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State v Koroi [2022] FJHC 709; HAC08.2016 (4 November 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]


CRIMINAL CASE NO: HAC 08 of 2016


STATE


V


WAISALE KOROI


Counsel : Mr. Alvin Singh with Mr. Unal Lal for the State

Ms. Keli Vulimainadave for the Accused


Dates of Trial : 1-2, 5-6, 8-9 September 2022

Closing Submissions : 29 September 2022

Judgment : 4 November 2022


The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “TL”.


JUDGMENT


[1] As per the Information filed by the Director of Public Prosecutions (DPP), the accused, Waisale Koroi, is charged with the following offences:

COUNT 1

Statement of Offence

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

Particulars of Offence

WAISALE KOROI, on the 13th day of December 2015, at Lautoka, in the Western Division, penetrated the mouth of TL with his penis, without her consent.

COUNT 2

Statement of Offence

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

Particulars of Offence

WAISALE KOROI, on the 13th day of December 2015, at Lautoka, in the Western Division, penetrated the vagina of TL with his finger, without her consent.

COUNT 3

Statement of Offence

THEFT: Contrary to Section 291 (1) of the Crimes Act No. 44 of 2009.

Particulars of Offence

WAISALE KOROI, on the 13th day of December 2015, at Lautoka, in the Western Division, dishonestly appropriated 1 Nokia mobile phone and charger valued at $160.00, the property of TL with the intention of permanently depriving the said TL.


[2] The accused pleaded not guilty to the three charges and the ensuing trial was held over 6 days. Thereafter, the Learned Counsel for the State and the Defence made their closing submissions.


The Burden of Proof and the Standard of Proof

[3] Section 57 of the Crimes Act No. 44 of 2009 (Crimes Act) provides that the prosecution bears a legal burden of proving every element of an offence. The Section reads as follows:

(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

(3) In this Decree (Act)—

"legal burden", in relation to a matter, means the burden of proving the existence of the matter.

[4] Section 58 (1) of the Crimes Act stipulates that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

Legal Provisions and the Elements of the Offences

[5] As could be observed the accused is charged with one count of Rape, contrary to Section 207 (1) and (2) (c) of the Crimes Act, one count of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act and one count of Theft, contrary to Section 291 (1) of the Crimes Act.

[6] Section 207(1) of the Crimes Act reads as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

[7] Section 207(2) of the Crimes Act is reproduced below:

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person’s consent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or

(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

[8] Section 207 (2) (c) makes reference to a person penetrating the mouth of the other person, to any extent, with his penis, without the other person’s consent.

[9] Section 207 (2) (b) makes reference to a person penetrating the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent. In the instant case, the accused has been charged in count 2, for penetrating the vagina of the complainant with his finger, without her conent.

[10] Therefore, in order to prove the first count of Rape, the prosecution must establish beyond reasonable doubt that;

(i) The accused;

(ii) On the specified day (in this case the 13 December 2015);

(iii) At Lautoka, in the Western Division;

(iv) Penetrated the mouth of the complainant TL with his penis;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.

[11] Similarly, in order to prove the second count of Rape, the prosecution must establish beyond reasonable doubt that;

(i) The accused;

(ii) On the specified day (in this case the 13 December 2015);

(iii) At Lautoka, in the Western Division;

(iv) Penetrated the vagina of the complainant TL with his finger;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.


[12] To further elaborate upon these elements in respect of the first and second counts of Rape. The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.

[13] The second element relates to the specific date on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond reasonable doubt.

[14] The fourth element involves the penetration of the complainant’s mouth, with the accused’s penis, in respect of Count 1; and the penetration of the complainant’s vagina, with the accused’s finger, in respect of Count 2. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration or ejaculation (in respect of Count 1). Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the mouth of the complainant with his penis to any extent, in respect of Count 1; and penetrated the vagina of the complainant with his finger to any extent, in respect of Count 2.

[15] The fifth and sixth elements are based on the issue of consent. To prove the fifth element, the prosecution should prove that the accused penetrated the complainant’s mouth, with his penis, without her consent, in respect of Count 1; and that the accused penetrated the complainant’s vagina, with his finger, without her consent, in respect of Count 2.

[16] It should be borne in mind that consent means, that in terms of Section 206 (1) of the Crimes Act, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance alone shall not constitute consent. Section 206 (2) of the Crimes Act provides that a person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances:

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

[17] Apart from proving that the complainant did not consent for the accused to penetrate her mouth with his penis, in respect of Count 1; and did not consent for the accused to penetrate her vagina with his finger, in respect of Count 2, the prosecution must also prove that, either the accused knew or believed that complainant was not consenting or that he was reckless as to whether or not she consented. The accused was reckless, if the accused realised there was a risk that she was not consenting, but carried on anyway when the circumstances known to him it was unreasonable to do so. Simply put, whether the accused did not care whether the complainant was consenting or not. Determination of this issue is dependent upon who Court believes, whilst bearing in mind that it is the prosecution who must prove it beyond any reasonable doubt.

[18] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was 21 years of age at the time of the alleged incidents, and therefore, she had the mental capacity to consent.

[19] It must also be noted that in terms of Section 129 of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act), it is stated that no corroboration of the complainant’s evidence is necessary to prove an offence of a sexual nature. Rape is obviously considered as offence of a sexual nature. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.

[20] The third count the accused is charged with is a count of Theft, contrary to Section 291 (1) of the Crimes Act.

[21] In terms of Section 291 (1) of the Crimes Act it is stated: “A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property”.

[22] Section 291 (2) of the Crimes Act provides that an offence against sub-section (1) is to be known as the offence of Theft.

[23] Therefore, in order for the prosecution to prove the third count of Theft, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) On the specified day (in this case the 13 December 2015);

(iii) At Lautoka, in the Western Division;

(iv) Dishonestly;

(v) Appropriated 1 x Nokia mobile phone and charger, valued at $160.00;

(vi) Which was the property belonging to TL;

(vii) With the intention of permanently depriving TL of the said property.

[24] To further elaborate on these elements in respect of the third count.

[25] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.

[26] The second element relates to the specific date on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.

[27] The fourth element is the element of dishonesty. “Dishonesty” is a state of mind of the accused. In order to determine whether the accused had a dishonest mind, a two-tiered approach has to be adopted as defined in Section 290 of the Crimes Act.

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant (accused) to be dishonest according to the standards of ordinary people.

