IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 252 of 2011

BEFORE : HON. MR. JUSTICE PAUL K. MADIGAN

BETWEEN:

THE STATE

AND:

EPELI RATABACACA LACA

Counsel : Mr. L. Fotofili with Ms D. Kumar for the State
: Mr. F. Vosarogo with Mr. S. Valenitabua for the accused

Dates of hearing : 1 – 7 November 2012
Date of summing up: 8 November 2012

SUMMING UP

[1] 	Ladies and gentleman 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 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 and 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. This has not been an easy case and if you have strong views for or against religion for example you must put that to one side. As Mr. Vosarogo quite properly said to you yesterday, the fact that the accused is a very well known and senior pastor is totally irrelevant. You won't give him sympathy for that nor will you judge him more harshly for that. You must judge this case solely on the evidence produced in this Court and nothing else. 

[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 you are sure however that the Reverend sexually assaulted and raped Seini, then you will find him guilty. 

[8]	The accused in this case is facing three separate counts. You must consider each count separately. The evidence concerning each count is different, so your verdicts need not be the same. 

[9]	The accused is charged with one count of sexual assault and two counts of rape, one with his fingers (which in our law is rape) and one with his penis. In law rape is committed when a person unlawfully penetrates the vagina or anus of a person with fingers, penis or an object; all without the consent of the assaulted party. 

[10]	In respect of the first charge, the indecent assault, the State must prove that it was this accused who assaulted Seini, in a sexual manner, without her consent. If you accept that the accused took her towel off and touched her breasts, then I direct you ladies and gentleman that that is sexual assault if it was done without her consent. Of course the accused said he wasn't there and that it never happened.

[11]	In respect of the second charge the State must prove to you in the following elements: 

(i)	That it was this accused, who

(ii)	penetrated the vagina of Seini with his fingers, and 

(iii)	when he did so Seini was not consenting and he knew that she was not consenting, or that he was reckless in penetrating her without knowing whether she was consenting or not.

[12]	An accused is reckless if he did not believe that she was consenting and could have not have cared less whether she was consenting or not but pressed on regardless. 

[13]	Now the accused is disputing every one of those elements because his defence is that he wasn't there at all. He says that it never happened and therefore there was no penetration by his fingers and the question of consent does not come into it.

[14]	Our law also says that if another is forced to give herself up to sex, then there is no consent. That force can be physical force, a threat, a fear of bodily harm or the exercise of authority. If you believe Seini in that the Reverend was forcing her to have sex with her and she wouldn't have done so without that force, then there is no consent and you will find the accused guilty of rape. She also says that she was rather overpowered by his authority, in that he was a pastor and he was manipulating her mind. If you find that to be so, then it also proves lack of consent.

[15]	Now again with the third charge the State must prove to you so that you are sure that it was this accused (the Reverend) who penetrated her vagina with his penis and that she was not consenting to that. Again you will consider the questions of recklessness and of the exercise of authority over her. Remember that in respect of this charge that the accused says that he wasn't there on that day so it never happened. 

[16]	Madam and Gentlemen, that is the law involved for you to apply to the facts. I want to now turn to the evidence in this case. It is my duty to remind you of the relevant, and what I consider to be the important evidence, both for the prosecution and for the defence. I remind you again that if I stress something and seem to think it is important, you do not necessarily have to agree. Similarly if I don't mention something which you consider to be important, you must give it weight. You are masters of the facts and it is for you to decide what is important or not. 

[17]	The first and main witness for the prosecution was Seini. She told us she is married with 4 children. After each of her children was born she became mentally unwell, until after the 4th child when she and her husband decided she needed help. She attended at St Giles Hospital (an institution specialising in mental illness) and despite being an adherent of the Seventh Day Adventist Church, she sought out the accused for counselling and prayer. She had seen him in year 2000 but now in June 2011 she wanted to see him again. She saw him, she says, on Wednesday the 1st June 2011 at 11am. He told her that she had to work the sickness out and to take her child home, giving her $20 for a taxi, change her clothes and come back to meet him at the LDS bus stop in Tamavua where he would pick her up and take her to Sports City for a steam bath because just prayer was not good enough - she needed to "work it out". PW1 followed those instructions and got into his car (which she says was a rental car) and he told her to sit in the back seat which she did because she respected him as the Reverend of a big church. They then went to the Spa/Beauty Centre at Sports City. In the spa he paid for the steam bath and said a Chinese lady would accompany her to the steam room but later said that there was no one available so he would take her himself. They both went into the steam room, dressed in only a towel each. They were there alone for about one hour. He told her not to be "negative" and told her to take off her towel and said he wanted to massage her back. She said no and couldn't believe that he was doing this to her. He said he was trying to change her mood but she was scared because he was a Pastor. He told her that her sickness was in her genitals. After an hour she had enough - they left together after showering and he gave her $20 to buy fish. 

[18]	She met him again the next day (June 2nd) when, on his instructions, she went back to the Spa at Sports City. She got there at 11am and he was already there being massaged by a Chinese lady. He paid for her steam bath and he saying that there was no one to accompany her into the steam room he again went with her. They were each wearing a towel. He told her that he didn't want her to die. He moved to sit next to her in the steam room and tried to take off her towel. He said that she must let the steam come up from under the seat to cover her body so she should take off the towel. She took off her towel and he took his off as well. Then she could feel him massaging her, she said. He told her to face him and then he started touching her. She then gave evidence of things which at the time I asked you to ignore. And I still ask you to put from your minds things she said that happened on the 2nd June. After the steam that day the accused gave her $40 to take her children to McDonalds. 

[19]	She again met the accused she says on the 3rd June at 11am in Sports City. They sat outside where he asked her to choose between a massage or a steam bath. She chose massage but he persuaded her to have a steam bath. Nothing particularly happened that day and they spent far less time in the steam room than on the two previous occasions. When they came out at about 2pm he gave her $80 for the family and then she said he went to N.Z. for 2 weeks. 

[20]	We then come, Ladies and Gentleman to the 22nd of June which is the date of each of these three charges and so the evidence of events on that day is particularly important. The accused called her on the 22 June and told her to meet him in Sukuna Park. He arrived and gave her $150 to go to the Peninsula. She went to see him at the Lilac where he told her not to go to the Peninsula because relatives of his wife were there. He said instead to book a room at the Novotel and he gave her $50 for her taxi fare. She later said that he told her to take the children home and to meet him at Sports City. When she got there he was already there. They sat in the waiting room and he promised her that he would help her. She wanted a massage and he wanted steam bath. She had a massage. At some stage she went into the steam room with the accused, both in towels. He told her not to be afraid of anything and if nothing was done to her she would die. In the steam room he removed her towel and fondled her breasts. She was scared because he was a well known Pastor. While fondling her for about 3 minutes he told her that her sickness was in her uterus. Saying if nothing was done she would die, he started touching her vagina with two fingers of his right hand. He put his fingers inside her and she pushed his hand way. She said she didn't like what he was doing and he was manipulating her mind. She left the steam room to go out to the shower area and she was shocked when he followed her out. She went to shower and he started touching her back telling her to shower him. He was trying to turn her around to face him and he forced her to the floor and lay on top of her at which time he penetrated her with his penis. She felt dizzy, she didn't like it and pushed him away. She stood up and they both subsequently got dressed. He gave $80 to her at the sink. She said that she didn't tell her husband about this at the time because it was hard for her to explain and hard to tell him in a way that he would forgive her. 

[21]	The witness was cross-examined by Counsel for the accused at length. Counsel spent a long time trying to establish the actual day that Seini told her husband about the sexual assaults, and he also suggested first that she could have left the steam room on the 1st, 2nd, and 3rd June if she wanted, and secondly that it never happened at all. The witness told counsel that she did tell her husband everything but she didn't say when.

[22]	With regard to events of the 22nd June, it was suggested in cross-examination that she was free to leave the steam room but she said that he was trying to change her mood and even though she was scared she was trying not to be negative. She admitted that she never told staff at the Spa about the sexual assaults, nor did she tell the taxi driver, nor did she report to any Police Station that she passed or lived near to. She admitted that she told her husband that the abuse never happened and that she was joking, just because she saw his reaction and she was afraid he might "do something to her". She admitted that both she and her husband reported the abuse to the Police on the 15th July. She agreed that on the 23rd June she went to the Novotel and hired a room for one day with money that the accused have given her. She denied that she was making up the events of 22nd June 2011.

[23]	Seini's husband gave evidence. He confirmed everything that Seini said and he told us how he wanted to help her get well and that included her going to see the accused for prayer and counselling. He wanted her to go. He said he knew that they had gone into the steam bath, that the Pastor had wanted her to take her towel off, that he had touched her back and had told her not to be negative. The Pastor had given her money. He knew that when she was in the shower the accused had pulled her down and had "forced" her. He said that Seini had told him he had laid on top of her and penetrated her with his penis. She told him this on the 15th July and they both went to the Police on the 19th to report it to the Police. 

[24]	In cross-examination he said that he thought his wife went to Sports City on 15th, 16th and 17th June but on being pressed he admitted that he wasn't sure. When his wife told him about the assaults he was angry. He was convinced that what he thought were events of 15, 16, and 17 of June had really happened. He thought those were the dates because it was a Wednesday, Thursday and Friday. 

