State v Latchman - Judgment [2014] FJHC 906; HAC20.2014 (10 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC20.2014

BETWEEN:

THE STATE

AND:

LATCHMAN

Counsel: Mr. F. Lacanaivalu for State
Mr. M. Fesaitu for Accused

Date of Hearing: 8-9 December 2014'
Date of Judgment: 10 December 2014

JUDGMENT

[1] The Accused, Latchman is charged on one count each of indecent assault and rape involving a 12 year-old girl. The charge of rape alleges that the Accused licked the complainant's vagina. Both incidents were allegedly committed on 15 January 2014. After a 2-day trial, the assessors expressed unanimous opinions that the Accused is guilty of indecent assault on count 1. On count 2, the majority opinion is that the Accused is guilty of rape as charged. The minority opinion is that the Accused is not guilty of rape,but guilty of the lesser or alternative offence of sexual assault on count 2.

[2] I direct myself in accordance with my directions contained in my summing up to the assessors. Like in any criminal trial, the prosecution carries the burden of proof to establish guilt beyond reasonable doubt. There is no onus on the Accused to prove anything even though he has given evidence in this case.

[3] On count 1, the prosecution must prove beyond reasonable doubt that the Accused unlawfully and indecently assaulted the complainant. On count two, the prosecution must prove beyond reasonable doubt that the Accused penetrated the complainant's vagina using his tongue. Lack of consent is not an issue because it is not in dispute that at the time of the alleged incidents the complainant was 12 years old and was incapable of giving a valid consent to sexual acts under the law.

[4] On count 1, the prosecution's case is depended upon whether the complainant told the truth when she said the Accused got her undressed and measured her thigh using a mobile charger, and whether right minded persons would consider the conduct to be indecent. On count 2, the prosecution's case is depended upon whether the complainant told the truth when she said the Accused licked her vagina, and that there was penetration of the victim's vagina. The Accused denies the incidents as alleged by the complainant. The Accused says the allegations were fabricated when he accused the complainant's father for theft.

[5] When the complainant gave evidence she struck me as a naïve but an honest and reliable witness. She said she did not report the alleged incidents to anyone because the Accused had promised to buy her school stationaries. The Accused, on the other hand, was evasive witness. He did not give straight answers to questions put to him by his counsel and he offered to explain every fact of the story that incriminated him.

[6] On count 1, I accept the complainant's evidence that the Accused without a lawful excuse got the complainant to undress in a secluded location and measured her thigh using a mobile charger. I am satisfied beyond reasonable doubt that right mind persons would consider the conduct indecent and I convict the Accused on count 1 as charged.

[7] On count 2, I accept the complainant's evidence that the Accused licked the complainant's vagina as true, but I have a reasonable doubt based on the complainant's evidence as to whether there was penetration of the complainant's vagina. However, I am satisfied beyond a reasonable doubt that right minded persons would consider the conduct of licking the complainant's vagina as indecent. I am further satisfied that the act was done without a lawful excuse. On count 2, I find the Accused not guilty of rape but guilty of lesser or alternative offence of sexual assault contrary to section 210 (1) (a) of the Crimes Decree.

[8] The final verdict is that the Accused is convicted of indecent assault as charged on count 1 and of sexual assault on count 2.

Daniel Goundar
JUDGE

At Labasa
10 December 2014

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