First, according to the ordinary standards of reasonable and honest people, Court has to decide whether what was done by the accused was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. [Dishonest according to the standards of ordinary people-which is an objective test].

If it was dishonest by those standards, then Court must consider whether the accused himself has realized that what he was doing was dishonest by those standards. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the accused himself knew that he was acting dishonestly. It is dishonest for the accused to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting in the manner he did. [Known by the accused to be dishonest according to the standards of ordinary people-which is a subjective test].

Therefore, to prove the case against the accused the prosecution would have had to establish beyond reasonable doubt that the accused acted dishonestly [and thereby appropriated 1 x Nokia mobile phone and charger, valued at $160.00, which is the property of the complainant].

[28] The fifth and sixth elements can be discussed together. The prosecution would also have to prove beyond reasonable doubt that the accused, appropriated the property of TL. At law, property belongs to a person if that person has possession or control of the property. This is outlined in Section 289 of the Crimes Act.

[29] ‘Appropriation of property’ means taking possession or control of the property without the consent of the person to whom it belongs. In this regard, the provisions of Section 293 (1) and (2) of the Crimes Act is relevant and is reproduced below:

“(1) for the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property.

(2) Sub-section (1) applies to a case where a person obtains possession of property (innocently or not) without committing theft, and there is a later assumption of rights without consent by keeping or dealing with it as owner.”

[30] The final element the prosecution must prove is that the accused, intended to permanently deprive TL of her property (1 x Nokia mobile phone and charger). The law provides that a person is said to have intention with respect to conduct if he or she means to engage in that conduct. Therefore, to prove this element, the prosecution should prove beyond reasonable doubt that the accused intended to permanently deprive TL of her property.

[31] It must be borne in mind that no witness can look into an accused’s mind and describe what his state of mind was at the time of the alleged incident. Therefore, it is not possible to have direct evidence regarding an accused’s state of mind. Knowledge or intention of an accused can only be inferred based on relevant proven facts and circumstances.

[32] Section 300 of the Crimes Act provides:

“(1) For the purposes of this Division, if —

(a) a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and

(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;

the person has the intention of permanently depriving the other of it.”

The Admitted Facts

[33] Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), deals with “Admission of facts”. The Section is reproduced below:

135. — (1) An accused person, or his or her lawyer, may in any criminal proceedings admit any fact or any element of an offence, and such an admission will constitute sufficient proof of that fact or element.

(2) Every admission made under this section must be in writing and signed by the person making the admission, or by his or her lawyer, and—

(a) by the prosecutor; and

(b) by the judge or magistrate.

(3) Nothing in sub-section (2) prevents a court from relying upon any admission made by any party during the course of a proceeding or trial.

[34] Accordingly, the prosecution and the defence have consented to treat the following facts as “Final Agreed Facts”:

  1. The complainant in this matter is TL, 21 years old of Cunningham Stage 4, Tacirua, Suva.
  2. Since June 2015, TL resided with her aunty, Diana in Naikabula, Lautoka whilst doing her practical at Bill’s Garage in Naikabula.
  3. On 12 December 2015, at about 5.30 p.m., TL accompanied her cousin Seramana to town, however, her cousin went clubbing and she was left alone.
  4. On 12 December 2015, at about 8.00 p.m., TL went to her aunty’s place in Naikabula to get her laptop but nobody was home so came back to Lautoka City.
  5. TL was examined by Dr. Agnes Dunn at the Lautoka Hospital on the 13th of December 2015 at 8.45 a.m.
  6. Since February 2015 till 14 December 2015, the Accused, Waisale Koroi, resided at Jinnu Road with one Miriama Toga and her husband.
  7. The Accused, Waisale Koroi, was arrested from Jinnu Road at the house of Miriama Toga.

[35] Since the prosecution and the defence have consented to treat the above facts as “Final Agreed Facts” without placing necessary evidence to prove them, the above facts are proved beyond reasonable doubt.

Case for the Prosecution

[36] The prosecution, in support of their case, called the complainant, TL, witness Miriama Toga, Dr. Agnes Dunn, Ex Detective Constable 2151 Penaia and Retired Inspector of Police, Asesela Tuitai.

[37] The prosecution also tendered to Court the following Exhibits:

PE1 - Nokia Mobile Phone (Black in colour)

PE2 - Nokia phone charger (Black in colour)

PE3 - White coloured bra

PE4 - Grey coloured pant

PE5 - Cream coloured panty

PE6 - Black coloured Bata flip flop

PE7 - Wrap around sulu

PE8 - Black coloured bag

PE9 - Medical Examination Report of the complainant

PE10 - Search Warrant dated 14 December 2015

PE11 - Search List dated 14 December 2015

PE12 - ¾ Lee shorts

[38] Evidence of the complainant TL

(i) The complainant’s evidence was recorded in a ‘closed court’.

Later the witness said, she can’t recall.

.....................


