IN THE FIRST CLASS MAGISTRATE'S COURT
WESTERN DIVISION AT NADI

Criminal case No. 511 of 2009

STATE

V

MOHAMMED FAIYAS KHAN

Ms. Latia Vateitei for state
Mr. H Shah for accused
Date of Ruling: 26.08.2011 

RULING
[On no case to answer]

The Application

[1] This is an application by the defence counsel under Section 178 of the Crimes Procedure Decree of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficient enough to put the Accused to his defence and as a result the Accused should be acquitted.

State's Response 
[2] It was submitted on behalf of the state that:

a.	That in light of evidence adduced by the prosecution the State has proven its case beyond reasonable doubt;

b.	That in this case some and not no evidence has been adduced by the State to satisfy each element of the offence and in the light of this that the accused be put to his defence.

The Governing Section 

[3]	(i) The provisions for a no case to answer submissions in the Magistrates Court is found in section 178 of the Criminal Procedure Decree which reads:

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused".

(ii) Repealed Penal Code also had similar provision under section 210. Both sections are verbatim except for the word "forthwith". The word "forthwith" is left out from section 178 of the Criminal Procedure Decree 2009. Therefore case decided under section 210 of Criminal Procedure Code may be applied to the present situation.

The Charge

[4] The accused was charged as follows:

First Count

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to section 256 of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED FAIYAS KHAN, on the 17th day of April, 2009, at Nadi in the Western Division, knowingly and wrongfully confined Catherine Jane Hay.

Second Count

Statement of Offence

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

Particulars of Offence

MOHAMMED FAIYAS KHAN, on the 17th day of April, 2009, at Nadi in the Western Division, had unlawful carnal knowledge of a girl namely Catherine Jane Hay, without her consent.

THE CHARGING SECTION

[5] Sections 253 and 256 of the Penal Code state:-

"253. Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, is guilty of a felony, and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement."

256. Whoever wrongfully confines any person is guilty of a misdemeanour, and is liable to imprisonment for one year or to a fine of four hundred dollars".
 
[6] Section 150 of the Penal Code enacts:-

" 150. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape."

[7] The prosecution must prove the following elements of the charges: 
For the charge of wrongful confinement the elements that the State must prove are:

 Accused
 Wrongfully and unlawfully confined a person
 Against his/her will

For the offence of "rape" the elements that must be proved are:

 The accused
 Had unlawful carnal knowledge
 Of the complainant
 Without her consent.

THE LAW 

[8] The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecutions case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla or evidence can never be enough nor can any amount of worthless discredited evidence."

[9] In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.

[10] Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:

a.	When there is no evidence to prove an essential element in the alleged offence;

b.	When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;

c.	The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it. 

[11] In HAW TUA v PUBLIC PROSECUTOR (1981) AC 136, the Privy Council in dealing with an appeal form the court of Criminal Appeal from Singapore inter alia made the following remarks:-

"The Proper attitude of mind that the decider of fact ought to adopt towards the prosecutions' evidence at the conclusion of the prosecution's case is most easily identified by considering a criminal trial before a judge and jury, such as occurs in England and occurred in Singapore until its final abolition in capital cased in 1969. Here the decision-making function is divided; questions of law are for the judge, question of facts are for the jury. It well established that in a jury trial at the conclusion of the prosecution case it is the judge's function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove anyone or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict, but if there is some evidence, the judge must let the case go on."

The evidence

[12] The prosecution called three witnesses, namely (i) Catherine Jane Hay, the complainant (ii) PC 3078 Vishal Sharan, the Charging Officer and (iii) Cpl 1924 Amol Prasad, the Interviewing Officer.

[13] The application for no case to answer would be determined on the evidence so far laid before this court. I would therefore state what each witness has testified.

[14] The first witness was Catherine Jane Hay, the complainant in this case. She testified in examination in chief as follows:-

"…This is not my 1st time in Fiji. About 10 times I've been in Fiji. I made visit in 2009 – (2008-2009). In 2009 April – I've come for study. I arrived April 8. Visit Anthony my friend. He's friend from 2009. I was raped on Friday 17 April 2009. In the morning I was shopping with my friend – Fatty. This not his real name. At one time I did not know his other name. On that day I knew his name was that. On that morning it was not 1st time. I've met him in 2008. I was introduced by Bashi my friend. I've met him August-September2009. Before 17, I met him about 6 times. I came to petrol stand, I was in the car – I was driving. 

