State v Kalawaci [2012] FJHC 965; Criminal Case 44.2011 (21 March 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 44 of 2011

BETWEEN:

STATE

AND:

JOSESE KALAWACI

BEFORE: Mr. Justice Paul Madigan

COUNSEL: Ms. M. Fong for State
Ms. M. Lemaki (LAC) for Accused

Date of Hearing: 19 & 20 March 2012
Date of Summing Up: 21 March 2012
Date of Judgment: 21 March 2012

JUDGMENT

1. Josese KALAWACI, you have been charged with the following charges on an information dated 27th September, 2011:
   

First Count

Statement of Offence

RAPE: contrary to section 207(1) (2) (a) of the Crimes Decree 2009.

Particulars of Offence

Josese KALAWACI on the23rd day of July 2011 at Savusavu in the Northern Division, had carnal knowledge of Kesaia Kasaravi, without her consent.

Second Count

Statement of Offence

RAPE: contrary to section 207(1) (2) (a) of the Crimes Decree 2009.

Particulars of Offence

Josese KALAWACI on the 25th day of July 2011 at Savusavu in the Northern Division, had carnal knowledge of Kesaia Kasaravi without her consent.

2. After trial on these charges, the three assessors have returned with opinions of not guilty (by majority) on the first count and guilty (unanimously) on the second count.
   
3. I direct myself on my own summing up and on looking at the evidence in it's entirety I find that I cannot agree with the assessors. The opinions rendered at first appear to be irreconcilable; however the observations of a passer-by to the second incident may have been given weight.
   
4. The evidence of the victim was unsatisfactory in the extreme. She gave evidence which was inconsistent with her Police Statement, and told the Court that she didn't have sex with the accused on the first occasion. She told a medical examiner that she did not have sex with the accused, nor had she ever had sex with anybody. The medical findings appeared to contradict this, but not conclusively. The evidence of the complainant is so unreliable that it creates a genuine doubt in my mind and that doubt must be given to the accused.
   
5. In the premises I find him not guilty on both counts and he is acquitted on both counts. He is to be released and is at liberty.
   

   Paul K. Madigan

   Judge

At Labasa,

21 March, 2012