count of Sexual Assault.
   
2. Director of Public Prosecution had filed 3 information in the Court. The final one dated 22nd October 2012.
   
3. The first count reads as follows:
   

Count 1

[REPRESENTATIVE]

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree No 44 of 2009.

Particulars of Offence (b)

EPI DRUGUNALEVU between the 1st day of December 2010 and 8th of October 2011 at Nadi, in the Western Division penetrated the vagina of TVV, age 9 years old with his finger.

4. Section 207 (1) and 2(a) of the Crimes Decree reads as follows:
   

207. — (1) Any person who rapes another person commits an indictable offence.

Penalty — Imprisonment for life.

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person's consent.

5. The particulars says that there is a finger penetration. I find the section mentioned is incorrect may be misleading the undefended Accused.
   
6. All assessors unanimously found the Accused not guilty of charge.
   
7. I have reviewed the evidence called in the trial and I have directed myself in accordance with the Summing Up I gave the assessors today.
   
8. I conquer the verdict of the assessors and find the Accused not guilty to the charge of rape.
   
9. The 2nd charge against the Accused is Attempted Rape. The assessors unanimously found the Accused not guilty. I accept the verdict and find the Accused not guilty to the 2nd count.
   
10. The last charge against the Accused is Sexual Assault punishable under Section 210 (1) (b) (1) and (2) of the Crimes Decree.
    
11. All 3 assessors unanimously found the Accused guilty to the charge.
    
12. Considering the evidence of the virtual Complainant, she says that the Accused licked her vagina when she was sleeping in the room with 4 others.
    
13. Considering the evidence of this child, her evidence is rejected on other charges. Using blueline theory of accepting her evidence finds favour of the Accused. Evidence of the child is unsafe to accept due to blatant contradictions.
    
14. After carefully considering all evidence lead in the trial, in the best interest of justice I reject the verdict of the assessors on the 3rd charge and find the Accused not guilty.
    
15. I find the Accused not guilty and acquit on all three charges levelled against him.
    

S. Thurairaja
Judge

At Lautoka
26th October 2012

Solicitors:
The Office of the Director of Public Prosecution for State
Accused appeared in Person.