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State v Tamanisau [2011] FJHC 747; HAC177.2010S (4 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 177 OF 2010S

STATE

vs

ISIKELI TAMANISAU

Counsels: Ms. S. Hamza and Ms. L. Latu for the State
Ms. P. Salele and Mr. V. Faktaufon for the Accused
Hearings: 31st August to 3rd November, 2011
Summing Up: 4th November, 2011

SUMMING UP

______________________________________________________________________ ______

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. The accused, Isikeli Tamanisau, was charged with two counts of "defiling a girl between the age of 13 and 16 years", contrary to section 215 of the Crimes Decree 2009. On the first count, it was alleged that, between the 1st February and 18th August 2010, at Nasinu in the Central Division, the accused had unlawful sexual intercourse with the female complainant, aged between 13 and 16 years old. On the second count, it was alleged that, on 19th August 2010, at Nasinu in the Central Division, the accused repeated what he allegedly did in count No. 1.

D. THE MAIN ISSUES

8. In this case, as judges of fact, each of you will have to answer the following questions:

(i) Did Isikeli Tamanisau, between 1st February and 18th August, 2010, at Nasinu in the Central Division, defile the female complainant, aged 15 years at the time (count No. 1)?

(ii) Did Isikeli Tamanisau, on 19th August 2010, at Nasinu in the Central Division, defile the female complainant, aged 15 years at the time (count No. 2)?

(iii) If your answer to either (i) or (ii), or both above is "yes", you will have to consider the defence available to the accused in each case, by answering the following question: Did the accused, in each count, had reasonable cause to believe, and did in fact believe that, the female complainant was of or above 16 years, at the time? If your answer to this question is "yes", the accused is not guilty as charged. If it is "no", the accused is guilty as charged.

E. THE OFFENCE, IT'S ELEMENTS & THE DEFENCE

9. For the accused to be found guilty of "defiling a young person between the age of 13 and 16 years", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) unlawfully

(iii) had sexual intercourse

(iv) with the female complainant

(v) who was or above 13 years and under 16 years.

10. "Sexual intercourse" above means the act of the accused's penis penetrating the complainant's vagina, and in law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse". The fact that the accused ejaculated or not, is irrelevant to committing the offence. Also, the complainant's consent to sexual intercourse, is no defence to the offence. The offence was put in place to protect young girls, between the age of 13 and 16 years, from being "preyed upon" by man. So, their consent, does not protect a man from being prosecuted, for defiling them.

11. However, it is a defence to the above offence, if:

(i) it shall be made to appear to the court

(ii) that the person charged

(iii) had reasonable cause to believe

(iv) and did in fact believe

(v) that the girl

(vi) was of or above the age of 16 years.

12. In other words, as assessors and judges of fact, you will have to look at and closely examine the evidence produced by the parties, in order to answer the question: whether or not, the accused had reasonable cause to believe, and did in fact believe, that the girl was of or above the age of 16 years. You must carefully look at the facts, to see whether the accused had reasonable grounds to believe, and did in fact believe, that the complainant was of or above 16 years, prior to them allegedly having sexual intercourse. The complainant's looks, conduct, and the surrounding circumstances must be examined to see whether or not they were such, as to make the accused believe, and he in fact did believe that, the complainant was of or above 16 years. If you find, on the facts that, the accused had reasonable cause to believe, and did in fact believe that the complainant was of or above 16 years, prior to them allegedly having sexual intercourse, he is entitled to be found not guilty as charged, and acquitted accordingly.

13. However, in this case, the act of sexual intercourse with the complainant, at the material times, were seriously objected to and contested by the defence. In other words, before you can rely on the defence mentioned in paragraph 11 hereof, you must have first found that the accused and the complainant did have sexual intercourse, at the material times. Only then, can you proceed to examine whether or not the defence in paragraph 11 hereof is available to him. If he succeeds on the defence, he is not guilty as charged. If it's otherwise, he is guilty as charged.

F. THE PROSECUTION'S CASE

14. The prosecution's case was as follows. Isikeli Tamanisau, at the time of the alleged offences, was 42 years old, married with 3 young children. He reached class 6 education, at Wainibuka District School, in Tailevu. However, at the age of 42, he is a welder by profession, and builds oil tanks etc. for Pacific Energy Company. In 2009, he moved to Tamole Street, at Newtown, into his father-in-law's house. His father-in-law is from Vanuatu, although born and bred in Fiji. In 2010, Isikeli had a car, registration No. FJ 792.

