IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 008 OF 2011L

BETWEEN:

TEVITA KORO
Applicant

AND:

STATE
Respondent

Counsel : Mr. Nand wit Mr. Sharma for the Applicant, 
S. Kiran for Respondent, 

Date of Hearing : 17th and 18th February 2015
Date of Ruling : 19th of February 2015

NO CASE TO ANSWER

1.	At the conclusion of the prosecution case, the learned counsel for the second accused made an application pursuant to section 231 (1) of the Criminal Procedure Code that there is no case for the second accused person to answer as there is no evidence presented by the prosecution that the second accused person has committed these offences as charged in the amended information. 

2.	The second accused person is charged with one count of rape contrary to section 45(1) and section 207 (1)and (2) (a) of the Crimes Decree, 2009, one count of Indecently insulting or annoying a person contrary to section 213 (1) of the Crimes Decree, and one count of Indecent Assault contrary to section 212 (1) of the Crimes Decree 2009. The particulars of these three counts are that; 

RAPE: Contrary to Section 45(1) and Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

TEVITA KORO on the 25th day of December 2010, at LAUTOKA in the WESTERN DIVISION, aided and abetted the commission of the offence of rape by SERESIO DRAUNIMASI against SENIMILI KULA, in that TEVITA KORO prevented SENIMILI KULA's escape prior to SERESIO DRAUNIMASI inserting his penis into the vagina of SENIMILI KULA without her consent.

INDECENTLY INSULTING OR ANNOYING A PERSON: Contrary to Section 213(1) of the Crimes Decree, 2009.

Particulars of Offence

TEVITA KORO, on the 25th day of December 2010, at LAUTOKA in the WESTERN DIVISION, with intent to insult the modesty of SENIMILI KULA, pointed to his penis, intending that the gesture be seen by SENIMILI KULA.

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree, 2009.
Particulars of Offence

TEVITA KORO, on the 25th day of December 2010, at LAUTOKA in the WESTERN DIVISION, unlawfully and indecently assaulted SENIMILI KULA, in that TEVITA KORO sucked on the neck of SENIMILI KULA.

3.	The Prosecution called four witnesses including the complainant of this alleged incident. The learned counsel for the second accused person submitted at the conclusion of the prosecution case, that the learned counsel for the prosecution did not mention the facts that they were going to prove against the second accused and the witnesses they were going to call in her opening address to the assessors. He further submitted that no evidence was presented during the prosecution case in respect of the 2nd, 3rd and 4th counts as per the amended information. There is no evidence on each element of the three counts as charged in the information. 

4.	The learned counsel for the Prosecution objected the submissions of the counsel of the second accused person and affirmatively submitted that there is evidence on each essential elements of the three counts for which the second accused is charged in the amended information. 

5.	Section 231 (1) of the Criminal Procedure Degree 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 committed the offence". 

6.	The test to determine whether there is evidence that the accused person committed the offence pursuant to section 231 (1) of the Criminal Procedure Decree is settled and precise. The correct approach is to examine whether there is some relevant and admissible evidence on each elements of the charged offence and not whether the evidence is fundamentally imprecise or inconceivable. ( State v George Shiu Raj and Shashi Shalndra Pal ( 2006) AAU008/05, State v Brijan Singh ( 2007) AAU0005, State v Rasaqio (2010) FJHC 284; HAC 155.2007 (5 August 2010).

7.	Having briefly discussed the procedural background of this action and the applicable laws on the issue of no case to answer pursuant to section 231 (1) of the Criminal Procedure Code, I now draw my attention to the second count where the second accused is charged for aiding and abetting the commission of the offence of rape by the first accused person. The prosecution alleges that the second accused prevented the complainant's escape prior to first accused inserted his penis into the vagina of the complainant. 

8.	The victim in her evidence stated that the second accused asked her to come into the house, when she asked for cigarettes from outside the house. He then tried to get hold of her, which she escaped and ran into the house. He then closed the door and forced her to remove her cloths and lie down on the bed, which also she refused. Then the first accused came and get hold of her legs and made her lie down on the bed and removed her cloths. He then had a sexual intercourse with the victim. Accordingly, there is evidence that the second accused person had asked her to get into the house, then tried to get hold of her, she then ran into the house, he then closed the door and forced her to remove her cloths before the first accused came and had sexual intercourse with the victim. It is my opinion that these evidences support the elements of the aiding and abetting to commit the offence of rape. I accordingly hold that there is evidence that the second accused person has committed the offence of rape as charged in the amended information. 

9.	In respect of the third count of "indecently insulting or annoying a person", the prosecution alleges that the second accused person with intent to insult the modesty of the victim pointed his penis, intending that the gesture be seen by the victim. However, it appears from the evidence of the complainant, that the accused was covering his private parts from a pillow when she entered into to the house. He then told her "come inside and buy cigarettes from here". There is no evidence that what the complainant understood from that statement of the accused, nor did he point to his penis while saying that. In the absence of such evidence, it is my opinion that there is no relevant or admissible evidence on the elements of the offence of "Indecently insulting or annoying a person". I accordingly hold that there is no evidence that the second accused person committed this offence of "Indecently insulting or annoying a person" as charged in the amended information. 

10.	I now turn to the fourth count of "Indecent Assault" where the prosecution alleges that the accused unlawfully and indecently assaulted the victim by sucking on her neck. The victim in her evidence stated that after the first accused had sexual intercourse with her, he got up, put his cloths and went away. She then started to put her cloths. At that time the second accused person came and tried to do the same to her. She stated that he tried to kiss her but she managed to push him away and went out. I accordingly find that there is no evidence that the second accused had unlawfully and indecently sucked the neck of the victim. I accordingly hold that there is no evidence that the second accused committed this offence of Indecent Assault as charged in the amended information. 

11.	In my conclusion, having considered the reasons set out above, I hold that there is evidence that the accused person has committed the offence of rape as charged in the amended information.. I further hold that there is no evidence that the accused person committed the offence of indecently insulting or annoying a person contrary to section 213 (1) of the Crimes Decree and the offence of "Indecent Assault" contrary to section 212 (1) of the Crime Decree, wherefore, I find that the second accused person is not guilty for the third and fourth counts as charged in the amended information and acquitted accordingly. 

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
19th February 2015

Solicitors : Office of the Director of Public Prosecutions for Respondent,
Legal Aid Commission, 
Mr Nand