  1. You said he slapped you twice?
  2. Yes.
  3. What was the force?
  4. The force made me fall on the ground.
  5. Were you hurt?
  6. No, I can only feel the pain.
  7. What happened after you fell on the ground?
  8. After I landed on the ground, he stood up in front of me. He started removing his ¾ lee trousers, his t-shirt and his underwear.
  9. At this time, did you know what was happening?
  10. Yes.
  11. What was happening?
  12. I know that he will start to do something to me.
  13. What do you mean by that?
  14. Because I saw him removing all his clothes.
  15. Where were you when he was removing the clothes?
  16. I was sitting on the ground, where I landed when I fell.
  17. How do you feel when he was removing his clothes?
  18. Scared.
  19. How far away from you was he at the time?
  20. Just in front of me.
  21. Did you do anything when he was removing his clothes?
  22. No.
  23. Why?
  24. He told me to be still and not to move.
  25. When he was removing his clothes, you had the opportunity to run away?
  26. I can’t.
  27. Why didn’t you do that?
  28. Because there was no space. Because he was blocking my way with both of his legs against the cement bench. [The witness got out of the witness box and demonstrated how this was done].
  29. Was this man able to remove all this clothes?
  30. Yes.
  31. What happened then?
  32. He forced his private part to be put on my mouth.
  33. Do you know the name of this private part?
  34. His penis.
  35. How did he do this?
  36. When he forcefully tried to put his penis in my mouth, I refused. After that he pulled my hair so hard.
  37. Then what happened?
  38. I shouted. When I shouted, he inserted inside my mouth.
  39. What did he insert?
  40. His private part/his penis.
  41. When he inserted his penis into your mouth, what happened?
  42. He told me to use my tongue. I refused. When I refused, he pulled my hair hard again. After that his sperm came out from his penis.
  43. How do you know that sperm came out?
  44. Because he continued putting his penis inside my mouth.
  45. For how long was he doing this?
  46. I can’t recall how long.
  47. How many times did he put his penis inside your mouth?
  48. Just that once till after he ejaculated and he told me to swallow his semen.
  49. When all these things were happening to you, where were you seated?
  50. The same place where I was sitting.
  51. In what position was this man?
  52. When I was sitting, then he informed me to be on my knees. Later the witness said the man was standing. The same way he was standing.
  53. How did you feel when he was doing all this to you?
  54. Scared. Really frightened. There was no one else around at the time. He was communicating with me in iTaukei.
  55. What was his tone – in comparison when he was sharing the word of God?
  56. Changed/different.
  57. Can you explain?
  58. Earlier conversation was normal tone – when he was doing that act to me, it was rough.
  59. Did you swallow his semen?
  60. At first I refused. After that he gave two punches on top of my head [Witness demonstrated how this happened].
  61. What was the force used?
  62. I felt the pain.
  63. What can you say about the strength of the man?
  64. Very much stronger than me.
  65. How close was his face to you when all these was happening?
  66. Very close. I know we were very close.
  67. Were you able to see his face?
  68. Yes.
  69. What did you do when he hit you on your head?
  70. He pulled me and he started to remove my clothes. He pulled my hand and he started removing my clothes.
  71. What clothes did he remove?
  72. All the clothes I was wearing.
  73. When he was removing his clothes, you had the opportunity to shout. Did you do that?
  74. Yes, I did. He used his other hand to cover my mouth.
  75. What happened then (after removing your clothes)?
  76. He started sucking my neck. He made a love bite mark on my left side. He also did it on the left side of my breast.
  77. How did you feel when all these was happening?
  78. I was really frightened. I didn’t know what to do.
  79. Where were you at the time?
  80. After removing all my clothes, he was hugging me tightly. I was close to him.
  81. Was the position changed from the first incident when he put his penis into your mouth, to when he started sucking your neck and breast?
  82. Yes. From on my knee, now I was standing at the same place. When I was standing, he was sucking my neck.
  83. So this happened in a standing position?
  84. Yes.
  85. What happened after that?
  86. After that, he like lifted me and made me sit on the bench.
  87. At this point in time, where was the phone and charger?
  88. All I know is that I left it on the bench.
  89. The sulu?
  90. With the phone and charger on the bench – the other clothes were on the ground.
  91. What about your flip flops?
  92. On the ground.
  93. Did you know where that man’s clothes were?
  94. On the ground.
  95. Were your clothes removed fully or only partly?
  96. Removed entirely.
  97. When you were made to sit on the bench, what were you doing?
  98. He informed me to put both of my legs up. I refused.
  99. Then what happened?
  100. When I refused, he forcefully got hold of both my legs and put it up.
  101. What was your position at this time?
  102. All I know was my back was on the cement bench.
  103. And what happened after that?
  104. He put my leg up. He took his middle finger. He put it inside my private part.
  105. What do you mean your private part?
  106. Vagina.
  107. How do you know that he had placed his middle finger in your vagina?
  108. All his fingers I could feel on the surface of my private. His middle finger was inside my vagina. I could feel blood coming out.
  109. How did you feel when he was doing this to you?
  110. From what he was doing, I thought that he will kill me that day?
  111. What was he doing after inserting his finger inside your vagina?
  112. All I know he inserted it twice.
  113. When did he stop?
  114. I can’t recall.
  115. How did he stop?
  116. I can’t recall.
  117. Do you recall when he stopped, what happened then?
  118. All I recall that it came to my mind that I wanted to drink water. He showed me where the tap is – the same man. I pulled my pink sulu to wear and went towards the tap.
  119. What happened to the rest of your clothes?
  120. It was on the ground where it was.
  121. What about your Nokia mobile phone and charger?
  122. It was where it was.
  123. When you wanted to drink water, what did you do?
  124. I pick up my sulu and went towards the tap.
  125. How did he know you wanted to drink water?
  126. Because I tell him.
  127. When you asked him, what did he say?
  128. He informed me to go drink water and come back.
  129. What did you say in reply?
  130. I did not say anything. I just walk towards the tap.
  131. Did you find the tap?
  132. Yes. And I lied to him that there is no water coming from that tap. Then he said there is another tap in front.
  133. How far was this first tap from the bench?
  134. The witness said it was about 8 metres away.
  135. When you had requested to go and drink water, were there clothes on this man?
  136. No. He was not wearing any clothes.
  137. From where did you inform him that water was not coming?
  138. From where the tap is.
  139. Then what did you do?
  140. I ran away.
  141. Where did you go to?
  142. I continued walking straight. Then I went close to the fence. While walking along the fence, there was an opening on the fence. I went through that opening, jumped over the drain to the road. On the road a car came by, I stopped the car. Same time I opened it and I boarded the car.
(xxxix) The complainant testified that after getting into the vehicle she had asked the driver to take her to the Lautoka Police Station to report the matter. At the time she went to report the matter at the Police Station, she was only wearing the wrap around sulu. The rest of her clothes and footwear were in the same place where it was. Even her phone and her charger were in the same place.
(xl) After reporting the matter, she was taken to the Lautoka Hospital, because they found blood still coming out from her vagina. At the hospital, a female doctor had examined her. This was on Sunday.
(xli) After going to the hospital, on the way back, the Police had taken her to the place where the incident had happened. All her clothes were there. A different set of flip flops was there – one big one small. On one Bata was written on it and the other flip flop belonged to her. The Police had taken pictures at the scene. The Police had taken into their custody her clothes and the two different flip flops found at the scene.
(xlii) The witness said at the time of incident, she was wearing a top and a grey trousers. Inside she was wearing a white coloured bra and a pink panty.
(xliii) The white coloured bra, grey coloured pant and cream coloured panty were tendered to Court as Prosecution Exhibits PE3, PE4 and PE5 respectively. The single Bata flip flop (Black in colour) was tendered to Court as Prosecution Exhibit PE6. The wrap around sulu found at the scene was tendered to Court as Prosecution Exhibit PE7.
(xliv) The witness said that she could not find her phone and the charger at the place.
(xlv) The complainant said that four days later she had seen the man again at the Lautoka Police Station. She had pointed out to the man at the identification parade held at the Lautoka Police Station. There were 10 men lined up at the identification parade. The witness had pointed to the man who was said to be standing at position No.6. She said she pointed him out because she had clearly recognized his face.
(xlvi) The complainant identified the accused in the dock Waisale Koroi as the person who she had met on the night of 12 December 2015 leading to the 13 December 2015 and whom she had identified at the identification parade held at the Lautoka Police Station.
(xlvii) The complainant said that on that Sunday when she had got back home she had dialled her phone. A lady had answered and said that her phone is with her. The lady had informed that she had found the phone inside the bag of the man who is staying with them. The lady had said she will take the phone to the Police Station.
(xlviii) The complainant said that later she had identified her mobile phone and charger at the Police Station.
(xlix) The complainant testified that this incident has affected her. When asked to explain how, she said: “Because he was the first man for this thing to happen to me. And that time when I was in Suva, flash back memories came back. From 2015 till now, I am afraid to have a boyfriend.”
(l) The complainant was cross examined by the defence. The defence also put several suggestions to the complainant in line with the defence case.
(li) The complainant agreed that in the year 2015 the Nokia button phone was commonly used by many people. She agreed that her phone and charger did not have any special markings to identify them as hers and also that she did not have any receipt for the phone and the charger.
(lii) The complainant agreed that after four days she had seen the man again at the Lautoka Police Station. On that day the Police had come and picked her up from Namoli Village. She agreed that Police Officer Irene was accompanied by several other officers in the Police vehicle.
(liii) It was suggested to the complainant that the Police Officers had informed her that they had arrested a suspect in respect of this case and also told her about the clothes he was wearing and his features – his height, his built, his complexion and his condition of life. The witness denied the suggestion.
(liv) It was further suggested to the complainant that the reason she had pointed out to the person standing at No. 6 in the identification parade was because he was wearing a blue ¾ lee, and also because his complexion and skin colour was lighter than all other man in the line. It was also suggested that another reason she had pointed out to that person was because he was the only one that looked much older than the rest of the men (other nine men) standing in the line-up.
(lv) It was suggested to the witness that the person in the dock is not the same person that was with her and spent time with her on the night of the alleged incident. The witness said it was the same person.
(lvi) It was further suggested that the only reason she had given a thorough detailed description of the man was because she is sitting in the same Court room and the man is the only person sitting in the dock. The witness agreed to this suggestion.
(lvii) The complainant was referred to her Police statement. It was suggested to the complainant that the description of the man that she had given in her Police statement (On 13 December 2015), was not as thorough or detailed as the evidence or description she has given in Court.

