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Tuicolo v State - Ruling No Case to Answer [2013] FJHC 157; HAC050.2012 (28 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 050/2012

BETWEEN:

THE STATE

AND:

APOROSA TUICOLO

COUNSEL: Ms A Vavadakua for the State
Mr J Savou the Accused

Date of Hearing: 27/03/2013
Date of Ruling: 28/03/2013

RULING

Name of the victim is suppressed. She will be referred to as AL.

01. The prosecution closed their case on 27/03/2013. At this stage the defence counsel pursuant to section 231(1) of Criminal Procedure Decree 2009 invited the court to consider whether accused has a case to answer as the medical report of the victim was not produced to support that there was penetration, being under the element of Carnal Knowledge. The accused is charged by an amended information as follows:

FIRST COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and (2) (a) of the Crimes Decree No.44 of 2009.

Particulars of Offence

APOROSA TUICOLO on the 26th day of July 2011, at Nataveya Village, Naitasiri in the Central Division, had carnal knowledge of AL without her consent.

02. The elements of offence are:-

1. The accused had carnal knowledge of the complainant.
2. Without the complainant's consent.
3. He knew or believed that she was not consenting or didn't care if she was not consenting.
   

03. The prosecution relies on direct, circumstantial and documentary evidence to prove the charge. Further they tendered the caution interview statement of the accused as evidence.

04. The test at this stage of trial is whether there is some evidence on each elements of the offence. The evidence must be relevant and admissible. In Kalisoqo v R Criminal Appeal No: 52 of 1984, the Court of Appeal took the view that if there is some direct or circumstantial evidence on the charged offence, the a..... judge cannot say there is no evidence on the proper construction of section 293(1)(Under Old Law). This view was later confirmed by the Court of Appeal in State v Moses Tuisawau Cr. App. 14/90.

05. In State v Woo Chin Chae [2000] HAC 023/99S Madam Shameem J summarized test under section 293(1):

"In order to come to the conclusion that there was evidence direct or circumstantial, and irrespective of its weight, credibility or its tenuous nature it must be shown that the evidence in question is relevant, admissible and is in totality inculpatory of the accused. That means that the evidence in its totality must at least touch on all the essential ingredients of the offence"

06. In State v George Shiu Raj & Shashi Shalendra Pal [2006] AAU0081/05 Court of Appeal recently confirmed that the correct approach under 293(1) is to ask whether there is some relevant and admissible evidence on each element of the charged offence, and not whether the evidence is inherently vague or incredible.

07. The prosecution led evidence that the accused penetrated AL's anus with his penis on 26th day July 2011. After the incident she had told this other witnesses. As the matter came to light it was reported to police for necessary action. The victim is illiterate and never gone to school. Even she can't tell her age. But she vividly described the incident which happened to her on 26th day July, 2011.

08. The State submits that on the issue of corroboration no longer required as per section 129 of the Criminal Procedure Decree 2009.

09. Without going in detail the evidence led by prosecution in support of the charge, I am satisfied that there is some evidence of involvement of the accused in committing the offence. This matter, of course, a matter for the assessors to consider with all the evidence.

10. I find the accused has a case to answer and he is therefore put to his defence.

P Kumararatnam
JUDGE

At Suva
28/03/2013