State v Verebasaga [2016] FJHC 214; HAC028.2014LAB (1 April 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 028 OF 2014LAB

STATE
V
MOSESE VEREBASAGA

Counsels: Ms. A. Vavadakua for State
Mr. A. Paka for Accused

Hearings: 29th, 30th& 31st March, 2016
Summing Up: 01 April, 2016
Judgment: 01 April, 2016

JUDGMENT

___________________________________________________________________________

[1] The accused is charged by the DPP for Rape of Tomasi Vidro, contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009.

[2] The accused pleaded not guilty and after trial the assessors, by their majority opinion, found the Accused guilty to the count of Rape.

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

[4] Prosecution case was essentially based on the evidence of the complainant and the admissions made by the accused in his caution interview statement tendered as P.E. No. 1A. The mentally and physically challenged complainant said in his evidence that the accused had tied his hand to a tree, removed his pants, applied saliva to his anus before he put his penis in. In cross examination, the complainant said that the accused did nothing. In re-examination he repeated the sequence of events as already noted.

[5] The accused denied the allegation and claimed that he was in his farm, planting Yoqona with his sons. In relation to the caution interview statement, he suggested to the interviewing officer that he was punched by Inspector Mosese. The accused also suggested that the interviewing officer had fabricated the caution interview statement, using the statements of the witnesses already available to him. These were denied by the interviewing officer.

[6] The assessors were directed that the prosecution must establish its case on the evidence it presented and the fact that rejection of Accused's evidence does not automatically establish it for them. They were also directed in assessing truthfulness of the complainant and also to consider the relative probabilities of the two conflicting versions presented by the complainant and the accused.

[7] The assessors, having observed the demeanour of the witnesses' for the prosecution and the accused; coupled with the admissions made in the P.E. No.1A being voluntarily made by the accused, obviously have accepted the prosecution evidence as true and thereby would have accepted that the prosecution has established its case beyond a reasonable doubt.

[8] I am in agreement with the opinion of the assessors.

[9] In addition to the complainant's evidence the prosecution presented the accused caution interview statement, in support of their case. After the voir dire inquiry, this Court ruled that the statement was voluntary and could be led in evidence. This Court reviewed its determination on the voluntariness of the caution interview statement of the accused, after the opinion of the assessors was delivered, reconsidering all the evidence led before this Court.

[10] It is the considered opinion of this Court that the caution interview statement, tendered as P.E. No. 1A is voluntarily made by the accused. It is revealed upon perusal of the statement, which was recorded over three consecutive days, the accused first denied the allegation and claimed an alibi. In the second segment of the statement he made a conditional admission, when clarified by the interviewing officer on the claims,made by the accused, are not supported by the witnesses he mentioned. Then, in the last segment of the statement only he made the admissions.

[11] If the interviewing officer had fabricated the statement, aided by the statements made by the witnesses for the prosecution, he could have straightaway written down the admission without labouring to conduct a scene reconstruction and spreading the interview over a three day period.

[12] In my view, the assessor's majority opinion was not perverse. It was open for them to reach such conclusion on the evidence. I concur with the opinion of the assessors as there is no cogent reason to hold otherwise.

[13] I am also satisfied that evidence of the prosecution presented through the complainant and the admissions made in the caution interview statement, if found to be truthful and reliable, is sufficient to establish the guilt of the accused beyond a reasonable doubt.

[14] I find the accused guilty to the count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009. This court therefore convicts the accused Mosese Verebasaga to the charge of Rape.

[15] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

At Labasa
01 April, 2016

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