State v Basaga - Judgment [2015] FJHC 944; HAC336.2013 (30 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 336 OF 2013

BETWEEN:

STATE
PROSECUTION

AND:

SAKEASI BASAGA
ACCUSED PERSON

Counsel: Ms. P. Madanavosa for State
Mr. P. Tawake for Accused

Dates of Hearing: 23rd, 24th and 25th November 2015
Date of Summing Up: 27th November 2015
Date of Judgment: 30th November 2015

JUDGMENT

[Name of the victim is suppressed. The victim will be referred to as ['S.R.']

1. The accused is charged with 7 counts of Rape contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.
   
2. After trial, three assessors unanimously opined that the accused is guilty of all 7 counts as charged.I direct myself in accordance with my summing up and the evidence adduced at the trial.
3. The accused is the stepfather of the complainant 'S.R.'. Complainant was born on 26th day of December 1992.
   
4. It is an agreed fact that the accused had sexual intercourse with the complainant who is his stepdaughter, during the periods relevant to counts No. 1 – 7. Therefore the remaining element the prosecution has to prove beyond reasonable doubt to find the accused guilty on counts 1 – 7 is, the absence of consent to sexual intercourse and that the accused knew or believed that she was not consenting or did not care if she was not consenting.
   
5. Complainant testified that the accused forced her to have sexual intercourse with him during the periods relevant to the counts 1 – 7. She said that when her mother leaves home for work, accused used to force her to have sexual intercourse. It had happened repeatedly in months of January, February, March, June, July, August 2013 and on 8th September 2013.
   
6. Complainant said that the accused threatened her not to tell this to her mother or he would do something bad to her. She said that she was scared of the accused.
   
7. The doctor who examined the complainant gave evidence and said that her hymen was disrupted and sexual abuse cannot be ruled out.He also said that according to his medical findings, he can say that the complainant had been sexually active.
   
8. The accused giving evidence said that he had sexual intercourse with the complainant stepdaughter, but it was with consent of both of them. He said that the complainant initiated sexual intercourse. He also said that whenever he did not give her money she will want to have sexual intercourse with him. He said that he was in a position of authority in the house and also had control over everybody in the house. He denied forcing or threatening the complainant to have sex with him.
   
9. The position taken by the defence was that the complainant complained against him when she was beaten by the mother forgetting late to come home. Complainant's mother giving evidence said that when she hit her for getting late or being at a neighbour's house till about after 7pm she came out with this story. She also said that the complainant had told her that she was scared to come home because the accused does things to her.
   
10. Evidence was led on a letter which was written and handed over to court on 03/02/2015. Although the said letter was marked for identification and contents were led in court by the defence, the author was not called to give evidence by the defence to produce the letter in evidence. As the letter was not produced in evidence, the contents of the letter that was led in evidence cannot be taken into consideration.
    
11. However, the complainant said that she saw a letter but it was brought to court by a friend of the accused. She denied signing the same. She said that she came to court that day with stepfather's friend 'Biko'. She denied giving instructions to 'Biko' to write the letter.
    
12. On this letter, the evidence of her mother who was called by the defence was that she is the one who wanted to see 'Biko' so that 'Biko' could write a letter of forgiveness for 'S.R.'. She also said that 'S.R.' agreed to write the letter and signed it. When she was sick for a long time and as there was no one to help she had asked for the accused, and then complainant had told that they would write a letter.
    
13. When analyze the evidence and consider the circumstances under which the letter was written, it is clear that the mother of the complainant has instigated to write the letter to get the accused who is her husband back to her as she was sick and she had nobody to look after her.
    
14. I find that the complainant had no option but to come to court with 'Biko' as it is evident. Complainant denied signing the letter. She had seen the letter but not the contents.
    
15. Accused expressly admitted that he was in authority and control over the house hold. He said that he even controlled where his wife worked.
    
16. Complainant's evidence was consistent. I observed her demeanour and I find her evidence truthful when she said that she was forced to have sexual intercourse with the accused. Defence questioned her as to why she did not run away from home. It is easier said than done for a young girl whose father is deceased and when the stepfather used force and authority to have sex with her to run away from home. She testified how she felt and how she withheld pain and suffering when the stepfather did this to her.
    
17. When consider her age, and that she was under the control of the accused as the stepfather who was controlling the household, it is justified that she did not complain and kept it for herself and finally she was compelled to come out with the story to the mother.
    
18. I find that the complainant was truthful when she said that she was forced by the accused and that she did not consent to have sexual intercourse with him. I also find that the evidence of the accused was far from the truth when he said that the complainant consented, and that she initiated sexual intercourse whenever she was refused money.I am also satisfied that the accused knew that the complainant was not consenting.
    
19. Therefore I find that the prosecution has proved all counts 1 – 7 of Rape beyond reasonable doubt against the accused. I agree with the unanimous opinion of the assessors that the accused is guilty of counts 1 – 7 as charged.
    
20. I therefore find him guilty of counts 1, 2, 3, 4, 5, 6 and 7, and convict him of all counts accordingly.
    

Priyantha Fernando
Judge

At Suva
30th November 2015

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