IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 91 OF 2016

STATE

V

SAMISONI MOLILEVU

Counsel		:	Ms. S. Naibe for State
			Accused in person. 
			
Date of Hearing		:	25th of September. 2019
Date of Ruling		:	25th of September, 2019

RULING ON NO CASE TO ANSWER
1.		The accused is being charged with three counts of  Rape, contrary to Section 207 	(1) and (2) (a) of the Crimes Act, three counts of Rape, contrary to Section 207 (1) 	and (2) (b) of 	the Crimes Act, two counts of Assault Occasioning Actual Bodily 	Harm, contrary to Section 275 of the Crimes Act, one count of Indecently 	Annoying a Person, contrary to Section 213 (1) (b) of the Crimes Act and one 	count of Criminal Intimidation, contrary to Section 375 (1) (b) (i) (iv) and 2 (i) 	of the Crimes Act. The particulars of the offences are 	that; 

Count 1
Statement of Offence

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

	SAMISONI MOLILEVU on the 17th day of April, 2016 at Nadi in the Western 	Division penetrated the vagina of VASEMACA MAUTA with his penis without 	her consent. 

Count 2
Statement of Offence

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

	SAMISONI MOLILEVU on the 17th day of April, 2016 at Nadi in the Western 	Division penetrated the vagina of VASEMACA MAUTA with his fingers 	without her consent. 

Count 3
Statement of Offence

	ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 	275 of the Crimes Act 2009

	SAMISONI MOLILEVU on the 17th day of April, 2016 at Nadi in the Western 	Division assaulted VASEMACA MAUTA thereby occasioning her actual bodily 	harm.

Count 4
Statement of Offence

	INDECENTLY ANNOYING A PERSON: Contrary to section 207 (1) and 	(2) of 	the Crimes Act 2009

	SAMISONI MOLILEVU on the 17th day of April, 2016 at Nadi in the Western 	Division with intent to annoy VASEMACA MAUTA did spit on her face and 	urinated on the said VASEMACA MAUTA intending that such action will 	offend her modesty. 
Count 5
Statement of Offence
	RAPE:	 Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009

	SAMISONI MOLILEVU on the 18th day of April, 2016 at Nadi in the Western 	Division penetrated the vagina of VASEMACA MAUTA with his penis	without her consent. 

Count 6
Statement of Offence

	ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 	275 of the Crimes Act 2009

	SAMISONI MOLILEVU on the 18th day of April, 2016 at Nadi in the Western 	Division assaulted VASEMACA MAUTA thereby occasioning her actual bodily 	harm.

Count 7
Statement of Offence

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

	SAMISONI MOLILEVU on the 19th day of April, 2016 at Nadi in the Western 	Division penetrated the vagina of VASEMACA MAUTA with his penis	without her consent. 

Count 8
Statement of Offence

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

	SAMISONI MOLILEVU on the 19th day of April, 2016 at Nadi in the Western 	Division penetrated the vagina of VASEMACA MAUTA with his fingers 	without her consent. 
Count 9
Statement of Offence

	ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 	275 of the Crimes Act 2009

	SAMISONI MOLILEVU on the 19th day of April, 2016 at Nadi in the Western 	Division assaulted VASEMACA MAUTA thereby occasioning her actual bodily 	harm.

Count 10
Statement of Offence

	CRIMINAL INTIMIDATION: Contrary to section 375 (1) (b) (i), (iv) and (2) (i) 	of the Crimes Act 2009

	SAMISONI MOLILEVU on the 19th day of April, 2016 at Nadi in the Western 	Division without lawful excuse threatened to kill VASEMACA MAUTA with 	intent to cause alarm to the said VASEMACA MAUTA.

2.		The hearing commenced on the 25th of September 2019. The prosecution 	presented the evidence of the complainant and closed the case of the prosecution. 	Having heard the evidence presented by the prosecution, I now proceed to 	pronounce my ruling pursuant to Section 231 (1) of the Criminal Procedure Act. 
The Law on No Case to Answer
3.		Section 231 (1) of the Criminal Procedure Act states that; 
“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.		Accordingly, the trial judge is required to find the accused not guilty at the 	conclusion of the case of the prosecution, if the court considers that there is no 	evidence to establish that the accused person committed the offence. 
5.		The Fiji Court of Appeal in Talala v State [2019] FJCA 50; AAU155.2015 (7 	March 2019) held that the test under Section 231 (1) of the Criminal Procedure 	Act is to determine whether there is some relevant and admissible evidence, 	direct or circumstantial, touching on all elements of the charge. It is not a duty of 	the court to take into consideration the credibility, reliability and the weight of 	the evidence at that state. The Fiji Court of Appeal in Talala v State (supra) held 	that; 
“It is well settled that, the test at this stage of the trial is whether there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the charge and not an assessment of the weight and credibility of such evidence, unless the evidence is inherently vague or improbable” 
6.		The High Court of Fiji in State v Nikolic [2019] FJHC 91; HAC115.2018 (18 	February 2019) held that;
“The test for a  no case to answer  application in the High Court is settled. The test is whether there is some incriminating evidence, direct or circumstantial, on all the essential ingredients of the charged offence or offences (Sisa Kalisoqo v R Criminal Appeal No. 52 of 1984, State v Mosese Tuisawau Cr. App. 14/90, State v Woo Chin Chae [2000] HAC 023/99S).
7.		Accordingly, the court is required to determine whether the prosecution 	presented some relevant and admissible incriminating evidence, direct or 	circumstantial, on all the essential elements of the offence as charged. 
Analysis 
8.		The complainant said that she had consensual sexual intercourse with her 	husband, in this case the accused, on the 17th, 18th and 19th of April 2016. 	Apart from the continuous complain made by the accused asking whether 	the complainant was having another affair, the days went on without any 	incidents. The complainant further said that the accused had been possessed 	with some demon spirit over the years. According to the complainant, the 	accused encountered with these demon spirits after they had sexual intercourse 	on the night of the 19th of April 2016. Once such demon spirits got into his 	body, the accused changed into another person. She knows that it was not her 	own husband, but some demon spirits. Therefore, she got up and ran out of 	the house with her kids as she did not want to give herself to a demon spirit. 
9.		Moreover the complainant said that her husband had been a loving and caring 	husband. She had sexual intercourse with him on the 17th, 18th and 19th of 	April 2016 with her 	consent. 
10.	In view of these findings, I am satisfied that there is no evidence to establish the 	main 	elements of any of the ten offences as charged in the information. Hence, I 	find the accused not guilty of all of the ten counts as charged in the 	information 	and acquit him from the same accordingly. 

11.	Thirty (30) days to appeal to the Fiji Court of Appeal. 

R. D. R. Thushara Rajasinghe
Judge

Solicitors	:	Office of the Director of Public Prosecutions