Someone contact over the phone. They were following me - catch up a cab we then drove to Fiji Town. The driver was turning around, stopped in 5 mts time – 2 glasses of beer. They took photos. Naibaro came over. 50 years old was speaking in a rudely manner and waited for conversations. During this time I consumed marijuana – Couple of dose of marijuana. I also had a bang on my 20 bottles of beer.

When the neighbour left – he showed me where the house was. He left drove down to the breach. It's not a nice tourist beach. Quiet hard to get to the beach. It's a dirty shallow beach. We sat down there at 11:30am. We returned to the house at about 1:30pm. In his car (Fatty's car) Light Blue Hyundai Sanata. In the car Fatty and myself.

It started to rain very heavily; I was outside under a partitioner. Later on I went inside his house. My head started spinning. I wanted to lay on the sofa. During the time at Fatty place, I kept asking him to take me to Nadi. He refused to take me back. He told me 'no' we not going anywhere. When I lay on the floor, Fatty pushed me to the bedroom. I asked him to please take me home. He refused once again. He went out to his car to get some cigarette. Car park is 30 seconds walk. I try to text my friend to come and get me. But phone did not work. I couldn't connect to the network – ½-2 minutes. But I didn't know my text hadn't gone through. His positioned on the door way. He blocked me in getting out. He also took me to the bed room and another bottle of beer – and then taking marijuana which I refused at that point. He sat about – talking about sex. He was sitting. He asked me what about matching movie which I refused. He asked me whether I had been seeing that multiple partners situations – I said no. I did do anything like that.

He described a sex part he had been to – said as he is a Muslim he can make his wife sit and watch. I started feeling very nervous. He was trying to get bigger out there. I jumped off my bed and grabbed my phone. He pushed me back onto the bed saying you are not fucking anyway bitch. He asked me if I wanted to get naked which I said no. I asked again please to take me home, which he refused once again. I tried to look around to see anything I could grab so could hit him over the head. He started saying sexy, that he loves me and wanted to marry me. I tried to defend I had a partner back at home. He sat beside me on the bed. (He) asked if I like his tongue - because he could lick pussy for hours. I said no. He told my tongue was very sexy. He asked me if I wanted my pussy. I said 'no'. He was moving closer to me saying he wanted to kiss me – I tried to push him away. He grabbed me started to kiss me. I was trying to push him off. Kept my head side so he wouldn't kiss me. He then pushed me back onto the bed. Still trying to kiss and fondle my breast. I was crying by this stage. Asked me crying stop (witness cries at this point). I was trying to fight him off. He had hand on my throat. I am not sure if I hit him in his genital area. He raised one arm then he wanted to punch me on the face, and he said you'll be fucking dead.

I was still screaming for him to stop. I became afraid for my life. He was just kissing over me. He pulled my shirt over my head. I still asked him to stop. He started kissing and started fondling my breast. I knew I didn't have physical strength to fight him. I was getting weak and afraid. He moved down took off my shirt and underwear, started playing with vagina. He pushed my leg apart, started licking my vagina, putting his finger inside me to penetrate my vagina. He had sex about 14 minutes. I was hysterical. I was frozen by fear by this stage, some point he moved towards my face. I don't know how I managed to push him off me. I grabbed myself from him and ran outside the toilet. I bolted the door and tried to text to friend Bunty again. I text he's trying to rape me, come and get me. I did not how the text didn't go through. He started to push the door – saying you fucking bitch not leaving here.

He was sounding really aggressive, still kicking the door. I thought the bolt going to break. I was scared how it will be happened. I unlocked the door. He grabbed me by the arm and I pushed probably pushed me inside the house. He tried lock and bolt the front door. I was hysteric by this stage. But I managed to unbolt the door.

I didn't want to have to door locked thinking my friend would come and help me. His demeanour changed slightly there. He asked if I wanted to wear one sarong of his. I said 'no' I just wanted to go home. He pushed me into the bed room. I tried grabbing my clothes. He grabbed the dress and pushed me back onto bed, saying you're not fuck anyway. He started raping me again. He was dispensed. He continued on for a long time. During which he took some photos on his mobile with his penis inside my vagina. He even asked me to smile for the camera.He carried this ¾ - 1 hour.It happened at about 2:00 – 2:30 / 2:35. He also had some on anus – at one point he asked me to hold his penis. It happed around 2:30-5:00.

