State v Senibiau - Judgment [2016] FJHC 905; HAC25.2015 (6 October 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 25 OF 2015

STATE

V

JONE SENIBIAU

Counsels : Ms. A. Vavadakua for State
Ms. S. Devi for Accused

Hearings : 3^rd and 4^th October, 2016
Summing Up : 5^th October, 2016
Judgment : 6^th October, 2016

JUDGMENT

[1] The accused, JONE SENIBIAU is charged, contrary to section 207(1), (2) (b) for committing for Rape on Sera Kula.

[2] He pleaded not guilty to the count of Rape and the ensuing trial lasted for 2 days. The complainant and the Police officer who recorded his caution interview statement have given evidence for the prosecution while the accused opted to remain silent.

[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.

[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 is a person known to her. On the night of 19^th March 2015 at about 2.45a.m. in her sleep the complainant felt someone first touching her vagina and then inserting a finger into it. She woke up and saw the face of the accused on the other side of the netting which separated them. There was a vertical cut in the netting through which the accused put his hand in to penetrate her. She later found a razor blade near the cut. She saw his face from the light coming from her solar lamp. He then ran away. She did not consent to the act of the accused.

[6] The accused did not give evidence but relied on the position that he merely touched her vagina, as stated in his caution statement, marked by the prosecution as P.E. No. 1A. In this statement, he denied having inserted his finger into the vagina of the complainant.

[7] The assessors have found the evidence of prosecution as truthful and reliable, as they unanimously found the accused guilty to the count of Rape. 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 three assessors have obviously rejected the position taken up by the accused in his statement. It was a question of believing whom.

[8] In my view, the assessor's opinion was not perverse. It was open for them to reach such a conclusion on the available evidence. I concur with the opinion of the assessors.

[9] 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 a reasonable doubt by adducing truthful and reliable evidence satisfying all elements of the offence of Rape.

[10] In the circumstances, I convict the accused, JONE SENIBIAU, to the count of Rape.

[11] This is the Judgment of the Court.

ACHALA WENGAPPULI

JUDGE

At Labasa

6 October, 2016

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

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