State v Sevakasiga - Ruling [2016] FJHC 759; HAC42.2015 (16 August 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 42 OF 2015

STATE

V

1. SOVITA SEVAKASIGA
2. PENIJAMINI TAWAKE
   

Counsels : Ms. A. Vavadakua for State
Ms. S. Dunn for 1^st Accused
Mr. A. Paka for 2^nd Accused

Hearings : 15 and 16 August, 2016
Ruling : 16 August, 2016

RULING

[1] After the complainant’s cross examination by the 1^st accused, the Counsel for the 2^nd accused sought to clarify as to the nature of the relationship she had with his client.

[2] The complainant and the assessors were excused and in their absence the Court then invited his attention to the statutory provisions contained in the section 130 of the Criminal Procedure Decree 2009, by which questions or evidence on previous sexual experience of the complainant, could only be led with he leave of the Court.

[3] In his clarification by the Counsel for the 2^nd accused, he said that it is his instructions from the 2^nd accused are that the complainant was in a de facto relationship with him up to the date of the incident of alleged Rape. The section only prohibits sexual experience of the complainant with any other person and not the accused. It is in these circumstances, he moves that he be permitted to put this position to the complainant.

[4] At the commencement of the trial the both accused have admitted having had repeated vaginal and oral intercourse with the complainant and only trial issue that was left for determination by the Court, aided by the assessors, was whether there was consent.

[5] In establishing this element in respect of the 2^nd accused and more particularly in respect of the fact that he was reckless about her consent, the prosecution led evidence of the complainant that the 2^nd accused has had vaginal and oral intercourse without her consent and relied, in addition, on the circumstances under which the alleged acts were done. It is a question of fact whether the 2^nd accused was reckless in this situation, that has to be decided after trial, as he was already in a continuing de facto relationship with the complainant.

[6] In these circumstances, it is clear that the questions put to the complainant in establishing the de facto relationship has a direct relevance to the facts in issue of the proceedings.

[7] Considering the material above, it is the considered view of this Court that the 2^nd accused should be permitted to put questions on sexual experience of the complainant with him.

ACHALA WENGAPPULI

JUDGE

At Labasa

16 August, 2016

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa