State v Tulevu - Ruling [2016] FJHC 561; HAC65.2014 (7 June 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 65 of 2014

STATE

V

ILIMO TULEVU

Counsels : Ms. A. Vavadakua for State
Mr. A. Pakafor the Accused

Date of Hearing : 7 June, 2016
Date of Ruling : 7 June, 2016

RULING ON NO CASE TO ANSWER APPLICATION

(The name of the complainant is suppressed, the complainant will be referred to as “MK”)

[1] The Accused is charged with the following offence:-

FIRST COUNT
STATEMENT OF OFFENCE

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

PARTICULARS OF OFFENCE

ILIMO TULEVU on the 18^th day of August 2014 at Wailele Settlement, Nawaca, Nabouwalu in the Northern Division penetrated the vagina of “MK”with his penis without “MK’s” consent.

[2] At the end of the prosecution case the learned defence Counsel made an application under section 231 (1) of the Criminal Procedure Decree that an essential element in the offence of rape had not been satisfied. This element was the complainant had consented to having sexual intercourse with the accused.

[3] Section 231 (1) of the Criminal Procedure Decree provides:

“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.”

[4] The learned defence Counsel referred this court to the case of State vs- JosevaVueti Criminal Case No. HAC 160 of 2012 and other similar case authorities. He submitted that this court should confine itself to the essential elements of the charged offence of rape only. He further submitted that the prosecution should have charged the accused with an alternative count of defilement which has not been done.

[5] The complainant who was the only witness called by the prosecution informed the court that on the 18^th August 2014 she had consensual sex with the accused. At that time she was 15 years of age (born on 15/02/1999). The defence did not dispute the age of the complainant. In 2014 she was in Form 3 at Bua Central College and during their second meeting she had told the accused that she was in Form 3.

[6] In cross-examination of the complainant the learned defence Counsel had questioned the complainant in accordance with the statutory defence provided under section 215 (2) of the Crimes Decree for the offence of Defilement of young person between 13 and 16 years of age.

[7] The learned State Counsel has correctly conceded that an essential element in the charge of rape has not been satisfied. However, she relies on section 162 of the Criminal Procedure Decree arguing that there is no need to add an alternative count in the Information filed by the State when section162 (1) (f) of the Criminal Procedure Decree gives the Court powers to convict a person of lesser charge.

[8] Section 162 (1) (f) of the Criminal Procedure Decree states:

“(1) Where a person is charged with an offence but the court is satisfied that the evidence adduced in the trial supports a conviction only for a lesser or alternative offence, the court may record a conviction made after due process for –
...

(f) any sexual offence where the charge has been for rape...”

[9] A careful reading of section 162 above will show that a court can convict upon been satisfied with the evidence adduced in the trial for either a lesser or alternative offence. In this situation it does not matter if the office of the Director of Public Prosecutions decided not to charge the accused with an alternative count. If there is evidence in respect of lesser count and the court is satisfied with the evidence adduced the matter should proceed further.

[10] In my view the due process that needs to be satisfied considering the evidence adduced by the complainant is one which points to a lesser count of Defilement. Accordingly it is only proper that the accused be put to his defence. I am satisfied there are some admissible and relevant evidence in respect of the lesser charge of Defilement for the Assessors to deliberate upon and decide what weight they would give to the evidence after assessing the credibility of the witnesses. In situations where section 162 would apply in absence of any alternative count preferred by the Director of Public Prosecutions and there is evidence of the essential elements of the lesser charge before the court, I don’t see any reason why section 162 of the Criminal Procedure Decree cannot be read in addition to section 231 (1) of the Criminal Procedure Decree.

[11] Section 163 (1) of the Criminal Procedure Decree states:

“The provisions of this Division shall be construed as in addition to and not in derogation of the provisions of any other Act, Decree or Promulgation and the other provisions of this Decree.” (My underlining)

[12] Section 162 of the Criminal Procedure Decree falls within Division 6 hence it shall be construed in addition to section 231 of the Criminal Procedure Decree.

[13] Both Counsel for the State and the Defence have filed helpful submissions in regards to this application and also presented oral arguments in support.

[14] Upon considering the submissions of both the Defence and the Stateand the arguments raised I find that there is no case to answer in respect of the charge of rape, however, there is a case to answer for the accused for the lesser offence of Defilement and he is therefore put to his defence.

Sunil Sharma
Judge
At Labasa
7 June 2016

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused