State v Bakaya [2015] FJHC 835; HAC67.2013 (29 October 2015)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 067 OF 2013

STATE

V

SASHI SALEN BAKAYA

Counsel: Ms Navia S. &Ms Lodhia S. for the State
Ms Chand P. for the Accused

Dates of Trial: 26th October and 27th October 2015
Summing Up: 28th October 2015
Judgment: 29th October 2015

Name of the victim is permanently suppressed and referred to as M.R.

JUDGMENT

[1] The Accused Sashi Salen Bakayais charged under the following count:

FIRST COUNT

Statement of Offence

Rape- contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009

Particulars of the Offence

Sashi Salen Bakayaon the 22nd day of December 2012 at Corbett Avenue in Nausori, in the Central Division, had carnal knowledge of M.R., without her consent.

[2] Upon his plea of not guilty, the trial commenced and Prosecution led three witnesses in support of their case. The Accused and a witness gave evidence for the defense.

[3] After the summing up, the three assessors unanimously found the Accused guilty of the single count of Rape.

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

[5] Prosecution case was essentially based on the evidence of the complainant. She was 14 years old and her father has already passes away. At the time of the incident she was sleeping with two infants. She has gone to sleep at about 9.00 p.m. Her mother and sister were drinking grog at the Accused's house which is located about 100 meters away. She was woken up when the Accused got on top of her and closed her mouth. He then removed her panties and inserted his penis into her vagina without her consent. He had then gone away.

[6] The complainant, in her evidence claimed that she identified the Accused by candle light. She described that the candle was placed on top of a two feet high cupboard and was two steps away from the place where she slept. Her house is a small tin house with one bedroom and she was sleeping on a mattress placed on the floor of the sitting area. She was inside a mosquito net when she was raped by the Accused. Her claim of identifying the Accused was evaluated adopting Turnbul rules, by the assessors and Court.

[7] Her claim of identity is supported by an independent witness who also happened to be there in the vicinity of the house of M.R. He offered a valid reason to be there at that time. He had seen the accused coming from behind the house of M.R. that night and 2/4 minutes later M.R. too had came out of her house through the front door crying. The witness was with his uncle and when questioned M.R. told them that the Accused had held her tightly and forcefully. The witness and his uncle informed this to a known police officer who arrested the Accused and was questioned in their presence. The Accused admitted he was arrested by the same officer but said he was arrested at his house.

[8] The Accused admitted that he was in the vicinity of M.R. house, and gave inconsistent time periods in his examination in chief and cross examination. He had given another time in his statement to Police, which was marked as a Defense Exhibit No. 1. He also called a witness to support his claim.

[9] The Accused said that M.R. did not know the identity of the rapist and due to the influence of the witness and other villagers she had implicated him.

[10] In addition, the prosecution led evidence of a letter signed by M.R. claiming that she could not recognize the rapist that night. She said the accused is married to her mother's sister. M.R. claimed that it was the wife of the Accused who talked to her mother to get her to sign on that letter. The letter was meant to "solve the case" according to M.R. and the reason was; if the accused was to serve a term, no one to look after his family. There was an offer of some money. The Accused denied any knowledge of this letter and also denied any knowledge of any involvement of his family members in its creation.

[11] The assessors were directed on these two conflicting versions. They have preferred the prosecution's version of events over the position advanced by the accused other. They have accepted M.R.'s claim that she identified the Accused that night. In my view, the assessor's opinion was not perverse as M.R.'s evidence is truthful and reliable. Her evidence is also supported by the other independent witness. It was open for them to reach such conclusion on the evidence. I concur with the opinion of the assessors.

[12] I am satisfied that her evidence is sufficient to establish the guilt of the Accused beyond reasonable doubt on the count of Rape he is charged with.

[13] Considering the nature of the evidence before the Court, I am convinced that the prosecution had proved its case beyond a reasonable doubt.

[14] I find the Accused guilty as charged in the single count of Rape contrary to Sections 207 (1), (2)(a)of the Crimes Decree No.44 of 2009.I convict the Accused Sashi Salen Bakayaona single count of Rape.

[15] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

At Suva
29th October 2015

Solicitors for the State: Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused: Legal Aid Commission