IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO:   HAC 70 OF 2014

STATE

v.

					       JONE BOGI

Counsel:			Mr.  L. Fotofili for State
				Mr. A. Paka for Accused
			 	 
Dates of Hearing		:      4, 5 and 6 July 2016   	 
Date of Summing Up	:       7 July 2016
Date of Judgment		:       7 July 2016

JUDGMENT

[1]	The accused is charged with one count of Rape and one count of Theft.

	First Count
	Statement of Offence (a)

	RAPE: Contrary to Sections 207 (1) and 207 (2) (b) of the 	Crimes Decree No. 44 of 2009.
	Particulars of Offence

	JONE BOGI on the 6th day of September 2014 at 	Waitavala, Taveuni in the 	Northern Division penetrated 	the vagina of LISA BIEHL with his tongue without her 	consent.

	Second Count
	Statement of Offence

	THEFT: Contrary to section 291 of the Crimes Decree No. 	44 of 2009.

	Particulars of Offence

	JONE BOGI on the 6th day of September 2014 at 	Waitavala, Taveuni in the 	Northern Division stole one i-	phone brand Apple valued at $1,200.00 the property of 	LISA BIEHL

[2]    After trial 3 assessors unanimously opined that the accused is guilty of 	both counts 1 and 2.   I adjourned to consider my judgment.  I direct myself 	in accordance with my summing up and the evidence adduced at the trial.			
[3]	Prosecution called 4 witnesses including the complainant and the defence 	called the accused to give evidence.

[4]	The evidence of the complainant was that she came to Fiji from USA on 	vacation with her husband.  They were staying in a hotel in Taveuni.  When 	her husband went for scuba diving the complainant had gone to see the 	Waitavala water slide.  A taxi driver had dropped her at the roundabout 	and pointed to her the trail to go to the water slide.

[5]	There had been a Fijian man standing next to the trail.  He had asked her 	where she was going.  Taxi driver also had been there at that point in time.  	She had responded saying that she was going to the water slide. 

[6]	When she walked upto the water slide alone, she had felt uncomfortable as 	no one was there.  She had taken some pictures from her i-phone and had 	started walking down.

[7]	Then she had seen the same Fijian man that she saw before, standing there.  	He had told her “you will have sex with me”.  When she said ‘No’, he had 	pushed her down and had removed her clothes.  When she tried to sit up 	the man had put his fist on her face.  She was afraid, she said.

[8]	The man had performed oral sex on her and had penetrated his tongue into 	her vagina.

[9]	After that he had taken her phone valued 600US$ saying ‘I will take the 	phone as payment’.  The complainant said that she agreed for him to take 	the phone as she was afraid and wanted to leave.

[10]	Thereafter when she ran down the trail she had met a lady and a child to 	whom she related the incident. With that lady she had gone and reported 	the matter to the police.  After reporting the matter to police as there was 	no police vehicle, police had called a taxi.  The taxi driver had been the 	same driver who took her to the water slide. Same day police had found 	the phone and after identifying her phone and making a statement, the 	phone was returned to her by police.

[11]	She said that she was summoned by the police on another day and an 	officer had shown her a photograph from a phone.  She said that it was not 	of the perpetrator.  However, she had seen the accused through a glass and 	had identified him as the perpetrator and had informed that to the police.

[12]	Identifying the accused from the dock in cross examination she said that the 	perpetrator looked like him.

[13]	The taxi driver who dropped the complainant at the roundabout near the 	water slide in his evidence said that he saw the accused whom he knew	before, near the roundabout.  He had known the accused before as the 	accused had 	been residing in his village for some time before the accused 	left for Soqulu.

[14]	It is evident that the Police found the complainant’s i-phone the same day 	from a bush of Waitavala settlement area.  

[15]	Accused giving evidence said that he was not at the Waitavala water slide 	area that day but was at a carnival.  He denied the allegations.  He also said 	that he never lived in Waitavala settlement.  However, he said that he used 	to go swimming at the water slide but did not meet a female tourist in that 	area.  He said that he has seen the taxi driver Divendra before.

[16]	The evidence of the complainant that she was raped, in that the perpetrator 	penetrated his tongue into her vagina, and that he stole her i-phone, was 	not challenged by the defence in cross examination.

[17]	As regards the elements of both offence of Rape and Theft the only element 	the defence challenged was the element of identification of the accused.  	There had been no proper identification parade held by the police at the 	police station for the complainant to identify the accused.  However, when 	the complainant was summoned by the police and when she was shown a 	photograph of a different man, the complainant had seen the accused from 	behind through a glass.  Then she had made the police officer to turn the 	accused around and she had identified clearly that it was the accused who 	committed the crime on her.  She said, “I could see Mr Bogi the man who 	attacked me inside a glass”.  If the complainant is telling the truth I find 	that the police have not taken precaution so that the complainant would not 	see the suspect who was in custody.

[18]	I have heard the evidence of the complainant and her demeanor and I find 	that she was truthful, consistent and forthright in her evidence. 	Complainant seeing the accused at the police station through the glass has 	obviously prevented the police having a line up parade because 	complainant had told the police that he was the one.

[19]	Further, I have no reason to disbelieve the evidence of the taxi driver 	Divendra Deo that he saw the accused at the roundabout near the water 	slide when he dropped the complainant.  Police taking his statement late 	has not affected his credibility.  I see no reason for him to make up a story 	against 	the accused.

[20]	In the circumstances I find that the accused was not truthful when he said 	that he was at a carnival that day.  It is obvious that he had tried to mislead 	the police by giving a false address of alibi witness Sainiala.  He denied 	giving the address of Sainiala as Veidawa, to court.  However, when the 	alibi notice was shown to him, he accepted that he gave that address.

[21]	I bear in mind that the prosecution has to prove that the accused was the 	person who committed the crime and not the accused who has to prove that 	he was elsewhere.

[22]	I also bear in mind that dock identification is unreliable in the absence of a 	prior identification parade or photograph identification.  I have directed 	the assessors on the danger of relying on dock identification. I find that the 	complainant was truthful when she said that she saw the accused ‘Mr Bogi’ 	through the glass at 	the police station and that she told the police officer 	that he 	was the one.

[23]	In the above evidence I find that it was open to the assessors to find him 	guilty of both counts.  I find that the assessors unanimous opinion was not 	perverse. The prosecution has proved all the elements of the offences of 	Rape and theft in counts 1 and 2 beyond reasonable doubt.  Therefore I 	accept the unanimous opinion of the assessors that the accused is guilty 	on both counts 1 and 2 and convict him accordingly.

Priyantha Fernando
Judge

At Labasa
7 July 2016

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused