State v Naqau [2012] FJHC 903; HAC127.2010 (23 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 127 OF 2010

BETWEEN:

STATE PROSECUTION

AND:

SAKIUSA NAQAU
ACCUSED PERSON

Counsel: Mr. Prasad Y for State
Accused In Person

Date of Summing Up: 22nd February 2012
Date of Judgment: 23rd February 2012

JUDGMENT

1. The assessors have expressed their unanimous opinion that the accused person is guilty of rape as charged. I direct myself in accordance with my summing up and the evidence adduced in the trial.
   
2. The evidence of the complainant was that she was drinking beer with her cousin and two Fijian men under the bamboo tree at Nausori Club. When her cousin went with one Fijian man to bring a taxi, the other Fijian man had assaulted her and raped her.
   
3. I accept the evidence of the victim that she was raped without her consent. She got injured due to the assault by the accused. Medical report and doctor's evidence corroborate the evidence of the victim on the injuries.
   
4. Evidence of the cousin of the victim Penaia also corroborated the victim's evidence on the events that took place that evening. Two police officers who were at the scene within 5 minutes also gave evidence on the injuries sustained by the victim.
   
5. According to the evidence of the victim, she had been with the accused for about 2 hours from the time she met him until she was raped. They had been drinking together. Immediately after the rape, the accused was arrested by the police in the presence of the victim and was taken to police station. Cousin brother of victim Penaia also gave evidence on the incident and identified the accused. Victim and her cousin Penaia had been together with the accused for a long time without any obstruction when they met the accused at RB Patel and while they were drinking together. Accused was arrested immediately after the offence was committed. I find that there is no doubt that the accused was the person who raped the victim in the case.
   
6. I believe the evidence of the victim that the accused assaulted her and penetrated his finger into her vagina without her consent.
   
7. Accused took up the defence stating that he was drunk and that he did not know what happened thereafter on that day.
   
8. There is no evidence to show that the accused was intoxicated involuntarily. Only available evidence is that the accused consumed alcohol voluntarily. Voluntarily intoxication is no defence for the offence of Rape. Intent is not an element to prove the offence of Rape. However, I disbelieve the accused that he could not recall anything because he got drunk at Nausori Club.
   
9. I find that the prosecution has proved all elements of the offence of Rape beyond reasonable doubt and the assessors were entitle to express the opinion that the accused is guilty as charged.
   
10. I agree with the unanimous opinion of assessors that the accused is guilty of the offence of Rape as charged.
    
11. I find the accused guilty as charged and convict him.
    

Priyantha Fernando
Judge

At Suva
23rd February 2012