State v Cokanauto [2017] FJHC 442; HAC327.2015S (26 June 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 327 OF 2015S

STATE

vs

JONE RABUNO COKANAUTO

Counsels : Mr. M. Vosawale and Ms. L. Bogitini for State
Mr. S. Valenitabua for Accused
Hearings : 13, 14, 15, 16, 19, 20, 21 and 22 June, 2017
Summing Up : 23 June, 2017
Judgment : 26 June, 2017

JUDGMENT

1. On 13 June 2017, in the presence of his counsel, the accused pleaded not guilty to the following counts, in the following information:
   

COUNT ONE

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of February 2005 to the 28^th day of February 2005, at Taveuni in the Northern Division, had unlawful carnal knowledge of U.D without her consent.

COUNT TWO

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of August 2005 to the 31^st day of November 2005, at Nadera Nasinu in the Central Division had unlawful carnal knowledge of U. D without her consent.

COUNT THREE

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of July 2006 to the 31^st day of December 2006, at Taveuni in the Northern Division had unlawful carnal knowledge of U. D without her consent.

COUNT FOUR

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of January 2006 to the 31^st day of July 2006, at Nadera, Nasinu in the Central Division unlawfully and indecently assaulted F. N.

COUNT FIVE

Statement of Offence

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

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of July 2012 to the 31^st day of July 2012, at Welagi Taveuni in the Northern Division penetrated the vagina of F. N with his finger without her consent.

COUNT SIX

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of November 2005 to the 31^st day of December 2005, at Nasinu in the Central Division unlawfully and indecently assaulted R. V.

COUNT SEVEN

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of November 2005 to the 31^st day of December 2005, at Nasinu in the Central Division had unlawful carnal knowledge of R. V without her consent.

COUNT EIGHT

Statement of Offence

ATTEMPTED RAPE: Contrary to Section 151 of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of February 2006 to the 28^th of February 2006, at Nadera Nasinu in the Central Division, attempted to have unlawful carnal knowledge of K. L. V without her consent.

COUNT NINE

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154 (1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of February 2006 to the 28^th of February 2006, at Nadera Nasinu in the Central Division, unlawfully and indecently assaulted K. L. V by kissing her lips.

COUNT TEN

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154 (1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1^st day of February 2006 to the 28^th of February 2006, at Nadera Nasinu in the Central Division, unlawfully and indecently assaulted K. L. V by penetrating her vagina with his finger

2. The trial then went on before myself and three assessors for eight days. The assessors returned with their opinions on 23 June 2017. Assessors No. 1 found the accused guilty as charged on counts no. 1 to 7, and not guilty as charged on counts no. 8, 9 and 10. Assessors No. 2 found the accused guilty as charged on all counts, while Assessors No. 3 found the accused not guilty as charged on all counts. The assessors’ opinions were mixed.
   
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Act 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 on 23 June 2017. The assessors’ verdict 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 fully with the opinion of Assessor No. 2, who was of the opinion that the accused was guilty as charged on all counts. I also agree with Assessors No. 1’s opinion, who was of the view that, the accused was guilty as charged on counts no. 1 to 7. I will not accept Assessor No. 1’s opinion that the accused was not guilty as charged on counts no. 8, 9 and 10. I will also not accept Assessor No. 3’s opinion, who was of the view that, the accused was not guilty as charged on all counts.
   
7. My reasons are as follows.
   
8. I find all the complainants’ evidence credible, and I accept their version of events. I accept complainant no. 1’s (PW1) evidence and allegations in count no. 1, 2 and 3. I accept her evidence that the accused often preached on the “woman from Samaria” in Saint John, chapter 4 verse 1 to 42, in the Bible. I accept her evidence that the accused preached to them that if he inserts his penis into their vaginas and ejaculates therein, that will cleanse their womb and vagina. I accept her evidence that the accused preached to them that if a child is born, that child becomes the children of God and members of the Judah clan.
   
9. I accept PW1’s evidence that because of the accused’s above interpretation of the “woman from Samaria” story in the Bible, and because she was a member of the Jezreel Lion of Judah Ministry then, she consented to the accused inserting his penis into her vagina and ejaculating therein, as alleged in count no. 1, 2 and 3. I also accept her evidence that as a result of the above, she bore two children to the accused, as alleged by her.
   
10. I accept Doctor Donal McAlrath’s (PW5) evidence that Saint John, Chapter 4, verse 1 to 42, had nothing to do with sexual intercourse. I accept PW5’s evidence that the term “living water” in Saint John, Chapter 4 had nothing to do with “sexual intercourse”. I accept PW5’s evidence that the term “living water” in the above verse is often meant to mean the “gift of the holy spirit and the grace of God”. I accept PW5’s evidence that the “woman of Samaria’s” story was basically about a woman been evangelized and becomes a Christian. It had nothing to do with “sexuality”
    
11. Given PW5’s above version and PW1’s evidence, I find as a matter of fact that, the accused had misinterpreted Saint John Chapter 4 verse 1 to 42 and the other teachings of the bible, to enable him to corrupt young girls. I find that the accused, had misinterpreted the Bible, and misrepresented the act of sexual intercourse and falsely reclassified it as an “act of cleansing women to purify them as temple of God”. By this interpretation, he had managed to deceive PW1 into giving herself to him, as alleged in count no. 1, 2 and 3.
    
12. With the above deceit, and constant preaching to young vulnerable women, the accused had manage to entice complainant no. 2 (PW2), complainant no. 3 (PW3) and complainant no. 4 (PW4) to his web of deceit. I accept PW2’s version of events and her allegations in counts no. 4 and 5. I accept PW3’s version of events and her allegations in count no. 6 and 7. I accept PW4’s version of events and her allegations in counts no. 8. 9 and 10.
    
13. I find that on most occasions, the complainants consented to the various sexual acts performed on them by the accused, at the material times; however, I find that the accused falsely misrepresented the sexual acts to the complainants in his sermons and biblical teachings, to the extent that he was in fact deceiving them as to the true nature of the acts, that is, he was not “cleansing them”, he was in fact raping, attempting to rape and indecently assaulting them. I find that their so called “consent” to the sexual acts, was not real consent in law, and I find, as a matter of fact that, all the complainants did not consent to the sexual acts done by the accused, on all counts. I also find, as a matter of fact that, at the times he was performing the sexual acts, he knew or couldn’t careless whether or not they were consenting to the sexual acts.
    
14. I have heard the accused’s (DW1) sworn evidence. I have heard his 6 witnesses’ evidence. I find the accused and his witnesses’ evidence were not credible. When I put the prosecution’s witnesses’ evidence against the defence witnesses’ evidence together and compared them, I find the prosecution’s witnesses more forthright and not evasive. It was the opposite for the defence. I thus reject the accused’s sworn denials and reject the defence witnesses’ version of events.
    
15. Given the above, I find the accused guilty as charged on all counts, and I convict him accordingly on all counts.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : S. Valenitabua, Barrister and Solicitor, Suva.