State v Vueti - Judgment [2015] FJHC 1001; HAC248.2015 (7 December 2015)

IN THE HIGH COURT
OF SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 248/2015

STATE

vs

ESALA VUETI

Counsel: Ms S Lodhia & Ms U Tamanikaiyaroi for the State
Mr A Paka for the Accused

Date of Trial : 1/12/15; 2/12/15; and 3/12/15
Summing Up : 4 December 2015
Judgment : 7 December 2015

Name of the complainant is permanently suppressed and will be referred to as T.B.

JUDGMENT

[1] The Accused, Esala Vueti is charged under Section 207(1),(2)(a) and (b) of the Crimes Decree No. 44 of 2009 for two counts of Rape on T.B. and also of committing Sexual Assault on her.

[2] He pleaded not guilty to the three charges and the ensuing trial lasted for 3 days. The complainant, her step mother and a medical witness have given evidence for the prosecution while the accused gave evidence in support of his case.

[3] At the conclusion of the evidence and after the directions given in the summing up, the three assessors unanimously found the accused guilty of the two counts of Rape and one count of Sexual Assault against him.

[4] I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.

[5] Prosecution case was based primarily only on the evidence of the complainant. According to her the accused is her step father, who brought her up from infancy. She was living in his house with her step mother. Her step mother was away on the morning the accused had penetrated her vagina with his penis. Having told her to remove her pants, he had also asked her to lay on the bed before he penetrated her vagina. She felt pain and did not agree for what the accused did. This incident happened during 1st term of 2015. She did not complaint about it, as the accused had threatened her.

[6] On 5th July 2015, the accused returned home in the morning after work. He was drunk and had a bottle of beer with him. He also had a tablet with him. He called out to the complainant and told to open Facebook. He had then slid his hand into the panties of the complainant and moved his hand touching her vagina. When her small sister came in with a plate of pan cakes, he withdrew his hand. He then asked the complainant to go near the bed. He then "poked" his finger into her vagina.

[7] Thereafter, the complainant was seen crying and when asked by her step mother, she related the incident to her. Thereafter, both of them complained to Nausori Police. The complainant was examined by a medical officer on the same day. The medical examination revealed that her hymen was not intact and she also had an abrasion with redness on the wall of her vaginal vault. The Doctor was of the opinion that the abrasion may have caused by insertion of a finger within 12 hours of examination. She also opined that her hymen could have been damaged due to forceful sexual penetration.

[8] Complainant's step mother in her evidence stated that the accused had controlled the complainant more than other children and would punish her more. She also said after the arrest, when she visited the accused in remand, he wanted her to withdraw the complaint against him.

[9] The accused in his evidence said the allegation is not true and that it is a fabrication by the complainant as she hated him for disciplining her strictly. She was told not to access interned or to use Facebook. He has seen her photos on Facebook and he did not like the way she was dressed in the photos. On 5th July morning he had confronted her with the photos on Facebook. Referring to his instructions to his wife, the accused said judging by her conduct, he inferred that she regretted in making this allegation against him and that is why he instructed her to terminate proceedings.

[10] The assessors have found the evidence of prosecution as truthful and reliable, as they unanimously found the accused guilty of two counts of Rape and also of the single count of Sexual Assault. They were directed in the summing up to evaluate the demeanour of the complainant in giving evidence as she did not answer some of the suggestion put to her by the accused. The inconsistencies of the prosecution were also highlighted. The three assessors have obviously rejected the position advanced by the accused that this allegation is a fabrication by the complainant. It was a question of believing whom.

[11] In my view, the assessor's opinion was not perverse. It was open for them to reach such conclusion on the available evidence. I concur with the opinion of the assessors.

[12] Considering the nature of all the evidence before the Court, it is my considered opinion that the prosecution has proved it's the case beyond reasonable doubt by adducing truthful and reliable evidence satisfying all elements of the offences with which the accused is charged.

[13] In the circumstances, I convict the accused, Esala Vueti to the count of penile Rape and to the count of digital Rape. I also find him guilty to the one count of Sexual Assault.

[14] This is the Judgment of the Court.

Achala Wengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.