IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 150 OF 2010

BETWEEN:

THE STATE

AND:

1. METUISELA KOROI
2. ISOA NAULUMATUA
3. SAVENACA VAKANAVUE

Counsels: Mr. K. Waqavonovono for the State
 Mr. J.Rabuku for all Accused persons

Date of Hearing: 11th to 18th July 2011

Date of Summing Up: 18th July 2011

SUMMING UP

1.	Ladies and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Defence Counsel. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.

2.	Both the State Counsel and Defence Counsel made their submissions. That is their duty. The prosecutor to submit how he proved the case and Counsel for Accused persons to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether these accused persons are guilty or not guilty to offences they are charged.

3.	After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.

4.	In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused persons to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.

5.	The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.

6.	As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

7.	As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

8.	As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court are the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.

9. In assessing the evidence, you are at liberty to accept the whole evidence of witnesses or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.
10. The Director of Public Prosecution had preferred the following charge against all 3 
Accused persons as following:

"METUISELA KOROI, ISOA NAULUMATUA and SAVENACA VAKANAVUE are charged with the following offences:

FIRST COUNT
Statement of offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

METUISELA KOROI between the 1st of April 2009 and the 31st of December, 2009 at Suva, in the Central Division, had unlawful carnal knowledge of a girl namely SALOME DIMASA RATUBA without her consent.

SECOND COUNT
Statement of offence

RAPE: Contrary to sections 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

METUISELA KOROI and ISOA NAULUMATUA, on the 5th day of February 2010 at Suva, in the Central Division, had carnal knowledge of a girl namely SALOME DIMASA RATUBA without her consent.

THIRD COUNT
Statement of offence

RAPE: Contrary to sections 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAVENACA VAKANAVUE, on the 20th day of March 2010 at Nadera, in the Central Division, had carnal knowledge of a girl namely SALOME DIMASA RATUBA without her consent".

11. To prove the offence of Rape the Prosecution should prove the main ingredients of the charge. Main elements of the charge of Rape are as follows:

1. Accused persons had carnal knowledge of the victim 

2. without her consent

3. They knew or believed that she was not consenting or didn't care that she was not consenting.

12. For all the Accused persons to be found guilty for the offence of Rape the 
Prosecution must prove all these elements beyond reasonable doubt. While considering the evidence before the Court if you find there is a reasonable doubt that in any one of the element then you must find all Accused persons not guilty.

13. Carnal knowledge means penetrating of the vagina by the penis. It is not necessary that the Prosecution must prove that there was ejaculation or even a full penetration.

14. The next element was the consent. Consent was defined in section 206 of the Crimes Decree.

"(1) The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained –

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner."

15. Section 149 of the Penal Code also makes same provisions almost repeats the above 
section. Therefore the interpretation and explanation is applicable to First Count also.

16. As per section 207 (3) a child under the age of 13 is incapable of giving consent. In 
the present case the virtual complainant is more than the statutory age. ie, She was above 15 years and 11 months at the time of alleged incident.

17. In this case all 3 Accused persons admitted that they had sexual intercourse with the 
complainant Salome Dimasa Ratuba. 

18. The question before the Court is whether these Accused persons had sexual 
intercourse with Salome with or without consent. If it is found they had sex with consent then they cannot be convicted. If there is no consent then they can be convicted for the offence of rape.

19. To consider whether the virtual complaint had consented or not we have to analyse 
the evidence before us.

20. Prosecution called five witnesses to give evidence. The first witness was Salome Dimasa Ratuba. It was admitted that she was born on 5th September 1993.

21. She commenced an affair with the 1st Accused Metuisela Koroi in April 2009. They had dates. During the dates they used to do kissing and sexual stuffs such as sexual intercourse. 

