![]() |
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 054/2012
BETWEEN:
THE STATE
AND:
TIMOCI ALUSENI
COUNSEL: Ms. P. Low for the State
Ms. M. Lemaki and Mr. R. Tagivakatini for the Accused
Dates of Trial: 31/07-01/08/2013
Date of Summing Up: 02/08/2013
[Name of the victim is suppressed. She will be referred to as JPP]
SUMMING UP
Ladies and Gentleman of Assessors,
FIRST COUNT
Statement of Offence
RAPE: Contrary to section 207(1) and 207(2) (b) of the Crimes Decree No: 44 of 2009.
Particular of Offence
TIMOCI ALUSENI on the 14th day of September 2012, at Savusavu, in the Northern Division, penetrated the vagina of JPP with his finger without JPP's consent.
12. In Fiji law, the offence of Rape is committed when the vagina is penetrated either by the penis or by the finger of the accused. Hence in this case the prosecution has to prove:
1. It was the accused
2. Who had sexual intercourse with the victim or that he sexually abused the victim by invading her with his finger,
3. Penetrated the vulva or vagina of the victim to some extent, by inserting a finger,
4. Without her consent.
13. As far as the element of consent is concern, in our law, a child is under the age of 13 years is incapable of giving consent. In this case victim was 5 years old at the time of the offence. Hence consent is immaterial in this case.
14. Now let's look at the evidence led by the prosecution in this case.
15. The victim is now 6 years old a class 01 student. She is residing with her parents. She is only child in the family. On 14the September 2012 her father brought her back home from the school. Her mother has gone for work. After changing her clothes she went out for playing and climbed on a so-sop tree. While on the tree a man came and called her down. When she came down he told her to sit on the ground stretching her legs. Then he put one of his finger into her Muli. (According to her Muli is her vagina.)She felt very bad and pain at that time. Thereafter she went for a bath. She had seen her father talking to that man. After that she had told the incident to her parents and gone to police with her mother and father in the night. From there she had gone to a hospital and her Muli (vagina) was checked there. Thereafter they had gone to police once again and went home. She identified the accused in open court. Also identified her clothes in open court. She had given the description of the accused person to the police.
16. In the cross examination victim said that she can remember lots of men around her house. According to her father did not see accused poking his finger into her Muli(vagina). Nobody told her to tell police or to court that the accused poked his finger in to her Muli(vagna). She reiterated that the accused did something to her. She denied that the accused said only "Hi" to her.
17. In the re-examination victim said that the accused put his hand inside her Muli (vagina).
18. According to Loyod Clay Pickering father of the victim he had brought the victim back home on 14/09/2012. At that time nobody was at home as his wife had gone for work. After coming home the victim had gone out for playing near so-sop tree. She was singing at that time. When he could not hear her singing he came out of the house and saw a man facing towards him seated in front of her daughter. At that time victim was sitting on the ground and her legs were stretched. The distance between him and the victim was about 4 meters. He had seen the man's hand was under victim skirt. When he went near the man walked away but he punched him. He identified the man at that time. On that day he had seen that man twice and before he had seen him several times as he comes to repair the next door. After hearing from his daughter what the accused done to her, he went to the next door and complaint to the foreman of the construction. He apologised to him. Then incident was conveyed to his wife who then rang the police. Two police officers including a woman police officer came. They went to police, hospital and came back home. He identified the accused in open court.
19. In the cross examination witness said that he did not see what accused done inside his daughter's skirt. He denied that he making false allegation against the accused.
20. Dr. Neelam a MBBS doctor with about three years experience examined the victim on 14/09/2012. She performed the examination at Savusavu Hospital at about 7.00pm. Victim did not come out with the history. Hence she obtained the history from her mother. According to the history the victim had been sexually assaulted by a middle aged Fijian boy who come for renovation of the house. Father of the victim had seen the man's hand was between the legs of the victim. According to her specific findings the perineum is slightly inflamed and labia minora is inflamed too. Hymen is partially intact. Age of the injury is less than 24 hours and is fresh.
21. According to her conclusion the injury found on the victim's vagina indicating that penetration has taken place. Victim's Medical Report was marked as Exhibit No: 03.
22. In the cross examination witness said she is qualified to carry out medico legal examinations. The injury found in the vagina of victim is more towards 10-11 clock position. She admitted that injury found on victim's vagina could happen due to rubbing, scratching and regular washing. She also admitted that inflammation could occur due to poor hygienic condition. She finally said this type of injury could be caused by any object other than a finger.
23. WPC Maria Fane is the investigating officer in this case. After receiving the report she had gone to victim's house and took her to Savusavu Police Station and produced for a medical examination on 14/09/2012. She had seen the accused who was arrested in this case and she identified him in open court.
24. According to her investigation no other persons present at the time of committing the offence.
25. That is the end of prosecution case. Defence was called and explained the rights of the accused. After understanding his rights he elected to give evidence from witness box.
26. According to the accused he was doing house repair works at Vunikoka Settlement on 14/09/2012. Victim was living in the same compound where they were engaged in renovation work. On 14/09/2012 he had gone to another house to bring a rake. On his return he had seen victim was climbing the so-sop tree. As victim called him he stopped there. At that time her father came pulled her hand and warned him not to come to their compound. At that time victim was laughing. He denied the charge.
27. In the cross examination accused admitted that he was there when victim was climbing so-sop tree. He denied poking victim's vagina at that time. He said that he never ran from the compound.
28. That is end of defence case.
Analysis of the Evidence
29. Ladies and Gentleman of assessors, in this case the victim gave evidence first. According to her accused had poked his finger into her vagina which was painful. She told this to her parents on the same day. She identified the accused in open court. As assessors and judges of facts you have to consider her evidence very carefully.
30. Ladies and Gentleman of assessors, you heard the evidence of victim's father. He had seen accused taking his hand from victim's skirt. He too identified the accused correctly as he had seen the accused several times in the vicinity of his house as he did renovation work in the neighbouring house in the same compound.
31. Ladies and Gentleman of assessors, the doctor gave evidence and explained the injury. She had examined the victim's vagina. She gave evidence as an expert.
32. Accused denied the charge. He only accept that he was there at the relevant time. But he only talked to victim as she called him. Being a member of house renovation team he was there during that period. As Assessors and Judges of facts you have to consider this evidence very carefully.
33. Ladies and Gentleman of assessors, in this case accused opted to give evidence from witness box. That is his right. But he has nothing to prove to you.
34. In this case the accused is charged for rape contrary to section 207(1) and 207(2) (a) of the Crimes Decree No: 44 of 2009. I have already explained to you about the charges and its ingredients.
35. Ladies and Gentleman of assessors as per section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases.
36. You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of their evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject.
37. You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
38. Ladies and Gentleman of assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
39. Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
40. This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
41. Any re-directions
I thank you for your patient hearing to my summing- up.
P Kumararatnam
JUDGE
At Labasa
02 August 2013
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2013/371.html