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State v Swamy [2010] FJMC 165; Criminal Case 740.2010 (18 October 2010)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.740/2010

STATE

VS

PRANEEL SANJEEV SWAMY
s/o CHIN SWAMY

Ms. Taina Leweni for the state. [DPP]
Ms. Laisa Lagilevu and Mr. Reddy for the accused.

Heard on: - 13, 14 October 2010
Written Submission filed on: - 15 October 2010
Decided on: - 18 October 2010

RULING ON NO CASE TO ANSWER

The Application

[1] This is an application by the defence under Section 178 of the Crimes Decree No.44 of 2009 (Section 210 of the Criminal Procedure Code). At the close of the prosecution case, the defence submitted that there was no case to answer and as a result the accused should be acquitted.

The Governing Sections

[2] Section 178 of the Crimes Decree No.44 of 2009 states that:-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused”

Section 210 of the Criminal Procedure Code state that:-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused”

The Charge

[3] The accused is charged as follows:-

Statement of Offence (a)

Rape: - Contrary to section 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence (b)

PRANEEL SANJEEV SWAMY s/o CHIN SWAMY, on the 1th day of January 2009 at Nakasi in the Eastern Division had unlawful carnal knowledge of a girl namely ASHNA KARISHMA NAIDU d/o Venket Naidu without her consent.

The Charging Sections

[4] Sections 149 and 150 of the Penal Code States as follows:-

“149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.”

Punishment of rape

“150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment”

Applicable Case Law

[5] The court is called for making a determination of whether or not a prima facie case has been made out against the Accused. It should be noted that ample past and recent judgements of superior court could be found in this regard.

(i) R V Jai Chand 18 FLR 101 at page 103;

(ii) Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996];

(iii) Practice Note [1962] All ER 448;

(iv) State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) and;

(v) Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005

[6] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states that;-

“...the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.

[7] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

“LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld:

when there has been no evidence to prove an essential element in the alleged offence;

when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal [ if compelled to do so ] would at the stage convict or acquit but on whether on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer’.

[8] In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) Justice Daniel Goundar differentiates the guiding rules between High Court and Magistrates Court.

“The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrates’ Court.

The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates’ Court.” [Emphasis added]

[9] In Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, Justice Shameem held that the correct test in Magistrate’s Court under Sec. 210 of the Criminal Procedure Code is,

1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;

2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.

[10] According to Justice Shameem's guidelines, where the evidence is entirely discredited, no matter from which angle one looks at it, a court can uphold a submission of no case. However, where there is a possible view of the evidence might lead the court to convict, the case should proceed to the defence case. [Emphasis added]

[11] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offence and the evidence adduced in support of the said elements.

The Elements of the Offence of rape

[13] In State v Josefa Tukai HAC 12/03S and Anetikini Kuruvoli [2006] HAA 22/06S 15 June 2006 Shameem J held that "the offence of rape is made up of two elements. One is carnal knowledge and other is lack of consent". Court note first is "guilty act" which is called as Actus reus and latter is" guilty mind" which is called mens rea.

The evidence

[14] To prove this rape charge prosecution called four witnesses. They are:

PW1-Ashna Karishma Naidu-the victim

PW2-Venket Naidu-father of the victim

PW3-DC 3684-Viliame Nagatalevu-interviewing officer of the Accused.

PW4-DC 3453-Sanita Laqenisici- charging officer

[15] Two exhibits were marked by the prosecution to prove their case. They are:

Exhibit-1 written statement of the Accused

Exhibit- charging form

[16] In the line of cross examination, defence marked 4 exhibits: they are;

Exhibit -D1: Face book page of Ash Naidu

Exhibit -D2: January 26, 2009 –e-mail of Sanjeev (Accused)

Exhibit -D3: January 26, 2009-e-mail of Ashna (Victim)

Exhibit -D4: Asha Naidu's (funkiimunkii) Profile on flixster

Summary of evidence

[17] PW1-Ashna Karishma Naidu-the victim

The victim is 15 years of age and her evidence was led in closed court and screen had been used to screen the accused from the witness, since she is a vulnerable witness. Further media has been barred from reporting the victim's name and address. Victim is an Australian Citizen and the Accused is a Canadian citizen (on travel banned as Bail condition) which led priority hearing and determination of this court.