I tried a couple of ways – I tried attacking and in the end agreed to go home later then night. I told him I have friend to meet so if he could drop me in Nadi. I would return later that night. He dropped me in Nadi, on the way to Nadi still tried fondling my breast. It hit and pushed his hand away. I was looking out the window crying. He said if we stopped at a police check point. You tell him I had hired him as a tour guide.

He had chat just before check point, there was a police officer – I could not talk to the police officer. The police officer talked and laughed, shake hand, something with the hand.

He dropped me at Nadi Town. I saw a taxi, he allowed me to get off. I said I'm going back later that night. I got a taxi to go straight back to my friend, Bunty Karran. He is at Wailoaloa Beach. It was around 6pm. Bunty was there, I spoke to Bunty, just after 6pm on arrival. She asked me how was my day had been. I said Fatty has just raped me. I was still crying at that point. Bunty reaction was pure shock. Bunty phoned Fatty, I could understand a lot what they were saying – In Fiji no I didn't lodge a complaint. On the Monday when I return to New Zealand, Monday 20th I returned to New Zealand on 19th – complaint on 20th.

I didn't know how the police force can be trusted. It is mainly because of the policeman's reaction that I met. I also heard corruptions in Fiji police. Fatty is in Court, witness is pointing the Accused. I was medically examined.

15.	Under cross examination the complainant stated as follows:

"A: 17/4/09
 ½ out, I spent of the day at the beach

Q: At the beach you, Fatty were together?
A: Yes.

Q: Two of you consume alcohol?
A: Yes.

Q: Two of you also had marijuana?
A: Yes.

Q: This was brought by you?
A: It was supplied by Accused.

Q: At the beach you consumed several bottles of alcohol?
A: 3 bottles, 2-3 bottles.

Q: You consumed alcohol with drugs?
A: Little bit.

Q: From the beach you went into the house?
A: Yes when it started to rain.

Q: At the house you consumed more alcohol?
A: 2 glasses of alcohol, not marijuana.

Q: You inhale equal rates of marijuana?
A: No.

Q: At the house is it correct you thoroughly soaked?
A: No I didn't get wet.

Q: You did get wet and changed your bra?
A: Positively no.

Q: In your opinion you lied on the bed?
A: I was fully clothed – I deny – I want to lie down on the floor.

Q: You didn't want to lie?
A: I positively said I want to lie on the floor.

Q: why you wanted to lie on the floor?
A: I was very uncomfortable that's why I want to lie on the floor.

Q: Do you accept mixture if make your sense?
A: No, alcohol did not impact on my senses.

Q: This not a first time you had marijuana?
A: Yes.

Q: Too much of it caused you drowsy?
A: No, I stopped.

Q: You were unsteady on your feet?
A: No I was steady on my feet my heard spun for 5 minutes.

Q: This is because of alcohol and drugs?
A: No.

Q: Why?
A: I was getting nervous and worry because I was asking Fatty to take me home which he refused.

Q: This is absolute lie?
A: That is not, the truth I asked Fatty numerous time to take me home.

Q: You were at the beach?
A: In the morning yes.

Q: If you nervous you should have complaint to others?
A: At 11:30, 15 minutes later friend came.

Q: Fatty hadn't had sex with you?
A: Yes it was without my consent.

Q: At that time?
A: No it was not because all day I never gave any signal at home.

Q: Did you tell anybody?
A: I keep telling I have no idea of what Fatty did wrong. Yes I said.

Q: I think he honestly think I am a girl friend?
A: Friend loves me and marries me and lives in Fiji.

Q: You want to remove your bikini?
A: No Sir, that's incorrect.

Q: No damage to your bikini?
A: Yes.

Q: Fatty had treated you better. He didn't make any threats?
A: No that's incorrect. He made many threatening statement to me.

Q: Fatty never made threatening gesture to you?
A: No. That's incorrect.

Q: You agree no marks of sexual entry?
A: No.

Q: You are here for last 04 years?
A: Correct.

Q: Main visit, main reasons?
A: I came for my friend's 30th birthday, occasionally to visit my friend.

Q: All visit – length of time?
A: 1 previous occasion, I day with Fatty – 15-50 minutes.

Q: You never spent time alone with Fatty?
A: No

Q: On previous occasion how many times – none?
A: None whatsoever.

Q: Bunty – Friend if you rented?
A: Beach S K – Beach Escape villas.

Q: Your friend Bunty's place –police officers visit frequently?
A: Frequented by police officer.