15. A few meters from Sikeli's father-in-law's house was the female complainant's house. She was 15 years old, at the time. She resided in her father's house with her parents, and a brother. Sometimes between the 1st of February and 18th August 2010, according to the prosecution, the female complainant and Sikeli went out for a ride in Sikeli's car, after 10pm. They rode around Vatuwaqa, Laucala, Newtown and to Namara Settlement. According to the prosecution, the two stopped at Namara Settlement, and had sexual intercourse. The prosecution contended that Sikeli knew, the female complainant was below the age of 16 years, at the time.

16. According to the prosecution, Sikeli took the female complainant out for a car ride again on 19th August 2010, after 10pm. They went in Sikeli's car to Valelevu, and then to Wainibuku. They drove into Nasinu Cemetry near a shelter. According to the prosecution, the two had sexual intercourse in Sikeli's car. Thereafter, they returned to Newtown. According to the prosecution, Sikeli knew the female complainant was under 16 years old, at the time. According to the prosecution, Sikeli defiled the female complainant twice in 2010, as detailed in counts No. 1 and 2. They ask you to find him guilty as charged, on the two counts. That was the case for the prosecution.

G. THE ACCUSED'S CASE

17. When the two defilement charges were put to the accused, he pleaded not guilty to both of them. In other words, he denied the allegations leveled at him. He choose to give sworn evidence in his defence. He said, he knew the female complainant, who was related to his wife. He admitted, they are neighbours. He said, the female complainant told him, she was 16 years old, when they were riding in his car. He admitted that, in June 2010, he went with the female complainant in his car. They drove to Raiwaqa, Laucala, back to Newtown, and up to Tacirua, where they stopped near a bus stop, on the main road. Sikeli said, they did not have sex, at the time. A while later, they returned to Newtown.

18. On 19th August, 2010, Sikeli also admitted he drove in his car with the female complainant. This was after 10pm at night. They drove to Wainibuku, the entrance to the Nasinu Cemetry and back to Newtown. Sikeli said, he did not have sex with the female complainant, at the time. On the two defilement charges, Isikeli denied having sexual intercourse with the female complainant, at all. He asks you, as assessors and judges of fact, to find him not guilty as charged, on both counts. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
(i) The Agreed Facts:

19. The parties have submitted an agreed facts. A copy is with you, and you must consider it very carefully. Their agreement is itemized in seven paragraphs. As a matter of law, you may take it that the facts agreed to by the parties, have been proven by the prosecution beyond reasonable doubt. Of particular importance is paragraphs 1 to 4, which I quote hereunder:

1. Isikeli Dakulevu Tamanisau [hereinafter the "accused"] lived at Tamole Settlement, Newtown between the 1st day of February 2010 and the 19th of August 2010.

2. The accused was the neighbour of Temalesi Takayawa [hereinafter the "complainant"] at Tamole Settlement, Newtown.

3. Between the 1st day of February 2010 and the 19th of August 2010 the accused owned and drove a blue motor vehicle registered as FJ 792.

4. Between the 1st day of February 2010 and the 18th of August 2010 the accused and the complainant travelled in the accused's vehicle registered as FJ 792 from Tamole Settlement, Newtown to Namara Settlement before returning home.

(ii) Undisputed Facts:

20. After listening to the prosecution and defence witnesses, it would appear that the following material facts were not disputed by the parties:

(i) That on 19th August, 2010, the accused and the complainant travelled in the accused's car, registration No. FJ 792, from Newtown Settlement to Valelevu, then to Wainibuku, near the Nasinu Cemetry, towards Nausori and back to Newtown, after 10pm.

(ii) That the complainant was questioned and beaten by her father thereafter, for not asking his permission to go out that night.

As a matter of law, because the above facts are not disputed by the parties, you may take it that the prosecution had proven the above facts beyond reasonable doubt. This enables us to concentrate more on the disputed issues.

(iii) The Disputed Fact:

21. In this case, it was apparent when listening to the parties' evidence, in terms of the elements of defilement as itemized in paragraph 9 hereof, that the parties disagreed on the issue of whether or not the accused and the complainant had sexual intercourse at the material times. As far as the State was concerned, the complainant said, that she and the accused had sexual intercourse twice in the front passenger seat of his car, when he took her out for a car ride, sometime in June and August 2010, after 10pm. The defence on the other hand, completely denied the above. The accused said that, although he admitted taking the complainant out for a car ride in June and 19th August 2010, he did not have sexual intercourse with the complainant, at the material times.

