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State v Rokolaba - Judgment [2012] FJHC 1197; HA057.2011 (4 July 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 57 OF 2011

BETWEEN:

STATE

AND:

LEPANI ROKOLABA

Counsels: : Mr. S. Babitu for the State
Mr. T. Lee for the Accused

Date of Trial : 25th June – 3rd July 2012

Date of Summing Up : 3rd July 2012

Date of Judgment : 4th July 2012

JUDGMENT

1. The Trial commenced on 25th June and concluded on 3rd July 2012. For the 1st Count majority of the assessors found not guilty to the charge of Rape and found guilty to the charge of Indecent Assault. For the 2nd Count majority of the assessors found the Accused guilty to the charge of Rape. Regarding the 3rd Count all three assessors unanimously found guilty to the charge of Rape.

2. I adjourned overnight to consider my judgment.

3. Section 203 (1) of the Criminal Procedure Decree makes provision for the assessors.

"Trials before the High Court shall be by a judge sitting with assessors as provided in this part."

4. Section 237 states as follows:

"(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) Notwithstanding the provisions of section 142 (1) and subject to sub-section (2) where the judge's summing up of the evidence under the provisions of subsection (1) is on record, it shall not be necessary for any judgment (other than the decision of the court which shall not be necessary for any judgment (other than the decision of the court which shall be written down) to be given, or for any such judgment (if given) –

(a) To be written down; or

(b) To follow any of the procedure laid down in section 141; or

(c) To contain or include any of the matters prescribed by section 142.

(3) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) Written down; and
(b) Pronounced in open court"

As per the above section the trial judge should make the final decision. In other words ultimate responsibilities all lie with the trial judge to decide after evaluating all the evidence before Court.

5. In Joseph v The King (Privy Council) [1948] Appeal Case 215:

"The learned Chief Justice does not appear to have brought his own mind to bear on the question of the guilt or innocence of the accused. He left the appreciation of evidence to the assessors, and accepted their conclusion as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion. The appellant was entitled to be tried by the judge and he has not been so tried and, in the circumstances, the only course open to the Board was to advise His Majesty to allow the appeal and quash the conviction and sentence."

6. In Ram Dulare, Chandar Bhan and Permal Naidu v Reginam [1955] 5 FLR 1, the Court of Appeal held:

"It is clear that the legislature has given a trial judge the widest powers to accept or reject the opinions of sitting with him. These powers are discretionary. From the terms of the judgment, the learned trial judge made it quite clear why he came to his decision in this case and why it was that he unable to accept the opinion of the assessors.

In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a jury in a trial. In the case of the King v. Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial judge. The responsibility of arriving at a decision and of giving judgment in a trial by the Supreme Court sitting with assessors is that of the trial judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors."

(emphasis added)

7. In Sakiusa Rokonabete v The State Criminal Appeal No AAU0048/05, the Court of Appeal observed:

"In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions bases on their views of the facts."

8. In Setevano v. The State [1999] FJA 3 at 5, the Court of Appeal stressed that the reasons of the presiding trial judge:

"must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."

9. I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.

10. The Director of Public Prosecution had prefaced 3 counts of charges under section 207 (1) (2) (a) of the Crimes Decree against the Accused Lepani Rokolaba.

11. The Accused was ably represented by Counsel from Legal Aid Commission. Initially there was voire-dire inquiry to the admissibility of the statement of the Accused made at the caution interview. After the inquiry the Court ruled that the statement was made voluntarily and it can be lead in evidence.

12. Elements of the offence of Rape are extensively discussed in the Summing Up to the assessors.

13. In this case except the element of consent all elements were accepted by the Accused Person. The only moot point was whether the virtual complainant gave consent to the Accused to have sexual intercourse or not.

14. The Accused admitted by giving evidence under oath that he had sexual intercourse with his niece (elder brother's daughter). But he claims that those were with the consent of the virtual complainant.

15. In this case there is no eye witness to the incident. The complainant on her own complained to her grandmother, who is the mother of the Accused. The grandmother who was living with the Accused did not bring to the notice of any authorities such as Police. When the complainant went to her home at Nasole, Suva complained to her sister in law, she in turn told to her husband who is the elder brother of the complainant. Finally it was brought to the attention of the father. He lodged the complaint with the Police.

16. Considering all, I find that the Prosecutor had proved the case for the prosecution beyond reasonable doubt. Hence I accept the minority decision of the Assessors on the 1st Count, majority decision on the 2nd Count and the unanimous decision on the 3rd Count.

17. I find the Accused guilty to all three charges of Rape and convict him under section 207 (1) of the Crimes Decree 44 of 2009.

S. Thurairaja
Judge

At Lautoka
4th July 2012

Solicitors : Office of the Director of the Public Prosecution for the State

Legal Aid Commission for the Accused