In examination in chief she told that she came in Suva from Taveuni with her father on 01st January 2009. After they went her cousin's house in Nasinu early afternoon between 11 am and 1pm. She took a nap in one of the bedrooms where her cousin's son and nephew were sleeping on the floor and she was on the bed. She told that she was about to take a nap when Sanjeev walked in lay down on the bed next to her. She faced away from him and he was uttering something. Then she changed the position so she could hear him better. She said that the accused person changed his position and accidentally brushed her breast with his hand. She stated that he said sorry and she said it was ok. Thereafter he invited her to go to the shop with him to buy a recharge card and she told him that she would ask her father who allowed her to go. It was just the two of them in the car, the accused drove past the shops to a secluded area and she asked the accused why they were there but he remained silent. The accused then released the seat belt and started fondling her breasts, she told him to stop but he did not. She stated that she was confused as to why he was doing this. She stated that he finished fondling her breasts, unzipped his pants and pulled them down to just above his knees. Then he grabbed her head from back and pulled it over his erection and her mouth opened and pushed her head back and forth about three times. Then he unzipped her pants after pushing the seat back. He put his left hand near shoulder and then used his right hand to pull her legs apart. She tried to close her legs and he inserted his penis into her vagina, he did this about three times. He slammed his arm against the seat. She had her legs up to her chest and he was leaning on his left arm. Then she stated that she managed to close her legs over. Then he drove back to her cousin's house. She sated that she had a shower when she reached home and felt disgusted and filthy. She got dressed. She did not tell her anyone in the family and her father because she did not want anyone to know that she was no longer a virgin. She said if so her family and her father would be disappointed in her. She stated that she sent the accused person an e-mail because she wanted him to say something that would incriminate him but she did not achieve this goal. She stated that she had written a part of what happened in her dairy. She had a flashback in June was referred to a counsellor who then informed her parents about the alleged rape.

In cross examination she agreed that she knew him well and she called him brother. She admitted that she had been on talking terms with the accused but not frequently. Further she stated that she did not recall the place where she was taken but it was not far from her cousin's house. It was put to her that area was a densely populated one but she said that it was a secluded area. She conceded it was happened broad day light. She said that the accused did not ejaculate in her mouth and conceded that the medical report had stated her account of the events where she sated that he had ejaculated in her mouth. She admitted that she did not struggle nor scream nor attempt to get out of the car. She said that entire incident took over 20 minutes. Upon returning home and having her shower she noticed that there was a lot of blood it was a like a heavy period. She conceded that it would have stained the car seat as she was no wearing anything during the alleged rape whilst seating on the car seat. She said that her pants and her underwear had a significant stain. But she admitted that this was not mentioned in her statement to the police. She said that her father did not want to bring the diary. She also stated that she was seeing a psychologist as she had problem with her mother. She conceded that a lot of what she said in Court is not in her statement. She told that on the same day evening, she attended a prayer meeting with her family and she travelled in the same car who accused drove. She stated that on the day she felt confused, sad and angry since it was happened to her within her family. But she was shown a DVD of that family gathering on the same day evening, she conceded that it was not prayer meeting but a party where there was alcohol, kava and food. She did concede that she did not look sad, confused or angry but looked happy, was smiling and playing with her cousins. In exhibit D 1 she admitted that was a print out of her face book and also admitted that she is currently having a relationship with Victor Vincent Faaolaina Piuila. She also admitted that she had a relationship with Jacob Edmunds before it. In cross examination she was put why she did not bite the penis of the accused when she had it in her mouth; she stated that she did not think of that.

In re- examination she stated that many things were missing in her police statement because she was not sure about what to put in her statement when she wrote it. She also stated that she was having her period at the time of alleged rape but was not wearing a pad and further stated that there was no semen on her mouth after the alleged incident of oral sex. It was put to her that she had given 3 versions to the court. The first being that ejaculated in her mouth as in the Medical report, that he ejaculated outside her mouth as stated in cross examination and because she failed to mention it in examination in chief.

