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State v Moceituba - Judgment [2014] FJHC 546; HAC114.2013 (24 July 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 114/2013

BETWEEN:

THE STATE

AND :

SEMI MOCEITUBA

COUNSEL : Mr.S.Babitu for the State
Accused in Person

Dates of Trial : 22-23/07/2014
Date of Summing Up : 24/07/2014
Date of Judgment : 24/07/2014

[Name of the victim is suppressed. She will be referred to as S.L.]

JUDGMENT

[01] The Director of Public Prosecution had preferred the following charges against the above named accused.

The First Count

Statement of Offence

RAPE: Contrary to Section 207(1) (2) (b) and (3) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Semi Moceituba between the 1st day of January 2013 and the 2nd day of June 2013, at Nadi in the Western Division, used his finger to penetrate the vagina of S.L, a 7 year old.

The Second Count

Statement of Offence

RAPE: Contrary to Section 207(1) and (2) (b) and (3) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Semi Moceituba on the 3rd day of June 2013 at Nadi in the Western Division used his finger to penetrate the vagina of S.L, a 7 year old.

[02] The assessors have expressed unanimous opinion that the accused is guilty of charge of Rape (Two Counts). The unanimous opinion of guilty verdict in respect of the charge is completely tenable on the basis of evidence considered in accordance with the legal directions that have been made.

[03] In this case the victim was 07 years old child and the accused is her step-grandfather. The victim gave evidence very firmly that the accused committed the offence on her after threatening her. He had threatened her with death of her mother if she divulges this incident to anybody. The accused committed the offence for some time.

[05] The doctor expressed her opinion that hymen could be damaged due to insertion of any foreign object including a finger. She also said that loosing hymen at this age is very unusual. She had not only found distraction of victim's hymen, but also found red-bruises over victim's vagina.

[06] I have considered and evaluated the evidence, applying legal principles contained in my summing-up to the assessors.

[07] It is also my decision that the accused is guilty of the charge of Rape.

[08] The judgment of this court is that the accused is guilty of charge of Rape (two counts) of S.L. He is convicted accordingly.

P Kumararatnam
JUDGE

At Lautoka
24/07/2014