(lviii) The Defence highlighted certain omissions in the evidence given by the witness vis a vis her statement made to the Police, especially in relation to the description of the accused person.


  1. In her testimony in Court she stated that the man was of iTaukei ethnicity. His skin colour was white (she said more light than brown which she said was her skin colour). The man had been in his late 40s. As to whether the man had any hair on his head, the witness said: “Yes – he had a No.1 haircut at the time”. The man was fat but not that fat. He was not that tall.

However, in her statement made to the Police it is only recorded as follows: “I was approached by one tall, fair, fat iTaukei man and he asked me about the time”.

  1. In her testimony in Court she stated that on seeing the man for the first time if she identified any distinguishing features, she said he had some mark on his face. “Like somebody had punched the face and there was a mark”.

However, in her statement made to the Police, there is no mention of this fact.


(lix) The following further questions were then asked from the witness in cross-examination and she answered as follows:
  1. You would agree with me that the description you gave the Police on 13 December 2015 was not as thorough as the description you gave Court?
  2. Yes.
  3. I suggest to you that the only reason you built up that description in Court and gave it as your evidence was because you had seen and observed my client in Court?
  4. No.
  5. I suggest to you that you could not even remember how the person looked like then?
  6. I still remember.
  7. Even before you came to give evidence in Court, you could not remember how the person looked like?
  8. I could remember.
  9. I suggest to you that it was a different person who had taken your Nokia phone and charger that night?
  10. Same person.
  11. I suggest to you that it was a different person who had inserted his finger into your vagina in the early morning of 13 December 2015?
  12. Same person.
  13. I suggest to you that it was a different person who had inserted his penis into your mouth in the early morning of 13 December 2015?
  14. Same person.
  15. I suggest to you that the man that you had pointed out in Court had never met you nor had you met him on the 12 of December 2015?
  16. Same person I met.
  17. I suggest to you that the man that you had pointed out in Court had never met you nor had you met him on the 13 of December 2015?
  18. Same person.