[18] PW2-Venket Naidu-father of the victim

In examination in chief he told the court that he allowed Ashna to go with the accused because he trusted her and that accused was PW1's older cousin. He said that PW1 could only go with people that can be trusted. Further he stated that in Australia, PW1 used to being picked and dropped. He said that later on in the evening they attended a family reunion He said that PW1 could only go with people that can be trusted. Further he stated that in Australia, PW1 used to being picked and dropped. He said that later on in the evening they attended a family reunion. He adduced that they returned to Australia on the 09th January 2009. He stated that he did not find out about what was written in the diary until around June or July 2009. It was recovered by PW1's mother Jeniffer. He then called the accused in Canada. He stated during the first two calls that he made, the accused denied the allegation. He stated on the 04th call the accused left a voice message "Mama, don't tell Mommy and Anaan" he then stated that he told him to confess to his brother and mother. He said that he got a call from the counsellor at Ashna's school informing about the rape. The matter also involved the Australian Child's Services and the Australian Police told him that needed to lodge a complaint in Fiji as Australia did not have jurisdiction.

In cross examination, he told the court that Ashna did not happy to bring the dairy because it was too personal and despite being told by the prosecutor to bring it. He said that he did not know about the two relationships that Ashna has had. But later he said that one of them was with a boy who attends the same church as them. He conceded that the accused had left a voice mail on his wife's phone confessing to the incident but did not bring a recording of that particular message. It was admitted that he leaves PW1 on her own during the school holidays. He was shown the Exhibit of PW1's page on MySpace and directed to her age which stated 18 years. He said that he had knowledge of that and that PW1 told him the reason for this was she did not want unsolicited e-mails from paedophiles. He stated that he was unhappy that PW1 did not tell him before.

[19] PW3-DC 3684-Viliame Nagatalevu-interviewing officer of the Accused.

In evidence in chief he said that he was stationed at Major Crime Unit, CID Headquarters, Toorak on 26th May 2010. He told that he was instructed to interview the accused and it was conducted in English. The caution interview of the accused was tendered by him and marked as Prosecution Exhibit 1.

In cross examination, he admitted that it was revealed that there was a diary in the caution interview. But he confirmed that he did not investigate the diary and he did not obtain a copy of the diary nor did not obtain the mobile message that the accused alleged to have left on the complainant's mother's mobile phone. He conceded that he did not verify the Medical Report from Victoria. He further stated that although they could decide to lay charges or not this file was sent to the DPP's office for their legal opinion. He also agreed that he never spoke or questioned PW1 or any other witness. He agreed that he was just following orders.

[20] PW4-DC 3453-Sanita Laqenisici- the charging officer

He stated that on the 19th of July 2010 he charged the accused. He confirmed that charged was conducted in the English language. He identified the accused seated at the dock as being the person he charged. The same was tendered and marked as Prosecution Exhibit 2. He said that he just charged the accused ant it was laid according to the legal opinion of the ODPP.

Evaluation of evidence

[21] It is for the court to determine whether there is sufficient evidence adduced in respect of each one element of the offence to put the accused to his defence. It is not for this court to decide whether each element has been proved beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any of one element of the offence, then the charge should be dismissed and the accused acquitted under section 178 of the Crimes Decree No.44 of 2009( section 210 of CPC).

[22] This court now altogether analyses whether there is any evidence in respect of each element of the offence.

Any person and c) of a woman or girl

[1]The identity of the accused has never been disputed and PW1, PW2 and all official witnesses were identified the accused. PW1 was identified as the victim of alleged offence.

Had unlawful carnal knowledge and d) Without her consent;

[2]The evidence of PW1 in respect of these elements is to be analysed. She said that the accused drove to a secluded area and stopped the car. She asked why but he remained silent. He first fondled with her breasts and then unzipped his pants. She stated that she was forced to do oral sex. She asked him to stop but he did not respond. He then unzipped her pants whilst she was resisting said that he inserted his penis into her vagina three times and raped her. In plain text any one may accept this evidence suffice to prove these elements. But it should be noted that she made this complaint after revealing of her diary notes by her mother. This court must decide the evidence adduce PW1 in this case is acceptable to the court. To qualify this evidence, it should pass following tests.

