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State v Ravouvou [2012] FJHC 1056; HAC080.2010 (2 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 081 of 2010

BETWEEN:

STATE
Prosecution

AND:

SAMUELA SERU RAVOUVOU:
The Accused

Dates of Trial : 30 April and 01 May 2012
Date of Summing-Up : 02 May 2012

Ms Kimberly Semisi for the State
Accused in person

Name of the victim is suppressed. She will be referred to as MS.

SUMMING UP

Ladies and Gentleman

1. We have now reached the final phase of this case. The law requires of me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
   
2. In my summing-up to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
   
3. Inasmuch as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence. Your opinions could be unanimous or divided; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly.
   
4. Your duty, therefore, is noble and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.
   

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 being selected 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.

6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected. They are matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard such opinion if that does not match your thinking on the matter. You must instead form your own opinion without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.
   
7. Counsel for the State and the accused have made submissions to you as to how you should find the facts of the case. They have done so on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you to accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by them.
   

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.

9. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an alleged incident of rape of a girl of 18 years of age. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy which human-beings are blessed with. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may sometimes have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and/or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
   
10. Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
    
11. The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of rape. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.
    
12. In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof on the accused-person to prove that he is innocent. You will recall that the accused-person is presumed to have been innocent. Therefore, there needs not be any burden on him to prove his innocence. His innocence is presumed by law.
    
13. Inasmuch as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt.
    
14. Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test in a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of rape as I go on.
    

15. 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.

16. Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.
    
17. Let us now look at the charge of rape on the information, which was read over to the accused-person, upon which this trial proceeded.
    

18. The charge is under Section 207 (1) (2) (a) of the Crimes Decree No 44 of 2009. The particulars of the offence, as alleged by the prosecution, are:

'SAMUELA SERU RAVOUVOU on 18 July 2010 at Nadi in the Western Division penetrated the vagina of MS with his penis without her consent'

19. (i) I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this court. Section 207(2) states as follows:

(2) 'A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without the other person's consent.; or,

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c ) The person penetrates the mouth of the other person to any extent with the person's penis 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. So, that is rape under Section 207 (2) (a) of the Crimes Decree.

The other two parts in (b) and (c) of the offence are irrelevant to the facts of this case.

What we are concerned with in this case, according to the charge, is Section 207 (2) (a).

(v) Consent, as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A woman under the age of 13 years is considered by law as a person without necessary mental capacity to give consent. The girl in this case was admittedly over 17 years of age and, therefore, she had the capacity under the law to consent. So, the prosecution must prove the absence of consent on the part of the girl because law says that she had the capacity to consent. Therefore, the offence is made out under the law in this case if and only if there was no consent from the alleged victim.

20. In a criminal trial, an accused-person or his lawyer can admit any fact/s. Such admissions are required to be in writing and signed by the judge. Once admissions are made after following that procedure, they are filed of record to enable court and you to make use of the admissions.

21. Legal effect of such admissions is that they make sufficient proof of the facts admitted. Therefore, such facts need no further proof by way of evidence by the prosecution. You must carefully examine the record of agreed facts to identify the facts that have been admitted by the accused-person. I will read out matters that have been admitted by the accused as follows in the record of the agreed facts. (Admissions read out to the assessors)

22. One element of the offence in this case is, therefore, admitted. That is the act of sexual intercourse. Therefore, that element of the offence that the accused penetrated the vagina of MS to some extent should be considered as having proved.

23. Absence of consent is the other essential element that must be proved. The alleged victim girl was only one week short to complete 18 years, having born on 26 July 1992. She was therefore having the capacity to give the consent to an act of sexual intercourse. Therefore, the absence of consent of the girl or that the girl did not give the consent to the act at all must be proved beyond reasonable doubt by the prosecution.

24. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-person and connect him to the offence that he is alleged to have been committed. Identity is also not in issue as the accused has admitted the act of vaginal penetration on the alleged victim.

25. Proof can be established only through evidence. Evidence can be from direct evidence 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 alleged victim was a witness who offered direct evidence, if you believe her as to what she saw, heard and felt.

26. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, Medical Report is an example if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the victim.