[39] Evidence of Miriama Toga

(i) The witness testified that she is residing at Jinnu Road, Lautoka. She is 46 years of age. She is a Caregiver by occupation. She said she has been residing at Jinnu Road for over 16 years. It is her own house. She is married to Jope Lomaloma Toga. He is a Plumber by occupation.
(ii) The witness said that she knows Waisale Koroi the accused in this case. She knows him through her husband. Her husband and Waisale Koroi know each other very well.
(iii) It is an Agreed Fact (paragraph 6) that from February 2015 until 14 December 2015, the accused Waisale Koroi resided at Jinnu Road with the witness and her husband.
(iv) The witness identified Waisale Koroi as the accused in the dock.
(v) The witness testified to the events which took place on Saturday 12 December 2015. She said she was at home that day. There was a shed being built besides their house. Waisale was in the shed-they were making the shed. That was on Saturday afternoon. Soon after he left in the afternoon. When he left he did not come back until the next morning. He came back at 4.00 a.m. the next morning.
(vi) When asked whether she had met the accused on the next day, the witness said, no but that her husband had met him in the morning.
(vii) The witness agreed that the accused was arrested from her house (paragraph 7 of the Agreed Facts). This was on Monday 14 December 2015. The Police had come home and looked for him and surrounded her house. But they found and arrested the accused in another house further down the road. He was said to be hiding under the bed. When asked whose house was it, she said it was the husband’s nephew’s house. The witness had been present when the accused was arrested by the Police.
(viii) The witness next testified to the events which took place on Tuesday 15 December 2015. She said that Police Officers came home and searched inside the house. They had asked her a few questions and taken her statement. They had told her to look for the complainant’s phone.
(ix) The witness continued that after the Police had left she went into the room where the accused was staying and opened the drawer. Inside the drawer there was a black ‘Canterbury’ bag and inside the bag was a Nokia phone and it was switched off.
(x) The witness said that she had gone inside the room occupied by the accused soon after the Police left. She said the Canterbury bag belonged to the accused. It was black in color. The bag was made out of leather. It was like a big travelling bag. The label was on the side.
(xi) On locating the phone, she had switched it on and at the same time TL had called and identified herself and informed that the phone belongs to her. She had told the complainant that she will be handing over the phone to the Police. Accordingly, she had handed over the said Nokia phone to the Police.
(xii) Later the witness said that in addition to the phone, the phone charger was also found inside the bag. She had also handed over the charger to the Police. She had also handed over the Canterbury type bag found by her to the Police.
(xiii) The black Canterbury type bag was tendered to Court as Prosecution Exhibit PE8.
(xiv) When asked where exactly inside the bag she had found the phone and the charger, the witness said: “Inside the side zip”.
(xv) The witness was also shown the Nokia phone and charger (PE1 and PE2). She confirmed that it was the same phone and the charger that had been found by her.
(xvi) The witness said that the complainant had called the phone about 15 minutes after she had found and switched it on.
(xvii) The witness stated that most of the time the accused wears ¾ pants and t-shirt. As to the type of shoes he wears – sometimes he wears canvas, sometimes flip flops.
(xviii) When asked why the accused had been residing at her place from February 2015 until 14 December 2015, the witness said that he did not have any place to stay so her husband took him in.
(xix) In cross-examination the witness confirmed that she saw the accused come home at 4.00 a.m. on Sunday morning. She said she and her husband both saw him coming home.
(xx) It was suggested to the witness that after the accused was arrested and taken away (on Monday 14 December 2015), the police had come back to search the house. She said she cannot recall.
(xxi) The witness confirmed that her house has three bedrooms. One of the bedrooms was occupied by the accused.
(xxii) The witness confirmed that she is originally from Kadavu and her husband from Ra. It was suggested to the witness that back in the month of December 2015, most of the time the house would be filled with people from Ra who came and visited and stayed for a while. The witness said they would just come and go back and that they never stayed.
(xxiii) It was further suggested that in December 2015 the other two rooms (other than the room occupied by her and her husband) were accessible to anyone. The witness said the rooms were vacant. However, when her husband’s relatives used to visit they would usually occupy one room only, since the other was already occupied by the accused.
(xxiv) The witness confirmed that the room that was occupied by the accused could not be locked and that there is no separate key to that room.
(xxv) In re-examination too the witness said that on the day the accused was arrested (the Monday), the police had access to the accused’s room.

[40] Evidence of Dr. Agnes Janita Dunn Boyd

(i) The Doctor testified that she is currently based at the Zens Medical Clinic, Lautoka. She is a General Practitioner.
(ii) She had obtained her MBBS Degree from the Fiji School of Medicine in 2011. Thus she has been a Medical Practitioner for the past 10 years.
(iii) The witness said that after completing her internship at Lautoka Hospital in 2012, she had worked at the Nadi Hospital in the year 2013. From early 2014 to December 2019 she had worked at the Lautoka Hospital. Since December 2014 she is attached to the Zens Medical Clinic.
(iv) The witness said that she had conducted the medical examination on the complainant, TL, on 13 December 2015, commencing at 8.45 a.m., at the Lautoka Hospital. WDC 3838 Irene Singh had accompanied the complainant. The Medical Examination Report was tendered to Court as Prosecution Exhibit PE9.
(v) The witness said that the complainant had been calm and oriented at the time of the examination. She was coherent and understood the place she was at the time.
(vi) The Doctor testified as to the specific medical findings as found in column D12. She has noted ecchymosis on the left side of the neck and above the right breast. The Doctor explained that ecchymosis means discoloration of the skin usually defined as more than 1cm in size. This term can be used interchangeably as a bruise. As per Appendix 2 – a bruise is define as an injury in which the skin in intact and blood released from damage vessels remains under the surface. The Doctor explained further that in layman’s term it is a hickey or love bite.
(vii) The normal cause for such injuries can be blunt force trauma and suction. She confirmed that these injuries could have been caused by a person using his mouth to suck the other person’s neck and breast.
(viii) The Doctor testified further that she conducted a vaginal examination on the complainant and found that her hymen was intact. The hymen is a membrane covering the opening of the vagina. She has noted that the hymen was intact because there was no opening to the vaginal canal.
(ix) During the examination she has also noted a laceration below (later she said above) the perianal, which is around the anal cavity. The laceration was less than 1cm in length. When asked to explain the exact location of this laceration, the Doctor said, it was below the vagina or within the cavity of the vagina. Not in the vaginal canal. As per Appendix 2 a laceration is a tear of the skin caused by blunt force trauma.
(x) The Doctor said that anything can cause the laceration in the female genitalia. It can be caused by a finger nail or pulp of the finger could cause this. She said anything with force can cause the laceration in that area. The Doctor confirmed that a laceration of this nature could be caused where a person uses a middle finger twice in that area.
(xi) The Doctor continued that in her opinion the area where the laceration was found is still part of the vaginal cavity. Therefore, in her opinion she could confirm that there was penetration of the vagina and most definitely of the vulva.
(xii) The Doctor further explained these findings with reference to a diagram drawn by her on the Medical Report and also with reference to Appendix 1.
(xiii) As per her professional opinion, the Doctor stated that these injuries were acute injuries, meaning that those injuries were fresh injuries (caused less than 6 to 8 hours prior to examination).
(xiv) The Doctor had concluded the medical examination at 9.05 a.m.

