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State v FD [2011] FJHC 604; HAC70.2011 (15 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 70 OF 2011

BETWEEN:

THE STATE

AND:

F.D.

Counsel: Ms. S. Hamza for the State
Mr. H. Rabuku for the Accused

Date of Summing Up: 14th September 2011
Date of Judgment: 15th September 2011

JUDGMENT

1. Name and identity of the victim and others were suppressed due to the suppression order issued by me on the request of Counsel.
   

2. The Accused was charged with one count of Sexual assault and one count of Rape punishable under section 210 (1) (a) and 207 (1) (2) (a) of the Crimes Decree respectively.

3. The trial commenced on the 6th and concluded on 14th of September 2011.

4. At the end of the trial all three assessors have returned with unanimous verdict of not guilty on both counts.

5. I have adjourned it overnight to consider my judgment. I have directed myself in accordance with my summing up I gave the assessors yesterday. I find the verdicts of the assessors were not perverse and it was open to them to reach such conclusions. On the evidence I accept their verdict.

6. Considering the evidence before this Court the virtual complainant was repeating a set of words for many questions. Furthermore there is no independent evidence to corroborate the incident. I accept the offence of Rape does not need independent corroboration but in this case the medical evidence does not support the claim of anal rape. The child was very tender and small made the Accused is an average built male of 22 years. If he had penetrated his penis or even finger definitely there should be medical evidence present within 24 hours. The incident alleged to have happened at 3pm on the 1st March 2011 and the doctor had examined at 11am on the following day and found no injury to the anus. I am not making a finding that the child is lying. Further, the child initially talks about penetration of his anus with a finger. Subsequently he changes into penis. Considering all I am of the view that there is a serious doubt created in the Prosecution case.

7. The Doctor said the injury found on the child (erythema on the penis) can cause by a fungal affect. Blood sample was taken but the report was not available. In that circumstance the benefit of the doubt should be given to the Accused.

8. Beyond all the investigation did not help the Prosecution at all. The investigators could have been move vigilant of collecting evidence.

9. Given reasons above, I find the accused not guilty on both Counts. Accordingly, I acquit him on both Counts.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Gledvil Law firm for Accused