27. Expert evidence is also important to be borne in mind. Usually, witnesses are not allowed to give opinions. They are allowed to give evidence on what they have seen, heard or felt by their physical senses only, as I described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid court and you to decide the issue/s before court on the basis of their learning, skill and experience.

28. The doctor in this case, for example, came before court as an expert witness. The doctor, unlike any other witness, gives evidence and tells us her conclusion or opinion based on her examination of the victim. That evidence is not to be accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if her reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of evidence in the case.

29. In assessing evidence of witnesses you need to consider a series of tests. They are for examples:

• Test of Means of Opportunity: That is whether the witness had the opportunity to see, hear or feel what he/she is talking of in her evidence. Or whether the witness is talking of something out of place mechanically created just to make out a case against the other party.
  
• Probability or Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.
  
• Belatedness: That is whether there is a delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication.
  
• Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that she is talking of, whether she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion. In this case, you should seriously consider whether it was rational for the alleged victim to have waited for hours for the sun to rise and go to her cousin to make complaint even without making a complaint to Sisilia.
  

30. You need to consider all those matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to assess the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.

31. I will now deal with the evidence in this case.

• Morana Shute, the alleged victim, said that she returned home around 1.00 a.m. on 18 July 2010 after watching a concert in Denarau. She was living with two cousins and her elder sister who also went to sleep around 1.15 a.m.
  
• Around 3.00 a.m. when she was asleep, she felt someone touching her singlet but thought she was dreaming. She felt that he was pressing her nipples and breast and saw that it was 'Samu', the accused. It was not bright in the night but saw the accused lying beside her quite close.
  
• After that she screamed but the accused held her strongly and did not yell as she smelt alcohol from the accused. Thereafter, she felt that the accused was again touching her breast and taking off her bra. She then screamed but the accused blocked her mouth. She told her not to do anything and kept on screaming. Thereafter, the accused took off her trousers and inserted his penis into her vagina. The victim felt it was painful and she was feeling dirty and that she did not like what the accused did to her. Thereafter, the alleged victim put on her clothes in the morning and went to Waqadra on a bus where one of her cousins, Maria Qoro, was living. As she asked what happened to her she told her Samu raped her. Then she went to Nadi Hospital where she was examined by a female doctor.
  
• Answering cross-examination, she said although she had screamed from beginning to the end, others did not hear as they were in deep sleep after 3.00 a.m. Answering further she said she was not aware that Malakai, who opened the door of the room was lying down in the sitting room to hear her screaming. She said Sisilia was sleeping in her room as she got up in the morning and she did not answer as to why she did not hear her cries. Answering further the witness said that she had not received any injuries on her body. And further said that her screaming would not be heard by others as they were fast asleep.
  
• Maria Qoro in her evidence admitted the alleged victim coming to her place on 18 July 2010 and stating to her that she was raped by Samuela, she was then taken to Namaka Police Station from there she was referred to Nadi Hospital.
  
• Dr Ms Dawnette Ah Jack in her evidence said that she had examined the alleged victim on 18 July 2010 from 10.45-11.10 a.m. The doctor had seen a torn hymen at 6.00 o' clock position and bleeding. The alleged victim, who was found to be distressed, was recommended for further counseling. The doctor opined that her findings were consistent with the history given by the victim. The doctor, however, did not observe any other injuries on any part of the body.
  

32. The prosecution closed its case with the evidence of above three witnesses and presented the Medical Report marked as PE-1.

33. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under a 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 remain silent in the exercise of his right. That is his legal right and you must not have any adverse or prejudicial view on his silence. Instead, you must consider the evidence of the prosecution case irrespective of the silence of the accused to decide whether the prosecution case has been proved beyond reasonable doubt on its own.

34. 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 yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

35. Please remember, there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty in a rape case. The case can stand or fall on the testimony of the victim depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the alleged victim's evidence if you think that it is safe to look for such supporting evidence. Corroboration is, therefore, to have some independent evidence to support the victim's story of rape

36. The prosecution has presented evidence on the act of sexual intercourse. That is only one element of the offence. That element is, in any event, admitted by the accused-person. Therefore, the prosecution should present evidence to prove the absence of consent beyond a reasonable doubt. This is the point where the prosecution and the accused differ.

