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State v Chand - Judgment [2015] FJHC 620; HAC038.2014LAB (21 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 038 OF 2014LAB

STATE

V

RITESH VIKASH CHAND

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 19 and 20 August, 2015
Summing Up : 21 August, 2015
Judgment : 21 August, 2015

JUDGMENT

1. The assessors had return to court with a mixed verdict. The majority (i.e Assessor No. 2 and 3) had found the accused guilty as charged. The minority (Assessor No. 1) had found the accused not guilty as charged.

2. Obviously, the majority had accepted the prosecution's version of events, while the minority had not accepted the same.

3. I have reviewed the evidence called in the trial and I have directed myself in accordance with the summing up I gave the assessors today.

4. The verdict of the assessors was not perverse. It was open to them to reach such conclusion on the evidence.

5. Assessors are there to assist the trial judge come to a decision on whether or not the accused was guilty as charged.

6. It would appear that the majority of the assessors had accepted what the complainant had said in her examination-in-chief, that is, that the accused penetrated the complainant's vagina with his penis, at the material time, without her consent and he knew she was not consenting to sex, at the time. The majority had rejected her answers during cross-examination and re-examination, where she denied what she said when examined-in-chief. The majority assessors are entitled to do that as the Judges of fact. They can accept and/or reject a piece of evidence, if they judged it to be so, after listening to and observing the witnesses.

7. The minority assessor had taken the complainant's answer in cross-examination and re-examination to find the accused not guilty as charged.

8. We are dealing with a case where the complainant is mentally slow.

9. After hearing all the evidence and observing the demeanour of all the witnesses, I agree with the majority assessors' opinion and I find the accused guilty as charged and I convict him accordingly.

10. I accept the complainant's evidence she gave when examined-in-chief. She was getting tired as the trial went on and appeared frustrated by the legal process and said what she said, when cross-examined and re-examined. I reject the answers she gave when she was cross-examined and re-examined, as it was given by a mentally slow person who was frustrated and tired by the legal process. Her answers when examined-in-chief was credible and I accept the same.

11. Assessors thanked and released.

Salesi Temo

JUDGE

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

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