State v Chand [2015] FJHC 174; HAC054.2014 (12 March 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 054 OF 2014 LAB

STATE

VS

RONEEL KRISHNEEL CHAND

Counsels : Mr. S. Vodokisolomone for State
Mr. M. Fesaitu for Accused

Hearings : 11 and 12 March, 2015
Ruling on No Case to Answer : 12 March, 2015

RULING ON NO CASE TO ANSWER

1. The prosecution has closed its case after calling the main witness, that is, the complainant.

2. On oath, when re-examined by the prosecution, the complainant has admitted that, the accused did not penetrate her vagina with his penis, at the material time. The first fundamental issue in a penile/vagina rape trial, is the need for the prosecution to prove on the balance of probabilities, at the no case to answer stage, that the accused's penis penetrated the complainant's vagina, at the material time. Here, at the re-examination stage, the complainant has admitted, on oath, that there was no such penetration.

3. Both parties agree with the above.

4. The law at this stage is Section 231 (1) and (2) of the Criminal Procedure Decree 2009, which read as follows:

"231. — (1) 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.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court shall, if it considers that there is evidence that the accused person (or any one or more of several accused persons) committed the offence, inform each such accused person of their right —

(a) to address the court, either personally or by his or her lawyer (if any); and

(b) to give evidence on his or her own behalf; and

(d) to call witnesses in his or her defence".

5. I have considered the complainant's evidence. I have watched her give evidence. I agree with the prosecution and the defence, that the complainant has admitted on oath, that the accused's penis did not penetrate her vagina, at the material time.

6. Consequently, there is no evidence that the accused committed the offence of rape against the complainant.

7. I therefore find the accused not guilty as charged and acquit him accordingly.

8. Assessors to be advised that they are formally discharged and they are thanked accordingly for their service.

Salesi Temo
JUDGE

Solicitor for State: Office of Director of Public Prosecution, Labasa
Solicitor for Accused: Legal Aid Commission, Labasa