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State v SQ [2017] FJMC 112; Juvenile Case 01.2016 (14 September 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT LEVUKA

Juvenile Case : 01/2016

HAC No : 219 /2016

STATE
V
SQ

For the Prosecution : PC Shailend
For the Accused : Mr. Lee and Ms.Vesaga(LAC)
Date of Hearing : 13^th of September 2017
Date of Ruling : 14^th of September 2017
( Name of the accused and the victim are suppressed and known as SQ and KF respectively )

RULING ON NO CASE TO ANSWER

1. The accused is charged with two counts of Rape and one count of Sexual Assault under the Crimes Act. It is alleged that on 01st March 2016 the accused committed the penile penetration and oral penetration of the victim without her consent. Further on the same date it is further alleged that the accused fondled the breasts of the victim.
2. The accused pleaded not guilty for all the counts wherefore this proceeded for the hearing. The prosecution called 04 civil witnesses including the victim and marked the medical report of the victim, caution statement and the charge statement of the accused as exhibits.
3. At the end of the prosecution case the learned counsel for the accused made a ‘no case submission ‘pursuant to section 178 of the Criminal Procedure Act.
4. Section 178 of the Criminal Procedure Act provides :

“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”.

.

5. Hence it appears that the duty is on the court to consider at the end of the prosecution case to see if there is a prima facie case made out against the accused to call for his defence. Irrespective of the defence made this application or not, the burden is on the court to carefully consider about this ground. In my view the main purposes of No case submission are to prevent the accused from entering his defence and proving his innocent and prevent continuation of trial thereby saving the time and resources of the court as well as the accused not to mention his expenses also.
6. During the No case submission, the prosecution conceded that there was no evidence against the accused for oral penetration (2^nd count) and Sexual Assault (3^rd count). Having listened to the evidence during the hearing, I also agree with this. Hence without much delving in to that I find there is no case against the accused for the 2^nd and 3^rd count.
7. Before considering about the 1^st count I would consider on what grounds this no case submission can be made in Magistrate Court.
8. In State V Aiyaz [2009] FJHC 186 his Lordship Justice Goundar held that :

“ The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210 :

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates’ Court.”

9. Even though the above observations were made by his Lordship for a provision under repelled Criminal Procedure Code this is valid for Criminal Procedure Act also.
10. Hence in my view in no case stage the Magistrate Court has to first consider whether there is evidence to satisfy all the elements of the offence. This evidence can be direct or circumstantial evidence.
11. Only if the court is satisfied about the first limb then the court can move to the second limb and consider if the prosecution evidence is so discredited or manifestly unreliable that no reasonable tribunal can convict the accused based on that.
12. For the 1^st count of penile penetration the elements of the offence are :
    1. The accused;
    2. Inserted his penis to the vagina of the victim;
    100. Without her consent ;and
    4. The accused knew or believed the victim was not consenting or reckless as to whether she was consenting.
13. Now I would briefly summarize the evidence in this case.
14. During the evidence in chief ,the victim said whilst she was going to fetch the fire woods the accused punched her and came on top of her and took his thing and put in in to her. She also showed her private part and defence agreed this means her vagina. She felt pain in her vagina and this was caused from his penis. Later she informed that to her friend (PW2). During cross-examination in the beginning the witness said the accused was taking out her clothes, but later admitted she did not meet the accused on that day. In re-examination the victim said she was raped by the accused.
15. PW2 said the victim informed her that the accused raped her. PW3 said after learning about the incident from her daughter (PW2) she asked the victim and got to know that the accused played with her private part. During cross-examination also the witness said the victim informed only that the accused played with her private part.
16. PW4, the mother of the victim said she did not know anything as victim did not tell anything.
17. The last witness was the doctor and she said the hymen of the victim was intact and she can’t say conclusively if the penile penetration has taken place.
18. Considering all the above witnesses, I find the crucial witness in this case is the victim herself. From her evidence I find there is some evidence about the identity of the accused and lack of consent of the victim and the accused was aware about that.
19. Hence the crux of this case is whether there is some evidence to satisfy penile penetration by the accused. The victim after some reluctance said the victim put his “it” inside her. From her demonstration in the court all the parties agreed putting inside means putting inside her vagina.
20. The counsel for the accused submitted correctly that the “it” of the accused would mean anything including the penis, hand or any other body part and hence it is vague and the accused should be acquitted from the 1^st count also.
21. If the victim has given evidence only about that, I would agree with the submission of the defence. But in my view there is some other evidence that would indicate some kind of penile penetration.
22. The victim said the accused came on top of her, took her undergarments and she felt pain in her vagina and this was caused by penis of the accused. The inference that can be drawn from this is that the accused penetrated the vagina of the victim with his penis. Further in re-examination the victim said she was raped by the accused on that day and this she informed her friend (PW2) soon after the alleged incident. This recent complaint would show the consistency if the victim evidence.
23. Even though the doctor has not noted injuries she has said there is a possibility of penetration. In my view, there is some direct and circumstantial evidence showing some penetration by penile of the accused on that day.
24. Further in my view the victim evidence is not totally discredited or manifestly unreliable at this stage to disregard and upheld this no case submission.
25. Hence in my considered view there is a prima facie case against the accused for the 1^st count and accordingly I am prepared to call for his defence for that. For the 2^nd and 3^rd count I find there is no case and acquit him from these 2 counts.

Shageeth Somaratne

Resident Magistrate