State v Mototabua [2004] FJHC 81; HAC0020X.2002S (1 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0020 OF 2002S

STATE

v.

ELIKI MOTOTABUA

Mr. N. Lajendra for State
Accused in Person

Hearing: 1st April 2004
Ruling: 1st April 2004

RULING ON NO CASE TO ANSWER

The accused submits that there is no case for him to answer on each count of the Information. He is charged with abduction, wrongful confinement, and rape on a total of seven counts.

Section 293(1) of the Criminal Procedure Code provides:

“When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the barrister and solicitor for the prosecution or the defence may desire to submit, record a finding of not guilty.”

The test at this stage of the trial is whether, on each count on the Information, there is evidence that the accused committed the offences (Sisa Kalisoqo v. State Crim. App. No. 52 of 1984, State v. Mosese Tuisawau Crim. App. No. 14 of 1990). If there is some relevant and admissible evidence, direct or circumstantial touching on all the elements of the offences then there is a prima facie case under section 293(1) of the Criminal Procedure Code. Although the accused referred to the test in Galbraith (1971) 73 Cr. App. R. 124, that is whether a reasonable tribunal could convict on the prosecution evidence taken at its highest, that test does not apply in the High Court.

The accused submits in this case that the evidence of Mereani Radovu is incapable of belief because she did not escape when she could have, in the four days she spent with him, and because she did not complain about the alleged offences immediately after she left him. He further submits that the evidence of other witnesses was unreliable, in particular that of Kalisita Mototabua.

However these are matters of fact for the assessors. Evidence has been led not only of a forced abduction from the Nausori bus stand, but also of four days of wrongful confinement and of at least five incidents of rape. That evidence came principally from Mereani Radovu herself, but there is also some evidence, capable of affording corroboration as to lack of consent on Counts 1 and 2 from the accused’s mother Kalesita Mototabua. There is also evidence, consistent with Mereani’s lack of consent on all counts (although not corroborative) from the doctor and Mereani’s relatives, all of whom spoke of her distress and emotional trauma.

At this stage of the trial, Mereani’s credibility, and the weight to be given to the prosecution case is of little relevance. Even if there was no corroboration in this case, it would be open to the court to convict in the absence of corroboration, provided Mereani’s evidence is both credible and reliable. That is the test at the end of the trial. Whether or not the prosecution witnesses are to be believed, and what weight can be put, for instance on the medical report, is a matter for the assessors.

As for the accused’s submission that the witnesses gave previous inconsistent statements, I can find no significant inconsistency in the statements of Mereani Radovu, the evidence of the “uncle” in the accused’s house having been elicited under cross-examination. In any event the alleged lack of detail in her statement was cross-examined on, just as Kalisita Mototabua gave evidence of her previous statement and the reason for her lack of consistency, and these are matters of fact and weight for the assessors.

At this stage, I consider that there is evidence on each count, to justify putting the accused to his defence. His application is dismissed.

Nazhat Shameem
JUDGE

At Suva
1st April 2004