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State v Tamanalevu - Summing Up [2012] FJHC 1295; HAC344.2011S (20 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 344 OF 2011S

STATE

vs

LIVAI TAMANALEVU

Counsels: Ms. J. Cokanasiga for State
Mr. J. Savou for Accused

Hearings: 13th to 16th August, 2012
Summing Up: 20th August, 2012

SUMMING UP

A. 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.
   

B. 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.
   

C. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

D. THE MAIN ISSUE

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

(i) On count no. 1, did Livai indecently assaulted Raijieli Katarina, between 1st and 31st January 2010, at Kuku Village, in the Central Division?

(ii) On count no. 2, did Livai indecently assaulted Raijieli Katarina, between 1st February and 14th May 2010, at Kuku Village, in the Central Division?

(iii) On count no. 3, did Livai rape Raijieli Katarina, on 15th May 2010, at Kuku Village, in the Central Division?

(iv) On count no. 4, did Livai rape Raijieli Katarina, between 1st August 2010 and 31st August 2011, at Kuku Village, in the Central Division?

E. THE OFFENCES AND THEIR ELEMENTS

9. For the accused to be found guilty of "indecent assault" in counts nos. 1 and 2, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused
(ii) unlawfully, and
(iii) indecently
(iv) assaulted

(v) the female complainant.

10. "Assault", in law, means "the unlawful application of force to the person of another". For example, A takes a stick and hit B with the same, that is, by hitting B with the stick, A is applying unlawful force to the person of B. Likewise, in the context of an "indecent assault", if A kisses B on the body or mouth, without B's consent, that kiss amounts to an unlawful application of force to the person of B. If A fondles B's breast without B's consent, the fondling of B's breast amounts to an unlawful application of force to the person of B. In the context of this case, since the complainant was aged between 16 and 17 years, at the time of the alleged assaults, her consent would turn the "unlawful application of force to the person" as lawful, by virtue of her permission. However, in this case, the prosecution alleged, there was no consent from the complainant.

11. The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent; for example, a man fondling a female's breast, or kissing her, without her consent. The prosecution must not only prove beyond reasonable doubt that an assault had occurred, it must also prove beyond reasonable doubt that the assault was "indecent", in the sense that right-minded people, would consider the act to be indecent.

12. For the accused to be found guilty of "rape" in count nos. 3 and 4, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;

(ii) without the complainant's consent; and

(iii) he knew the complainant was not consenting to sex, at the time.

13. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

14. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.

15. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties conduct, at the time, and the surrounding circumstances, to decided this issue.

F. THE PROSECUTION'S CASE

16. The prosecution's case was based on what the complainant said. She said, she was born on 24th July 1994. At the age of 15 ½ years, the complainant was not living with her parents, but with her brothers, in Nadi. She was 4 to 5 months pregnant, at the time. Her aunt and the accused (her uncle) offered to take her to Kuku Village, Tailevu, to look after her and her child. Her aunt was her mother's elder sister.

17. In January 2010, the complainant went to Kuku Village and stayed with her aunt and uncle [the accused], and her cousin – Vaciseva. All was well, and the four stayed together as a family. According to the prosecution, the complainant's uncle [the accused] began to abuse her. When the two were alone in the house, the prosecution alleged the accused would molest the complainant by fondling her breast and body, and kissing her neck and mouth. She reported the matter to her aunty, but she didn't believe her, and consequently took no action. According to the prosecution, the above abuse would occur twice a week, when her aunty and cousin were out.

18. On 15th May 2010, the abuse took another level. According to the prosecution, the accused forced himself on the complainant, and had sexual intercourse with her without her consent. He knew she was not consenting to sex with him, at the time. After having sex with her, he threatened to kill her if she told anyone about the matter. He then began to have sex with her twice a week until August 2011, when she fled to her relatives in Nadi. She said, she was not close to anyone in Kuku, but reported the matter to a neighbor. She was Taraivini Vadei.

19. In Nadi, the complainant reported the matter to police. She was later medically examined. The police carried out an investigation. The uncle was later charged for two counts of indecent assaults and two counts of rape. The prosecution is asking you, that given the above, as assessors and judges of fact, you should convict the accused as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE

20. On 13th August 2012, the first day of the trial, the accused pleaded not guilty to all the counts, when the information was put to him. In other words, he denied the two indecent assaults and the two rape allegations against him. When a prima facie case was found against him, he choose to give sworn evidence, in his defence, and called his wife, as a witness. In his evidence, the accused denied all the allegations against him. He said, he didn't indecently assaulted her, and didn't have sex with her, at any time whatsoever.

