IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 076 of 2012

BETWEEN:

STATE

AND:

ISOA RAISALUWAKI RATUDELANA

BEFORE : Mr. Justice Paul K. Madigan
COUNSEL : Mr. S.Vodokisolomone with Mr. J. Niudamu for the State
Ms. L. Vaurasi with Ms. S. Nayacalevu for the accused.

Date of Hearing : 14 & 15th May 2012
Date of Summing Up: 16th May 2012

SUMMING UP

[1] 	Madam and Gentlemen assessors.

The time has come now for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them. 

[2]	I remind you that I am the Judge of the Law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can decide where the truth lies in this case. If I express any particular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact. 

[3]	Counsel have both addressed you on the facts but once again you need not 
adopt their views of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. You can accept some of what a witness says and reject the rest. You can accept all of what he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence. 

[4]	You must judge this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what evidence there might have been or should have been. You judge the case solely on what you have heard and seen here.
 
[5]	The court room is no place for sympathy or prejudice. In this regard you may have strong views on young people drinking to excess and misbehaving, but you would put these prejudices to one side and examine only the relevant evidence.

[6]	I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court. 

 [7]	It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused raped Sharon, hit her and stole her mobile phone, then you will find him guilty.

[8] 	The accused in this case is charged with one count of rape, one count of assault occasioning actual bodily harm and one count of theft. You must look at each of these three counts separately: if you happen to be of the opinion that he is guilty of one of the counts does not necessarily mean that he is guilty of the other count or counts.

[9]	I am sure you are all probably well aware of what rape is in the general sense, but for the purposes of the criminal law in Fiji, it has specific elements on which I now give you directions.
 
[10]	 For you to find that the accused is guilty of rape, you must find beyond 	reasonable doubt, that is so that you are sure, that;

(i) 	It was this accused
(ii) 	Who had sexual intercourse with the victim
(iii) 	That in the course of that intercourse, there was at least partial, if not full, penetration of the vagina by the accused's penis.
(iv) 	That the victim was not consenting to this activity, and that the Accused knew, or had good cause to know that she was not in fact consenting. 

[11] 	To find the accused guilty of assault occasioning actual bodily harm you must find proved beyond reasonable doubt that; 

This accused
Unlawfully assaulted Sharon and 
The assault caused harm to some part of Sharon's body.

[12] To find the accused guilty of theft you must find that he took Sharon's phone without her consent and when he took it he had an intention to permanently deprive her of it, that is to say that he intended to keep it and not give it back.

[13] 	I now propose to look at the evidence with you and remind you of both the prosecution and the defence evidence; I don't propose to do this in much detail because this has been a very brief case and you only heard the evidence yesterday. However, it is my duty to remind you of the main points before you go out to consider your opinions. Please bear in mind however that whatever I say about the evidence you do not have to accept unless of course you agree with it. 

[14] Sharon tells us that after a night of partying she went to sleep on her bed. The 
next thing she knew she could feel someone on top of her. She opened her eyes and saw Isoa. "He was having sex with me". She said that she could feel his penis inside her and he was moving it back and forward. She never consented to him doing that. There was a love bite on her neck that she must have got when she was asleep. She told Isoa to get out and then she got a phone call from her boyfriend. She told him there was nothing wrong, and then she rang Francis and told him she had been raped by a policeman. It was then that Isoa started hitting her, on the face and on the head. She was still on the phone but Isoa grabbed the phone and ran off. She lay down, Francis arrived, the rape was reported, and she later went for a medical examination. 

[15] Francis gave evidence and confirmed that Sharon had called him at 1.10pm on the 23 February. She told him she had been raped and he heard her scream. He went to her flat and Sharon told him what had happened. He helped her to call his Policeman friend in Flagstaff and as a result a report was made in the sexual offences office at Totogo Police Station.

[16] Sharon's friend Lydia gave evidence but she could only tell us about the drinking before she left the flat. She wasn't there when the alleged rape, theft and assault occurred so you might think that her evidence is not very helpful. 

[17] In a similar vein Shevneel told us about the all night party but he too left before 
the events that led to the charges occurred. 

[18] The statement of Isoa's police colleague, Solo, was tendered by consent. It is evidence for you to consider, but again whilst he was present for the drinking he cannot help us on the real issues.

