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State v Prasad [2012] FJHC 1221; HAC76.2011 (18 July 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 76 OF 2011

BETWEEN:

STATE

AND:

UDDRA PRASAD

Counsel: Ms. K. Semisi & Mr. T. Qalinauci for the State
Mr. T. Lee for the Accused

Date of Trial: 16th & 17th July, 2012
Date of Ruling: 18th July, 2012

RULING ON NO CASE TO ANSWER

1. The Accused above named is charged for Rape of Ms. Kiran Lata punishable under Section 207 (1) (2) (a) of the Crimes Decree.
   
2. State Counsel called the virtual complainant Kiran Lata and the investigating officer DC Tevita to give evidence on behalf of the Prosecution and closed the case. Defence Counsel made an application to acquit the Accused on the basis that Prosecution had not established a Prima Facie case.
   
3. Section 231(1) of the Ciminal Procedure Decree states as follows:
   

"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". (emphasis added)

4. As per the above section if the Court finds there is no evidence then the Court shall find him not guilty. In State v Semisi Wainiqolo HAC 015 of 2004S Justice Gates (as then) said:
   

"In order that section 293 of the Criminal Procedure Code be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence" in the sense no evidence that it was the Accused who has committed the offences."

5. In Sisa Kalisoqo v State Criminal Appeal No. 52 of 1984, the test was articulated as follows:
   

"The test to be applied under section 293 of the Criminal Procedure Code is whether there is evidence in respect of each ingredient of the offence. If there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence, then there is a prima facie case."

6. In Moidean v Reginam [1976] 22 Fiji LR 206 at p.208B the Court of Appeal interpreted the Magistrate's task to be:
   

"to decide whether, or not a reasonable tribunal might convict, on the evidence so far laid before it – if so there would be a case to answer". (emphasis added)

The court referred to and approved the long standing English Practice Note at [1982] 1 All E.R 448 per Lord Parcker CJ similarly cited with approval by the "Court of Appeal in Rohit Ram Latchan v The State (unreported) Court of Appeal Criminal App. No. AAU0015 of 1996S; 28 November 1997.

7. Justice Gates (as then) said in State v Tieri Raitini & 2 Others (Criminal HAC 005.03S):
   

There is no perceptible between the two tests; that is between whether the court considers there is "no evidence", the High Court test (section 298) and that for the Magistrates Court "a case is not made out .... sufficiently ...." [section 210 CPC]. When considering whether the evidence on identity of the accused is proximate or sufficient, insufficiently of evidence in reality is the same as there being no evidence. A mere scintilla as in Jai Chand would not be sufficient: Mosese Tuisawau (supra at p.6).

8. The evidence before the Court is that on the 10th March 2011 at about 11.00 am, when the Complainant was on her way to town, Krish who was traveling on a van had offered a lift. She refused then Krish had got down from the van and forcefully bundled her into the front passenger seat of the van. He then had driven the van through the town without stopping and had gone to a motel by the name of Holiday Inn hotel. She had not seen anyone including the receptionist. She was straight taken to a room bearing number 119 and raped by the driver, Krish. The complainant identified the said Krish is this Accused. Complainant does not know the actual name of the Accused.
   

Krish was related to her through her marriage and they had business dealings.

After the sexual encounter she was forcibly taken to the van and dropped at the middle of the Namaka town. She was crying and took bus to her home. She kept this incident within herself and called the 911 (Police Mobile Service) on the 14th March and reported the matter. A formal complaint was received on the 15/3/2011. Investigation was carried out and the Accused, Uddra Prasad was arrested and charged for Rape.

9. There is no mention of the name "Krish" in the indictment. The complainant for the first time identified the Accused who is in the dock as Krish. There is no identification Parade or any other sort of identification procedure held to connect "Krish" with this Accused apart from the Dock identification.
   
10. Prosecution called only two witnesses, namely complainant Kiran Lata and the Investigating Officer Tevita and closed the case for the Prosecution.
    
11. The complainant had drastically contradicted herself with her statement to the Police and the evidence before the Court. To the Police she said that Krish had raped her thrice but in Court she said it was only once.
    
12. Further the complainant had not given any reasonable explanation why she did not complain to the Police at Namaka, after she was dropped by Krish on the date of the incident. She had not offered any reason why she delayed for 5 days to lodge a complaint to the Police.
    
13. The way she claims the incident happened cannot be accepted by a reasonable man. Will a man of big built and more than 6 feet bundle up a woman of small made (less than 5') in a public place. Especially how did both got entry to the hotel? Where did they obtain the key to the room? Can she miss the reception on both inward and outward travel to the hotel?
    
14. Further the Court was observing the demeanor of the witness. She virtually avoided all important questions and she looked down to avoid eye contact.
    
15. Considering the evidence under the reasonable man standard the Court is unable to believe what she says, hence the Prosecution had failed to prove the case at prima facie level.
    
16. When evaluating the evidence before the Court, I find the Prosecution had not proved basic elements of the offence of Rape.
    
17. Section 237 (2) of the Criminal Procedure Decree states as follows:
    

"The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors."

18. Considering the legal system of Republic of Fiji, the assessors are to assist the trial judge. It is the judge who is hearing the case makes the final determination and delivers his judgment.
    
19. Considering the law, expenditures of the court and all other factors, this court is of the view that the judge should be satisfied that there is a prima facie case proven against accused person.
    
20. Considering the proving of prima facie case, the court expects the Prosecution to prove the charge against the accused person. Proving the charge means that all elements of the offence should be proved. If the defence opted to not offer any defence the court should be able to convict the accused. Considering the decided authorities in similar jurisdiction, this court finds that should be the test for the defence to be called.
    
21. Considering the law, decided cases and the facts I uphold the application of the Counsel for the Accused and rule that the Accused has no case to answer.
    
22. For the reasons stated above I find that Accused Uddra Prasad has no case to answer hence I acquit him to the charge of Rape.
    

S. Thurairaja
Judge

At Lautoka
18th July, 2012

Solicitors: The Office of the Director of Public Prosecution for State

Legal Aid Commission for the Accused