[41] Evidence of Ex Detective Constable 2151 Penaia

(i) The witness testified that he is residing at Lawaki Village, Tailevu North. He is 53 years of age and currently unemployed.
(ii) He had joined the Fiji Police Force on 23 October 1989. He had served for over 30 years and left the Fiji Police Force in September 2021. At the time he left the Force he held the rank of Sergeant and was serving at the CID Branch of the Lautoka Police Station.
(iii) He had started his career in the Police Force as a Police Constable. Thereafter, he had been promoted as a Corporal and then as Sergeant. He had been promoted as Sergeant in the year 2020.
(iv) In the year 2015, he was based at the CID Branch of the Lautoka Police Station. He was Acting Corporal at the time. In the CID, he was leading the Task Force Team at the CID Department.
(v) The responsibility of the Task Force is to do operational duties in the CID Department, especially in dealing with cases of interest like robberies, burglaries and rape. Operational duties is to arrest suspects in big cases.
(vi) The witness testified to the events which transpired on 13 December 2015. On that day the Crime Officer of the Lautoka Police Station had briefed his team about a case of interest at the Lautoka Botanical Garden, whereby a Fijian girl, who is believed to be a juvenile was raped by a Fijian man.
(vii) His role in this incident was to arrest the alleged perpetrator of the crime. After the Crime Officer had briefed them about the incident, the Officer in Charge of the Sexual Offences Unit (SOU), Sergeant Ana called and briefed them about the description of the suspect. The witness said: “That is after she verbally talked to the victim and gathered information from the victim.”
(viii) The officer said that the original Investigating Officer in this case was WDC Irene.
(ix) Based on the information given to him by Sergeant Ana, he had gathered his and briefed his team about the description of the suspect. They had done some brainstorming and conducted further inquiries on 13 December 2015. They had re-visited the scene of the alleged incident. They started looking for likely suspects with regard to the description given to them.
(x) However, on the 13 December 2015, they had reported off without arresting any person.
(xi) On 14 December 2015, they had commenced duty at 8.00 a.m. They had continued with the case of interest. After 11.00 a.m. they planned to visit one Waisale Koroi’s residence. When asked why he and his team decided to visit Waisale Koroi’s residence, the witness said, it was because of the description given to them matched. They just wanted to go and visit and questioned him.
(xii) The witness said: “Prior to this, I know Waisale Koroi. He is a frequent customer at Lautoka Police Station.” When asked what he meant by this statement, the witness said that most of his team have known Waisale Koroi.
(xiii) The witness said that after gathering information they found that Waisale Koroi was residing at Jinnu Road.
(xiv) Besides Waisale Koroi the Task Force Team had visited/checked about four other likely suspects as persons of interest in this case. They had physically checked on these persons at their residence and probably questioned them and their alibi. The witness said that the said 4 persons were also frequent customers at Lautoka Police Station.
(xv) The witness testified that where they are looking for suspects in cases of interest they would usually gather information from their sources and intelligence. However, he admitted that in this case no such information gathering was done.
(xvi) The witness said that around 11.00 a.m. on 14 December 2015, they arrived at Jinnu Road – at the residence of Waisale Koroi’s cousin. Waisale Koroi had been standing outside the house. When he saw the police vehicle he had run inside the house. When they had seen him running inside the house they had felt suspicious. So they ran after him.
(xvii) The witness said: “When we reached the main door of the house he entered we saw him run outside the other door – the opposite side. And we chased him. He ran about 10 meters and entered the neighbour’s house. And he hid underneath the bed.” The location of this house was just next door to Waisale Koroi’s cousin’s house.
(xviii) The witness said he had asked the accused to come out from underneath the bed where he was hiding. He did so. Thereafter, the witness had explained to him the reasons for his arrest and arrested him.
(xix) The accused was then escorted to the Police Station and handed over to the Station Orderly at the Charge Room.
(xx) The witness testified further that he had conducted further investigations in this case. Consequent to the arrest of the accused the Crime Officer had instructed his team to take a search warrant and to search the house where the accused had been staying at Jinnu Road.
(xxi) The reason for the search was to recover the likely clothes the accused had been wearing on the date of the alleged incident, 13 December 2015. Accordingly he and his team had gone to the house where the accused was residing at Jinnu Road. This was after 1.00 in the afternoon on 14 December 2015. The accused too had accompanied them.
(xxii) The search warrant was tendered to Court as Prosecution Exhibit PE10. As per the search warrant they were to search the dwelling house of Waisale Koroi, at Jinnu Road, Waiyavi. The reason for the search was to search for the round-neck t-shirt, blue ¾ trousers and black underwear of the accused.
(xxiii) The witness then testified to the manner in which the search was conducted in the room in which the accused was residing. During the search a white and red striped t-shirt, a white and black designer t-shirt, a black ¾ trouser and a purple underwear had been recovered in the room occupied by the accused. The items were lying on the floor inside the room (they were dirty clothes or used clothes).
(xxiv) The witness further said that they had also found a black travelling bag in the said room. The said bag had also been searched. It contained clothes. This bag had not been taken into custody at that time. The witness explained that they were only concentrating on the clothes that were described in the search warrant.
(xxv) At the time of this search members of the Task Force were present along with Sergeant Ana, the owner of the house and Waisale Koroi.
(xxvi) Once the clothes were recovered a search list had been prepared and a copy given to the accused. The search list was tendered to Court as Prosecution Exhibit PE11. The clothes recovered were handed over to Sergeant Ana for further investigations.
(xxvii) The ¾ Lee Jeans recovered (which was black or navy blue in colour) was tendered to Court as Prosecution Exhibit PE12.
(xxviii) The witness testified that he had also assisted in the identification parade held in this case. His team was tasked to find 9 persons to stand in the line-up for the identification parade with same description as the accused – built and age group. He had found these 9 persons from the playing ground outside Churchill Park.
(xxix) The identification parade was held at the old Lautoka Police Station. However, the witness said that he was not present when the identification parade was conducted.
(xxx) In cross-examination the witness was shown the black bag that had been tendered to Court as Prosecution PE8. He confirmed that it looked similar to the bag that he had searched on 14 December 2015. He said at the time of the search only he, Sergeant Ana and the accused were present in the room.
(xxxi) The witness said he could not recall whether there was a dressing drawer in the room. However, he confirmed that there was no furniture in the room.

