State v Doko [2013] FJHC 125; HAC038.2011 (20 March 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 038 OF 2011

BETWEEN:

STATE

AND:

APISAI DOKO

Counsel : Mr. T. Qalinauci for the State
Mr. Inia for the Accused

Date of Ruling : 20 March 2013

RULING ON NO CASE TO ANSWER

[1] The Accused above named is charged with one count of rape punishable under Section 207(1) of the Crimes Decree.

[2] Trial commenced and the State Counsel forwarded the evidence of the Virtual Complainant and the Medical Practitioner who examined her and close the case. Defence Counsel submitted to Court that the Prosecution had not established a case hence the Accused has no case to answer.

Law

[3] 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."(emphasis added).

[4] As per the above section if the Court finds there is no evidence then the Court shall find him not guilty. In State v Semisi Wainiqolo HAC 015 of 2004S Justice Gates (as then) said:

"In order that section 293 of the Criminal Procedure Code be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence" in the sense no evidence that it was the Accused who has committed the offences."

[5] In Sisa Kalisoqo v State Criminal Appeal No. 52 of 1984, the test was articulated as follows:

"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."

[6] In Moidean v Reginam [1976] 22 Fiji LR 206 at p.208B the Court of Appeal interpreted the Magistrate's task to be:

"to decide whether, or not a reasonable tribunal might convict, on the evidence so far laid before it – if so there would be a case to answer". (emphasis added)

The court referred to and approved the long standing English Practice Note at [1982] 1 All E.R 448 per Lord Parcker CJ similarly cited with approval by the "Court of Appeal in Rohit Ram Latchan v The State (unreported) Court of Appeal Criminal App. No. AAU0015 of 1996S; 28 November 1997.

[7] Justice Gates (as then) said in State v Tieri Raitini & 2 Others (Criminal HAC 005.03S):

There is no perceptible between the two tests; that is between whether the court considers there is "no evidence", the High Court test (section 298) and that for the Magistrates Court "a case is not made out .... sufficiently ...." [section 210 CPC]. When considering whether the evidence on identity of the accused is proximate or sufficient, insufficiently of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient: Mosese Tuisawau (supra at p.6).

[8] The Complainant who is 47 years gave evidence and said that the Accused is her uncle (related through mother). She lives there. On the day in question, the Accused massaged her legs then he removed her clothes and had sexual intercourse with her. She had not told this to the wife of the Accused (who is her aunt). Incident had happened on 8th April 2010 and reported to the police on the 15th Aril 2010. She said it was due to the police station is situated far from the village. The Complainant told Court that the incident happened without her consent. But at the cross examination she said there is no rape that is why she didn't report to the police promptly. The Complainant had contradicted herself in her evidence.

[9] Medical Practitioner who examined the Complainant gave evidence and said the Complainant had told her that her father's younger brother raped her. On examination he had found a superficial laceration on the left inner lips of labia minora. That could have been due to forceful penetration of penis or hard blunt object.

[10] There is no evidence before the court who conducted the investigation and how the Accused person was arrested and produced. This causes a serious doubt in the prosecution case.

[11] I considered the submission filed by both counsels and found the objection raised by the defence is a valid application.

[12] Considering the nature of the evidence before the court I do not find that the Prosecution had proved a prima facie case against the Accused hence I act under Section 231(1) of the Criminal Procedure Decree and acquit the Accused Apisai Doko from further proceedings.

S. Thurairaja
Judge

At Lautoka
20 March 2013

Solicitors: The Office of the Director of Public Prosecution for State.
Legal Aid Commission for Accused