State v Raitekiteki [2016] FJHC 1103; HAC285.2015 (28 November 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 285 of 2015

[CRIMINAL JURISDICTION]

STATE

V

MENI RAITEKITEKI

Counsel : Ms. K. Semisi, Ms. Tivao and Ms. S. Sharma for State

Ms. T. Kean and Mr. R. Goundar for Accused

Dates of Hearing : 17^th – 22^nd November 2016
Date of Summing up: 25^th November 2016
Date of Judgment : 28^th November 2016
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as PW)

JUDGMENT

1. The accused was charged with the following offences;
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division, being armed with an offensive weapon, namely a dagger, stole cash in the sum of approximately $1700.00, assorted jewelries valued at $2000.00, 1 Alcatel mobile phone valued at $50.00, assorted liquor valued at $240.00, 1 Yess brand Note Pad valued at $165.00, 1 Floke model 112 multi meter valued at $1200.00, assorted biscuits valued at $10.00, all to the total value of $5365.00, the properties of PW, with the intention of permanently depriving PW of her properties and immediately before stealing, used force on PW.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division had carnal knowledge of PW, by penetrating her vagina with his penis without her consent.

THIRD COUNT

Statement of Offence

FALSE INFORMATION TO PUBLIC SERVANT: contrary to section 201(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division gave Detective Constable 4255 Binay Kumar, a person employed in the public service, a false name, intending to cause or knowing it to be likely that Detective Constable 4255 Binay Kumar will arrest Meni Raitekiteki if the true state of facts were known to him.

2. The accused pleaded guilty to the third count. Accordingly, the trial was conducted in respect of the first count and the second count.
   
3. The assessors have returned with a unanimous opinion that the accused is guilty of first and the second counts.
4. I direct myself in accordance with the summing up delivered to the assessors on 25^th November 2016 and the evidence adduced during the trial.
   
5. According to the evidence in this case, the accused was not known to the complainant apart from the fact that the complainant had seen the accused 3-4 times before the incident. The police had not conducted an identification parade or a photographic identification during the investigation. The defence took up the position that this is a case of mistaken identity. Therefore, it was necessary for the evidence on identification to be closely examined and received with caution.
   
6. In my view, the complainant was a credible witness and the account she gave on what took place on 18/08/15 was reliable. The inconsistencies highlighted by the defence between her evidence and the statement given to the police are insignificant and does not affect the complainant’s credibility.
   
7. I accept the evidence given by the complainant to the effect that she saw the accused at a very close range in good lighting condition and that she had observed the accused for more than 35 minutes on that day during the incident. The evidence revealed that the police took the accused to the complainant’s house on the same day after he was arrested and the complainant started crying pointing at the accused and then she covered her eyes and was shivering.
   
8. I would give no weight to her evidence that she saw the accused 3-4 times before the incident because the relevant circumstances as to which she observed and identified the accused during those two occasions were not revealed in detail in order to decide whether there was proper identification on the said occasions. Further, the manner in which the prosecution presented the evidence with regard to the identification of the earring by the complainant was not satisfactory. The relevant police officer said that he recovered an earring stud and not a stopper from the accused. But the complainant said an earring stopper was shown to her by the police. The accused also said that an earring stopper was recovered from the bag he was carrying at the time of arrest. This item was not produced in evidence. Therefore, I am of the view that no weight can be given to the evidence in this regard.
   
9. I accept the evidence of the 4^th witness for the prosecution as credible and reliable. The defence pointed out that there were omissions in his statements recoded by the police with regard to the description of the accused. I accept this witness’ explanation that all the details he gave the police are not recorded in his statement, and that the police had not asked him whether he knows the accused.
   
10. The 4^th witness prosecution witness saw the accused coming from the direction of the complainant’s house the same time he heard someone scream. The complainant said that the accused was wearing a black T-shirt and black shorts and that the accused took the stolen items in a Sky Pacific plastic bag. The 4^th witness for the prosecution said that the accused was wearing a black T-shirt and black shorts and that the accused was carrying something wrapped in a plastic bag when he saw the accused.
    
11. I accept the investigating officer’s evidence that he recovered certain items inside a Sky Pacific plastic bag that was hidden at the edge of the school playground after the police followed the same track the accused followed on 18/08/15 based on the information received from the 4^th prosecution witness. It was established through the evidence of the complainant and the 3^rd prosecution witness that the said items recovered were part of the items stolen from the complainant’s house.
    
12. Therefore, I find that the evidence given by the complainant on identification of the accused was corroborated by the evidence of other prosecution witnesses, especially the evidence of the 4^th witness for the prosecution.
    
13. Considering the demeanour and the deportment of the accused when he gave evidence and all the evidence presented in this case, I do not find that the accused was a credible witness and that the account he gave was reliable.
    
14. In my view, when taken together, the aforementioned evidence is capable of proving beyond reasonable doubt that the person the complainant was referring to in her evidence as the perpetrator is no one else but the accused and that there is no mistake with regard to the identity of the accused.
    
15. I accept the complainant’s evidence that the accused did steal properties that were under her control and possession at the time, armed with an offensive weapon namely a dagger. I am satisfied beyond reasonable doubt that the accused had used force against the complainant and had threatened the complainant using the dagger immediately before stealing. Accordingly I’m satisfied that the prosecution has proved all the elements of the first count beyond reasonable doubt.
    
16. With regard to the property and the value of the property stolen, there is a variation between the particulars of the first count and the evidence adduced in court. The prosecution failed to establish the value of liquor and the biscuits. There was no mention about a mobile phone. The complainant said that a Tablet was stolen but no other evidence was presented to establish whether she was referring to the Note Pad mentioned in the charge. I find that the value of the property stolen as established by the prosecution is around FJD4900.
    
17. I accept the complainant’s evidence that the accused penetrated her vagina without her consent, knowing that she is not consenting. Therefore, I’m satisfied that the prosecution has proved all the elements of the second count beyond reasonable doubt.
    
18. In the circumstances, I am satisfied that the unanimous opinion of the assessors in finding the accused guilty of the first count and the second count is not perverse. It was open for them to reach that conclusion based on the evidence.
    
19. I find the accused guilty of the first and second counts and convict him accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : In Person