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State v Konare [2013] FJHC 384; HAC346.2011S (9 August 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 346 OF 2011S

STATE

vs

FRANK KONARE

Counsels: Mr. J. Niudamu and Ms. R. Uce for the State
Mr. S. Waqainabete for Accused
Hearings: 5th, 6th and 7th August, 2013
Summing Up: 8th August, 2013
Judgment: 9th August, 2013

JUDGMENT

1. On 8th August 2013, the three assessors returned with a unanimous verdict of not guilty as charged on count no. 1 (rape), and a unanimous verdict of guilty as charged on count no. 2 (burglary) and count no. 3 (theft), against the accused.
   
2. Obviously, the three assessors have not accepted the prosecution's version of events on count no. 1 (rape), and thus found, the prosecution had not proven its case against the accused beyond a reasonable doubt. They have therefore returned with a not guilty verdict on count no. 1 (rape).
   
3. On count no. 2 (burglary) and count no. 3 (theft), the three assessors have accepted the prosecution's version of events, and have found the prosecution had proven its case beyond reasonable doubt against the accused, and thus found him guilty as charged on count no.2 and 3.
   
4. I have reviewed the evidence called in this trial. I have also directed myself in accordance with the Summing Up, I gave the assessors on 8th August 2013.
   
5. In my view, the assessors' decision was not perverse. It was open to them to reach such conclusion on the evidence. I accept their opinion on count no. 2 (burglary) and count no. 3 (theft), and I find the accused guilty as charged on count no. 2 and 3, and convict him accordingly on those counts.
   
6. However, on count no. 1 (rape), on the evidence, I am unable to agree with the assessors on their "not guilty verdict", and I reject the same, for the following reasons.
   
7. Section 237 (1), (2) and (4) of the Criminal Procedure Decree 2009 reads as follows:
   

"...(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court..."

8. In Ram Dulare, Chandar Bhan and Permal Naidu v Reginam [1956 – 57] Fiji Law Reports, Volume 5, page 1 and 3, the Fiji Court of Appeal said as follows:
   

"...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the Supreme court sitting with assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors..."

Note the Supreme Court is now renamed the High Court, and the equivalent of the then section 308 of the then Criminal Procedure Code is now section 237 of the Criminal Procedure Decree 2009.

9. Having listened to the evidence of the parties' witnesses, and after carefully observing them in the courtroom, and mindful of the parties' competing version of events, on the rape allegation, I accept the evidence of the female complainant. A few minutes after the event, the complainant reported the rape to PW2, who later reported it to the police. If she consented to sexual intercourse with the accused, at the material time, why reported the rape to PW2. Such action is not the action of a consenting adult. In addition, she had to undergo a medical examination of her private part by a male doctor, thereby compromising her personal privacy. This is not the action of a consenting adult, or the action of someone who is making up a false allegation.
   
10. Furthermore, the doctor's evidence was crucial in this case. She was medically examined on 19th October 2011, at CWM Hospital. This was 3 days after the alleged incident. The medical report was tendered as Prosecution Exhibit No. 3. In D(10) of the report, the female complainant told the doctor she was raped by the accused. In his conclusion in D(16) of the report, the doctor confirmed that there was evidence of penetration of the female complainant's private part. The doctor said, his conclusion was consistent with the female complainant's story. I accept the doctor's above evidence, and in my view, it confirmed the complainant's version of events. It is largely because of this that I reject the accused's denial.
    
11. Furthermore, the fact that he entered the complainant's house through the window, between 4 am and 5 am on 16th October 2011, and the fact that he was intoxicated, showed he obviously didn't obtain the complainant's permission to come into the house. In other words, he was a trespasser, as he forced his way in. I accept the complainant's evidence that he forced his way in. This is not the action of a man who comes into a house with good intention. In my view, it is further evidence of a man who is prepared to come into a house uninvited, and take whatever he wants, including raping the female complainant. Further proof of the above, is when he stole the mobile phone and slam the kitchen door, when he left.
    
12. Given the above, I have no hesitation in accepting the evidence of the female complainant (PW1). I also have no hesitation in rejecting the accused's denial on count no. 1. I find the complainant a credible witness, whereas the accused was not a credible witness, on count no. 1. I therefore reject the assessors' unanimous not guilty verdict on count no. 1, and I find the accused guilty as charged on count no.1, and I convict him accordingly.
    

Salesi Temo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecutions, Suva
Solicitor for Accused: Legal Aid Commission, Suva