22. During the Hibiscus Festival 2009, one Thursday, she was returned from the festival at night. The 1st Accused came in the same bus, both got down at the same halt and walked home. Salome's cousin Lanieta was with them. Near to Salome's home 1st Accused and Salome without going to her home they went to the house of the 1st Accused, there they proceeded one to another and ended up in having sexual intercourse. She says she didn't give consent but the 1st Accused said it was done with consent. She didn't tell this to anyone. Even after this incident they continued with their relationship and dating.

23. On 05/02/2010 (Friday) at about 10pm she got a call from 1st Accused and went out with him. Both went to the Methodist Church of Nadera and they went to the ladies toilet. According to Salome, 1st Accused had begged her for sex. She had refused then 1st Accused forcibly had sex with her. At that time she had heard some were walking outside of the toilet. When she asked from the 1st Accused he had told her it may be stray dogs.

24. According to Salome after the sexual intercourse, leaving her half naked the 1st Accused walked out with her shorts and came in with the 2nd Accused.

25. Salome said 2nd Accused Isoa Naulumatua came in and had sex with her forcibly. After finishing he had signaled by whistling. 

26. Further Salome said that, Noa then came in and asked her what happened and consoled and took her to her home.

27. You heard she changed her position in the cross examination. Initially she said that another unknown person came in and raped her. On further questioning she said it was Noa, who raped her. After the lunch break, she changed her position and said Noa didn't rape her.

28. You have to consider her evidence in the light of the evidence of other witnesses, because the question here is whether she is telling the truth or not.

29. Lanieta gave evidence and corroborated the evidence of Salome to certain extent that incident happened in August 2009 and Salome told her that 1st Accused forcibly had sex with her. But she didn't corroborate the observation of blood stains and other things.

30. Noa Lasagavibau gave evidence. He said this (incident said to have happened in February) had happened during his school vacation in November. He corroborates to certain extent with Salome. He said Tomasi and 2nd Accused were there and 1st Accused brought Salome and went into the toilet. Thereafter, 2nd Accused went inside and spent few minutes in the toilet. He said he didn't speak to Salome. Salome didn't complaint of any incident to him. He said that she looked normal on that day and she went towards the taxi stand.

31. The mother Mereani Ratuba gave evidence and said she found Salome pregnant in April. Due to medical reasons it was aborted.

32. Police Officer Sanita gave evidence and marked P1 – P8 documents.

33. Regarding the 3rd charge Salome said on the 20/03/2010 she returned from the church and 3rd Accused followed her and raped her. In the cross examination she contradicted herself in material points. She had not complaint to anyone about the incident.

34. If the consent is obtained through fear or by threat, then that is not a valid consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused persons knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

35. You should be convinced that the act of sexual intercourse or penetration was done without the consent of the complainant. If you convinced you can proceed to find the Accused persons guilty if not you should find the Accused persons not guilty for the offence of rape.

36. As you are aware there are three accused persons in this trial, you have to consider evidence against each of the accused persons separately, and decide whether they had committed the offences as charged. Because, one accused is found guilty the other accused need not to be found guilty. If there is evidence for the charge against these accused persons you may find them guilty, if not they should be found not guilty.

37. I have already summarized the evidence of the prosecution witness. You also took notes of the proceedings. You can consider the evidence and compare with one another and come to your own conclusion.

38. All 3 Accused persons opted to remain silent. That is their legal right because the Prosecution should prove the case beyond reasonable doubt.

39. Please consider all evidence and use your experience in life and common sense and 
decide, whether the incident of sexual intercourse happened by force without consent or other way.

40. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of the accused persons' guilt and you are sure of it. You must find the accused persons' guilty as charged. If you are not satisfied beyond reasonable doubt of the accused persons' guilt and you are not sure of it. You must find the accused persons' not guilty as charged.

41. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

42. Let me ask both State Counsel and the Accused persons Counsel whether they have anything to be addressed to you?

 Mr. Waqavonovono: I am satisfied, no issue to be addressed.

 Mr. Rabuku: Thank you. I am satisfied. Nothing to add.

43. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are happy with the summing up.

44. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Law Solution for all Accused Persons