State v Misiki [2014] FJMC 100; Criminal Case 443.2010 (6 June 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 443/2010

STATE

vs.

ADRIU NASESE MISKI
FILIPE BABA

PC Williame for the Prosecution
Ms. Ravono for the first accused
Second accused in person

JUDGMENT

[1] The accused are charged with following offence in this Court.

RAPE: contrary to Section 149 and 150 of the Penal Code Act. 17.

Particulars of the Offence

Adriu Nasese Misiki and Filipe Baba on the 8th of December 2009 at Queen Elizabeth Drive, Suva in the Central Division, had an unlawful carnal knowledge of girl namely Vani Balisuva without her consent.

[2] Both accused pleaded not guilty for this offence and this matter proceeded for hearing. During the hearing the prosecution called 09 witnesses (03 civil witnesses and 05 police officers) and for the defence both accused gave evidence and called some other witnesses. At the end of the hearing both accused were invited to file closing submissions which they filed accordingly.

SUMMARY OF EVIDENCE
THE PROSECUTION'S CASE

[3] PW1 was Vani Baleisuva, the complainant in this case. She said she was 36 years old and working as a waitress. On 08th December 2009 she went clubbing with her friends and came and boarded a black taxi. She asked the driver to take her to Flag staff. She has not seen the driver before. She sat in the front seat whilst there was a short guy behind. The taxi took her to Thurston garden and two men dragged her to play ground. The taxi driver pulled her. They dragged her to middle of the ground and tore her top and tried to pull her jean. She tried to run away and they banged her head in the taxi. They put her inside taxi and when she woke up only the driver was present. He took her back to Flagstaff and from there she went to Flagstaff police post. She was also medically examined by a doctor and this was marked as prosecution exhibit 01. She further said that the accused tried to rape her. Later she identified 1st accused in an ID parade and 2nd accused in Cost u less. In Court also she identified two accused.

[4] In the beginning of cross- examination by the counsel for the 1st accused she said that they tried to rape her but did not have sex with her. She went to night club with her friend Tadulala and had some drinks. They were in Ritz night club when two accused came there. She or her friend did not know them before. From there she with her friend went to Bourbon night club around 0130 am. The accused were in Bourbon night club too. She danced with the 1st accused there. Around 3am she left the club alone and got in to a black taxi. 2nd accused was the driver whilst 1st accused got in to back seat. She asked the driver to take her to Flagstaff but the taxi drove and stopped near children park. 2nd accused pulled her out and took her to ground whilst 1st accused followed them. She struggled but 2nd accused squeezed her neck and dragged her to ground and pulled her pants. Then he had sex with her without her consent and after that 1st accused also raped her. Then 2nd accused took her home. Her friend (Tadulala) was waiting for her and with her she went to Flagstaff police post but they did not take her report. She was examined in CWM on 10th December 2009. She also said as she was ashamed of the incident she did not tell about the rape in her evidence in chief. In cross- examination she also said she did not recognize the 1st accused in the night club and admitted that she may have mistaken the identity of the 1st accused in this case. The police took her to identify the 1st accused in Cost-u –less and before that her friend has described the accused to her. Answering to the questions asked by the 2nd accused she said she was not forced in to the taxi and she was not drunk. In re- examination she said she came alone from night club and at that time the driver was outside. She asked him to take her to Carew street but he took her to Thurston garden. The 2nd accused had sex with her whilst the 1st accused was standing and later they dropped her home. She was ashamed and did not tell her friend about that. She again reaffirmed that two accused who were present in the dock were the one who raped her that night.

[5] PW2 was Moala Tadulala, the friend of pW1. She said around 9pm that night she went with PW1 to Ritz and at that time the club was not full. PW1 drank there and two people were staring at them. One was tall slim while the other was short and bald. Short guy came and danced with Vani for 2 or 3 times there. From there she with Vani went to bourbon night club and there also she noticed two people from Ritz. She left Bourbon and came home and Vani came next morning in a taxi. She saw Vani in the taxi and she recognized the driver. Taxi did not stop and went past her and came back again. She identified the taxi driver as the person she saw in Ritz club and it came at high speed to her and she had to jump back to avoid an accident. She took the number of the taxi. She also saw Vani with injuries in her face with her blouse torn and she asked Vani about that. Vani told her she was raped by the people who were in Ritz. She took Vani to Flagstaff police post and from there they went to health center. Police asked her to come and identify a suspect in the police station and she found that was not the person. Few days later again she went to an ID parade and identified the taxi driver and she came to Court on the first day and saw the 1st accused coming and shaking hands with the 2nd accused. She identified 1st accused also as the person from Ritz club and informed the police about him and he was also arrested. She also identified both accused in the Court.