[42] Evidence of Retired Inspector of Police, Asesela Tuitai

(i) The witness testified that he is a retired Inspector of Police. He is 60 years of age and currently residing in Nausori. He retired from the Fiji Police Force on 17 December 2016. He had joined the Fiji Police Force in 1982. Thus, he counts 34 years of service in the Force.
(ii) The witness said that that in the year 2015 he was stationed at the Lautoka Police Station. He was serving as a Crime Officer at that time (there were 4 Crime Officers, including him, at the time).
(iii) The witness said that he was instructed by the ASP Crimes to conduct the identification parade in this case. During his career he has conducted about 7 to 8 identification parades. However, this is the first time he was giving evidence in Court in respect of such a matter.
(iv) The witness said that identification parade had to be usually conducted by officers above the rank of Inspector of Police. He said he was aware of the Force Standing Order (FSO) No. 193.
(v) The witness then described as to the manner in which he had conducted the identification parade. It was conducted at 1.05 p.m. on 15 December 2015, at the Summer House located at the Lautoka Police Station.
(vi) Nine iTaukei youth were brought by the Operation Team to line up in the parade. They were from the age group of 20 to 30. They were heavily built and of fair complexion. They were about 5 feet to 6 feet in height. They were wearing ¾ trousers. Some were wearing short pants with t-shirts.
(vii) After lining up the nine persons he had then called the accused to come for the parade. At the time the accused was inside another office of the Police Station. The accused had no objection to any of the persons lined up in the parade.
(viii) The witness testified that the nine men were similar to the accused in complexion, built and height.
(ix) The accused was asked whether he agrees to take part in the parade. He had agreed. The accused was asked to stand at any place he liked in the lineup and he did so.
(x) Thereafter, the complainant in the case had been escorted to the Summer House by WPC Vandana. The witness had spoken to the complainant and informed her the 10 men were lined up for the identification parade. She was asked whether she can identify the accused. The complainant had pointed directly to the accused and identified him. The witness said that it took her only a minute or 2 to do so.
(xi) Thereafter, the complainant was escorted back to the place where she was kept by WDC Vandana. The accused was escorted back to the Crime Office where he was kept by Constable Gavidi. The whole duration of the identification parade was about 20 to 25 minutes.
(xii) In cross-examination the witness confirmed that he had not recorded the age of the accused in his notebook or his statement. Therefore, he was unaware that the accused was 45 years of age at the time the identification parade was conducted.
(xiii) The witness was shown the statement that was recorded by him in respect of the conducting of the identification parade. He confirmed that as per the statement, the youngest in the line-up was 19 years of age and the oldest was 27 years of age. Therefore, the witness agreed that what he had stated in his evidence in chief that the 9 youth who participated in the identification parade were between 25 and 30 years of age and that one was over 30 was incorrect.
(xiv) The witness initially stated that everything he had noted in his official notebook was the same as recorded in his statement. However, during his cross-examination it was established that many matters that he said was recorded in his notebook was not found in his statement.
(xv) It was suggested to the witness that many issues that transpired in the identification parade was not reflected in his statement because the parade was conducted unfairly to the accused. The witness denied the suggestion.

[43] At the end of the prosecution case Court decided to call for the defence. The accused was then explained his legal rights. I explained to him that he could address Court by himself or his Counsel. He could also give sworn evidence from the witness box and/or call witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. I explained to the accused that he need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.

[44] The accused exercised his right to remain silent.

Analysis

[45] The prosecution in support of their case, called the complainant, TK, witness Miriama Toga, Dr. Agnes Dunn, Ex Detective Constable 2151 Penaia and Retired Inspector of Police, Asesela Tuitai. The accused exercised his right to remain silent.

[46] The burden of proving each ingredient of the three charges rests entirely and exclusively on the prosecution and the burden of proof is beyond a reasonable doubt. Therefore, it is incumbent on the prosecution to prove the elements of the three charges beyond reasonable doubt. I have made reference to the elements that the prosecution has to prove in respect of each count at paragraphs 10, 11 and 23 of this judgment.

[47] As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as admitted facts without placing necessary evidence to prove them. Therefore, those facts are considered as proved beyond reasonable doubt.

[48] Based on the said admitted facts it is, inter alia, admitted that from February 2015 to 14 December 2015, the accused, was residing at Jinnu Road with witness Miriama Toga and her husband. It is further agreed that the accused was arrested from Jinnu Road, at the house of Miriama Toga.

[49] I have summarized the evidence of all five prosecution witnesses led during the trial.

[50] The complainant clearly testified as to what transpired commencing from the night of 12 December 2015 and culminating with the alleged incident of Rape early in the morning on 13 December 2015. According to the complainant the person who had been with her during this period and who had perpetrated the crime was an unknown person or a person she had met for the first time on the night of 12 December 2015.

[51] Therefore, the primary issue for determination in this case is the issue of identification.

[52] The defence totally denies the charges against accused. The defence takes up mistaken identity as a defence.

[53] In the landmark case of R v Turnbull (1977) Q.B. 224, [1977] 63 Criminal Appeal Reports 132, [1976] 3 WLR 445, [1976] 3 All ER 549, at 551 to 552, the English Court of Appeal enunciated special guidelines to assess the quality of disputed visual identification. Lord Widgery CJ articulated the said guidelines in the following words:

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.

Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”

[54] The Turnbull guidelines have been accepted as the law in Fiji. This has been specifically stated by the Fiji Court of Appeal in Semisi Wainiqolo v The State [2006] FJCA 70; AAU0027.2006 (24 November 2006); and in Mesake Sinu v The State [2013] FJCA 21; AAU37.2009 (13 March 2013).

[55] In Rusiate Savu v The State [2014] FJCA 208; AAU0090.2012 (5 December 2014); the Fiji Court of Appeal held that the Learned Magistrate was in error when he concluded that the Turnbull guidelines did not apply to that case as it was not a situation of identification on a fleeting glance but one of recognition.

“Clearly, the learned trial Magistrate misdirected herself when she said the Turnbull guidelines are not appropriate here as this was not fleeting glance case but was of recognition. The Turnbull guidelines equally apply to cases of disputed recognition as was the case here. In R v Thomas [1994] Crim. LR 120, the English Court of Appeal held that where there has been some form of recognition, the risk that needs to be assessed is whether the witness is mistaken in his or her purported recognition of the accused. That risk is assessed by taking into account the Turnbull guidelines against the circumstances in which the sighting occurred (Wainiqolo (supra) at [18]).

[56] These principles were also considered by the Fiji Court of Appeal in Isoa Koroivuki & Another v The State [2017] FJCA 47; AAU0082.2012 (26 May 2017); and confirmed by the Fiji Supreme Court in Isoa Koroivuki & Another v The State [2017] FJSC 28; CAV7.2017 (26 October 2017).

[57] In this case it is clear that the description the complainant gave of the person who had been with her from the night of 12 December 2015 and culminating with the alleged incident of Rape early in the morning on 13 December 2015, was that he was a tall, fair, fat iTaukei man. No other description of this person has been recorded by the Police during the recording of her statement. Not even the age of the person has been recorded in her statement. Neither have any distinguishing features of this person being recorded.

[58] As correctly pointed out by the defence, a large number of the population of Fiji would come under this category of tall, fair, fat iTaukei men. At least if the age of the alleged offender had been provided by the complainant during the recording of her statement it could have narrowed down persons coming under this category. However, that was not done in this case.

