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Nataqiri v State [2015] FJHC 813; HAC125.2012 (22 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 125 OF 2012

BETWEEN:

ASERI NATAQIRI

AND:

STATE

Counsel : Mr. Nath for the Applicant,
Mrs. Ratu for Respondent,

Date of Hearing : 20th and 21st of October 2015
Date of Ruling : 22nd of October2015

NO CASE TO ANSWER

1. At the conclusion of the prosecution case, the learned counsel for the accused made an application pursuant to section 231 (1) of the Criminal Procedure Code that there is no case for the accused person to answer as there is no evidence presented by the prosecution that the accused person committed this offence as charged in the information.
   
2. The accused person is charged with one count of rape contrary to section 207 (1)and (2) (a) of the Crimes Decree, 2009. The particulars of the offence are that;
   

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

Aseri Nataqiri, on the 17th of September 2012, at Sigatoka in the Western Division, had unlawful carnal knowledge with a woman namely A without her consent".

3. The Prosecution called four witnesses including the victim of this alleged incident. The victim in her evidence stated that she felt that someone came from her behind and inserted his penis into her vagina, while she was performing oral sex on her boy friend on the beach. She was crouching across him while her boy friend was lying on the back. She then turned back and saw a person who was dressed in white t-shirt. She observed that t-shirt has a logo of "fiji" and had no proper sleeves. The victim in her evidence then explained the facial features of the person. She stated that she saw the person's face for about 15-20 second in the night. The wife of the accused person, who gave evidence as the third witness of the prosecution stated in her evidence that the accused left home in that night and came back at 2.08 a.m in the morning of 17th of September 2012. He was dressed in a white t-shirt which had grey and black lines. The fourth witness of the prosecution is Mr. Suliasi Raviko. He stated in his evidence that he observed that the person who was running away from him and the victim was dressed in a white t-shirt. The accused has admitted that he was at the bonfire on a beach near the Hideaway Resort.
   

4. Section 231 (1) of the Criminal Procedure Degree states that:

"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 committed the offence".

5. The test to determine whether there is evidence that the accused person committed the offence pursuant to section 231 (1) of the Criminal Procedure Decree is settled and precise. The correct approach is to examine whether there is some relevant and admissible evidence on each elements of the charged offence and not whether the evidence is fundamentally imprecise or inconceivable. (State v George Shiu Raj and Shashi Shalndra Pal ( 2006) AAU008/05, State v Brijan Singh ( 2007) AAU0005, State v Rasaqio (2010) FJHC 284; HAC 155.2007 (5 August 2010).
   
6. In view of the evidence presented by the prosecution, it is my opinion that there is evidence that a person came from behind the victim and inserted his penis into her vagina. That person was wearing a white colour t-shirt. The accused had admitted that he was at the bonfire on the beach in that night and his wife testified in her evidence that the accused was dressed in a white t-shirt in that night.
   

7. In my conclusion, I hold that there is evidence that the accused person committed the offence of rape as charged in the information. I accordingly refuse and dismiss the application made by the learned counsel for the accused person pursuant to Section 231(1) of the Criminal Procedure Decree.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
22nd of October 2015

Solicitors: Office of the Director of Public Prosecutions for Respondent,
Legal Aid Commission,