IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 327 OF 2015S

STATE

vs

JONE RABUNO COKANAUTO

Counsels		:	Mr. M. Vosawale and Ms. L. Bogitini for State
				Mr. S. Valenitabua for Accused
Hearing		:	13, 14, 15, 16 and 19 June, 2017
Ruling			:	20 June, 2017

RULING ON NO CASE TO ANSWER SUBMISSION

1.	On 13 June, 2017, in the presence of his counsel, the following counts in the following information, was put to the accused:

COUNT ONE
Statement of Offence

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

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of February 2005 to the 28th day of February 2005, at Taveuni in the Northern Division, had unlawful carnal knowledge of U.D without her consent.

COUNT TWO
Statement of Offence

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

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of August 2005 to the 31st day of November 2005, at Nadera Nasinu in the Central Division had unlawful carnal knowledge of U. D without her consent.

COUNT THREE
Statement of Offence

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

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of July 2006 to the 31st day of December 2006, at Taveuni in the Northern Division had unlawful carnal knowledge of U. D without her consent.

COUNT FOUR
Statement of Offence

INDECENT ASSAULT:  Contrary to Section 154(1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of January 2006 to the 31st day of July 2006, at Nadera, Nasinu in the Central Division unlawfully and indecently assaulted F. N.

COUNT FIVE
Statement of Offence 

RAPE:  Contrary to Section 207 (1) and (2) (b) of the Crimes Act No. 44 of 2009.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of July 2012 to the 31st day of July 2012, at Welagi Taveuni in the Northern Division penetrated the vagina of F. N with his finger without her consent.

COUNT SIX
Statement of Offence

INDECENT ASSAULT:  Contrary to Section 154(1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of November 2005 to the 31st day of December 2005, at Nasinu in the Central Division unlawfully and indecently assaulted R. V.

COUNT SEVEN
Statement of Offence

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

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of November 2005 to the 31st day of December 2005, at Nasinu in the Central Division had unlawful carnal knowledge of R. V without her consent.

COUNT EIGHT
Statement of Offence

ATTEMPTED RAPE:  Contrary to Section 151 of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of February 2006 to the 28th of February 2006, at Nadera Nasinu in the Central Division, attempted to have unlawful carnal knowledge of K. L. V without her consent.

COUNT NINE
Statement of Offence

INDECENT ASSAULT:  Contrary to Section 154 (1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of February 2006 to the 28th of February 2006, at Nadera Nasinu in the Central Division, unlawfully and indecently assaulted K. L. V by kissing her lips.

COUNT TEN
Statement of Offence

INDECENT ASSAULT:  Contrary to Section 154 (1) of the Penal Code Cap. 17.

Particulars of Offence

JONE RABUNO COKANAUTO between the 1st day of February 2006 to the 28th of February 2006, at Nadera Nasinu in the Central Division, unlawfully and indecently assaulted K. L. V by penetrating her vagina with his finger

2.	He pleaded not guilty to all the counts in the information.  In other words, he denied the allegations against him.  The prosecution then called a total of six witnesses, that is, the four complainants themselves (ie. PW1, PW2, PW3 and PW4), Doctor Donal McAlraith (PW5) and Pastor Manasa Tusulu (PW6).  The prosecution then closed their case.

3.	The parties were then invited by the court to consider the issue of whether or not there was a prima facie case against the accused requiring him to be called upon to make a defence.  The assessors were excused from the courtroom.

4.	The defence made a verbal submission that there was no case to answer by the accused and the court thus had to stop the case and acquit the accused accordingly.  They advanced principally three grounds.  First, they submitted that with the repeal of the Penal Code by Section 391 (1) of the Crimes Act 2009, counts no. 1, 2, 3, 4, 6, 7, 8, 9 and 10 are invalid, as they are offences under the Penal Code.  They appear to say that only count 5 is valid, as it was charged under the Crimes Act 2009.  They reasoned that the Penal Code only survived under the conditions specified in Section 391 (2) of the Crimes Act 2009.

5.	They argued that by virtue of Section 392 (1) of the Crimes Act 2009, only criminal proceedings under the Penal Code which commenced or conducted prior to the commencement of the Act on 1 February 2010 survived.  It would appear that they are of the view that, because of the above, all proceedings after 1 February 2010 were invalid.  They argued as a result, the proceedings in this case based on the Penal Code, are all invalid, and thus the accused had no case to answer.

6.	The second ground the defence advanced was that all the complainants appeared to say in their evidence that they consented to the accused performing various sexual actions against them.  They appear to say that these were because they wanted to be redeemed and/or cleansed spiritually in accordance with the biblical teachings of the woman of Samaria in Saint John, chapter 4, verse 1 to 42.  The defence argued because they consented to the alleged sexual acts by the accused to them, there was no offence committed.  Consequently, they argued, there was no case to answer against the accused, and he ought to be acquitted accordingly, on all counts.

7.	Thirdly, the defence argued that, there was no false representation by the accused to the four complainants.  The defence appeared to accept that the accused did preach to the four complainants about the woman of Samaria as mentioned above.  The defence accepted in the “Agreed Facts” that the accused was a church Minister by profession, Leader of the Jezreel Lion of Judah Ministry and did spiritual teaching to the four complainants based on the bible.  The defence argued that any misinterpretation of the teaching from the bible were those of the four complainants, not of the accused.  As such, the accused had made no false misrepresentation to the complainants, and thus their was no case to answer against him.  The defence asked that he be acquitted.

