State v Vasu - Judgment [2016] FJHC 701; HAC172.2015 (1 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 172 OF 2015

STATE

vs

LORIMA VASU

Counsels : Ms S. Serukai and Mr Y. Prasad for the State

Ms L. Raisua and Mr L. Qetakifor the Accused

Dates of Trial : 25^th; 26^th; and 27^th July 2016

Summing Up : 29^th July 2016

Judgment : 1^st August 2016

JUDGMENT
___________________________________________________________________________

[1] The Accused, LORIMA VASU is charged, contrary to section 207(1),(2)(a) and (b) for committing for Rape on Timaleti Ranadirua. In addition, he is also charged for Indecent Assault contrary to section 212(1) of the Crimes Decree No. 44 of 2009.

[2] He pleaded not guilty to the two charges and the ensuing trial lasted for 3 days. The complainant, Nacanieli Liti and Dr. Violetta Fatiaki have given evidence for the prosecution while the accused offered evidence in support of his case and called Samuela Rinavuaka and Epeli Ruivadra also on his behalf.

[3] At the conclusion of the evidence and after the directions given in the summing up, the three assessors unanimously found the accused guilty to the count of Rape and also to the count of Indecent Assault.

[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 on the evidence of the 14 year old complainant. According to her, the accused is a fellow villager to whom she treated as a brother. On the evening of 15^th April 2015, at about 7.00 pm to 8.00 pm she was tasked by her father to look for her younger brother. It was suspected he may have gone to see the truck that had arrived to their village that evening, in order to transport cargo of the villagers to the Suva Market.

[6] The complainant went in the direction, in which the truck was parked and had met the accused on a foot path. He invited her to a nearby empty shop. She declined his invitation and told him as to why she was there. When the accused repeated his invitation for the second time, she followed him into this empty shop, thinking he is going to tell her stories.

[7] Thereafter, whilst inside the empty shop, the accused had touched her breasts and also touched inside of her vagina by using a finger. Her attempt to go away was prevented by the accused. After about 10 minutes she was allowed to go. When they came out of the empty shop, they were seen by the witness Nacanieli Liti (referred to by the complainant as "Naca"), who conveyed what he saw to her father. The complainant was scared of the reaction of her father and she was physically assaulted by Naca.

[8] Witness Nacanieli Liti, in his evidence stated that he saw the accused and the complainant coming out of the empty shop and he became worried about his sister. He then informed her father. He also said that he recognised them at a distance about 10 meters and there was light coming from a neighbour's house.

[9] The medical witness, upon examination of the external genitalia of the complainant on the following day at the hospital, did not observe any injury. When clarified by the prosecution, she opined that there is a possibility that penetration could occur, without leaving tell tale marks.

[10] The accused in his evidence pleaded total denial to the allegation. However he said in evidence he loaded cargo to the truck during 7.00 pm to 8.00 pm that evening and had thereafter did his routine physical training for about 5 minutes in that empty shop. He also said that he saw the complainant went past the empty shop. He then went home and started cooking dinner. At that time the complainant father came in search of him and wanted to know his whereabouts. The accused told him where he was but his visitor was angry. The accused then went over to the complainant's house to know as to why the complainant's father was angry. The accused learnt that the complainant's father was told that the accused and the complainant were seen together in the empty shop.

[11] The two witnesses called by the accused testified to the fact that the accused loaded cargo into the truck that evening and he was regularly seen at home.

[12] The assessors have found the evidence of prosecution as truthful and reliable, as they unanimously found the accused guilty to the count of Rape and also to the count of Indecent Assault. They were directed in the summing up to evaluate the probabilities of the version of events as presented by the parties. The inconsistencies of the prosecution were also highlighted with suitable directions. The accused challenged the claim of identity by witness "Naca". The assessors were, therefore directed on Turnbul principles and warned of dangers of a mistaken identity. The three assessors have obviously rejected the denial of the accused, indirectly suggesting that this allegation is a fabrication by the complainant, due to fear of physical assault. It was a question of believing whom.

[13] In my view, the assessor's opinion was not perverse. It was open for them to reach such conclusion on the available evidence. Although legally not required, her version of events was well supported by the evidence of "Naca". The accused too admits that his name was implicated that very evening, the complainant was seen close to the empty shop and he was in the empty house at some point of time. I concur with the opinion of the assessors.

[14] 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 offences with which the accused is charged.

[15] In the circumstances, I convict the accused, Lorima Vasu, to the count of digital Rape. I also find him guilty to the count of Indecent Assault.

[16] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.