[59] The defence attempted to impeach the complainant’s credibility by highlighting certain omissions in her statement made to the Police on 13 December 2015, in comparison to the testimony given by her in Court, specifically regarding the identification of the accused. I have made reference to the said omissions when summarizing the complainant’s evidence.

[60] During her testimony in Court the complainant went on to describe the features of the accused in greater detail. She stated that the man was of iTaukei ethnicity. His skin colour was white (she said more light than brown which she said was her skin colour). The man had been in his late 40s. And that he had a No.1 haircut at the time. The man was fat but not that fat. He was not that tall. Furthermore, when asked for any distinguishing features she said he had some mark on his face. “Like somebody had punched the face and there was a mark”.

[61] However, it was suggested to the complainant that she built up that description in Court and gave it as her evidence because she had seen and observed the accused in Court.

[62] In Sivoinatoto v. State [2018] FJCA 68; AAU0049.2014 (1 June 2018); the Fiji Court of Appeal discussed as to how a Court should deal with issues arising out of contradictions and omissions.

[63] In my opinion these are material omissions, for which no reasonable and acceptable explanation has been offered by the prosecution. As such, I am of the opinion that the reliability and credibility of the complainant’s evidence is tainted.

[64] The accused had been arrested by Ex Detective Constable 2151 Penaia and members of his Task Force Team. When asked why he and his team decided to visit Waisale Koroi’s residence, the witness said, it was because of the description given to them matched. They just wanted to go and visit and question him.

[65] However, DC Penaia also stated that prior to this he knew Waisale Koroi. According to the witness the accused was said to be a frequent customer at Lautoka Police Station. When asked what he meant by this statement, the witness said that most of his team have known Waisale Koroi.

[66] Therefore, it is manifest from the above statements that the Police went looking for Waisale Koroi primarily because he was previously known to the Police.

[67] When asked why he went on to arrest the accused on 14 December 2015, DC Penaia said that they did so because the accused had attempted to run away on seeing the Police. The fact that the accused attempted to run away and the fact that he had been arrested from under the bed of a neighbouring house, does not necessarily mean that the accused was running away because he was responsible for the offending in this matter. The accused may very well have been running away because he was well known to the Police and he was afraid that the Police had come looking for him once again.

[68] It is in evidence that consequent to the arrest of the accused the Crime Officer had instructed DC Penaia and his team to take a search warrant and to search the house where the accused had been staying at Jinnu Road. This was on the same day as the accused was arrested. Accordingly, some clothes (a white and red striped t-shirt, a white and black designer t-shirt, a black ¾ trouser and a purple underwear) had been recovered by the Police.

[69] On the same day the black travelling bag (tendered to Court as PE8) had also been searched by DC Penaia. However, nothing incriminating had been found in the bag on that day. The witness said that only items of clothing were seen in the said bag.

[70] However, on the next day, which was 15 December 2015, Police Officers had come again and searched inside the accused’s room. They had asked witness Miriama Toga a few questions and taken her statement. Thereafter, they had requested her to look for the Nokia phone and charger. Miriama had found the black travelling bag said to be belonging to the accused. On searching the bag, she had found the black Nokia phone and phone charger.

[71] It is quite strange that when DC Penaia was searching the same bag the previous day, he had not been able to find the phone and the charger, which are important pieces of evidence in this case. There is clear evidence to show that on the previous day, the Police Team had searched the room occupied by the accused and seized some of his clothes. They had also found the black travelling bag and even opened the bag and looked inside. According to DC Penaia, at the time only clothes were found in the bag.

[72] It must be mentioned that this is a case where the accused had been first arrested and then the incriminating evidence, namely the phone and the charger, being found inside his room. It must be distinguished from a case where the incriminating evidence, namely the phone and the charger, being first found in the possession of the accused and based on the said recent possession evidence, the accused being arrested.

[73] In this case the defence is also challenging the manner in which the Identification Parade was conducted by the police and submits that it was conducted unfairly. The defence has highlighted several infirmities or weaknesses in the manner in which the said Identification Parade was conducted.

[74] The Identification Parade was conducted by Retired Inspector of Police, Asesela Tuitai. The Identification Parade had been held inside the Summer House of the Lautoka Police Station. The witness explained as to the manner in which the Identification Parade was conducted.

[75] It was suggested to the witness and he agreed that the Fiji Police Force Standing Orders (FSO) mandates the procedures under which Identification Parades are to be conducted.

[76] Inspector Tuitai testified that he was unaware of the age of the accused at the time the Identification Parade was conducted. It is to be noted that the accused’s date of birth is 1 September 1969. Therefore, as at December 2015, he would have been 46 years of age. The witness confirmed that the youngest person in the line-up was 19 years of age and the oldest was 27 years of age. Therefore, the other participants in the Identification Parade were nearly 20 years younger than the accused. This clearly shows that the Identification Parade had not been conducted in a fair manner.

[77] The above factors create more than a reasonable doubt in the prosecution case.

[78] However, the most significant factor is derived from the evidence of prosecution witness Miriama Toga. In her testimony she clearly testified that the accused, Waisale Koroi, had arrived at home at 4.00 in the morning on 13 December 2015. She confirms that she and her husband both saw the accused returning home at that time.

[79] The complainant’s testimony is that the alleged incident of Rape took place after 4.30 in the morning on 13 December 2015. Just prior to the incident of Rape, she testified that “He (the alleged offender) took out his phone. He was pressing something with his phone. I told him it was 4.30 a.m. I have to go home.”

[80] Therefore, the alleged incident of Rape would have taken place only after 4.30 in the morning on 13 December 2015. At the said time, as per the testimony of witness Miriama Toga, the accused Waisale Koroi was at home.

[81] No attempt was made by the prosecution to clarify this matter from witness Miriama Toga. This is a crucial piece of evidence that should have been necessarily clarified from the witness. However, the prosecution failed to do so.

[82] Considering all the above and having analysed the evidence led in this case in its totality, I am of the opinion that the prosecution has failed to prove the two charges of Rape and one charge of Theft against the accused beyond reasonable doubt.

[83] In the circumstances, I find the accused not guilty of the two charges of Rape and one charge of Theft with which he is charged.


[84] Accordingly, I acquit the accused of the two charges of Rape and the single charge of Theft.


Riyaz Hamza
JUDGE
HIGH COURT OF FIJI


AT LAUTOKA
Dated this 4th Day of November 2022


Solicitors for the State: Office of the Director of Public Prosecutions, Lautoka.
Solicitors for the Accused: Office of the Legal Aid Commission, Lautoka.


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