Q: In your visit in Fiji, you stayed?
A: I stayed at Fatty's private house, Vololo Beach.

Q: Police station is there?
A: I am aware.

Q: Is it correct alleged rape?
A: In June 2009 – formal complaint.

Q: On 09/06/2009?
A: Possibly I don't know.

Q: 17/04/2009 you did not make complaint to Fiji Police?
A: That's incorrect.

Q: Did Fatty drop you at Nadi Town?
A: That's correct.

Q: During the time you were trying to tell something, there were some police officers?
A: Not anybody.

Q: You remember you had an opportunity to make a complaint to Namaka?
A: I could have done it.

Q: Likewise your friend could have done this?
A: She didn't do it.

Q: You had have Bunty to drive you to Namaka Police Station?
A: I didn't.

Q: I didn't complain to Fiji Police because Fatty had a good term with them in exchange?
A: Yes.

Q: The facts that Fatty was in good terms does not suggest police officers are corrupt?
A: Yes I admit that.

Q: Namaka police officers are not same police officers who Fatty was talking?
A: Yes.

Q: There was no rape that's why you did not report to police immediately?
A: There was a rape.

Q: You were under the influence of drug?
A: I was sober.

Q: You said Fatty was kicking the door?
A: Yes.

Q: You didn't lock the door?
A: There wasn't any locking facility.

[16] In Re-Examination the complainant stated that: -

"Fatty asked me to marry him and live with him in Fiji. Fatty was not allowed to rape me. I recalled the incident. I was confined into the room. I told the flash back. I made 5 or 4 visits to Fiji. I am a regular visitor to this country.After just raped I came to Nadi Town. I saw Fatty talking to the police. I was shocked. I really mistrusted. On 19/04/09 I complained in New Zealand. Incident on 17/04/09. I reported on 20/04/09 to New Zealand police."

[17] The second witness for the prosecution was PC 3078 Vishal Sharan. He in his evidence stated that he charged the accused for wrongful Confinement and Rape and made record of the charge. The Charge Statement was marked and tendered as Exhibit P1.

[18] Third prosecution witness was Cpl Amol Prasad, the interviewing officer. He stated in his evidence that he was investigating officer in this case. The report was referred to him on 8 June 2009. He said that he recorded the statements of the complainant including statement of the recent complainant witness. He also said that he interviewed the accused under caution and made record of the interview. He marked caution interview as Exhibit P2 and complainants Medical Examination Report as Exhibit 3. Under cross examination he confirmed that the accused did not make any direct confession. 

The Determination

[19] It is for the court to determine whether there is sufficient evidence in respect of each one of element of the offences charged to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 187 of the Crimes Decree.

[20] The accused has been charged with one count of Wrongful Confinement and one count of Rape. The alleged incident happened on 17 April 2009

[21] In support of its case the prosecution has tendered the charge statement (P1), the caution interview of the accused (P2), the Medical Report of the complainant (P3) and the oral evidence of Catherine Jane Hay, the complainant, Vishal Sharma, Charging Officer and Amol Prasad, the Investigating Officer he is also interviewing Officer.

[22] On 17 June 2009 the accused was initially charged only with Wrongful Confinement contrary to sections 253 and 256 of the Penal Code. Subsequently, on 3 November 2010 the State filed an amended charges thereby the accused was also charged with Rape contrary to sections 149 and 150 of the Penal Code. The State filed the amended charge some one year four months after the original charge which was filed on 17 June 2009.

[23] I will deal with the offence of Wrongful Confinement firstly. Wrongful Confinement has been defined in section 253 of the Penal Code as follows:

"Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, is guilty of a felony, and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement."

[24] Section 256 of the Penal Code appears to be a punitive section. This section doest not give details or definition of the offence of wrongful confinement. This section states that:-

"Whoever wrongfully confines any person is guilty of a misdemeanour, and is liable to imprisonment for one year or to a fine of four hundred dollars".

[25] The head note of section 253 describes the section as "wrongful confinement of persons abducted or kidnapped". Therefore it is abundantly clear that this section is meant for the confinement of abducted or kidnapped persons. In Viliame Taufa & Others v State [2001] HAA 57/01S 11 October 2001, it was stated that "the initial charge is inappropriate where no particulars of kidnapping or abduction supplied and was defective".

[26] ..."such person" mentioned in section 253 of the Penal Code, in my opinion, refers to "person abducted or kidnapped."

