State v Temo [2014] FJHC 435; HAC003.2012 (17 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 003/2012

BETWEEN:

THE STATE

AND:

1. PAULIASI TEMO
2. METUISELA CORIAKULA

COUNSELS: Ms K Semisi for the State
Ms L Raisua for the First Accused
Mr P Tawake for the Second Accused

Dates of Trial: 09-13/06/2014
Date of Summing Up: 16/06/2014
Date of Judgment: 17/06/2014

[Name of the victim is suppressed. She will be referred to as I.G.]

JUDGMENT

[01] The above named accused persons have been charged with the following charges on amended information dated 11/06/2014.

The First Count

Statement of Offence

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

Particulars of Offence

Pauliasi Temo on the 14th December 2011 at Kelland Street, Narere in the Central Division, had carnal knowledge of I.G. without her consent.

The Second Count

Statement of Offence

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

Particulars of Offence

Pauliasi Temo on the 14th December 2011 at Kelland Street, Narere in the Central Division, had carnal knowledge of I.G. without her consent.

The Third Count

Statement of Offence

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

Particulars of Offence

Metuisela Coriakula on the 14th December 2011 at Kelland Street, Narere in the Central Division, had carnal knowledge of I.G. without her consent.

[02] After the trial the assessors unanimously returned with not guilty verdict against the accused persons to their respective charge.

[03] I direct myself on my own summing up and on looking at the evidence in its entirety I accept the assessors' majority opinion.

[04] According to the victim she was raped by the First and Second accused on 14/12/2011. After the First accused and before the Second accused, three others also raped her but their identity was not revealed. The First accused takes up the position that he had sexual intercourse with victim behind the bathroom of the landlord with consent. He says that he could not have sexual intercourse with the victim at the cassava patch as his wife came there before the act.

[05] Although prosecution listed the First accused's wife and landlady as prosecution witnesses they were called by the defence as defence witnesses. According to the First accused's wife when she helped the victim to take a bath and change her clothes she was not fully drunk. Victim had a sleep before she was found in the cassava patch. At that time she was wearing a T-shirt and an undergarment. Further the First accused wife did not use a torch to identify the couple as claimed by the victim. Though she had the opportunity to inform Bure, the First accused's wife, landlady and several police stations when she went home but she did not do so.

[06] Victim said that she went again to the First accused's house to take her belongings. But she had already changed her clothes before the incident. The Second accused took up the position when the First accused and the victim entered the house he was having his food in the kitchen. This was confirmed by the landlady in her evidence. Landlady entered the house immediately after the victim entered the house with the First accused. The First accused's wife complained to the landlady that the First accused and the victim were having an affair and she went away from the house.

[07] Although victim said that she reported the incident in two days after her sister's insistent, she was examined by the doctor after 4 days and her statement was recorded after 5 days of the incident. Further contradicting her evidence she had told the doctor that the second incident happened at the cassava patch. She admitted that she and the accused persons were drunk on that day.

[08] The paramount duty of the prosecution is to prove the accused persons' guilt beyond reasonable doubt. It is not for the accused persons' to prove their innocence. The burden of proof lies on the prosecution to prove the accused persons' guilt beyond reasonable doubt, and that burden stays with them throughout the trial.

[09] After careful consideration of the evidence presented by prosecution, I find it contains lots of ambiguity and creates a genuine doubt in my mind. I find the prosecution had not proved their case beyond reasonable doubt. The benefit of doubt must accrue to the accused persons.

[10] Hence, I agree with the assessors and find the accused persons are not guilty of the charge of Rape contrary to Section 207(1) and (2) (a) of the Crimes Decree No: 44 of 2009. They are acquitted accordingly.

P Kumararatnam
JUDGE

At Suva
17/06/2014