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State v Molilevu [2019] FJHC 916; HAC91.2016 (25 September 2019)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 91 OF 2016

STATE

V

SAMISONI MOLILEVU

Counsel : Ms. S. Naibe for State
Accused in person.

Date of Hearing : 25^th of September. 2019
Date of Ruling : 25^th of September, 2019

RULING ON NO CASE TO ANSWER

1. The accused is being charged with three counts of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act, three counts of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act, two counts of Assault Occasioning Actual Bodily Harm, contrary to Section 275 of the Crimes Act, one count of Indecently Annoying a Person, contrary to Section 213 (1) (b) of the Crimes Act and one count of Criminal Intimidation, contrary to Section 375 (1) (b) (i) (iv) and 2 (i) of the Crimes Act. The particulars of the offences are that;
   

Count 1

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009

SAMISONI MOLILEVU on the 17^th day of April, 2016 at Nadi in the Western Division penetrated the vagina of VASEMACA MAUTA with his penis without her consent.

Count 2

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009

SAMISONI MOLILEVU on the 17^th day of April, 2016 at Nadi in the Western Division penetrated the vagina of VASEMACA MAUTA with his fingers without her consent.

Count 3

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act 2009

SAMISONI MOLILEVU on the 17^th day of April, 2016 at Nadi in the Western Division assaulted VASEMACA MAUTA thereby occasioning her actual bodily harm.

Count 4

Statement of Offence

INDECENTLY ANNOYING A PERSON: Contrary to section 207 (1) and (2) of the Crimes Act 2009

SAMISONI MOLILEVU on the 17^th day of April, 2016 at Nadi in the Western Division with intent to annoy VASEMACA MAUTA did spit on her face and urinated on the said VASEMACA MAUTA intending that such action will offend her modesty.

Count 5
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009

SAMISONI MOLILEVU on the 18^th day of April, 2016 at Nadi in the Western Division penetrated the vagina of VASEMACA MAUTA with his penis without her consent.

Count 6

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act 2009

SAMISONI MOLILEVU on the 18^th day of April, 2016 at Nadi in the Western Division assaulted VASEMACA MAUTA thereby occasioning her actual bodily harm.

Count 7

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009

SAMISONI MOLILEVU on the 19^th day of April, 2016 at Nadi in the Western Division penetrated the vagina of VASEMACA MAUTA with his penis without her consent.

Count 8

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009

SAMISONI MOLILEVU on the 19^th day of April, 2016 at Nadi in the Western Division penetrated the vagina of VASEMACA MAUTA with his fingers without her consent.

Count 9

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act 2009

SAMISONI MOLILEVU on the 19^th day of April, 2016 at Nadi in the Western Division assaulted VASEMACA MAUTA thereby occasioning her actual bodily harm.

Count 10

Statement of Offence

CRIMINAL INTIMIDATION: Contrary to section 375 (1) (b) (i), (iv) and (2) (i) of the Crimes Act 2009

SAMISONI MOLILEVU on the 19^th day of April, 2016 at Nadi in the Western Division without lawful excuse threatened to kill VASEMACA MAUTA with intent to cause alarm to the said VASEMACA MAUTA.

2. The hearing commenced on the 25th of September 2019. The prosecution presented the evidence of the complainant and closed the case of the prosecution. Having heard the evidence presented by the prosecution, I now proceed to pronounce my ruling pursuant to Section 231 (1) of the Criminal Procedure Act.

The Law on No Case to Answer

3. Section 231 (1) of the Criminal Procedure Act 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 (or any one of several accused) committed the offence.

4. Accordingly, the trial judge is required to find the accused not guilty at the conclusion of the case of the prosecution, if the court considers that there is no evidence to establish that the accused person committed the offence.
5. The Fiji Court of Appeal in Talala v State [2019] FJCA 50; AAU155.2015 (7 March 2019) held that the test under Section 231 (1) of the Criminal Procedure Act is to determine whether there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the charge. It is not a duty of the court to take into consideration the credibility, reliability and the weight of the evidence at that state. The Fiji Court of Appeal in Talala v State (supra) held that;

“It is well settled that, the test at this stage of the trial is whether there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the charge and not an assessment of the weight and credibility of such evidence, unless the evidence is inherently vague or improbable”

6. The High Court of Fiji in State v Nikolic [2019] FJHC 91; HAC115.2018 (18 February 2019) held that;

“The test for a no case to answer; application in the High Court is settled. The test is whether there is some incriminating evidence, direct or circumsal, on all the essential ingredients of the charged offence or offences (Sisa Kalisoqo v R v R Criminal Appeal No. 52 of, State v Mose Mosese Tuisawau Cr. App. 14/90, State v Woo Chin Chae [2000] HAC 023/>/99S).