State v Naivalulevu [2014] FJHC 598; HAC207.2013 (13 August 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 207 OF 2013

STATE

V

NAVITALAI NAIVALULEVU

Counsels : Ms. L. Latufor the State
Ms. L. Raisua for the accused
Date of Trial : 7 August 2014-12 August 2014
Date of Summing Up : 13 August 2014
Date of Judgment : 13 August 2014
(Name of the victim is suppressed. She is referred to as AN)

JUDGMENT

1. The Accused is charged under following counts:
   

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

NAVITALAI NAIVALULEVU between the 18th of August 2012 and 2nd day of September 2012 at Vatukoula in the Western Division, inserted his finger into the vagina of AN, a 10 year old girl.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

NAVITALAI NAIVALULEVU between the 18th of August 2012 and 2nd day of September 2012 at Vatukoula in the Western Division, inserted his finger into the vagina of AN, a 10 year old girl.

THIRD COUNT

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) and (2) of the Crimes Decree 44 of 2009.

Particulars of Offence

NAVITALAI NAIVALULEVU between the 03rd of September 2012 and 30th day of September 2012 at Vatukoula in the Western Division, indecently assaulted AN by licking and sucking the vagina of the said AN.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

NAVITALAI NAIVALULEVU between the 03rd of September 2012 and 30th day of September 2012 at Vatukoula in the Western Division, inserted his penis into the vagina of AN, a 10 year old girl.

2. The three assessors unanimously found accusedGuilty of all the counts against him.
   
3. I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.
   
4. Considering the nature of the evidence before the court, I am convinced that the prosecution had proved the case beyond reasonable doubt.
   
5. Prosecution case was based on the evidence of the victim. She was 10 years old at the time of the incident. Accused is her grand-uncle. Accused had inserted his finger into her vagina once and inserted his penis twice into her vagina. She had told this to her friends, teachers and mother about a year later. Medical evidence confirms penetration to the vagina. The accused had admitted all the offences in his caution interview to the police.
   
6. The accused denied the charges giving evidence. Assessors have rejected his evidence. I am of the view that his evidence is inconsistent and there are reasons to reject his evidence as untrue.
   
7. I am satisfied thatevidence is sufficient to establish the guilt of the accused beyond reasonable doubt in respect of each charge.
   
8. In my view, the assessor's verdicts were not perverse. It was open for them to reach such conclusion on the evidence. I concur with the verdicts of the assessors.
   
9. I find accused Guilty as charged on the counts of Rape contrary to Section 207 (1), (2) (a) &(b) and (3) of the Crimes Decree No.44 of 2009 and one count of Sexual Assault contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009 and convict him for the counts against him.
   
10. This is the Judgment of the Court.
    

Sudharshana De Silva
JUDGE

At Lautoka
13th August 2014

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