37. To establish the absence of consent, you have only the assertions of the victim only. She says that she screamed from beginning to the end, as the accused started to fondle her breast and her screaming went on from time to time until the act of penetration was completed, whenever it became possible as her mouth was being blocked.

38. The accused contends that he had sexual intercourse with consent and the victim did not resist or scream. If such resistance was there, the accused submitted that the victim could have some injuries over other parts of the body. Further, if she had screamed, as she claimed, Malakai Tusobo and Sisilia who were inside the house should have heard such screaming. If you believe the position of the accused then you must express an opinion of 'Not Guilty'. Or, if you believe that the position of the accused creates a reasonable doubt in the prosecution case then, too, you must express an opinion of 'Not Guilty'.

39. In assessing the evidence of the victim as to the issue of consent, you must consider not only the evidence of the victim but also other factors in the case - especially whether surrounding circumstances support her story. In this regard, the issue of the screaming being heard by others is important. You have to note that it was for Malakai and Sisilia to have come before you and say that they heard or did not hear any screaming for whatever the reasons that they may give. But, it is not a matter for the victim to say that they would not have heard as they were fast asleep. She was only making a guess and you should not act on such guessing.

40. Prosecution did not call Malakai, although summoned as a witness. Sisilia also was not called. Police Investigating Officers too were not intended to be called from the beginning; and, were not, in fact, called. It is a rule in the Law of Evidence for you to presume that witnesses, who can be called; but, nevertheless are not called, because they are unfavourable to the party, which has the duty to call them.

41. As a result of investigating officers not being called by the prosecution, you could not hear about the scene of the alleged crime, the location and the size of the room and its surroundings and the distances to the Malakai and Sisilia for you to know whether they could hear the screams or not. Or, whether, police have questioned those two people on what they were doing around the time of the incident and whether they had heard any screaming as narrated by the victim.

42. In view of these failures of the prosecution to call these material witnesses, you must seriously consider whether there is sufficient evidence to come to a finding that there was no consent by the victim to the act of sexual intercourse beyond a reasonable doubt. Moreover, you must consider why the victim did not tell about the incident to Sisilia (Or anyone-else inside the house for that matter) when she saw her (Sisilia) inside the house in the morning before leaving for Waqadra. Prosecution, too, without calling anyone who was inside the house at the time of the commission of the alleged offence, instead called cousin- Maria Qoro who was living far away and who could not personally know as to what happened. Ms Qoro's only repeated what she heard from the victim. Her evidence cannot advance the case on the issue of absence of consent.

43. If you neither believe nor disbelieve the accused's position, in view of these infirmities in the prosecution case, it then creates a reasonable doubt in prosecution case. Therefore, the prosecution fails and the accused should be acquitted of the charge.

44. Please remember, even if you reject the position 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 on its own established its case beyond a reasonable doubt that the accused did have sexual intercourse without the consent beyond reasonable doubt. In this regard, you must seriously consider whether, wouldn't the absence of material witnesses raise a reasonable doubt as to the issue of consent. If you feel that it would, then the prosecution case fails and the accused must be found 'Not Guilty'.

45. So you must consider the evidence of witness MS very closely; and, the overall issues as stated above in the case in relation to the issue of consent and must be satisfied beyond a reasonable doubt after considering the position of the accused, too, in order to come to a conclusion on the charge.

46. If you believe that the absence of consent, after consideration of all evidence and the matters that I enlightened you on, is proved beyond a reasonable doubt, you can find the accused guilty of the charge. If you believe that the absence of consent, after consideration of all evidence and the infirmities in the prosecution case, is not proved beyond reasonable doubt, then you must find the accused not guilty. You must remember that you can find the accused guilty of the offence, if and only if, you reject the accused's position and accept prosecution's position beyond reasonable doubt.

47. In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed away by emotions, speculations, your imaginations or wishful thinking or even by tears shed. Emotions do not, therefore, have a place in court and the matters before you must be considered on the basis of logical analysis and reasoning.

48. You must, therefore, form your opinion only on evidence available on each and every fact as put forward by the two parties on the issue of consent applying more often than not commonsense principles as reasonable men and women in our society would do.

49. Ladies 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.

50. I thank you for your patient hearing to my summing-up.
You may retire for your opinions now.

Priyantha Nāwāna

Judge

High Court

Lautoka

02 May 2012