State v Tikoigiladi - Ruling [2015] FJHC 895; HAC042.2014LAB (16 November 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 042 OF 2014LAB

STATE

V

LASARUSA TIKOIGILADI

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearing : 16 November, 2015
Ruling : 16 November, 2015

RULING

[1] The Accused Lasarusa Tikoigiladi is charged with a representative count of rape. The time period mentioned in the information is 1st day of January 2013 to 31st January 2013. His trial was to commence this morning and the prosecution made an application to amend the information. According to the prosecution the amendment sought was to change the year as indicated in the information from 2013 to 2014.

[2] Learned State Counsel submitted that the necessity to move for amendment of the information at this last moment arose since the complainant is "slow" to describe the incident in full detail and owing to logistical problems it was not possible to have an interview with the complainant before the date of trial. She further submitted that it is due to the clarifications obtained at the interview the amendment to the time period as mentioned in the information arose.

[3] The application by the prosecution to make an amendment to the time period as mentioned in the information was strongly objected to by the learned Counsel for the accused. He submitted with this "eleventh hour" amendment to the information the accused is embarrassed in his defence as per section 214(10) of the Criminal Procedure Decree. He further submitted that it was due to the late detection of pregnancy of the complainant that this allegation was made against the accused and therefore the amendment should not be allowed by Court. The accused relied on the rulings of this Court in State v K.R.A.K in HAC 73 of 2013 on 4th July 2013 and also of FICAC v Bkani and another in HAC 26 of 2009 on 8th August 2013.

[4] In replying to the complaint that the accused is embarrassed in his defence, the prosecution submitted that the defence taken up by the accused is one of a total denial of the incident and therefore the proposed amendment will have no effect on his defence. In addition, the accused did not dispute that he was living with the complainant and her mother in January 2014. The facts relied on by the prosecution already revealed to the accused in the disclosures and therefore his defence is not embarrassed by the proposed amendment. She also submitted that the proposed amendment is not to bring a new charge or to change the character of the allegation.

[5] The applicable statutory provisions are contained in the section 214 of the Criminal Procedure Decree and in particular sub section (10) provides that;

"In deciding whether or not to grant leave, the Court may consider whether the amendment might embarrass the accused in his defence and whether such embarrassment might be appropriately mitigated by way of adjournment of trial."

[6] In considering the applicable statutory provisions, and the judicial precedents it is clear that an application to amend an information could be granted even when the prosecution has commenced and at late stages of its case, if certain conditions are met. The adverse impact on the accused is balanced by affording an opportunity for him to re think his strategy afresh by granting an adjournment of trial.

[7] As correctly submitted by the leaned State Counsel, when the accused totally denied the allegation, it is unlikely an amendment to the time period causes any embarrassment to his defence. There is no new charge of greater severity is proposed by the prosecution and the representative character of the charge is also not changed with the proposed amendment. The factual basis of the prosecution has already been disclosed to the accused and no new evidence will be adduced in view of the amendment.

[8] In the circumstances, it the considered view of this Court that with the amendment to the information that the accused is not embarrassed in his defence. Therefore, acting under section 214(9) of the CPD, this Court grants leave to the prosecution by allowing its application to amend the information. Since there is no embarrassment to the accused in his defence, no necessity for an adjournment of trial.

ACHALA WENGAPPULI
JUDGE

At Labasa
16 November, 2015

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