State v Waqabitu - Judgment [2015] FJHC 387; HAC203.2012 (28 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 203 of 2012

STATE

v

1. LAISIASA WAQABITU
2. VILIAME VUNISINA
   

Counsel: Ms. S. Kant for State
Mr. P. Tawake for 1stAccused
Ms. E. Leweni for 2nd Accused

Dates of Hearing: 20th, 21st, 22, 25th, 26th May 2015
Date of Summing Up: 27th May 2015
Date of Judgment: 28th May 2015

JUDGMENT

1. The two accused persons are charged with the following counts:
   

FIRST COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LAISIASA WAQABITU on the 29th day of May 2012 at Lami in the Central Division had carnal knowledge of Mary MaijaGlayours without her consent.

SECOND COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VILIAME VUNISINA on the 29th day of May 2012 at Lami in the Central Division had carnal knowledge of Mary MaijaGlayours without her consent.

THIRD COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LAISIASA WAQABITU and VILIAME VUNISINA on the 29th day of May 2012 at Lami in the Central Division penetrated the vagina of Mary MaijaGlayours with a beer bottle, without her consent.

2. After trial three assessors unanimously opined that both the accused persons are not guilty of all counts against each accused. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. The main element the prosecution has to prove beyond reasonable doubt in counts no. 1 and 2 is that the 1st and 2nd accused personshad carnal knowledge of the complainant respectively.The complainant in evidence did not say that the accused persons inserted their penises into her vagina or at least they had sexual intercourse. The complainant clearly said that before inserting the beer bottle into her vagina nothing was inserted.
   
4. Hence I find that the assessors correctly opined that the prosecution has failed to prove counts 1 and 2 beyond reasonable doubt.
   
5. With regards to count 3, the complainant was inconsistent in her evidence in court and in her statement to the police.In her statement to the police the complainant said that the 1st accused inserted the beer bottle into her vagina. However in evidence in court she said that it was the 2nd accused who got the bottle and inserted the bottle and that 1st accused held her legs.This inconsistency goes to the root of count no. 3.
   
6. A redirection was made at the end of the summing up on the request of the State counsel whether the assessors could consider finding the 1st accused guilty of the minor offence of sexual assault in terms of Section 162 (a) of the Criminal Procedure Decree.
   
7. The complainant's evidence was that she alarmed the people around on 3 occasions when she was taken by force. The three occasions were, when she was forcefully put into the taxi, inside the taxi and at Nadonumai roundabout. No one has come to rescue her. She says that she was carried to the house by 1st accused. The evidence revealed that the distance to the house on the hill from the Nadonumai roundabout is more than 300 meters.
   
8. The defence evidence was that after having drinks the complainant went with the 1st accused willingly and they walked to the house holding hands.
   
9. It is not probable that no one came for her assistance when she alarmed the bystanders when she was forcefully carried by the 1st accused. The more probable story is that she willingly went to the house with the 1st accused.
   
10. In the above premise I find that the complainant is not a credible witness and cannot be relied upon.
    
11. Therefore I find that the assessors were correct when they opined that the accused persons are not guilty on all counts.
    
12. Therefore I accept the unanimous opinion of the assessors that the 1st and 2nd accused persons are not guilty of all counts against them and the 1st accused is also not guilty of the minor offence of sexual assault.
    
13. Hence I find that 1st accused not guilty of counts 1 and 3 and the 2nd accused not guilty of counts 2 and 3.
    
14. Therefore I acquit the 1st accused on counts No. 1 and 3 and 2nd accused on counts No. 2 and 3.
    

Priyantha Fernando
Judge

At Suva
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for 1stAccused.
Office of TL Lawyers for 2nd Accused.