[6] In cross- examination for the 1st accused said she was in Ritz with Vani and lights were not dim there and she did not drink there. She hasn't seen the two accused before that incident and they were drinking there. Around 10 pm she went with vani to Bourbon. There also she noticed the two persons. She came early and saw taxis outside. Next morning vani came and told her that she was raped in the night. She took her to Flagstaff police post. She saw the 1st accused in the Court and recognized him. In cross- examination of the 2nd accused she said she saw the 2nd accused in Ritz and Bourbon and recognized him again next morning when he came to drop Vani. In re- examination she said two persons were the same she saw in night club.

[7] Pw3, Inspector Ali who conducted the ID parade for the 1st accused. He was informed that 1st accused did not want to stand in ID parade and therefore he was taken to Cost U Less. The accused was left inside the supermarket and PW1 was asked to go and identify him. At that time there were nearly 20 people inside. She went and identified the 1st accused. PW3 also identified the 1st accused in the Court. In cross- examination he said Sgt .Eroni asked him to conduct the identification and he selected Cost U Less considering logistic as well as security of parties. He also said that the 1st accused refused to have ID parade and therefore the identification was conducted in Cost U Less. He also said that the accused opted Suva bus stand but considering the resources it was rejected. He also said he was not aware that PW1 had description of the accused from her friend and also said he carried a fair identification.

[8] PW4 was DC 2990 Tora who conducted the caution interview of the 1st accused on 11th February 2010. The accused was given his rights and on the interview he gave an alibi that he was sleeping at his home that night. He also complained that the ID parade in Cost U Less was unfair. The caution statement of the 1st accused was marked as prosecution exhibit 02. In cross- examination he said the accused informed him that he was at his home that night but he cannot recall if the alibi was checked. He also went to Cost U less with Inspector Ali (PW3) and said that the accused raised issues about identification which he brought to the attention of his supervisor.

[9] PW5 was PC Walter who charged the 1st accused and this statement was marked as prosecution exhibit 03. In cross- examination he said the accused said that he was at birthday party of his daughter on that night.

[10] PW6 was Dr. Kelera Sakumeni who examined the victim on 10th December 2010. In the history of the medical report she was dragged to seawall by two men and had sex with her forcefully. She was examined 3 days after the alleged incident and PW6 noticed facial injuries but could not find any injuries around the internal or external genitalia. She also said there was evidence about physical assault but she can't make any conclusion about rape as she was examined 03 days after the incident. Responding to the questions raised by the Court she said if there were injuries near genital area it would have healed quickly and if she examined the victim within 24 hours she could have noticed them.

[11] PW7 was Sgt. Eroni who assisted the ID parade for the 2nd accused and he said that the victim identified the 2nd accused.

[12] PW8 was the Charging officer of the 2nd accused and this statement was marked as prosecution exhibit 05.

[13] PW9 was Inspector Ram who conducted the ID parade for the 2nd accused and he said PW1 and PW2 identified the accused in the parade. In cross- examination by the 2nd accused he denied the witnesses saw the accused before the parade.

[14] The prosecution closed their case after that and both accused made 'no case submission' pursuant to section 178 of the Criminal Procedure Decree which was dismissed by this Court. Both accused were given their rights as stipulated in section 179 of the Criminal procedure Decree and they opted to give evidence.

THE DEFENCE'S CASE

[15] The 1st accused said he is married to Seasea and got 03 children. He denied this allegation and also denied he was at Ritz or Bourbon nightclub on that night. He was not with the 2nd accused that night. On 07th December 2009 was the birthday of his daughter Rosi and morning they made special breakfast for her and left for work. Afternoon he came back home and had a party for the daughter around 0830pm. He had dinner with his family members and played cards with them and went to sleep around 11pm. He did not go out in the night and was not in the night club around 10pm. Next morning he woke up and had family church devotion with his family. He also denied raping PW1. He further said he came to see a legal aid lawyer and met the 2nd accused in the corridor. After talking to him he went back and was arrested by the police. In the police station he told the interviewing officer on that night he was sleeping and when his wife visited him he realized he was in the party. Accordingly he told the charging officer about that. He was taken to Cost U Less for identification and at that time there were only few people inside who did not match his physical appearance.