[25]	Lagilagi was a receptionist working at the sauna/spa. She started working there on the 6th June 2011 and worked there for 8 months. She remembered that on the 22nd June a man (whom she subsequently identified as the accused) came to the Spa. A blond-headed local lady joined him and they went to the steam bath. After 15 to 20 minutes they finished and the man paid $80 for the steam room, a foot massage for him and a massage for the lady. Lagilagi went to a church service at the Old Stadium the Sunday after that and she saw the accused leading the service. It was suggested to her in cross examination that she only provided the date of 22nd June because she was prompted by the Police. She said she was relying on the staff movement diary. In any event Ladies and Gentleman, you will see that it is agreed fact that this witness identified the accused as a man who came to the Spa on the 22nd June, and that is a fact that you must accept. 

[26]	The Investigating Officer told us about the identification parade where Lagilagi and another witness had identified the accused and he told us in cross-examination that he had checked and confirmed that the accused was out of Suva on the 1st, 2nd and 3rd June 2011, he being first in Lakeba and then in New Zealand. 

[27]	Dr. Tomanitoakula from St Giles Hospital told us that Seini had been an outpatient at the hospital and he had seen her three times in June 2011, August 2011 and February 2012. He said that her condition was acute psychotic disorder associated with acute stress. The stress in her life was both childbirth and marital problems. When he first saw Seini there was evidence of hallucinations and the patient admitted hearing voices telling her what to do. In August she had improved and was not having the hallucinations but was having more anxiety symptoms. 

[28]	You heard the accused's caution statement that he made to the Police being read to you. There being no objection to the creation of that statement it is evidence for you to accept in the normal way and for you to give it what weight you think fit. He did say in the interview that the allegations made against him by Seini were untrue but he did admit to having gone to the Spa after Seini and paying for her but they never went together. He said that he had gone to the sauna three times to pay for her massages. He did this because the Lord had told him to help her but not to give her any money.

[29]	That was the end of the prosecution case. You heard me explain to the accused his rights in defence and he elected to give evidence under oath from the witness box. I must tell you that the accused did not have to give evidence and his giving of evidence does not relieve the State of proving to you beyond reasonable doubt that the accused committed these offences. He does not have to prove anything. He could if he wished remain silent and say that the State have not proved their case. But having elected to give evidence it is evidence for you to consider in the normal way and to give whatever weight you think fit. 

[30]	He confirmed to you that he was out of Suva on the 1st, 2nd and 3rd June. He said that on the morning of 22 June he had a meeting with Pastor Niudamu lasting until about 11.30am. He had another meeting at 4pm. He denied any of the sexual assaults that had been alleged against him but he did recall going to the Spa to pay for Seini's saunas because the Holy Spirit had directed him to. At one stage she called him from the Novotel and said she wanted to see him. He happened to be on the way to Navua to a funeral so he dropped into the Novotel to see her. There, Seini told him that she wanted him and he told her he would tell her husband about it. And then he carried on to the funeral. He said that he went alone to pay for Seini's massages because there was an ATM at Cost-u-Less. 

[31]	The second and last witness for the defence was Pastor Niudamu. He is a long-time colleague and friend of the accused. He said that there was a meeting between him and the accused from 10.30 to 11.30 on the morning of June 22. He said that there was another meeting at 4pm and in-between times (he didn't say when) he had called the accused in his office. He hadn't told the Police about this call or the 4pm meeting. 

[32]	I must give you a legal direction in respect of Mr. Niudamu's evidence. He has provided an alibi for the accused for the daytime of the 22nd June by saying he was in his office because he called him there. Our law says that no witness can give evidence of alibi unless notice of it is given to the opposing side 21 days before the trial starts. No such alibi notice was given to the Court or to the Prosecution. Pastor Niudamu's evidence should never have been given but the Prosecution counsel, not objecting, it is now before you. I direct you that you are to give that piece of evidence (that is the phone call between 1130 and 4pm) very little weight, if any at all. You still have the evidence from this witness of the morning meeting and of the 4pm meeting and you can rely on that. 

[33]	That brings us to the end of the evidence. I have dwelt at length on Seini's evidence because that is the basis of this case. However if you think I have missed something which you think is important you must give it weight. Remember the defence case is that the accused was never there alone with Seini in the steam bath and what she says happened is totally untrue. 

[34]	You may retire now and consider your opinions. You will look at each charge separately and you will be individually asked for your opinion on each charge. Your only possible answer to each charge is guilty or not guilty. It would be far better if you are all agreed on your opinions but that is not strictly necessary if you can't agree. 

[35]	Let one of my staff know when you are ready and I will reconvene the Court. 

[36]	Any redirections, Counsel?

Paul K. Madigan
JUDGE

At Suva
8 November 2012