21. The complainant's aunty gave evidence. She is the accused's wife. She said, the complainant didn't complaint to her about her allegations against her husband. According to the defence, the complainant's allegations were false, and they ask you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence

H. ANALYSIS OF THE EVIDENCE

(i) Complainant's Evidence vs Accused's Evidence:

22. The parties' version of events on what occurred were at odds with one another. The complainant said, the accused, as her uncle, started to abuse her sexually when she moved to his house, from January 2010. She was 15 ½ years old at the time, and was 4 to 5 months pregnant. The accused's wife was her mother's elder sister. Her uncle and aunty undertook to look after her and her child. They only had 1 daughter, and she was like a sister to the complainant. According to the complainant, her uncle began to fondle her breast and body, and kissed her neck and mouth from January to May 2010. These were often done when the two were alone in the house. She told her uncle not to do the above, but he ignored her and continued with the same.

23. On 15th May, 2010, according to the complainant, her uncle forcefully had sex with her without her consent. She was 9 months pregnant, at the time. He knew she was not consenting to sex, at the time. On 16th May 2010, the complainant gave birth. The uncle stopped abusing her thereafter. However, a week later, according to the complainant, the uncle (accused) began having sex with her again. He repeated these twice a week therefrom until August 2011. The complainant said, her uncle threatened her not to tell anyone, or he will kill her. Nevertheless, according to the complainant, she told her aunty about the abuse. But her aunty did not believe her. She said, her uncle would not do such a thing. She later confided in her neighbor, that is, to Taraivini Vadei. She told her that her uncle was abusing her, and having sex with her.

24. In August 2011, the complainant's uncle beat her with a stick. She fled to her relatives in Nadi, where she reported the abuse. She later reported the matter to police. She was medically examined by Doctor Ravi Khrishna Rao (PW2) at Namaka Health Centre, on 19th August 2011. She reported her uncle to the doctor. She said that her uncle repeatedly abused her sexually ever since she moved to them in January 2010. The doctor submitted his report as Prosecution Exhibit No. 2.

25. The accused, on the other hand, denied the above allegations. He said, he did not indecently assault the complainant, at any time whatsoever. He said, he did not force himself on her sexually, at any time whatsoever. He said, he did not have sexual intercourse with the complainant ever. He appeared to say that the complainant was lying. He said, he merely disciplined her because she was often seen talking to boys in the village.

26. As assessors and judges of fact, your decision in this case, will largely depend on how you decide on the credibility of the complainant as against the accused, as a witness. In other words, after observing the two give evidence from the witness box, and after watching their behavior and general demeanor in the courtroom, and given your general experience as members of the community, who do you find as the more credible of the two witnesses? Your answer to this question, will determine your answer to the questions posed in paragraph 8 hereof.

(ii) Taraivini Vadei's (PW3) Evidence:

27. Ms Vadei said, she lived in a home which was three footsteps away from the accused's family house in Kuku Village. She said, she knew the accused's family and the complainant well, and she got on well with them. She said, she resided in Kuku Village from 2009 to 2011. She said, the complainant normally shared things with her. She recalled the complainant coming to her one day and complained that the accused's family was making her work hard. She also said, she was crying at the time, and she told her that Livai was touching her and having sex with her. She said, Livai beat her, and she was showing her bruises on her leg. She said, she cried with her. As assessors and judges of fact, you must consider this evidence carefully. It does not prove the truth of what the complainant alleged against the accused, but it does tend to prove what was occupying the complainant's mind and her general demeanour, at the time, she confided in Ms. Vadei. It is evidence, which you will have to consider, with the other evidence, when you deliberate in the case.

(iii) Doctor Ravi Krishna Rao's (PW2) Evidence:

28. Doctor Rao examined the complainant on 19th August 2011, at Namaka Health Centre, and tendered his medical report at Prosecution Exhibit No. 2. You must read this report carefully. In D(10) of the report, the doctor recorded the history given to him by the complainant. She told the doctor that the accused had forceful sexual intercourse with her for more than one year. Evidence of the complainant been beaten with a stick by the accused in August 2011 was verified by D(12)(a) of the report. The value of this report as a piece of evidence was that it confirmed the complainant's version of events as far as her uncle beating her with a stick in August 2011. The accused in his evidence, confirmed the complainant's version of events, as far as the beating was concerned. Was it possible that her report in D(10) of the report was true, given that sexual abuse over one year would have left no visible signs of any injury whatsoever in the vagina over that period, because they would have healed? This is a matter for you.

(iv) Aunt's Evidence:

29. You have heard the aunt's evidence. She was totally in support of her husband. Was this to be expected? This is a matter for you.

30. You must look at all the evidence. You must consider the complainant's evidence. You must consider the accused's evidence. You must also consider all the other witnesses' evidence. After considering all the evidence, the decision on whether or not to accept the complainant as a credible witness, is a matter entirely for you.

I SUMMARY

31. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's 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 so that you are not sure of the accused's guilt, you must find him not guilty as charged.

32. Your possible opinions are as follows:

33. You may now retire to deliberate on the case, and once you've reached your decision, you may inform our clerk, so that we could reconvene to receive your decisions.

Salesi Temo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecutions, Suva
Solicitor for Accused: Legal Aid Commission, Suva