State v Hakik [2015] FJHC 225; HAC229.2011 (27 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 229 OF 2011

STATE

v

MOHAMMED HAKIK

Counsels : Mr. A. Singhfor the State
Ms. S. Jiuta for the Accused

Date of Trial : 26 March 2015 to 27 March2015
Date of Summing Up : 27 March 2015
Date of Judgment : 27 March 2015
(Name of the victim is suppressed. She is referred to as FS)

JUDGMENT

1. The Accused is charged under following count:
   

Statement of Offence

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

Particulars of Offence

MOHAMMED HAKIK between the 1st day of November 2011 and the 31st day of November 2011, at Nadi in the Western Division, penetrated his penis into the vagina of FS, without her consent.

2. The three assessors unanimously found accusedGuilty of the count 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 12 years old at the time of the incident. Accused is her step-father. The accused had asked the complainant to put her brother to sleep. Then accused had come and got inside the blanket. Then accused had removed her clothes and his clothes. Then accused had rubbed his penis on the private part of the victim.
   
6. Her step brother had seen the accused on top of the complainant and the blanket going up and down. He confirms the evidence of the complainant. According to the doctor, medical findings are that the hymen was open and not intact.
   
7. The complainant and step brother had told the mother about the incident soon after the incident. But she had not taken any steps to report the matter to Police. When she informed neighbor, she took them to the police station to make a report.
   
8. In his caution interview, the accused had admitted the offence. In the voir-dire ruling, I have already decided that the caution interview was voluntarily made. I am satisfied that it is truthful. All the elements of the charge are established from the caution interview statement.
   
9. The accused gave evidence and took up the position that this complaint was made as the complainant is disobedient to him and did not like him. The assessors have rejected the version of the accused.
   
10. I am satisfied thatevidence is sufficient to establish the guilt of the accused beyond reasonable doubt.
    
11. In my view, the assessor's opinion was not perverse. It was open for them to reach such conclusion on the evidence. I concur with the verdict of the assessors.
    
12. I find theaccused Guilty as charged on the count of Rape contrary to Section 207 (1), (2) (a) of the Crimes Decree No.44 of 2009, and convict him for the count against him.
    
13. This is the Judgment of the Court.
    

Sudharshana De Silva
JUDGE

At Lautoka
27th March 2015

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