State v Aziz [2013] FJHC 21; HAC124.2012 (29 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC124 of 2012

BETWEEN:

THE STATE

AND:

MANZOOR AZIZ

Counsel : Ms A. Lomani for State
Mr. S. Waqainabete (L.A.C.) for Accused

Date of hearing : 29 January 2013
Date of ruling : 29 January 2013

RULING

[1] The accused has been charged with rape of his de facto wife. The charge reads as follows:

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

MANZOOR AZIZ on the 27th day of February 2012 at Naiborebore Village, Tailevu in the Eastern Division had carnal knowledge of Sereana Naitoko without her consent.

[2] The accused was put in the charge of three assessors and the complainant gave evidence as the first prosecution witness. Her evidence in chief was "thin" but enough to establish a case to answer for the accused to be put to his defence.

[3] After the morning adjournment, the complainant told the Court in the absence of the assessors that she did not want to proceed with her complaint of rape because there was nobody to provide for her and the two children. The Court said it was too late: enough evidence had been given to establish a prima facie case.

[4] Cross examination proceeded where the complainant completely resiled from her evidence in chief and told the Court that she consented to the act of sexual intercourse on the 27th February 2012.

[5] In the light of the evidence that consent had been given then there is a lack of proof of an essential element of the crime and that being so, there is no case to answer to the charge.

[6] I therefore direct the three assessors to return opinions of not guilty. I find the accused not guilty. He is acquitted and discharged.

Paul K. Madigan
JUDGE

At Suva
29 January 2013