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State v Rasiga - Judgment [2017] FJHC 159; HAC34.2015 (3 March 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 34 OF 2015

STATE

V

BENIAMINO RASIGA

Counsels : Ms. A. Vavadakua for State
Mr. K. Ratule for Accused

Hearings : 27, 28 February 2017 and 01 March 2017
Summing Up : 02 March, 2017
Judgment : 03 March, 2017

JUDGMENT

[1] The accused, Beniamino Rasiga is charged for committing Rape, contrary to Section 207 (1) and (2)(a) and also of Assault Causing Actual Bodily Harm, contrary to section 275 of the Crimes Decree No. 44 of 2009.

[2] He pleaded not guilty to both these counts and the ensuing trial lasted for 3 days. The complainant, her partner and the medical officer, who examined the complainant, gave evidence for the prosecution while the accused offered evidence in support of his version of events.

[3] At the conclusion of the evidence and after the directions given in the summing up, the three assessors unanimously found the accused not guilty to the charge of Rape and also to the charge of Assault Causing Actual Bodily Harm.

[4] I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.

[5] Prosecution case was based primarily on the evidence of the complainant. According to her, in the early hours of 4^th July 2015 she was drinking alcohol with three other males including the accused and her partner. They had spent the previous evening drinking alcohol at several places. They were seated in the veranda of the house of the other male. After some time, she needed to relieve herself and she walked away from the house. She then sat down.

[6] When she got up after relieving herself, the accused grabbed her from behind. He then pulled her and pushed her down. He mounted on top of her and inserted his penis into her vagina. She was punched several times by the accused and who also bit her lip. She felt pain in the lip, weak and was drunk. After penetrating, the accused blacked out on top of her. She then pushed him to aside and ran to her partner crying. She complained to him that the accused had raped her.

[7] The accused, in his evidence admitted having mounted on her with the intention to have sexual intercourse, but before he could penetrate he blacked out. He denied biting on her lip. According to him, she hugged him and they kissed. She then voluntarily removed her undergarments as they lay on the ground.

[8] He also relied on the evidence of the medical witness who did not observe any lacerations or abrasions on the genitalia of the complainant, when he examined her after few hours since the alleged incident. The only injury that was noted by the medical officer was a swelling in the upper lip of the complainant.

[9] The assessors have found the evidence of the accused as truthful and reliable, as they unanimously found the accused not guilty to the charges. They were directed in the summing up to evaluate the probabilities of the version of events as presented by the parties.

[10] The three assessors have obviously rejected the evidence of the prosecution as unreliable. It was a question of believing whom.

[11] In my view, the assessor's opinion was not perverse. It was open for them to reach such conclusion on the available evidence. I concur with the opinion of the assessors as there is no cogent reason to override their decision to accept the claim of the accused.

[12] Therefore, it is my considered view that the evidence of the prosecution, presented through the complainant, is insufficient to establish the elements of the offences of Rape and Assault Causing Actual Bodily Harm, beyond a reasonable doubt.

[13] Accordingly, I acquit the accused Beniamino Rasiga from the charges of Assault Causing Actual Bodily Harm and Rape.

[14] This is the Judgment of the Court.

ACHALA WENGAPPULI

JUDGE

At Labasa

03 March, 2017

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

Solicitor for the Accused : Office of Messrs Gibson & Company, Barristers & Solicitors, Labasa