8.	In reply, the prosecution replied as follows to the defence’s submission.  They said, the accused had a case to answer and he should be called upon to make his defence.  On the defence’s first ground, the prosecution argued that Section 391 (1) of the Crimes Act 2009, which abolished the Penal Code, must be read in its context, that is, taking into account Sections 392 (1) and (2) and 393 of the Crimes Act 2009.  They said, Section 391 (1),which repealed the Penal Code, applied subject to Sections 392 and 393 of the Crimes Act 2009.  They said, the accused’s interpretation of Section 392 (1) was a limited and narrower interpretation of Section 392, because it failed to take into account Section 392(2), which preserved the penalties under the Penal Code for offences committed prior to 1 February 2010.  So when Section 392 (1) and (2) are read together, they did preserve the Penal Code for offences committed prior to 1 February 2010, and for this case, the counts based on the Penal Code, are still valid.  Section 393 of the Crimes Act 2009 said so.  The State therefore argued the defence’s arguments are invalid.

9.	As to the second ground advanced by the defence, the prosecution said, the alleged consent by the four complainants, were really no consent in law, as they were induced by the accused making a false representation to them on the nature of the alleged sexual acts.  According to the prosecution, the accused in his alleged sermons to the four complainants on the “woman of Samaria” in the bible (Saint John, chapter 4, verse 1 to 42), misrepresented to them the message in the bible, and thus misrepresented to them the nature of the alleged sexual acts.  Given the above, the prosecution said, the four complainants did not give real consent in law, and thus there was a prima facie case against the accused on all counts.

10.	On the third ground advanced by the defence, the prosecution repeated their arguments mentioned above.

11.	The resolution to the defence’s first ground on their submission that there is no case to answer, lies in reading section 391, 392 and 393 of the Crimes Act 2009 contextually:

Chapter 4 – REPEAL, SAVINGS AND TRANSITIONAL PROVISIONS

[CR 391]  Repeal of the Penal Code
391	(1)	The Penal Code is repealed.
(2)	This section shall apply subject to sections 392 and 393.

[CR 392]  Savings provisions
392	(1)	Nothing in this Act affect the validity of any court proceedings for an offence under the Penal Code which has been commenced or conducted prior to the commencement of the Act.
	(2)	When imposing sentences for any offence under the Penal Code which was committed prior to the commencement of this Act, the court shall apply the penalties prescribed for that offence by the Penal Code.

[CR 393]  Transitional provisions
393			For all purposes associated with the application of section 392, the Penal Code shall still apply to any offence committed against the Penal Code prior to the commencement of this Act, and for the purposes of the proceedings relating to such offences the Penal Code shall be deemed to be still in force.

12.	It is true that section 391 (1) of the Crimes Act 2009 had repealed the Penal Code.  The Penal Code, as of now, is no longer the law in Fiji.  However, section 391 (2) of the Crimes Act 2009, said, Section 391 (1), must be read subject to Section 392 and 393 of the Crimes Act 2009.  In other words Section 392 and 393 prevail over section 391 (1), which repealed the Penal Code.  We must first consider Section 392.  Section 392 has two subsections.  Section 392 (1) said, nothing in the Crimes Act 2009 affects the validity of any court proceedings for an offence under the Penal Code commenced prior to 1 February 2010, the commencement date of the Crimes Act 2009.  So the Penal Code applied to offences under the Penal Code in Criminal proceedings prior to 1 February 2010.

13.	What of criminal proceedings commenced after 1 February 2010 under the Penal Code, like in this case?  The answer to this question lies in the interpretation of Section 392(2) and 393 of the Crimes Act 2009.  In Section 392(2), it said offences under the Penal Code must be punished in accordance with the penalties in the Penal Code.  Section 393 said the Penal Code shall apply to all offence under the Penal Code, and that included this case.  When you read Section 392 (2) and 393 of the Crimes Act 2009 together it does not say that all proceedings for offences under the Penal Code, commenced after 1 February 2010, are now invalid.  In fact, it says exactly the opposite, that all such proceedings are valid.  I therefore reject the defence’s first ground of submission that there is a no case to answer against the accused.

14.	On the defence’s second and third ground, the law, at this stage of the proceeding, is contained in section 231 of the Criminal Procedure Act 2009, which reads as follows:

“…[read from Section 231(1) and (2) of the Criminal Procedure Act 2009]…”

15.	Previous case laws had established, if there is direct or circumstantial evidence touching on all elements of the offences, the weight and value of such evidence are not for the judge but the assessors to consider, there is a case to answer.  I have carefully considered all the evidence by the six prosecution’s witnesses.  In my view, bearing in mind the above authorities, there is a case to answer on all counts, and the accused is called upon to make his defence.  The previous options explained to the accused above is reput to him.

							Salesi Temo
							JUDGE

Solicitor for State	:	Office of the Director of Public Prosecution, Suva.
Solicitor for Accused	:	S. Valenitabua, Barrister and Solicitor, Suva.