[16] DW2 was Seasea Tokasa who is the wife of the 1st accused. She said 07th December 2009 was her daughter's birthday party and morning they had special breakfast and after coming back home had dinner. After dinner they played cards and around 10.30pm she went to sleep with her husband. The husband did not leave the house in the night and next morning he had church service with other family members. When her husband was arrested she visited him and later reminded him about the party on that night.

[17] DW3 was Seasea Rosi, the daughter of the 1st accused and she said her birthday is 07th December 1993 and tendered her birth certificate as defence exhibit 01. She said on 07th December 2009 her family organized special breakfast for her and in the night they had a dinner to celebrate her birthday. After that they played cards till midnight. Her parents went to sleep around 10.30pm and she did not see her father going out. Next morning they had a church service which was conducted by her father.

[18] The 2nd accused said on that day he was driving a taxi and came to Bourbon night club and was there till 11pm when two people came out and got in to his taxi. They told him to go to Nasses and near there stopped the taxi and pulled the girl out. Later she came to the taxi with injuries in her face and asked him to drop her in Flagstaff and he dropped her there. In cross- examination he said he picked 03 passengers that night and dropped them near president house. Later the lady came back to his taxi.

[19] The 2nd accused also called one witness who was also a taxi driver and he said he saw a girl getting to taxi with 2 or 3 boys. In cross- examination he said 03 passengers got in to the accused taxi that night.

[20] The defence closed their case after that and opted to file closing submissions. The learned counsel for the 1st accused submitted that the identification evidence against the 1st accused was unsatisfactory and poor quality and the prosecution case is riddled with contradictions and therefore they have failed to prove this charge beyond reasonable doubt against her client.

[21] The 2nd accused in his closing submission submitted that there are no medical findings to support rape and also he did not commit this offence.

THE LAW

[22] The accused are charged with one count of Rape contrary to section 149 and 150 of the Penal Code. Section 149 states :-

"Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

[23] In view of the above section the elements of this offence are;

[a] The accused

[b] Had unlawful carnal knowledge

[c] Of the complainant

[d] Without her consent

[24] In Woolmington v DPP [1935] AC 462 it was held that

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[25] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2010 page 542).

[26] In State v Naivana [2014] FJHC 371; HAC293.2011S (27 May 2014) in his summing up his Lordship Justice Temo defined beyond reasonable doubt in the following manner:-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty"

ANALYSIS OF THE EVIDENCE

[27] The 2nd accused in his submission argued that there are no independent evidences to show that victim was raped. This argument was based on the medial report (prosecution exhibit 01) as well as the evidence of the doctor in this case. The 1st accused also supported this contention. In addition the learned counsel for the 1st accused pointed out that there were so many contradictions between the evidence of prosecution witnesses which raised doubt about the credibility of the victim.

[28] As for the doctor's evidence she said she could not make any conclusion about rape and she did not find any injuries near genital area. She examined the victim 3 days after the incident and therefore could not give any verdict about penetration. Also responding to a question raised by the Court she said the injuries could have healed by the time she examined the victim. Therefore I do not accept the lack of medical evidence affect the prosecution version.

[29] I do agree with the defence that there were some inconstancies in the evidence of prosecution witnesses. This is to be expected as the witnesses were giving evidence nearly 04 years after the incident. But mostly these were minor contradictions and did not affect the prosecution version. But the victim in her evidence in chief said the accused attempted to rape her and she maintained this throughout first day of her evidence. But on the second day in cross- examination she said both accused raped her. When asked why she changed her story she said she was ashamed on the first day to tell that in the Court. Having considered her demeanor I am satisfied about her explanation and also with her evidence. Even though the 2nd accused submitted that there is no other independent evidence to corroborate the victim's evidence I am mindful presently there is no need for corroboration as per section 129 of the Criminal Procedure Decree.

[30] Therefore I accept that the victim's evidence that she was raped by two persons on that night. The main issue to be decided in this case is whether the two accused committed this offence. Both accused challenged the identification and in addition the 1st accused took the defence of alibi. Therefore I would first consider about the alibi defence of the 1st accused before dealing with the issue of identification.

[31] The Alibi is defined as evidence tending to show that by reason of the presence of the accused at a particular place or in a particular areas at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission (BLACKSTONE'S CRIMINAL PRACTICE page 1743).

[32] In State v Nalave [2013] FJHC 496; Criminal Case 29.2004 (24 September 2013) in his summing up his Lordship Justice De Silva stated :

"As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary the prosecution must disprove the alibi. Even if you conclude that the alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence."

[33] The 1st accused in his evidence said on that night he was at his home with his family. He also said his daughter's (Rosi) birthday was that day and on that night he stayed with his family. He denied going out that night. To corroborate his version he called his wife and daughter who also said he was at home that night celebrating the birthday. The defence also marked as an exhibit the birth certificate of the daughter showing the birthday was on that day. I find from these evidence the 1st accused has successfully raised an alibi.

[34] When confronted with an alibi the prosecution can rebut this by calling witnesses. They can do this before or after the alibi was taken. In this case the prosecution did not call any witnesses to rebut the alibi. They were relying on the evidence of the victim who identified the accused in the clubs. But the victim in cross examination admitted that she may have mistaken about the identity of the 1st accused which raises doubt about the identification. Based on these I find that the 1st accused has managed to raise a reasonable doubt in this Court regarding the prosecution version.

[35] As for the 2nd accused he admitted that he was near that night club on that night. In fact he said the victim got in to his taxi that night with two persons and in Nasses they dragged her out and later she came back to his taxi with injuries in her face. His evidence was similar to the victim's evidence apart from some deviations. The victim version was that she got in to the front seat of that taxi and near sea wall she was dragged out by the 2nd accused with another and raped in the ground. She also said she saw the 2nd accused in Ritz and Bourbon night club. The 2nd accused never admitted that he was in those night clubs. In fact he was also disputing his identification by the victim. Therefore I need to briefly consider about the law with regard to identification.

[36] In R v Turnbull (1977) Q.B.224, it was held that "the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.

i. How long did the witness have the accused under observation?

ii. At what distance?

iii. In what light?

iv. Was the observation impeded in any way as for example by passing traffic or a press of people?

v. Had the witness ever seen the accused before?

vi. How often?

vii. If only occasionally, had he any special reason for remembering the accused?

viii. How long elapsed between the original observation and the subsequent identification to the police?

ix. 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?

[37] In STATE v DELANA [2014] FJHC 336; Criminal Case 158.2010 (16 May 2014) in his summing up his Lordship Justice Madigan said :

"In assessing identification evidence, you must take the following matters into account:

(i) has the witness known the accused before?

(ii) For how long did the witness have the accused under observation and from what distance?

(iii) Was it more than a fleeting glance?

(iv) In what light was the observation made?

(v) Was there any obstruction to his view?

If after taking into account all these considerations, you think that the identification is reliable then you may act on it. "After considering all these evidence I am satisfied that the prosecution has proved this charge beyond reasonable doubt. I find the accused guilty for this offence and convict him accordingly.

[38] Based on the above guidelines I would consider the victim's evidence. Even though she has not seen the 2nd accused before she observed him in Ritz night club. According to her at that time the light was flickering but she saw the 2nd accused staring at her. She also identified him in Bourbon night club. Based on all these I am satisfied about the victim's identification of the 2nd accused. Her evidence about the identification was corroborated by her friend, Tandulla who was with her that night in both night clubs. Also they both identified the 2nd accused in a proper ID parade conducted soon after the incident and recognized him again the Court. Therefore I accept the complainant's evidence with regard to the identity of the 2nd accused in this case.

[39] According to PW2 the 2nd accused did not want to stop the taxi near her home next morning and was driving fast and she even had to jump off the road to avoid an accident. I believe this behavior of the 2nd accused also supports the victim's evidence.

[40] Even though the 2nd accused denied this offence and called a witness to support his version I am prepared to accept the victim's version regarding the 2nd accused.

[41] Based on the above mentioned reasons I find that there is reasonable doubt raised in this Court regarding the 1st accused about this offence and this doubt will be given to him. Therefore I find that the 1st accused is not guilty for this offence and acquit him from this charge.

[42] I also decide that the prosecution has managed to prove beyond reasonable doubt that the 2nd accused committed this offence. Therefore I find the 2nd accused guilty for this offence and convict him accordingly.

[43] 28 days to appeal.

06th June 2014

H.S.P.Somaratne
Resident Magistrate