[27] The doest not allege that the accused kidnapped her hence no evidence has been led by the prosecution to establish kidnap. There is no evidence whatsoever regarding kidnap. Therefore there has been no evidence to prove elements of wrongful confinement as stated in section 253 of the Penal Code.

[27] I now turn to the offence of rape. In the matter at hand the complainant is a New Zealand resident. The complainant is a regular visitor to Fiji. She has come to Fiji in April 2009 to attend her friend's 30th birthday party. According to the complainant this was her 10th visit. The alleged incident happened on 17 April 2009 at accused house in Nadi. She did not complain of the allege rape immediately to Fiji police. However, the complainant lodged a complaint in New Zealand on 19 April 2009. The complainant made in New Zealand was referred to Fiji Police for investigation.

[28] The complainant had several opportunities to lodge a complaint in Fiji. Firstly, she had an opportunity to make a complaint at the police check point. She was staying at the resort run by her friend Bunty. Police frequent to this resort. In her evidence she admitted that this resort is frequented by police but she did not complain to the police who was there. The complainant told in evidence that she text twice to her friend Bunty that Fatty (accused) raped her. The complainant also told that she complained to her friend Bunty about the raped and she was not sure whether the text reached Bunty or not. Nonetheless, Bunty did not give evidence to support the complainant on the truth of her alleged complaint to Bunty. PW3 stated in evidence that he recorded the statements of Bunty as a recent complaint witness. This witness was available to prosecution but prosecution chose not to call her at later stage of the proceedings. Therefore, court can reasonably infer that this witness would not have supported the complainant's story. The accused in statement admits sex with consent of the complainant. To be admissible the complaint must be made on the first opportunity which reasonably offers itself after the offence. If a considerable time has elapsed between the commission of the offence charged and the complaint, it is inadmissible; R. v Rush (1896) 60 J.P. 777. In that case a day elapsed between the alleged assault the complaint, and it was elicited by questions put by the girl's mother.

[29] Under Cross Examination the complainant admitted that she consumed alcohol and drugs before sex. She stated that she consumed alcohol and marijuana. At the beach she consumed several bottles of alcohol-2-3 bottles. She also said that she alcohol with drugs and at the beach. She further said that she consumed 2 glasses of alcohol at the accused's house.

[30] This was not first time the complainant met accused in Fiji. She had met the accused several times before the incident. In evidence the complainant stated that the accused was behaving like her boyfriend. Once the accused had asked the complainant to get marry with her and stay in Fiji.

[31] On the day of incident, i.e.17 April 2009, the complainant was with the accused from morning till the incident in the afternoon. She went to the beach with the accused and had alcohol with him. She went shopping with him and then went to accused's house. Even after the incident she came with accused and he dropped her in Nadi town upon her request. When accused dropped in Nadi town she had seen a Police officer.

[32] The is no forensic evidence which supports a rape situation such as torn clothes and bodily injuries. The complainant in cross examination stated that her bikini was not damaged. The complainant was medically examined in New Zealand 72 hours after the incident. There is no medical evidence to show that there have been signs of recent forced sexual contact. The complainant was not medically examined immediately after the rape.

[33] The complainant on her own volition decided not to complain to police though she had several opportunities to do so as explained earlier. Instead, she told that did not trust the Fiji Police as she has overheard corruptions in Fiji Police. This allegation was not supported by any cogent evidence. There is no recent complaint and the complainant was not medically examined. This may be considered as inconsistent with rape situation and lessens the credibility of the complainant.

[34] The complainant conduct is not at all consistent with the natural resistance or action of a woman that could be in a situation like this.

[35] A serious doubt is created as to why she did not tell the police that she was raped till she lodged a complaint in New Zealand after two days of the incident.

[36] The had consumed alcohol with drugs excessively before sex. In evidence she stated that her head was spinning and that she wanted to lie on the floor. In the circumstances her credibility is in question and that her evidence cannot be relied upon.

[37] The evidence in case may be adequate if accepted witness may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue.

[38] In this case there is no credible admissible evidence that touches on the ingredients of the offence of rape namely "the accused had sex without her consent ".

 [39] In my judgment the evidence adduced by the prosecution has been so discredited as a result of cross examination and also the evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Conclusion

[40] In my judgment it appears to me that a case is not made out against the accused person sufficiently to require them to make a defence. 

[41] I therefore dismiss the case and acquit the accused from both counts.

M H Mohamed Ajmeer
Resident Magistrate

Nadi
Dated at Nadi on this 26th day of August 2011