State v Tirau [2013] FJHC 102; HAC26.2012 (11 March 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 26 OF 2012

BETWEEN:

STATE

AND:

PENISONI TIRAU

Counsel : Ms S. Kiran for the State
Mr. Inia for the Accused

Date of Judgment : 11th March 2013

JUDGMENT

[1] The Accused above named is charged with one count of rape punishable under section 207(1) of the Crimes Decree, 44 of 2009.

[2] After the trial all 3 assessors unanimously found the Accused guilty to the charge.

[3] I adjourned over the weekend to consider my judgment.

[4] The virtual complainant is a 21 year old girl. She is deaf and mute. She spoke sign language and gave evidence through qualified interpreter from the Special School.

[5] In this case both parties agreed that the Accused had sexual intercourse with the virtual complainant on the 3rd February 2012. The fact in dispute is the consent. The complainant said she did not consented to the act but the Accused said that she invited him to have sexual intercourse with her.

[6] The complaint K.V (whose name is suppressed on the request of the State Counsel) gave evidence and said that she doesn't know the Accused and he forcefully had intercourse with her. She ran to her mother and complained immediately, the mother lodged a report with the police instantly.

[7] The Accused gave evidence and said that he returned from his relative, on the way the complainant smiled at her, he followed her while fishing she invited him and he had sex with her.

[8] The complainant had made the complaint very promptly. That goes on to her credit. Further she maintained same stance with her mother, police, the doctor and in this Court there is no contraction in her evidence.

[9] Considering her demeanor, I observed that she was shaken and shocked with the incident. When it came to suggestion of consent she showed true anger on her face and conduct. The sign and body language demonstrate that she was telling the truth.

[10] Even though the Accused need not prove his innocence, the explanation offered was farfetched, will a girl invite someone who has no relationship or any other connection to have sex? Further there is no issue as to transaction of money or any other gifts.

[11] Considering the corroborating evidence of the mother and doctor I find the Prosecution had established a strong case beyond reasonable doubt.

[12] I have reviewed the evidence called in the trial and I have directed myself in accordance with the summing up I gave the assessors. I find that the verdict of the assessors was not perverse. It was open to them to reach a conclusion on the evidence. I conquer their verdict.

[13] Since the Prosecution proved the case beyond reasonable doubt I find the Accused guilty and convict him as charged.

[14] Accordingly I convict the Accused Penisoni Tirau under section 207(1) of the Crimes Decree 44 of 2009.

S. Thurairaja
Judge

At Lautoka
11 March 2013

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