State v Sevakasiga - Ruling [2016] FJHC 758; HAC42.2015 (15 August 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 42 OF 2015

STATE

V

1. SOVITA SEVAKASIGA
2. PENIJAMINI TAWAKE
   

Counsels : Ms. A. Vavadakua for State
Ms. S. Dunn for 1^st Accused
Mr. A. Paka for 2^nd Accused

Hearing : 15 August, 2016
Ruling : 15 August, 2016

RULING

[1] Each of the two accused are charged for two counts of Rape. This morning, the parties tendered agreed facts wherein the two accused have admitted having had intercourse with the complainant and the trial issue was identified as whether the complainant consented or not. Thereby they abandoned the voir dire inquiry that was to be held at the commencement of the trial.

[2] The trial commenced with the complainant’s evidence and halfway through the examination in chief, learned State Counsel, in the absence of the assessors, sought to tender certain items of “exhibits” said to have recovered from the house by the Police during a scene reconstruction. These items of exhibits included a torn garment, claimed by the prosecution as worn by the complainant during the incident.

[3] The Counsel who appeared for the 1^st and 2^nd accused have objected to the leading of this item as an exhibit on the following grounds;

(i) The 1^st accused contended that it is not the garment shown to him during the scene reconstruction,

(ii) It was not part of the disclosures made available to the defence,

(iii) The complainant is not the person who is bringing this item and chain of custody is not properly established,

(iv) The prejudicial value caused to the accused far outweighs probative value before the assessors since the only trial issue is consent.

[4] Of these several grounds raised by the accused, the 4^th Ground needs consideration at the outset. The prosecution’s aim is to present this torn garment, said to be worn by the complainant on the day of the incident, in order to supplement her claim of lack of consent. The objection of the accused are based on the prejudicial effect it would have on them, when it would be marked as an exhibit, before the assessors.

[5] It is clear that this torn garment, if worn by the complainant at the time of the incident has the legitimacy as an item of circumstantial evidence, which is supportive of the prosecution case, on the issue of consent.

[6] However, this item was brought by the prosecution only through halfway into the examination in chief, without disclosing it and that too after the accused have agreed that they had sexual intercourse with the complainant.

[7] There is no legal requirement that the complainant’s evidence should be corroborated. In that sense, this exhibit, if allowed, would only corroborate the complainant’s claim that the accused had sexual intercourse without her consent.

[8] It is the considered view of the Court that this particular exhibit, if allowed to be produced, would cause prejudice to the accused in the minds of the assessors, and therefore its prejudicial value clearly outweigh the probative value.

[9] In view of this finding consideration of the other grounds raised by the accused does not arise.

[10] The application of the prosecution to lead this item as an exhibit in the case against the accused is accordingly refused.

ACHALA WENGAPPULI

JUDGE

At Labasa

15 August, 2016

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa