Nataqiri v State [2015] FJHC 819; HAC125.2012 (26 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 125 OF 2012

BETWEEN:

ASERI NATAQIRI

AND:

STATE

Counsel : Mr. Nath for the Applicant,
Mrs. Ratu for Respondent,

Date of Hearing : 20th, 21st and 22nd of October 2015
Date of Summing Up : 23rd of October 2015
Date of Judgment : 26th of October 2015

JUDGMENT

1. The accused person is charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009. The particulars of the offence are that;
   

"Aseri Nataqiri on the 17th of September 2012, at Sigatoka in the Western Division, had unlawful carnal knowledge with a woman namely "A" without her consent".

2. The accused person pleaded not guilty for this offence; hence the hearing of this action took place on 20th to 23rd of October 2015. The prosecution called four witnesses during the course of the hearing. At the conclusion of the prosecution case, the accused person opted not to give evidence on oath. He did not call any other witness for the defence as well. Subsequently, the learned counsel for the prosecution and the defence made their respective closing submissions. I then delivered my summing up to the assessors.
   
3. The three assessors returned with unanimous not guilty verdict against the accused person. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
   
4. Having considered the evidence presented during the hearing, respective closing submissions of the prosecution and the defence, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
5. Sections 207 (1) and 207 (2) (a) states that;
   

"Any person who rapes another person commits an indictable offence.

A person rapes another person if-

(a) the person has carnal knowledge with or of the other person without the other person's consent,

6. Accordingly, the main elements of the offence of rape are that;
   
   1. The accused,
   2. Inserted his penis into the vagina of the victim,
   3. Without the consent of the victim, and
   4. The accused knew the victim was not consenting for him to insert his penis in that manner.
      
7. In view of the evidence presented by the prosecution, the main contentious issue of this case is the identification of the accused person. Neither the victim nor her boy friend identified the accused as the person who allegedly came behind the victim and inserted his penis into her vagina. The victim stated that she saw the person only for 15 to 20 seconds as he was trying to get on top of her. At that time she fell down on the beach and was scared of what was happening. She only saw that he was wearing a white colour t-shirt. It had no proper sleeves and had black colour lines around the neck and shoulder of it. He had muscular arm. The boy friend of the victim only saw a person was running away from them and that person was wearing a white t-shirt. According to the agreed fact, the accused has admitted that he was at the bonfire on the beach on that day. The wife of the accused, in her evidence stated that the accused was in a white t-shirt with grey and blue lines around its neck.
   
8. Accordingly, I find that the prosecution case of identification of the accused person is founded on circumstantial evidence. The circumstantial evidence that the prosecution is seeking to rely on in this instant case are that;
   
   1. The accused was at the bonfire on the beach in the night of 16th of September 2012,
      
   2. His wife stated in her evidence that the accused was dressed in a white t- shirt.
      
   3. The victim saw the person who raped her, was wearing a white colour t- shirt with no proper sleeves.
      
   4. The boy friend of the victim saw a person who was running away was dressed in a white t-shirt.
      
9. Having considered the duration, the distance and the lighting condition under which the victim and her boy friend made their observation of the person who allegedly raped the victim in that night, I am of the view that those evidence of identification of the person is not sufficient to incriminate the accused into this alleged offence.
   
10. Accordingly, it is my opinion that the prosecution has failed to prove beyond reasonable doubt that the accused is guilty for this offence. Hence, I do not find any cogent reason to disagree with the unanimous verdict of not guilty by the three assessors.
    
11. In conclusion, I find the accused person is not guilty for the offence of rape as charged in the information and acquit him accordingly.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
26th of October 2015

Solicitors : Office of the Director of Public Prosecutions
Office of the Legal Aid Commission