(iv) Did the accused and the complainant have sexual intercourse, as alleged in counts No. 1 and 2?

22. The State's case against the accused stands or falls, on whether or not, you, as assessors and judges of fact, accept the evidence of the complainant against that of the accused, on the issue of whether or not the two had sexual intercourse, at the times alleged in counts No. 1 and 2. The act of sexual intercourse, in most cases, is always a private matter. Third parties are often absent to confirm or deny the act of sexual intercourse. Likewise, in this case, the State's case against the accused was based on the complainant's evidence that the two had sexual intercourse in the front passenger seat of the accused's car, at the material times. The complainant said, the same was committed after 10pm at night, on both occasions. She said, in the first instance, the act was committed at Tacirua, near Namara Settlement. On the second occasion, she said, the act was committed near a shelter, at the Nasinu Cemetery. The complainant's evidence was completely denied by the accused. The accused said, he never had sexual intercourse with the complainant, at the material times.

23. As assessors and judges of fact, your decision on whether or not to accept the complainant's version of events or that of the accused, will depend on your assessment of their credibility. In establishing their credibility, you will have to look at their total character, as revealed by the evidence, and how you observed their demeanour in the courtroom, while they were giving evidence. What does the evidence say about their character? The complainant was 15 years old, at the time. She resided with her parents at Tamole Street, Newtown. She stays at home, and does not attend school. She also resided with two of her brothers. According to Miliana Teana (PW4), the complainant is a strong willed person, but at times immature and often doesn't listen to anyone. Even her father finds difficulty in keeping her home at night. As demonstrated in this case, she went with the accused for a joy ride, without seeking her father's permission, after 10pm, at night. According to her medical report (Prosecution Exhibit No. 4), she was already sexually active, at the age of 15 years.

24. The accused, on the other hand, was 42 years old at the time, married with three young children. He reached a class 6 education, but is a welder by profession, at 42 years. He welds oil tanks etc. for Pacific Energy Company. He bought himself a car in June 2010. He is married to a Fiji born and bred Vanuatu lady, and lives in his father-in-law's house, at Tamole Street, Newtown. They are close neighbour's to the complainant, who is related to his wife. When caution interviewed by police on 3rd September 2010, he admitted going out with the complainant for a car ride, at the material times, but denied having sexual intercourse with her, at those times. He repeated the above when giving evidence during the trial.

25. Which version of events to accept, is a matter for you. If you accept the accused's version of events that he did not have sexual intercourse with the complainant, at the material times, then you must find the accused not guilty as charged on both counts. However, if you accept the complainant's version of events that she and the accused had sexual intercourse, at the material times, then you must go on to consider the defence mentioned in paragraph 11 hereof, which is available to him. You must ask yourselves the following question: Did the accused have reasonable cause to believe, and did in fact believe that, the complainant was of or above 16 years old? In answering this question, you will have to examine the whole evidence given by both parties. You will have to examine the complainant's general behavior in how she conducts herself in the community. You will have to consider how she behaved towards the accused, as revealed by the evidence. Was she behaving or was she acting as if she was over 16 years? You will have to consider how she looked at the time? Did she look as if she's 16 years or over? If you find that the accused had reasonable cause to believe, and did in fact believe that the complainant was of or above 16 years, prior to having sexual intercourse with her, he is entitled to be found not guilty as charged, on both counts. If it's otherwise, you must find him guilty as charged.

26. You have heard the evidence of the 7 prosecution's witnesses, and the 3 defence witnesses. You have watched them in court give evidence. What were their demeanour like? How did they re-act to being cross-examined and re-examined? Were they forthright? Were they evasive? Were they argumentative? How were they dressed to court? How did they conduct themselves generally in court? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of a witness's evidence is reliable, and therefore to accept, and which witness's evidence, or part of his evidence, is unreliable, and therefore to reject, in your deliberation.

I. SUMMARY

27. Remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of his guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of his guilt, you must find him not guilty as charged.

28. Your possible opinions in this case are:

(i) Count No. 1 - Defilement - Guilty or Not Guilty.

(ii) Count No. 2 - Defilement - Guilty or Not Guilty

29. You may retire to deliberate. Once you have reached your decisions, you may inform the clerk, so that we could reconvene to receive them.

Salesi Temo
JUDGE

Solicitors for the State: Office of Director of Public Prosecution, Suva. Solicitors for Accused: Q.B. Bale & Associates, Barristers & Solicitors, Suva