State v Barere [2017] FJHC 769; HAC16.2016 (12 October 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 16 OF 2016

STATE

V

KOAE BARERE

Counsels: Mr. R. Kumar for State
Ms. N. Mishra for Accused

Date of Trial : 11 October 2017
Date of Summing Up : 12 October 2017

JUDGMENT

1. The name of the complainant is suppressed.
2. The Accused is charged with one count of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act. The particulars of the offence are that:

“Koae Barere, between the 1st day of February, 2016 and the 29th day of February 2016, at Savusavu in the Northern Division, penetrated the vagina of AB with his tongue, without the consent of the said AB”

3. Consequent to the plea of not guilty of the accused, the matter was proceeded to hearing. The hearing commenced on the 11th of October 2017 and concluded on the same day. The Prosecution called two witnesses, they are, the complainant and her mother. The accused gave evidence but did not call any other witness for the defence. Subsequently, the learned counsel for the Prosecution and the Defence made their respective closing addresses. I then delivered my summing up.
   
4. The three assessors in their respective opinions unanimously found the accused guilty for this offence of rape.
   
5. Having carefully considered the evidence adduced in the hearing, the respective closing addresses of the learned counsel, the summing up and the unanimous opinion of guilt given by the three assessors, I now proceed to pronounce the judgment as follows.
6. The prosecution alleges that the accused came and pulled down the shorts and undergarment of the complainant, while she was sleeping with her sister in the night. He then leaked and penetrated her vagina with his tongue without her consent.
7. The accused in his evidence stated that he does not know anything about this incident as he went to sleep after consuming grog and eight cans of beer mixed with rum. When he walked up in the following morning, he found his family was happy and nobody complaint or informed him anything about this incident. He further said that if he had done such a thing, someone in his family would have informed him in the following morning.
8. In view of the evidence adduced by the defence, the accused did not directly deny committing this offence. Instead, the accused in his evidence said that he does not know about anything as he went to sleep and woke up the following morning. The defence at any point of time did not raise the defence of self-induced intoxication.
9. According to the evidence presented by the prosecution, the complainant had not informed about this incident in the following morning. She had actually informed her mother two days after the incident. Her mother came to know about it when the complainant related her this story two weeks after this incident took place. Accordingly, no one in the family knew about this incident, apart from the complainant, in the following morning. The complainant said that she did not do anything as she was scared of the accused.

10. The complainant in her evidence specifically stated that she saw the accused as the person who leaked inside her vagina with his tongue when her mother switched on the torch. As soon as her mother switch on the torch, he tried to pretend that he was sleeping.

11. The mother of the complainant, in her evidence said that she saw the accused was lying beside the legs of the complainant when she switched on the torch. When she told him that it was the wrong mosquito net, he came and slept beside her.

12. I observed the demeanor and the manner the complainant gave her evidence. She was straight and consistence in her evidence. She specifically stated that she felt bad when the accused leaked and penetrate her vagina with his tongue.

13. In view of these reasons, I accept the evidence of the complainant as credible and truthful. The evidence given by the mother of the complainant corroborated the account given by the complainant in her evidence as she saw the accused was lying beside the complainant’s legs.

14. Having considered the evidence presented by the prosecution, I find the prosecution has successfully established beyond reasonable doubt that the accused leaked and penetrated the vagina of the complainant without her consent.

15. The accused was evasive in giving evidence. He consistently said that if he has done something like that, someone in the family should have informed him in the following morning. Having considered the evidence adduced in the hearing, I do not accept the evidence given by the accused as credible and truthful. Moreover, I find that the evidence given by the accused has failed to create any reasonable doubt about the prosecution case.

16. Accordingly, I am satisfied that the prosecution has successfully proven beyond reasonable doubt that the accused had penetrated the vagina of the complainant with his tongue without her consent. Therefore, I do not find any cogent reasons to disregard the unanimous opinion of guilt given by the three assessors.

17. In conclusion, I hold that the accused guilty for the offence of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act and convict him accordingly.

R. T. Rajasinghe

Judge

At Labasa

12 October 2017

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

Solicitor for the Accused : Legal Aid Commission, Labasa