[19] 	I wish to direct you at this stage on the value of the Police witness statements that Ms. Vaurasi has had placed before you. When a witness gives a statement to the Police and when that witness subsequently gives evidence in Court, then the evidence in Court is the evidence that you must consider and give weight to. It overrides anything that it is contained in the witness statement. There is a proviso to that however. If the statement and the evidence are so contradictory in certain aspects then you might think that you can place no value on the evidence in Court of the witness. I do not think that any of the statements before you fall into that category, so I would invite you just to consider the court evidence alone of Lydia and Francis. 

[20] 	You heard the evidence of the two Police officers who interviewed the accused and formally charged him and you heard those two interviews read to you. There being no challenge to those interviews the answers contained in those interviews are all evidence for you to accept as evidence and give whatever weight you think. You will note that the answers given by the accused in his long cautioned interview are consistent with the evidence he gave in Court. There is one aspect however that is in dispute. You will see in the charge statement that at the end of it the accused makes a statement apologizing for taking the phone. He says now that he never made that statement; that it must have already been in the computer as a precedent from another case. It is a matter for you to consider.

[21] The last witness for the Prosecution was the medical officer who examined Sharon after her report. He noted soft tissue injuries to her face with redness and swelling. He saw a large dark love bite on her neck and was not able to say whether there had been penetration of her vagina or not, although he did note that she had been sexually active. He did say that in his opinion the love bite was consistent with sexual assault and furthermore that if there had been forceful penetration of her vagina there would have been bruising and there was not. 

[22] 	That was then the end of the State's case and you heard me explain to the accused what his rights are in defence. He elected to give evidence under oath. Now ISOA didn't have to give evidence because he does not have to prove anything to you. It is the burden on the State to prove the case, whether the accused gives evidence or not but he having elected to give evidence presents you with evidence that you must consider and give whatever weight you think fit. 

[23] 	Isoa told us at length of the circumstances leading up to his being in Sharon's flat, of the multiple purchasing of beer in Toorak, drinking and dancing inside the flat. Finally after he had dropped off Shevneel and Solo he returned the car to the flat and after doing so went up to see Sharon. He was sitting on the settee and he woke her up. At her request he took her staggering to her room where he put her on the bed. He says she then made intimate overtures to him and they then engaged in intimate sexual fore-play. She let him put a love bite on her neck. She helped him to pull off her shorts while she herself removed her bra. He says that she seemed to be enjoying what he was doing to her and there was certainly no objection to it. She was awake and participating. It was only when he was fully aroused and about to penetrate her that she pushed him away from her with her legs on his chest. After she had gone to the bathroom she started using her phone telling people she had been raped. He was angry at this because he considered he didn't rape her- he slapped her on the face and took the phone from her; he says to stop her reporting the rape anymore. He then left unlocking the gate and throwing the keys back into the property. It was when he got home and taking a shower that he realised he had the phone in his pocket and he was considering ways of getting it back to her. He says that he didn't plan to keep the phone.

[24] 	Well Madam and Gentlemen; that is the evidence which you are required to deliberate on. First you will consider the count of rape. You will only convict the accused if you find that he did penetrate her with his penis and that in doing that Sharon was not consenting. If you think that there was no penetration or if you think that there was but Sharon consented, you will find him not guilty of rape. If you are not sure then you will find him not guilty because you must be sure before you can convict.

[25] 	On the matter of assault you are assisted by the admission by the accused that he slapped Sharon. If you think that the resultant medical injuries, which are redness and swelling, are not bodily harm then you will find him not guilty of assault occasioning actual bodily harm. There is an alternative crime of common assault which is open to you to find if you think that that charge is more appropriate. It is entirely a matter for you.

[26] 	For theft charge; there is no dispute that the accused took the phone. He says that he forgot he had it and he had no intention of keeping it. If you think that is true or may be true or you are not sure, then you will find him not guilty of theft, because to be guilty of theft the State must prove an intention to permanently deprive. It is a matter for you.

[27] This is all I wish to say Members of the panel. You may now retire and consider your opinions. When you are ready, please inform one of my clerks and I will reconvene the Court. You will each return a separate opinion on each count. Remember to look at each count separately, and remember that whatever I have said about the facts you don't have to accept unless of course you agree with me. It would be far better if you could all be agreed on your verdicts but that's not strictly necessary. You may now retire.

28. Any redirections Counsel?

Paul K. Madigan
JUDGE

At Suva
16th May 2012