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State v Tulevu - Judgment [2016] FJHC 562; HAC65.2014 (9 June 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 65 of 2014

STATE

V

ILIMO TULEVU

Counsels : Ms. A. Vavadakua for State
Mr. A. Pakafor the Accused

Date of Trial : 6, 7, 8 June, 2016
Date of Summing Up : 9 June, 2016
Date of Judgment : 9 June, 2016

JUDGMENT

(The name of the complainant is suppressed, the complainant will be referred to as “MK”)

[1] The Director of Public Prosecutions charged the Accused by filing Information which stated the following:

FIRST COUNT
STATEMENT OF OFFENCE

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

PARTICULARS OF OFFENCE

ILIMO TULEVU on the 18^th day of August 2014 at Wailele Settlement, Nawaca, Nabouwalu in the Northern Division penetrated the vagina of “MK” with his penis without “MK’s” consent.

[2] On a no case to answer application by the defence I ruled that the accused had no case to answer on the charge of rape but a case to answer on the lesser offence of defilement. I find the accused not guilty on the charge of rape, accordingly I acquit him of this charge.

[3] After the trial proceeded on the lesser offence of defilement the three assessors unanimously returned a guilty verdict against the accused.

[4] I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.

[5] The prosecution called the complainant and the defence called the accused to give evidence.

[6] It is an admitted fact that the complainant was between the age of 13 and 16 years at the time of the alleged offence and that the accused had sexual intercourse with the complainant on 18^th August, 2014.

[7] The accused relied on the statutory defence provided in Section 215 (2) of the Crimes Decree which states:

“It shall be a sufficientdefence to any charge under sub-section (1) if it shall be made to appear to the court that the person charged had reasonable cause to believe, and did in fact believe, that the person was of or above the age of 16 years.”

[8] The reasonable cause to believe limb of the above defence may be elicited from any witness but what the accused believed is within the knowledge of the accused.

[9] The accused in his evidence said that he believed the complainant was above 16 years of age. Further the reason why he thought she was an adult was because of how she spoke to him and her physical appearance. The complainant did not tell him her age and therefore he never knew her age. He further said that he did not ask her about her age. When he met the complainant on Friday afternoon at 4 o’clock on the first day she was not wearing a school uniform. He thought the complainant was of the age of 22, 23 when he first met her. Furthermore the accused said he was either 38 or 39 years of age in 2014.

[10] In her evidence, the complainant said they had met three times prior to having sex on 18^th August, 2014. In 2014 she was in Form 3 and that she had informed the accused that she was in Form 3 at Bua Central College.

[11] In cross examination she said she did not tell the accused her age or that she was going to school.

[12] In re-examination the complainant said that she did not inform the accused of her level of education because the accused might think that she was too young for him. She further stated that she would not have left the accused had her uncle not come to take her away. It was her father who had reported to the Police that she was missing from home.

[13] I find that the accused was not a reliable witness and his evidence should not be relied upon. It is very difficult to accept that a person of the accused’s maturity and age would not have known that the complainant was a school student and a person between the age of 13 and 16 years. During the time that he had been with the complainant he did not ask the age of the complainant cannot be accepted as the truth. I also do not believe the accused when he said that he thought the complainant was an adult from the manner in which the complainant spoke to him and her physical appearance.

[14] On the other hand I found the complainant to be a reliable and a truthful witness who was forthright in her evidence.

[15] On the evidence before the Court it was open to the assessors to reach such a conclusion.

[16] I find that the accused has not made it appear to court that he had a reasonable cause to believe, and did in fact believe that the complainant was above the age of 16 years. I am satisfied that the prosecution has proven beyond reasonable doubt that the accused had reasonable cause to believe, and did in fact believe, that the complainant was between the age of 13 and 16 years at the material time. I therefore agree with the unanimous opinion of the assessors.

[17] I find the accused guilty of the lesser count of defilement and I convict him accordingly.

Sunil Sharma
Judge
At Labasa
9 June 2016

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused