State v Bogi [2016] FJHC 614; HAC70.2014 (7 July 2016)

IN THE HIGH COURT OF FIJI
AT LABASA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 70 OF 2014

STATE

v.

JONE BOGI

Counsel: Mr. L. Fotofili for State
Mr. A. Paka for Accused

Dates of Hearing : 4, 5 and 6 July 2016
Date of Summing Up : 7 July 2016
Date of Judgment : 7 July 2016

JUDGMENT

[1] The accused is charged with one count of Rape and one count of Theft.

First Count
Statement of Offence (a)

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

Particulars of Offence

JONE BOGI on the 6^th day of September 2014 at Waitavala, Taveuni in the Northern Division penetrated the vagina of LISA BIEHL with his tongue without her consent.

Second Count
Statement of Offence

THEFT: Contrary to section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JONE BOGI on the 6^th day of September 2014 at Waitavala, Taveuni in the Northern Division stole one i- phone brand Apple valued at $1,200.00 the property of LISA BIEHL

[2] After trial 3 assessors unanimously opined that the accused is guilty of both counts 1 and 2. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.
[3] Prosecution called 4 witnesses including the complainant and the defence called the accused to give evidence.

[4] The evidence of the complainant was that she came to Fiji from USA on vacation with her husband. They were staying in a hotel in Taveuni. When her husband went for scuba diving the complainant had gone to see the Waitavala water slide. A taxi driver had dropped her at the roundabout and pointed to her the trail to go to the water slide.

[5] There had been a Fijian man standing next to the trail. He had asked her where she was going. Taxi driver also had been there at that point in time. She had responded saying that she was going to the water slide.

[6] When she walked upto the water slide alone, she had felt uncomfortable as no one was there. She had taken some pictures from her i-phone and had started walking down.

[7] Then she had seen the same Fijian man that she saw before, standing there. He had told her “you will have sex with me”. When she said ‘No’, he had pushed her down and had removed her clothes. When she tried to sit up the man had put his fist on her face. She was afraid, she said.

[8] The man had performed oral sex on her and had penetrated his tongue into her vagina.

[9] After that he had taken her phone valued 600US$ saying ‘I will take the phone as payment’. The complainant said that she agreed for him to take the phone as she was afraid and wanted to leave.

[10] Thereafter when she ran down the trail she had met a lady and a child to whom she related the incident. With that lady she had gone and reported the matter to the police. After reporting the matter to police as there was no police vehicle, police had called a taxi. The taxi driver had been the same driver who took her to the water slide. Same day police had found the phone and after identifying her phone and making a statement, the phone was returned to her by police.

[11] She said that she was summoned by the police on another day and an officer had shown her a photograph from a phone. She said that it was not of the perpetrator. However, she had seen the accused through a glass and had identified him as the perpetrator and had informed that to the police.

[12] Identifying the accused from the dock in cross examination she said that the perpetrator looked like him.

[13] The taxi driver who dropped the complainant at the roundabout near the water slide in his evidence said that he saw the accused whom he knew before, near the roundabout. He had known the accused before as the accused had been residing in his village for some time before the accused left for Soqulu.

[14] It is evident that the Police found the complainant’s i-phone the same day from a bush of Waitavala settlement area.

[15] Accused giving evidence said that he was not at the Waitavala water slide area that day but was at a carnival. He denied the allegations. He also said that he never lived in Waitavala settlement. However, he said that he used to go swimming at the water slide but did not meet a female tourist in that area. He said that he has seen the taxi driver Divendra before.

[16] The evidence of the complainant that she was raped, in that the perpetrator penetrated his tongue into her vagina, and that he stole her i-phone, was not challenged by the defence in cross examination.

[17] As regards the elements of both offence of Rape and Theft the only element the defence challenged was the element of identification of the accused. There had been no proper identification parade held by the police at the police station for the complainant to identify the accused. However, when the complainant was summoned by the police and when she was shown a photograph of a different man, the complainant had seen the accused from behind through a glass. Then she had made the police officer to turn the accused around and she had identified clearly that it was the accused who committed the crime on her. She said, “I could see Mr Bogi the man who attacked me inside a glass”. If the complainant is telling the truth I find that the police have not taken precaution so that the complainant would not see the suspect who was in custody.

[18] I have heard the evidence of the complainant and her demeanor and I find that she was truthful, consistent and forthright in her evidence. Complainant seeing the accused at the police station through the glass has obviously prevented the police having a line up parade because complainant had told the police that he was the one.

[19] Further, I have no reason to disbelieve the evidence of the taxi driver Divendra Deo that he saw the accused at the roundabout near the water slide when he dropped the complainant. Police taking his statement late has not affected his credibility. I see no reason for him to make up a story against the accused.

[20] In the circumstances I find that the accused was not truthful when he said that he was at a carnival that day. It is obvious that he had tried to mislead the police by giving a false address of alibi witness Sainiala. He denied giving the address of Sainiala as Veidawa, to court. However, when the alibi notice was shown to him, he accepted that he gave that address.

[21] I bear in mind that the prosecution has to prove that the accused was the person who committed the crime and not the accused who has to prove that he was elsewhere.

[22] I also bear in mind that dock identification is unreliable in the absence of a prior identification parade or photograph identification. I have directed the assessors on the danger of relying on dock identification. I find that the complainant was truthful when she said that she saw the accused ‘Mr Bogi’ through the glass at the police station and that she told the police officer that he was the one.

[23] In the above evidence I find that it was open to the assessors to find him guilty of both counts. I find that the assessors unanimous opinion was not perverse. The prosecution has proved all the elements of the offences of Rape and theft in counts 1 and 2 beyond reasonable doubt. Therefore I accept the unanimous opinion of the assessors that the accused is guilty on both counts 1 and 2 and convict him accordingly.

Priyantha Fernando

Judge

At Labasa
7 July 2016

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