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State v Lutunaivalu - Ruling no case to answer [2015] FJHC 794; HAC246.2013 (22 October 2015)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 246 OF 2013

STATE

V

ORISI LUTUNAIVALU

Counsel : Ms. K. Semisi for the State
Mr. G. O'Driscoll for the Accused

Hearing : 21st October 2015
Ruling : 22nd October 2015

RULING
[NO CASE TO ANSWER]

[1] The accused Orisi Lutunaivalu is charged under three representative counts of Rape contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009, of his step daughter Ms. Elena Tinai.

[2] With his plea of not guilty to the three counts of rape, his trial began and the complainant, and three other witnesses, including the medical officer who examined the complainant, gave evidence for the prosecution. Her edited medical report was marked as P.E. No. 1.

[3] At the close of the case for the prosecution, learned Counsel for the accused made application under Section 231(1) of the Criminal Procedure Decree 2009 for the acquittal of the accused of the charges as there was "no case to answer". The basis of his submission was that the prosecution must establish "penile penetration of vagina of the complainant by the accused" and there is no evidence to prove this element as her only reference to the alleged act of the accused is that he had "sex" with her.

[4] In addition, leaned Counsel for accused strongly relied on the judgment of the high Court in State v Vueti [2015] FJHC 515 where Fernando J ruled on an identical situation. In paragraph [8] of the said ruling the Court held that;

"The complainant in her evidence said that the accused who is her de-facto partner forcefully removed her clothes and had sex with her. She denied consenting to sex. In her evidence on the sexual act, the complainant never used the term 'sexual intercourse' or penetration of the penis but the word sex. Sex is a word with a general meaning that can mean any form of sex, not necessarily mean sexual intercourse or penetrating penis into the vagina. The state failed to elicit evidence on penile penetration from the complainant when she gave evidence in court, which is an important element to prove this charge of rape where the accused is charged for having carnal knowledge of the complainant. It is for the prosecution to adduce evidence that there was penile penetration. State counsel failed at least to ask the complainant what she meant by 'having sex' or what form of sexual act the accused committed. The Court cannot assume that there was penile penetration merely because the complainant said that the accused had sex with her and that the defence suggested that it was consensual sex.

[5] Learned State Counsel in her reply submitted to Court that the complainant had described the alleged act as having "sex" and that satisfies the element of penetration and there is a case to place before the assessors since the other two elements, namely lack of consent and identity of the accused is established by the evidence of the complainant.

[6] She further invited this Court to adopt a different approach from State v Vueti(supra) as it is not binding. She was given an opportunity to substantiate her submission that the word "sex" satisfied the element of penile penetration with authorities which had adopted her argument. However, she conceded that throughout the evidence of the complainant there is no other description offered by her to describe the act of penile penetration.

[7] Learned State Counsel later informed Court that she could not find an authority adopting a different point of view and submitted she would standby by her already made submissions. By inviting attention to ruling of this Court in State v Kaitavua [2014] FJHC 163, learned Counsel for the accused submitted that the view consistently followed by Court is to insistence of evidence of penile penetration.

[8] Section 231 (1) of the Criminal Procedure Decree provides:-

"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)

[9] The phrase "no evidence" in Section 231(1) had already received judicial interpretation. In FICAC v Kumar [2010] FJHC 313, having considered the authorities on the point, the High Court held thus (in paragraph 25);

"InFICAC v Rajendra Kumar and Jaswant Kumar HAC 001/09; 11.02.2010.His Lordship Justice Goundar in that case very succinctly formulated the test to be applied in dealing with a matter at the stage of the close of prosecution case. His Lordship held that:

'The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. The credibility, reliability and weight of the evidence are matters for the assessors (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990)'(Emphasis added)"

[10] The question whether with the description of having had "sex" satisfies the element of penile penetration has already been comprehensively considered by the ruling in State v Vueti(supra).This Court finds no compelling and convincing argument to hold a different view to the said ruling already delivered on the point.

[11] The Oxford Advanced Learner's Dictionary (8th Ed) described the third meaning of the noun "sex" as "physical activity between two people in which they touch each other's sexual organs, and which may include sexual intercourse"(emphasis added).It is clear from this meaning; the word "sex" is not a synonym for penile penetration and is primarily concerned with the touching of genitals.

[12] In the circumstances, this Court holds that the use of the word "sex"used in describing the act does not satisfy the element of rape, namely of penile penetration of the complainant's vagina.

[13] As the DPP conceded that throughout the evidence of the complainant there is no other description offered by her to describe penile penetration,this Court hold further that there is "no evidence" as per Section 231(1) of the Criminal Procedure Decree 2009 and accordingly find the accused not guilty to the three representative counts of Rape.

[14] The accused is accordingly acquitted on all three charges against him.

ACHALA WENGAPPULI
JUDGE

At Suva
22ndOctober 2015

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitors for the Accused : O'Driscoll & Co.