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State v Koro [2012] FJHC 1393; HAC82.2011 (11 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 082 OF 2011

BETWEEN:

STATE

AND:

JOPE KORO

Counsel : Mr. Babitu for the State
Accused in Person

Date of Ruling : 11th October, 2012

RULING ON NO CASE TO ANSWER

1. The Accused above named is charged with one count of indecent assault and two counts of rape.
   
2. After the case for the Prosecution is closed the defence Counsel made an application for no case to answer. Both Counsels made their written submissions in support of their argument.
   

Evidence

3. The Prosecutor lead the evidence of the virtual Complainant, Medical Practitioner and two other witnesses.
   
4. The 1st witness called was the Complainant Kelera Radinibau Ligava. Presently she is about 18 years and married. She told Court that the Accused is her "Small Father" (mother's younger sister's husband). In the 1st term of 2005 when she was at the house of the Accused, one night someone had touched her body. When she woke up that person had told "Kua ni tukuna vei dua" meaning not to tell anybody. Then she recognized that is the voice of her small father the Accused.
   

At the cross examination this witness admitted that the Accused has a brother living in that village has similar voice.

Regarding the charge the Prosecution relying on voice identification. It is strange that the Prosecution did not proceed to take steps to prove the claim of voice identification. Other then asking the Complainant whether she is sure of the voice of the Accused.

5. The Complainant submitted to Court that from the 1st term of 2005 to April 2010 the Accused and she had sexual intercourse on several occasions. She had consented sometimes not. Consented on certain times but she is not sure when she gave consent and when not.
   
6. On the last incident April 2010 the Complainant had gone with the Accused in his carrier van, after dropping the passengers both had gone to a deserted house out of the village. The Complainant claims that the Accused had sex with her. She said that someone from the village had seen that and she did not shout or alerted him.
   
7. The second witness called was Dr Kelera Sakuveni. She had examined the Complainant. Other than the date of examination no other details were elicited by the State. In other words there is no evidence why and when she was examined and who requested for an examination. After the examination she had found the hymen was not intact. The Complainant had told the doctor that her uncle had sex with her. She did not know the name of the uncle.
   
8. The next witness called was Sainiana Vulawai. She said that she was asked to take part in a house meeting and she joined half way. There she had seen the Accused apologizing for the rumors spread in the village. She said the Accused did not admit anything in the meeting. She also submitted to Court that the Complainant was living with them in 2005.
   
9. The last witness called was Viliame Rawairua. He said in April 2010 he called for a family meeting. At the meeting Teresia, mother of the Complainant, Likuwalu Tinai wife of the Accused, Kelera the Complainant and the Accused were present. He told Court that they discussed about the Accused and the Complainant seen in a vacant house. This witness said that the Accused and Kelera confirmed of being there in a vacant house. Apart from that he said he does not know what happened there.
   

Law

10 Section 231 (1) of the Criminal Procedure Decree states as follows:

231. — (1) "When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence."

11. As per the above section if the Court finds there is no evidence then the Court shall find him not guilty. In State v Semisi Wainiqolo HAC 015 of 2004S Justice Gates (as then) said:
    

"In order that section 293 of the Criminal Procedure Code be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence" in the sense no evidence that it was the Accused who has committed the offences."

12. In Sisa Kalisoqo v State Criminal Appeal No. 52 of 1984, the test was articulated as follows:
    

"The test to be applied under section 293 of the Criminal Procedure Code is whether there is evidence in respect of each ingredient of the offence. If there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence, then there is a prima facie case."

13. In Moidean v Reginam [1976] 22 Fiji LR 206 at p.208B the Court of Appeal interpreted the Magistrate's task to be:
    

"to decide whether, or not a reasonable tribunal might convict, on the evidence so far laid before it – if so there would be a case to answer". (emphasis added)

The court referred to and approved the long standing English Practice Note at [1982] 1 All E.R 448 per Lord Parcker CJ similarly cited with approval by the "Court of Appeal in Rohit Ram Latchan v The State (unreported) Court of Appeal Criminal App. No. AAU0015 of 1996S; 28 November 1997.

14. Justice Gates (as then) said in State v Tieri Raitini & 2 Others (Criminal HAC 005.03S):
    

"There is no perceptible between the two tests; that is between whether the court considers there is "no evidence", the High Court test (section 298) and that for the Magistrates Court "a case is not made out .... sufficiently ...." [section 210 CPC]. When considering whether the evidence on identity of the accused is proximate or sufficient, insufficiently of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient: Mosese Tuisawau (supra at p.6)."

15. Section 237 (2) of the Criminal Procedure Decree states as follows:
    

"The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors."

16. Considering the legal system of Republic of Fiji, the assessors are to assist the trial judge. It is the judge who is hearing the case makes the final determination and delivers his judgment.
    
17. Considering the law, expenditures of the court and all other factors, this court is of the view that the judge should be satisfied that there is a prima facie case proven against accused person.
    
18. Considering the proving of prima facie case, the court expects the Prosecution to prove the charge against the accused person. Proving the charge means that all elements of the offence should be proved. If the defence opted to not offer any defence the court should be able to convict the accused. Considering the decided authorities in similar jurisdiction, this court finds that should be the test for the defence to be called.
    
19. Considering the law, decided cases and the facts I uphold the application of the Counsel for the Accused and rule that the Accused has no case to answer.
    
20. For the reasons stated above I find that Accused Jope Koro has no case to answer hence I acquit him to the charges of indecent assault and two counts of rape.
    

S. Thurairaja
Judge

At Lautoka
11th October 2012

Solicitors: The Office of the Director of Public Prosecution for State
Accused appeared in Person