State v Bavesi [2015] FJHC 205; HAC200.2013S (20 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 200 OF 2013S

STATE

vs

TARAJIANI BAVESI

Counsels : Mr. M. Vosawale and Ms. Lodhia for State
Ms. M. Tarai for Accused
Hearings : 16, 17 and 18 March, 2015
Summing Up : 19 March, 2015
Judgment : 20 March, 2015

JUDGMENT

1. After a three days trial, the three assessors returned yesterday with a not guilty opinion against the accused, on all four counts. They have found the accused not guilty of raping the two complainants on 13 May 2013. Obviously, the three assessors have rejected the prosecution's version of events, and have found that the prosecution had not proven the accused's guilt beyond a reasonable doubt.
   
2. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

"...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge's summing up and the decision of the court together with (where appropriate) the judge's reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes..."

3. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

"...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the High Court sitting with the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors..."

4. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

"...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts..."

5. I have reviewed the evidence called in the trial, and I have directed myself in accordance with the Summing Up I gave the assessors yesterday. The assessors' verdict was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I am bound to disagree with the unanimous not guilty opinion of the three assessors.
   
6. My reasons are as follows. I accept that the two complainants [PW1 and PW2] were under investigation by the accused, a police officer, for allegedly stealing Waisea's mobile phone. The accused came to their house on 13 May 2013, and requested them to come to Nakasi Police Station. They were on their way to Nakasi Police Station, when the accused stopped at Nasinu Cemetery to interrogate complainant no. 1 [PW1]. He sent PW2, and another to take the lead to Nakasi Police Station. The accused was in police uniform, a symbol of authority. While at the grave, the accused proceeded to have sexual intercourse with her. He admitted in his evidence that his penis was touching PW1's vagina. He denied penetrating PW1's vagina at the time. PW1 said, he penetrated her vagina with his penis, at the time. On this issue, I prefer to accept PW1's evidence, because she was a credible witness to me. I reject the accused's denial on this issue, because he was not a credible witness. For a start, it is not proper for a police officer to attempt to have sexual intercourse with a person he's investigating, in the course of his duty. The accused's behaviour in this case falls below the standard required of a police officer.
   
7. On count no. 2, PW1 said, the accused inserted his penis into her mouth, at the time, after having sex with her. The accused denied this. On count no. 2, I accept PW1's evidence as credible, and I accept her evidence that the accused unlawfully inserted his penis into her mouth on 13 May 2013, without her consent, and he knew she was not consenting, at the time. I reject the accused's denial, because I find his evidence not credible.
   
8. On count no. 3 and 4, I accept the evidence of the second complainant [PW2] as credible. In my view, the accused, while in police uniform, abused his position of authority, by forcing himself on PW2. PW2 was being investigated by the accused for alleged mobile phone theft. He should not have sex with PW2. In my view, he forced himself on PW2, inserted his penis into her vagina without her consent, and he knew very well she was not consenting to the same, at the time. I accept PW2's evidence that he inserted his penis into her mouth, without her consent, and he knew very well she was not consenting to the same, at the time.
   
9. On the whole, I accept the evidence of PW1 and PW2 on the four counts of rape against the accused, because I find their evidence credible. I reject the accused's assertion that the two complainants' consented to sexual intercourse with him at the material time [counts no.1 and 3]. I find, as a matter of fact that, the accused forced himself on them, and abused his authority as a policeman. I also reject his assertion that PW2 willingly sucked his penis [count no. 4]. In my view, he forced himself on her, without her consent, and knew she was not consenting to the same, at the time. As for count no. 2, I accept PW1's evidence that the accused forcefully inserted his penis into her mouth, without her consent, and he knew she was not consenting, at the time.
   

10. Because of the above, I disagree with the unanimous "not guilty" opinion of the assessors, and find the accused guilty as charged on counts no. 1, 2, 3 and 4. I convict him accordingly on those counts.

Salesi Temo

JUDGE

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

Solicitor for Accused : Legal Aid Commission, Suva.