State v Chen Wen Jian [2012] FJHC 1469; HAC011.2011 (5 December 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 011 OF 2011

BETWEEN:

STATE

AND:

CHEN WEN JIAN

Counsel : Mr. T. Qalinauci for the State
Mr. Navinesh Nand for the Accused

Date of Ruling : 5 December 2012

RULING ON NO CASE TO ANSWER

[1] The Accused above named is charged with two counts of Rape punishable under Section 207(1) and 2(a) of the Crimes Decree.

[2] After the Prosecution case is concluded the Counsel for the Accused made an application to no case to answer.

[3] Defence Counsel submits that the Prosecution had not proved the elements of the offence hence he move to acquit the Accused.

[4] The State Counsel submits that he had proved a prima facie case hence Accused be called for his defence.

[5] I consider the relevant law Section 231(1) of the Criminal Procedure Decree states as follows:

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

[6] In Sisa Kalisoqo v State Criminal Appeal No. 52 of 1984, the Court held:

"The test to be applied under section 293 of the Criminal Procedure Code is whether there is evidence in respect of each ingredient of the offence. If there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence, then there is a prima facie case."

[7] The Prosecution led the evidence of the virtual Complainant. She said she was taken to the Accused on the 7th and 9th November 2010 and the Accused had sexual intercourse with her. The 2nd witness Dr B. Dragon gave evidence and told Court that he examined the Complainant on the 27th November 2010 and found a laceration on 6" clock position of the hymen. Further he estimated the injury could have been caused between 24 hours prior to examination up to one month. The Police investigator gave evidence. The defence Counsel also marked the interview record of the Accused.

[8] Considering all materials before the Court I am of the view that the Prosecution had proved the elements of the offence on prima facie level. Hence I concluded that the Accused has a case to answer.

[9] Application for no case to answer is dismissed.

S. Thurairaja
Judge

At Lautoka
5th December 2012

Solicitors: The Office of the Director of Public Prosecution for the State
Vijay Naidu & Associates for the Accused