Test of Spontaneity

[3]The whole case stemmed from diary notes which were found by PW1 mother in July. Till then PW1 remained silent and hid the story. She adduced that she said this oral sex part to one "Anaan" on the same day but this "Anaan" was not called as a witness by the prosecution to strengthen her evidence. This is seven months belated complaint and fair, acceptable reasons for belatedness must be given. If this diary notes were not found out by PW1's mother, this case would not be materialised yet. Court notes this incident took place on 01st January 2009. But Complainant and father stayed in Fiji till 9th January 2009, which there was an ample time to lodge a complaint or reveal the incident within the family circle. But Victim failed to do so. This incident emerges after 7 months its occurrence; sudden exploration of the diary. I note no prudent man will think that this happened in that way. In the light of above facts the PW1's evidence should fail.

Test of consistency and inconsistency.

[4]It should be noted that in her evidence, she made significant contradictions and vital omissions. The complainant gave evidence that she did not get the diary because her father had in his possession and the DPP officers asked him to get the diary. But father-PW2 said that PW1 was reluctant to produce the diary since it is too personal. In the court of law, party must produce best evidence which available to them. But in PW1's evidence she stated that father is responsible for non production of the diary. It appears that copy of that particular page would suffice for survival of this issue, which prosecution failed to do so. She said that she bled after the incident it was like heavy period. But she admitted that she failed to mention it in her statement. She had given three versions regarding ejaculation which was not satisfactory. In PW1 her evidence said that they had a prayer meeting of that evening, but PW2 said that it was party gathering and it confirmed by the movements of DVD which played in the proceedings. Therefore, PW1's evidence is not consistence and it failed this test.

Test of probability and improbability.

[5]The complainant said that she was confused, sad and angry after the incident. However, a DVD recording of the same evening, in fact a few hours after the alleged rape showed that she was jovial, smiling and playing with children. PW1 was 14 years of age and her behaviour after incident is not acceptable. Further she has sent friendly e-mails to the accused after three weeks of the incident did not refer or hint any thing about alleged incident. If this incident was surely happened against her will, as a natural human being, will she write these e-mails? The other thing that assailant was not totally hostile to her. Why was she unable to evade the situation? It should be noted that the accused accidentally touched her breast in the home before the incident. After few minutes of that incident they went to buy a recharge card with the permission of her father (PW2), thereafter incident took place. Thus one who carefully considers these things could find a fair conclusion that alleged rape story is improbable. Therefore I must say the evidence of PW1 should fail in this test.

Test of independency (interest or disinterest)

[6]Prosecution called four witnesses. Only PW1 and PW2 were lay witnesses. Others were official witnesses. During the case of evidence PW2 said some remarks of the past relationship of PW1s. He then stated that he knew that her daughter put her age as 18 years in Myspace to avoid unnecessary invitations of paedophiles. True meaning of why she did put her age as 18 years, has not mentioned clearly in her evidence. Thus PW2 has interest to save PW1's evidence and on this test PW2 is to be considered as partial and unreliable. It should be noted that PW2 did not produce the diary and voice mail message to the prosecutors though they gave several notifications to bring it nor he did not tender it to the court. Therefore this evidence must be rejected.

[23] The prosecution case is primarily based on the evidence of PW1. Court accepts that there is no corroboration required in sexual offences cases. But PW1's evidence is unreliable and entirely discredited; therefore issue of corroboration would not material to this case. Medical Report is not marked in this case; the PW1 said that she lost her virginity of this alleged rape thus issue of virginity remains unanswered. Prosecution failed to prove that at least PW1 is not a virgin. At one stage PW1 claims that she is still a virgin as it happened against her will. If Medical Report was produced, it may give some weight to prosecution case. Prosecution has failed to produce vital evidence such as Medical Report, Diary, complaints mother's evidence, evidence in relation to voice call message, "Anaan" whom the complainant told this story first on that day. Court should act on the evidence before it and can not go voyage of searching evidence. No burden has been given to the accused in this regard and he could remain silence and prosecution should prove guiltiness of the accused beyond reasonable doubt. Considering all evidence placed before this court, cast a serious doubt about the prosecution case and it is unsafe to convict the accused based on such evidence. Therefore it is clearly appeared that a reasonable tribunal taking the Prosecution's case at its highest could not safely convict the accused of the offence charged.

[24] In the light of above observation by the court, court decides that there is no sufficient evidence in respect of latter two elements have been made for the offence to require the accused to be put to his defence.

Conclusion

[25] Therefore it appears to this court that a case is not made out against the accused person sufficiently to require him to make a defence. Case is dismissed and the accused is acquitted accordingly.

Sumudu Premachandra
Resident Magistrate