State v Reddy [2015] FJHC 848; HAC223.2011 (4 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 223 OF 2011

STATE

V

JAGDISH CHAND REDDY

Counsel: Ms.S.Kiran for the State
Mr. Singh with Ms. Singh for the Accused

Date of Hearing: 03rd November, 2015
Date of Ruling 04th November, 2015

RULING

1. After the close of the case for the Prosecution, Counsel for the Defence submits that there is no case for the accused to answer.

2. An application of no case to answer is governed by section 231(1) of the Criminal Procedure Decree which provides 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"

3. The Accused is charged with the following Count:

Statement of Offence

RAPE: Contrary to Sections 207 (1) (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JAGDISH CHAND REDDY on the 23rd of November, 2011 at Lautoka in the Western Division, penetrated vagina of SEREIMA LEWANIMAROU with HIS FINGERS, without her consent.

4. In Kalisoqo v R[Criminal Appeal No: 52 of 1984], the Court of Appeal took the view that if there is some direct or circumstantial evidence on the charged offence, the Judge cannot say there is no evidence on the proper construction of section 293(1) (Under old Law). This view was later confirmed by the Court of Appeal in State v Mosese Tuisawau[Cr. App. 14/90].

5. Madam Shameem J in State v Woo Chin Chae [2000] HAC 023/99S stated:

"In order to come to the conclusion that there was evidence direct or circumstantial, and irrespective of its weight, credibility or its tenuous nature it must be shown that the evidence in question is relevant, admissible and is in totality inculpatory of the accused. That means that the evidence in its totality must at least touch on all the essential ingredients of the offence"

6. In State v George Shiu Raj &Shashi Shalendra Pal [2006] AAU0081/05 Court of Appeal confirmed that the correct approach under 293(1) is to ask whether there is some relevant and admissible evidence on each element of the charged offence, and not whether the evidence is inherently vague or incredible.

7. In State v. Tuivodo HAC 54 of 2014 (12th June, 2015) it was stated as follows:

"The phrase "no evidence" has been interpreted to mean that there is no evidence on an essential element of the charged offence [Sisa Kalisoqo v State Cri. Appl. No.52of 1984]. If there is some evidence on the essential elements of the charged offence, the application for a no case to answer cannot succeed. The credibility, reliability and weight are matters for the assessors and not for the trial judge to consider at a no case to answer stage".

8. In order to prove the offence of Rape, as charged in this case, the Prosecution has to prove following elements beyond reasonable doubt:

a. the Accused, JAGDISH CHAND REDDY

b. penetrated the vagina of SEREIMA LEWANIMAROU to some extent with his fingers

c. without SEREIMA LEWANIMAROU's consent.

9. Consent as defined in Section 206 of the Crimes Decree, means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

10. A person's consent to an act is not freely and voluntarily given if it is obtained —

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or (emphasis mine)

(f) by a mistaken belief induced by the accused person that the Accused person was the person's sexual partner.

11. Prosecution is running this case on the basis that the Accused obtained the consent of the Complainant by false and fraudulent representations about the nature or purpose of the act.

12. Evidence adduced by the Prosecution disclosed that the Complainant was a mother without children at the time she met the Accused accidently. Having become aware of complainant's desire to have children, Accused pretends himself as a 'Brother Jack' a prayer warrior belonging to the New Methodist Denomination gifted with divine power that is capable of giving babies to women. He offers to pray for her. Complainant accepts the offer in the belief that the Accused is the Brother of a church capable of giving her children by prayers.

13. In the course of praying for her to have a baby, Accused inserts his three fingers into Complainant's vagina. She allows him to do everything he requests in the belief that his prayers would give her a baby. Complainant stated that she was feeling afraid when the accused put his fingers inside her vagina.

14. The second witness Waninoke Jiu was called to give evidence of recent complaint. In her evidence she stated that in the evening of 23rd November 2011 the Complainant came to her home and told her that the Accused had touched her private part with his hands. She further stated that on the next day she met the Accused and asked him about his religion and the Accused got ashamed and kept quiet. She said that she is the wife of a Pastor of New Methodist Church Denomination. She had informed the Complainant that what the Accused had done to her is not godly. Both of them then plan to trap the Accused on the following day.

15. There is some evidence to suggest that the Complainant later realize that she was deceived or misled when she gave consent.

16. I am satisfied that some evidence is available to suggest that the Accused had obtained the consent of the Complainant by false and fraudulent representations about the nature or purpose of the act. The credibility, reliability and weight are matters for the assessors and not for me to consider at a no case to answer stage.

17. I am therefore of the view that there is some evidence on each element of the offence. I hold that the Accused has a case to answer.

18. Application of the Defence is dismissed. I proceed to give the accused his rights in defence.

Aruna Aluthge
JUDGE

AT LAUTOKA
4th November, 2015

Solicitors: Office of the Director of Public Prosecution for State
Mr. Singh with Ms. Singhfor Accused