State v Tikoigiladi - Judgment [2015] FJHC 903; HAC042.2014LAB (19 November 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 042 OF 2014LAB

STATE

V

LASARUSA TIKOIGILADI

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 16 and 17 November, 2015
Summing Up : 18 November, 2015
Judgment : 19 November, 2015

JUDGMENT

[1] The Accused, Lasarusa Tikoigiladi is charged under Section 207(1) and (2) (b) of the Crimes Decree No. 44 of 2009 for Rape of S.N.M.

[2] He pleaded not guilty to the charge and ensuing trial lasted for 3 days. The complainant, her sister and mother gave evidence for the prosecution while the accused gave evidence in support of his case.

[3] At the conclusion of the evidence and after the summing up, the three assessors unanimously found the accused guilty of the count of rape against him.

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

[5] Prosecution case was based primarily only on the evidence of the complainant. According to her, the accused is her mother's de facto partner and she was living in his house with her mother. In relation to the incident, she stated that in one morning, while her mother was in the adjacent kitchen, the accused had sex with her by using his penis "on" her vagina. She felt pain. By then he had already removed her sulu and undergarment. She did not complain to anyone of this incident.

[6] Towards latter part of January 2004, the accused has chased both mother and daughter away from his house. They were with her sister called Ana. In March 2014, noticing a change in the complainant, Ana probed for a reason and found out that the complainant was pregnant. When the complainant was asked whom she has had sex with, the complainant said it was "Lasa", the accused. She was examined by a Doctor in May 2014, when they complained about this incident to police. During medical examination it was revealed that the complainant was carrying a pregnancy for over four months.

[7] In cross examination of the complainant, it was revealed that she had mentioned to police about three names in this regard including that of William. The person called William was also residing with the accused at the same time and he used to sleep in the sitting area of the accused's house with the complainant, but at different corners.

[8] However, in Court she clearly implicated the accused as the person who had sexual intercourse with her without consent. She consistently maintained her allegation against the accused during her cross examination.

[9] The accused in his evidence said the allegation is not true and that it was Ana who had levelled this allegation and not the complainant. Ana was very angry with him since he stopped his wife from giving food to Anan's children and prevented them from coming to his house.

[10] The assessors have found her evidence is truthful and unreliable, as they unanimously found the accused guilty of rape. They were directed in the summing up to evaluate the demeanour of the complainant in giving evidence as she said to be a "mentally slow" person. They obviously rejected the position advanced by the accused that this allegation is a fabrication by Ana.

[11] In my view, the assessor's opinion was not perverse. It was open for them to reach such conclusion on the available evidence. I concur with the opinion of the assessors.

[12] Considering the nature of all the evidence before the Court, it is my considered opinion that the prosecution has proved it's the case beyond reasonable doubt by adducing truthful and reliable evidence satisfying all elements of the offence with which the accused is charged.

[13] In the circumstances, I convict the accused, Lasarusa Tikoigilagi, to the charge of Rape.

[14] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

At Labasa
19 November, 2015

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa