State v Qalituigau - Judgment [2016] FJHC 783; HAC186.2015 (26 August 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC186 OF 2015

STATE

vs

AKARIVA QALITUIGAU

Counsel : Mr R. Kumar and Ms U. Tamanikaiyaroifor the State
Ms T. Kean for the Accused

Hearing : 23^rd August – 24^th August 2016

Summing Up : 25^th August 2016

Judgment : 26^th August 2016

JUDGMENT

[1] The Accused, AKARIVA QALITUIGAUis charged, contrary to Sections 207(1), (2)(b) and in the alternative, contrary to Section 210 (1)(a) of the Crimes Decree No. 44 of 2009for committing for Rape or Sexual Assault onSOKOVETI SIGA.

[2] He pleaded not guilty to the charge and the ensuing trial lasted for 3 days. The complainant andher husband have givenevidence for the prosecution while the accused offered evidence in support of his case.

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

[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 complainant. According to her, the accused,after a drinking session slept in the sitting room of her house.There were six others sleeping there in addition to the accused. Her husband then went to drop off his brother and cousin. Thereafter the complainant also went to sleep in the sitting room. She woke up when the accused was “on“her vagina. She found him between her legs. She felt that he licked “on and into” her vagina. Then she yelled at the accused as to what he was doing. When pointed out by the accused where her ¾ pants were put after removing,the complainant wore it back and ran to the road, picked up a taxi, went to her husband and complained to him as to what the accused did to her.

[6] She returned with her husband to the house. The accused was still sleeping there. Then he was punched by her husband and handed over to the Police. She claimed that the accused was identified by the light coming from the kitchen.

[7] During her cross examination, the complainant admitted that certain facts she mentioned in her evidence were not recorded in the statement she made to the Police soon after the incident. She asserted that everything she said in evidence had already been told to Police. She was later called by the Police to make a second statement.

[8] The accused in his evidence admitted that he consumed alcohol with the drinking party and after the drinking session ended, the couple said that they would accompanyback some of their guests. As regularly done, the accused opted to sleep in the house of the complainant. He denies licking her vagina.

[9] The assessors were directed in the summing up to evaluate the probabilities of the version of events as presented by the parties. The inconsistencies of the evidence of the prosecution were also highlighted with suitable cautions. The majority of assessors have found the evidence of the complainant as truthful and reliable, as they found the accused guilty to the count of Rape.The other assessor apparently disbelieved the complainant as he found the accused not guilty to Rape as well as to the alternative count of Sexual Assault.

[10] The majority of the assessors have obviously rejected the denial of the accused.It was a question of believing whom.

[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 majority opinion of the assessors.

[12] I am also satisfied that evidence of the prosecution presented through the complainant is sufficient to establish the elements of Rape, namely penetration of vagina by tongue, lack of consent or recklessness of the accusedin relation to it and identity of the accused beyond a reasonable doubt.

[13] In the circumstances, I convict the accused, AKARIVA QALITUIGAUto the count of Rape.

[14] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

At Suva
This 26^th Day of August 2016

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

Solicitor for the Accused : Legal Aid Commission.