State v Colanaudolu [2017] FJHC 383; HAC121.2016S (25 May 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 121 OF 2016S

STATE

vs

JOSUA COLANAUDOLU

Counsels : Mr. L. Burney and Ms. S. Lodhia for State
Mr. M. Fesaitu, Ms. L. David and Ms. S. Daunivesi for Accused
Hearings : 1 to 5, 9 to 12, 15 to 19, 22 and 23 May, 2017
Summing Up : 24 May, 2017
Judgment : 25 May, 2017

JUDGMENT

1. On 12 May 2017, the following information was put to the accused, in the presence of his counsel:
   

FIRST COUNT

Statement of Offence

ABDUCTION: Contrary to section 252 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of April 1998 and 31^st day of December 1999, at Navua in the Central Division, abducted A.A in order to subject her to his unnatural lust.

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of April 1998 and 31^st day of December 1999, at Navua in the Central Division, had unlawful carnal knowledge of A.A without her consent.

THIRD COUNT

Statement of Offence

ABDUCTION: Contrary to section 252 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU in February 2000 at Navua, in the Central Division, abducted A. A in order to subject her to his unnatural lust.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU in February 2000 at Navua in the Central Division, had unlawful carnal knowledge of A. A without her consent.

FIFTH COUNT

Statement of Offence

ABDUCTION: Contrary to section 252 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of June 2002 and 31^st day of July 2002, at Navua in the Central Division, abducted S. L. V in order to subject her to his unnatural lust.

SIXTH COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of June 2002 and 31^st day of July 2002, at Navua in the Central Division, had unlawful carnal knowledge of S. L. V without her consent.

SEVENTH COUNT

Statement of Offence

INDECENTLY ANNOYING FEMALES: Contrary to section 154(4) of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of January 2004 and 31^st day of December 2004, at Navua in the Central Division, with intent to insult the modesty of S. L. V, exposed his naked penis to her, intending that his penis be seen by her.

EIGHTH COUNT

Statement of Offence

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

Particulars of Offence

JOSUA COLANAUDOLU on the 16^th day of November 2012, at Navua in the Central Division, had carnal knowledge of S. A. N without her consent.

NINTH COUNT

Statement of Offence

ABDUCTION: Contrary to section 282 (c) of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, abducted MERE AILEVU MACEDRU in order to subject her to his unnatural lust.

TENTH COUNT

Statement of Offence

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

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, had carnal knowledge of MERE AILEVU MACEDRU without her consent.

ELEVENTH COUNT

Statement of Offence

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

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, penetrated the anus of MERE AILEVU MACEDRU with his penis without her consent.

TWELFTH COUNT

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, murdered MERE AILEVU MACEDRU.

2. The trial proper then went on before myself and three assessors for 8 days. The assessors returned with a unanimous guilty opinion against the accused on all the counts on 24 May 2017.
   
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

“...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes...”

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

“...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the High Court sitting with the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors...”

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

“...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts...”

6. I have reviewed the evidence called in the trial and I have directed myself in accordance with the summing up I gave the assessors yesterday. The assessors’ opinion was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I agree entirely with the assessors’ opinion, but for their opinions on “abduction” in count no. 1, 3 and 5 of the information.
   
7. I am not accepting the three assessors’ opinion on count no. 1. 3 and 5 for technical reasons. It concerned the particulars of the offence in count no. 1, 3 and 5 stating that the complainants were abducted by the accused “in order to subject them to his unnatural lust”. The term “unnatural lust” was fully considered by the Court of Appeal in Jone Civatabua and Saimoni Kacilala v Reginam [1987] Fiji Law Report, Volume 33, p. 86, especially from pages 89G to 91E. The Court of Appeal held that the term “unnatural lust” in section 252 of the Penal Code, Chapter 17 meant sodomy. The prosecution must therefore prove beyond reasonable doubt that the accused abducted the complainants at the material time to perform sodomy, rather than vaginal sex. The sworn evidence of the complainants said they were subjected to vaginal intercourse, not sodomy. Consequently, for technical reasons and by virtue of the Court of Appeal’s decision above, I cannot agree with the assessors’ guilty opinions on counts no. 1, 3 and 5. I therefore find the accused not guilty as charged on counts no. 1, 3 and 5.
   
8. On the other counts, I agree entirely with the assessors’ opinion on counts no. 2, 4, 6, 7, 8, 9, 10, 11 and 12. On those counts, I accept the prosecution’s version of events. I also find the prosecution’s witnesses on those counts credible, and I accept their evidence. I accept the evidence of all the female complainants, that is, PW2, PW3 and PW4. In my view, the three female complainants were telling the truth. Because the accused had a strong personality and presences in the Lepanoni and Vunibuabua Settlements areas, they were somehow afraid to report the crimes to the police. In most rape crimes, their reaction was not at all unusual. In PW2’s case, he threatened to kill her if she reported the matter to police. In PW3’s case, he threatened to injure her parents and baby daughter if she reported the matter to authorities. In PW4’s case, she was his niece and the daughter of his elder brother. The evidence of the complainants showed the type of person the accused was. He preyed on citizens who could not defend themselves.
   
9. When it came to Mere Ailevu’s case, I had no difficulty in accepting the police officers’ evidence. They were credible witnesses. The caution interview officers and the witnessing officers in all the cases did well in how they recorded the interviews. DC 3630 Simione Nakuna’s style of interviewing suspects is a model one for all police officers. Likewise, D/Corporal 2030 Tuaci Tasoqosoqo’s style of interviewing suspects is a model for future murder investigations. I find both witnessess’ credible and I accept that the accused gave his caution interview statements to the police voluntarily and out of his own free will.
   
10. The accused’s two medical reports dated 22 and 30 March 2016 did not do well for the accused. If anything the medical reports dispel any suggestions that he was severly assaulted by police while in their custody. His story that he was severly assaulted at Dakunikoro was not credible. I find him a very evasive witness when he was cross-examined by the prosecution. His allegation that police officers rubbed and/or inserted chillies into his anus appear not to hold water. The police officers’s two fingers were drawn on a sketch and tendered as Prosecution Exhibit No. 12. The two fingers were huge, and had the same been inserted into the accused’s anus, he would certainly been injured. However, his medical report which was taken 2 days after, showed a normal and non-bruised anus. This appear to show that his allegation of chilles been inserted into his anus was not correct.
    
11. I accept that the accused voluntarily gave his caution interview statement, that is, Prosecution Exhibit No. 6(A) and 6(B). I also accept that he voluntarily confessed to the abduction, rape and murder of Mere Ailevu as contained in his charge statement, Prosecution Exhibit No. 9(A) and 9(B). I also accept the circumstantial evidence presented by the prosecution as outlined in my summing up.
    
12. On the whole evidence, I have no difficulty in finding that the prosecution had proven their case against the accused beyond a reasonable on counts no. 2, 4, 6, 7, 8, 9, 10, 11 and 12 and I find him guilty as charged on those counts. I convict him accordingly on those counts.
    
13. For counts no. 1, 3 and 5, on the evidence, I find the prosecution had not proven their case against the accused beyond a reasonable doubt and I find him not guilty as charged on those counts. I acquit him accordingly on those counts.
    

Salesi Temo

JUDGE

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

Solicitor for Accused : Legal Aid Commission, Suva.