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State v Warua [2018] FJHC 957; HAC38.2017 (8 October 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]


CRIMINAL CASE NO: HAC 38 of 2017


STATE

V

  1. EPARAMA WARUA
  2. STAN DAVIDSON RAMERE

Counsel : Ms. D. Kumar for the State
Ms. K. Boseiwaqa for the 1st Accused

Mr. R. Vananalagi for the 2nd Accused


Ruling : 8 October 2018


The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “MW”


RULING


  1. On 24 July 2017, the Resident Magistrate, Magistrate’s Court Labasa, transferred this matter to the High Court, in accordance with Section 194(c) of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act).
  2. The matter was first called before the High Court on 20 September 2017. The Disclosures relevant to the case were filed on 18 October 2017, while the Information was filed on 15 January 2018.
  3. The two Accused were charged with the following Information:

Statement of Offence


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


Particulars of Offence

EPARAMA WARUA and STAN DAVIDSON, on the 4th day of June 2011, at Labasa in the Northern Division, penetrated the vagina of MW, without her consent.

  1. Both accused took their plea on the same day, and pleaded not guilty to the charge.
  2. Thereafter, the matter was fixed for trial from 8 October 2018-12 October 2018.
  3. When the matter came up for Pre Trial Conference (PTC), on 14 September 2018, 1 October 2018 and 3 October 2018, Court directed the prosecution to reconsider the charge in the Information.
  4. The primary reason for this was that the charge was framed on the basis that the offence was committed by joint offenders in prosecution of a common purpose (the principle of joint enterprise). It was the opinion of Court that the principle of joint enterprise is not applicable to instances of penile rape.
  5. This morning, the Director of Public Prosecutions (DPP) filed and served Amended Information. As per the Amended Information filed, the two Accused are charged as follows:

Statement of Offence


RAPE: Contrary to Section 207 (1) and (2) (a) read together with Section 45 of the Crimes Act 2009.


Particulars of Offence

EPARAMA WARUA and STAN DAVIDSON, on the 4th day of June 2011, at Labasa in the Northern Division, had unlawful carnal knowledge of MW, without her consent.

  1. Section 45 of the Crimes Act No. 44 of 2009 (Crimes Act) reads as follows:

“45. — (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) for the person to be guilty —

(a) the person&;s conduct must must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence muve been commicommitted by ther person.

(>(3) Subject to sub-section (6), for the person to be guilty, the person must have intended that &#8212

(a) his or her conducld aid, abd, abet, cou, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the otheson in fact committed.

(4) A person cannot beot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person —

(a) terminated his or her involvement; and

(b) too reasonable steps to preo prevent the commission of the offence.

(5) A personbe found guilty of aiding, abetting, counselling or procuring the commission of an offence ence even if the principal offender has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either—

(a) isty of a particular offencffence otherwise than because of the operation of sub-section (1); or

(b) is guilty of thfence becausecause of the oion of sub-section (1)—

But is not able able to determine which, the trier of fact may nonetheless find the persolty of that offence.”


  1. When reference is made to Section 45 of the Crimes Act it means that one person (or one Accused) aids, abets, counsels or procures the commission of an offence by another person (another Accused). In such instances, it is common practice for the charge to specify as to who is the principal offender and as to who aided or abetted the said principal offender.
  2. I find that the Amended Information filed by the prosecution does not specify as to who the principal offender is and as to who was instrumental in aiding and abetting the said principal offender.
  3. The Learned State Counsel submitted that since full disclosures have been provided to the two Accused persons they are aware as to who the principal offender is and who aided and abetted him. Court cannot agree with this contention.
  4. Section 58 of the Criminal Procedure Act provides that:

“58. Every charge or information shall contain—

(a) a stateof the specific offe offence or offences with which the accused person is charged; and

(b) such particulars as aressaressary for giving reaso information as to the nature of the offence charged.”#8221;

  1. Furthermore, Section 60 of the the Criminal Procedure Act states:

“60. The following persons may be joined in one charge or information and may be tried together —

(a) persons accused ofsame offe offence committed in the course of the same transaction;

(b) persons accof an offence ance and persccused of –

(i) aiding or abetting the commission of the offence; or

(ii) attempting to commitoffence;

(c) persocused of differenferenferent offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character; and

(d) persons accused of differeft offences committed in the course of the same transaction.”

  1. This Court is of the opinion that the charge as it is cuis currently framed does not provide such particulars as are necessary for giving reasonable information to the two Accused as to the nature of the offence they are charged. For the said reason I deem the charge to be defective.
  2. Section 214(2) of the Criminal Procedure Act states:

“(2) Where, before a trial upon information (or at any stage of such trial), it appears to the court that the information is defective, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot be made without injustice, having regard to the merits of the case.”

  1. Accordingly, in terms of the above provisions, I make order that the prosecution amends the Information, specifying as to which of the two Accused is the principal offender and as to who aided and abetted the said principal offender.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI


AT LABASA
Dated this 8th Day of October 2018


Solicitors for the State : Office of the Director of Public Prosecutions, Labasa.

Solicitors for the 1st Accused : Office of the Legal Aid Commission, Labasa.

Solicitors for the 2nd Accused : Vananalagi & Associates, Suva


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