State v Naicker - Judgment [2015] FJHC 530; HAC279.2013 (9 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 279 of 2013

STATE

V

KISHORE NAICKER

Counsel: Mr. Paka A. for State
Mr. Savou J. for Accused
Hearing: 6th, 7th, 8th July 2015
Summing Up: 9th July 2015
Judgment: 9th July 2015

JUDGMENT

1. The accused in this case is charged with the following counts.
   

Count One
Statement of Offence

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

Particulars of Offence

KISHORE NAICKER on the 21st day of July, 2013 at Wailea Settlement, Suva in the Central Division, penetrated the vagina of REENA KUMAR with his fingers, without her consent.

Count Two
Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KISHORE NAICKER on the 21st day of July, 2013 at Wailea Settlement, Suva in the Central Division, unlawfully assaulted REENA KUMAR thereby occasioned actual bodily harm.

2. After trial the majority of the assessors opined that the accused is guilty of both counts 1 and 2.
   
3. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
4. The complainant testified that the accused assaulted her and also inserted his finger inside her vagina forcefully without her consent, when she refused to have sex with him.
   
5. Accused in his evidence admitted that he assaulted the complainant but denied inserting his finger into her vagina.
   
6. The complainant on the same day without delay reported the matter to police. It shows that she was consistent. The accused in his caution interview statement which was admitted in evidence admitted that he inserted his finger inside her vagina when she refused to have sex with him.
   
7. Accused also testified in court that the complainant had been refusing to have sex with him for some time. In his caution interview statement he said that he did so because he alleged that the complainant was having an extra marital affair.
   
8. I find that the admission made by the accused in his caution interview statement that he inserted his finger into her vagina when she refused to have sex was truthful.
   
9. Although there were some inconsistencies between the complainant's statement to police and the evidence in court about the time she came home from church and about the number of kids she went to the church with, I find that those inconsistencies did not create any doubt on her evidence that the accused inserted his finger into her vagina without her consent. I also find that the accused very well knew that she was not consenting.
   
10. When consider the evidence of the complainant as well as the admission made by the accused in his caution interview statement, I find that the majority of the assessors were correct when they opined that the accused is guilty of the offence of Rape in count No. 1.
    
11. I find that the prosecution has proved all elements of rape as charged in count No. 1 beyond reasonable doubt.
    
12. The complainant also testified as to how the accused assaulted her. The accused also in his evidence admitted that he punched and slapped the complainant and also that she got injured.
    
13. The medical report of the complainant exhibited as P1 was not challenged by the Defence. The doctor who examined the complainant also testified about the injuries she sustained including the bite marks on her thigh.
    
14. Therefore I find that the prosecution has proved all the elements of the offence of Assault Causing Actual Bodily Harm in count No. 2.
    
15. Hence I accept the majority opinions of the assessors that the accused is guilty of counts 1 and 2 and find him guilty of counts 1 and 2.
    
16. I convict the accused on both counts 1 and 2 accordingly.
    

Priyantha Fernando
JUDGE

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