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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
HIGH COURT CRIMINAL CASE NO : HAC 20 of 2011
BETWEEN:
STATE
Prosecution
AND:
JOSEVA VAILEBA
The Accused
Dates of Trial: 18-19 July 2011
Date of Summing-Up: 21 July 2011
Mr F Lacanivalu for the State
Accused in person
SENTENCE
Madam Assessor and Gentleman Assessors
5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately could be utilized to decide the case before you.
8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.
15. Lady and gentlemen, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.
'Joseva Vaileba on the 20th day of January 2011 at Naidovi, Sigatoka had unlawful carnal knowledge of a woman BX without her consent.'
'A person rapes another person if the person has carnal knowledge with or of the other person without the other person's consent.
(ii) Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. Such penetration should not be to the extent of ejaculation or should not go through the full passage of the vagina. Instead, mere insertion of the penis into the vagina is sufficient to constitute penetration.
(iii) Consent means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. You should bear in mind that the submission by a woman without a physical resistance by itself shall not constitute consent. A woman of or over the age of 13 years is considered by law as a person with necessary mental capacity to give consent.
(iv) Consent is considered not to have been given freely and voluntarily if it is obtained by force, by threat or intimidation, or by fear of bodily injury or by false and fraudulent representations or by a mistaken belief induced by the accused person that he was the woman's sexual partner.
19. So, the elements of the offence are that the accused penetrated the vagina of the victim to some extent, which means that the insertion of the penis fully into the vagina is not necessary. Such penetration should have taken place without the consent of the woman.
20. Proof can be established only through evidence. Evidence can be direct that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, the victim is a witness who offered direct evidence, if you believe her, as to what she saw and felt.
21. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, interview and charge statements, which are before you, are documentary evidence. If you believe such a record of interview was made, as the prosecution presented to you, then you can act on such evidence. Medical Report, relied on by the prosecution is also another example of documentary evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time.
22. Real evidence is the material objects that are used to commit an offence and/or those recovered from the scene of the crime or from an accused or from a victim. In this case, the sulu, the pink top and the black pant are examples for real evidence. They can be used to support the evidence of a witness and to advance one's case. You must consider whether the material objects were, in fact, used or found from the scene or from the person concerned before you accept them as relevant real evidence in the case. In this case, above material objects were not shown to have been worn by the victim and therefore you cannot accept them as evidence to advance the evidence of the victim.
23. You must consider all direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence. You must, in addition, consider circumstantial evidence that is the evidence that you gather after putting some proved facts together. From each circumstance you can infer certain facts as such circumstances would warrant.
24. I will now deal with the evidence in this case briefly.
(i) BX, the alleged victim, a mother of two children below 2 years, was 27 years of age. She was residing in Naidovi village and had started work at Shangri La Fijian Resort from 04 June 2010.
(ii) On 20 January 2011, she returned home after dinner at her sister-in-law's place and went to sleep around 10.00 p.m. besides her daughter on a mattress in the sole bedroom in her house.
(iii) She felt someone moving around outside as she heard footsteps. This was followed by the voice of someone calling from outside, whom she later identified as Joseva, who was also known as 'Nakai', with the help of the light emanated from the neighbours'. She had known Joseva for three months after she started work at Shangri La.
(iv) She had asked for the reason for Joseva to have come there at that night. But, with no reply to that question, he, instead, asked her to open the door for him to come in. Joseva had come in and sat just 2 meters away from her.
(v) Joseva had wanted to sleep that night in BX's house as he had to start work at 8.00 a.m. following day. She had said that he could not sleep at hers as there were no boys there to which Joseva had replied 'okay. Set.'; and, went up to the door and closed it.
(vi) After closing the door, Joseva, without sitting at the place where he was sitting, got closer to BX and sat right opposite to her. BX had noticed that Joseva was drunk.
(vii) Thereafter, Joseva had pulled BX towards him and started kissing her cheeks and lips. She asked what he was doing; but, Joseva, without replying, had pulled her back and repeated kissing BX. He then started pushing her back so as to make her lie down.
(viii) When she lied down, Joseva had got hold of her hands with one of his and used his other hand to open up his clothes. He used the same hand to undo her 'sulu' while sitting on her stomach and to open her under-pants. Joseva did not remove the under-pants completely. Instead, he shifted it to one side and inserted his finger into her vagina.
(ix) BX started crying and pleaded to stop. But, Joseva continued. He then tried and inserted his penis into her vagina. He was putting his penis in and out of the vagina for about three minutes. As she shouted her daughter had got up.
(x) BX said that she did not consent to the act of sexual intercourse at any time. She said that she had hated the act and she pushed him out as she managed to stand up. She then sat down and started crying. Joseva, whilst standing outside had pleaded for forgiveness.
(xi) She then telephoned her father and the matter was reported to the police-post on that night itself. She identified the accused as Joseva who did the alleged act of sexual intercourse without her consent on that night.
(xii) She confirmed that she was examined by a medical doctor at Sigatoka Hospital and a medical report was issued to her, which she identified as 'MFI 1'.
(xiii) Answering cross examination, she said that it was the first time that she had sexual intercourse with him and that she did not have any sex with Joseva at the Resort. The accused asked about an instance where he had had sexual intercourse with her at Feeder Road at Yanuca Junction for the first time. The accused also put to BX that they had sexual intercourse for a second time beside the pavilion and that they were seen by one Animio Slalasala. To both questions, she replied 'no'
(ii) Answering cross examination by the accused, witness denied meeting the accused that night and that he had drunk 'kava' together at Nadro Super Market in Cuvu together. The accused suggested to the witness that the complaint was lodged by BX at the instance of the father even though she initially did not want to lodge a complaint. The witness answered the suggestions with 'no'.
(ii) She also recorded the statement of the accused Joseva Vaileba under caution in Fijian language which was later translated to English after giving his rights. She produced the English translation of the cautioned statement as 'PE 1' and its Fijian version as 'PE 2'. Having read out to you the contents of the statement, she identified the accused as the person from whom the statement was recorded.
27. DC 3027 Clifford Waqabaca said that he was on duty at Sigatoka Police Station on 20 January 2011 and received instructions to charge the accused. He said that he cautioned the accused and charged him for the offence of rape. He stated that he understood the charge and that he did not complain of anything. He identified the charge statement marked as 'PE 3' and 'PE 4'.
(ii). On 21 January 2011, he was on 'on call' duty and around 0430 a.m. he received a police emergency call relating to a case of rape. The alleged victim was accompanied by a female police officer and she was examined with her consent inside the labour room.
(iii). He observed linear hematoma around her mandible and on the neck, which could have been caused by fingernails, a bite or an excessive pressure. He also observed healed old lacerations on the hymen at 2 o' clok, 4 o' clock and 7 o' clock positions and saw no bleeding. He observed no signs suggestive of force in and around the vagina. He said that hymen could be torn as results of child-delivery, sexual intercourse or horse-riding etc.
(iv). Answering court, the doctor said that he would have expected some injuries on genitalia or at least some redness if the sexual intercourse was forcefully done; but, in this instance he had seen none.
29. The prosecution closed its case with the evidence of above witnesses and documents marked as 'PE 1-PE5.
30. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that the exercise of my power under law as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and that he can exercise options available under law. The accused decided to give evidence. That is his legal right and you must consider that evidence too in the way you consider the evidence of the prosecution.
(ii) On the date of the incident, he said, that he wanted to surprise BX and went to her house and called her out. She opened the door and they kept on talking. Thereafter, they sat and started kissing each other. The accused was playing around her and he started using his fingers. Though the accused had wanted to insert his penis, BX had said 'no' to it because he was married. The accused then went outside and asked for forgiveness having knocked from outside. She had accepted it and wanted me to leave as her family members were coming. According to the accused, BX got frustrated as he was found to be married.
(iii) Answering cross examination of the learned prosecuting counsel, the accused said that he had known BX after she started working at the resort. He said that on the date of the alleged incident he was only using his finger. He further said that BX got frightened as her family members came. Answering the question that he was too drunk to have known what had happened, the accused said that if that so was and had he raped her, she could have screamed. The accused was also referred to Question Nos 50-59 of the caution interview statement in reply to which he said that he jut his finger into the vagina of BX.
The accused closed his case with his own evidence.
32. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.
33. In summary the prosecution presents mainly two kinds of evidence to establish its case. One is the direct evidence of BX, who allegedly became the victim of the offence; and, the other is the admission alleged to have been made by the accused in the cautioned interview statement.
34. You must note that the evidence of the alleged victim is crucial to this case. In assessing her evidence, you must consider what she told before you, the manner in which she behaved in court and the manner she faced the cross examination of the accused.
(ii) It is also a matter for you to consider whether it was possible for the victim, who was said to be in a frustrated situation as advanced by the accused, to have falsely implicated the accused. If you feel so then the case for the prosecution is not established and you must acquit the accused.
36. Medical evidence is also equally important. The doctor said that he would usually have expected signs of force on genitalia or at least some redness; but such things were not present in this case.
37. The victim was admittedly 27 years of age. Therefore, the element of consent is material as the law recognizes her as a person who has the capacity to consent.
38. Even if you believe that the incident of sexual intercourse took place in the way the victim chose to explain, then you must see whether she had given her consent to it. If you think that the victim had given consent, then the offence of rape is not made out. Or, if you think that there is at least a doubt that she would have consented or submitted herself to the act with her own free will, then again the offence of rape is not made out and you must proceed to acquit the accused.
39. If the evidence of the accused is accepted, on the other hand, that he did everything but not the sexual intercourse, then the prosecution case fails. Or, if you feel that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted.
40. Please remember, even if you reject the version of the accused that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has established its case beyond a reasonable doubt that the accused did put his penis into the vagina of the victim in the way that the victim narrated, independent of the accused's evidence.
41. You can also consider whether the evidence is consistent and corroborative of each other or whether they fall apart. That is, whether the surrounding circumstances also reveal the same line of events as narrated by the victim or whether they do not match each other in coming to your conclusion. Even though the corroboration is not required as a matter of law it is always safe to look for corroboration if you feel that such corroboration is needed given the facts of the case.
42. You must remember that the case for the prosecution can succeed only if it has established beyond a reasonable doubt on the evidence of the victim without being shaken by the denial of the accused, of all the elements of the offence of rape. Then only you can find the accused guilty.
43. In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed by emotion, speculation, your imaginations or wishful thinking. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society.
44. Madam assessor and Gentleman assessors, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.
45. I thank you for your patient hearing to my summing-up.
You may retire to consider your opinions now.
Priyantha Nawana
Judge
High Court
Lautoka
21 July 2011
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URL: http://www.paclii.org/fj/cases/FJHC/2011/386.html