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State v Tiko [2017] FJHC 872; HAC116.2016S (6 November 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 116 OF 2016S

STATE

vs

1. ILISONI TIKO
2. ADRIU ROGOMURI
3. EPINERI SAURARA
4. MARIKA BINATAGI
   

. Counsels : Mr. T. Tuenuku and Mr. Y. Prasad for State
Mr. N Tuifagalele for Accused No. 1
Mr. N. Tuifagalele for Accused No. 2
Mr. N. Tuifagalele for Accused No.3
Ms. S. Prakash and Mr. S. Kumar for Accused No. 4
Hearings : 24, 25, 26, 27, 30 and 31 October, 1, 2 and 3 November, 2017
Summing Up : 6^th November, 2017
Judgment : 6^th November, 2017

JUDGMENT

1. The three assessors had returned with a unanimous verdict, finding Accused No. 1, 2 and 3 guilty of raping the complainant, as alleged in count no. 1, 2 and 3.
   
2. The three assessors had also unanimously found Accused No. 4 not guilty of count no. 4
   
3. Obviously, the three assessors had accepted the prosecution’s version of events against Accused no. 1, 2 and 3, in counts no. 1, 2 and 3
   
4. The three assessors had not accepted the prosecution’s version of events against Accused No. 4, on count no. 4
   
5. I have reviewed the evidence called in the trial and I have directed myself in accordance with the summing up I gave the assessors today.
   
6. The three assessors’ verdict was not perverse. It was open to them to reach such conclusion on the evidence.
   
7. Assessors are there to assist the trial judge decide on the guilt or innocence of the accuseds. The assessors represent the public view and it should not be taken lightly.
   
8. On the evidence and on the credibility of the witnesses’ evidence, I agree with the 3 assessors’ opinion on Accused No. 1, 2 and 3 on Count No. 1, 2 and 3. The complainant’s evidence was credible against Accused No. 1, 2 and 3 on count No. 1, 2 and 3. On its own, I accept the evidence of the complainant against Accused No. 1, 2 and 3 on count No. 1, 2 and 3. In my view he was credible, I accept his allegations against Accused No. 1, 2 and 3 on count no. 1, 2 and 3
   
9. In addition, I accept Accused No. 1 and 2’s confession to the police. I find they confessed voluntarily to the police in offending against PW1. Their confessions were also true and I hold them as such. Their confessions further strengthen PW1’s allegation against them.
   
10. As for Accused No. 3, I reject his sworn denials in court. I accept PW1’s version of events against Accused No. 3, on count no. 3. His witness did not help him much.
    
11. As for Accused No. 4, the three assessors had found a reasonable doubt in the prosecution’s case. When PW1 complained to the prayer group about the alleged abuse on him, he only mentioned Accused No. 1, 2 and 3, not Accused No. 4. Why he didn’t do so, leave a lot of questions being asked, as to why he did not do so.
    
12. Furthermore, when PW1 complained to the doctor on 9^th March, 2016 at Nausori Health Centre, he mentioned Accused No. 1, 2 and 3’s name and not Accused No. 4. Why he didn’t do so, leave a lot of questions being asked, as to why he did not do so.
    
13. Furthermore, the accused’s wife (DW6) and Vasemaca Radave (DW7) said, they were with Accused No. 4 between 4.30 pm and 5 pm on 3^rd March, 2016, when PW1 said Accused No. 4 was offending against him.
    
14. The above evidences do tend to cast a reasonable doubt on the prosecution’s case against Accused No. 4. The benefit of that doubt must go to Accused No. 4, as a matter of law.
    
15. Given the above, the three assessors, representing the community, I accept their opinions.
    
16. I find Accused No. 1, 2 and 3 guilty as charged on count no. 1, 2 and 3 and I convict them accordingly on those counts, as it related to them.
    
17. For Accused No. 4, given the assessors’ opinion, I find the prosecution had not proven his guilt beyond reasonable doubt and I find him not guilty as charged and acquit him accordingly.
    
18. Accused No. 4, you are a free man and you may go home.
    
19. For Accused No. 1, 2 and 3, you are remanded in custody and to be sentenced tomorrow at 11.30 am.
    
20. Assessors thanked and released accordingly.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva

Solicitor for Accused No. 1 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 2 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 3 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 4 : Legal Aid Commission, Suva.