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Tuqovu v State [2010] FJHC 368; HAA015.2009 (31 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA 015 OF 2009

BETWEEN:

ATONIO TUQOVU
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. Sovau - for the State
Mr. Lee - for the Accused

Date of Hearing: 10.08.10, 13.08.10, 24.08.10
Date of Judgment: 31.08.2010

JUDGMENT

1. The appellant was charged in the Magistrates Court on following counts.

FIRST COUNT

Statement of Offence (a)

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

Particulars of the Offence

ATONIO TUQOVU, between the 1st and the 31st day of March 2005 at Labasa in the Northern Division, had unlawful carnal knowledge of VERENAISI NOMA, without her consent.

SECOND COUNT

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

Particulars of the Offence

ATONIO TUQOVU, on the 7th day of April 2006 at Labasa in the Northern Division, had unlawful carnal knowledge of VERENAISI NOMA, without her consent.

2. The appellant was convicted on both counts by the Learned Magistrate and sentenced 10 years imprisonment on each count and ordered the sentence to be served concurrently.

3. The appellant preferred an appeal on following grounds.

1. THAT the investigation by the police was flawed in procedure and prejudicial to the Appellant.
   

ii) THAT the evidence presented in court was deficient and not sufficient for the trial court to safely convict.

3. THAT the trial court had convicted on mere assumption of the fact and supposed emotional feelings of the victim.
   

iv) THAT the trial court had failed to consider the strict disciplinary actions on the victim which was an equally important reason for fabrication by the victim of the allegation of rape.

5. THAT there had been procedural errors of law and fact in the findings of the trial court which resulted in a miscarriage of justice to the Appellant.
   
6. THAT the sentence is too harsh and excessive.
   

4. The Counsel for the appellant submitted that the 1st Count should fail in its merit because the victim says that they crossed the river in a boat which was owned by the accused. As per the prosecution the date of offence was between 1st to the 31st March 2005.

5. It is proved by the appellant that the date of purchasing of his own boat was in end of April 2005.

6. Considering the facts of the case, I agree with the appellant that the date is wrong. I am not coming to a conclusion that the incident never happened but it was not happened during the period spelled out by the prosecution.

7. The prosecution never moved for an amendment under Section 214 of the Criminal Procedure Code.

8. Considering the evidence led in the trial, I do not find that there is evidence to the effect that the incident set out in the 1st Count would have happened, since it had not happened the Accused Appellant had no case to answer. The Prosecution cannot have a uncertain date in the charge sheet.

9. Considering the above factors, I agree with the appellant that the conviction was not evidentially supported therefore I acquit the accused appellant from the 1st count.

10. Now I consider the 2nd Count and the grounds of appeal.

11. Considering the evidence led by the Prosecution, I find that the prosecution had not proved the case beyond reasonable doubt. Mostly the Prosecution was relying on the evidence led by the defence at the trial.

12. It is the golden rule that the accused is presumed to be innocent until he is proven guilty. In simple meaning, the prosecution has to prove the case against the accused. There is no burden on the accused to prove that he is innocent at any stage of the trial.

13. In this case the prosecution has not clearly proved that the accused appellant committed this offence with in the period set out in the charge sheet. I am not for a moment to say that these incidents never happened, but considering all available evidence, I do not find the prosecution provided sufficient evidence to prove the alleged offence against the accused appellant.

14. Considering all above factors especially that there is no proper investigation conducted to the complaint, which resulted a vacum in the prosecution case. I find unsafe to uphold the conviction against the accused appellant, therefore I acquit the accused appellant from the second count also.

15. Appeal allowed. Accused appellant acquitted.

S. Thurairaja
JUDGE

At Labasa
31 August 2010