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State v Naqau [2012] FJHC 902; HAC127.2010 (22 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 127 OF 2010

BETWEEN:

STATE PROSECUTION

AND:

SAKIUSA NAQAU
ACCUSED PERSON

Counsel: Mr. Prasad Y for State
Accused In Person

Dates of Hearing: 13th, 14th, 16th, 20th February 2012

Date of Summing Up: 22nd February 2012

SUMMING UP

1. Madam Assessor and Gentlemen Assessors,
   
2. It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
3. You decide what facts are proved and what inferences you properly draw

from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

4. The Counsel for the Prosecution made submissions to you about the facts of this case. That is his duty as State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
5. You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
6. On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.
   
7. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.
   
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 you might have heard about this case, outside of this courtroom.
   
9. Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
   
10. The accused is charged with one count of rape contrary to section 207(1) and 207(2)(b) of the Crimes Decree No. 44 of 2009. Section 207(2( (b) of the Crimes Decree states that, a person rapes another person if the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other persons consent.
    
11. According to the particulars of offence given in the information, the accused is alleged to have penetrated the vagina of Kalesi Cakacaka, with his finger.
    
12. I will now explain to you the elements of the offence which the prosecution must prove beyond reasonable doubt. The prosecution must prove beyond reasonable doubt that;
    
    1. The accused
       
    2. Penetrated his finger into the vagina of the Complainant Kalesi Cakacaka
       
    3. Without her consent.
       
    4. He knew or believed that she was not consenting or did not care if she was not consenting.
       
13. It is not necessary for the prosecution to prove that there was full penetration.
    
14. For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. In this case the prosecution alleges that the accused penetrated his finger into the vagina of the complainant Kalesi Cakacaka without her consent. Therefore the prosecution must prove beyond reasonable doubt, that the accused penetrated his finger into the vagina of the complainant without her consent, and that he knew or believed that she was not consenting or didn't care whether she consented or not.
    
15. In this case the accused says that he was drinking at the Nausori club and that he got drunk. He says that he cannot remember anything that happened thereafter.
    
16. As far as the element of consent is concerned, where the consent is obtained through fear or by threat, then that is not consent. The victim says that she was punched and assaulted and was injured. The medical report shows the injuries she had at the time of examination and the opinion of the doctor. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined insert his finger into her vagina anyway.
    
17. Prosecution must prove all the elements mentioned above beyond reasonable doubt to find him guilty of the charge.
    

The Evidence

18. The complainant Kalesi Cakacaka said that she went to the Nausori town with her cousin brother on 25th June 2010. When they were sitting at R.B. Patel, two unknown Fijian men had come and invited them to go and drink with them at Nausori Club. They had gone with them and one of the Fijian men had bought 4 bottles of beer. They had gone down to the bamboo tree and had beer there. After they finished the beer she had told her cousin brother to go and get a taxi to go home. One of the Fijian men had told her that he loved her. When she said 'no', he had punched on her shoulder. Her cousin brother had gone to get a taxi with the other Fijian man. Then the Fijian man had dragged her to the bamboo tree. She had cried and shouted. He had pulled out her clothes. He had told her to have sex with him, she said.
    
19. He had punched her thighs and the upper lip. He had broken her hook of the bra. When she shouted he had told her to shut up. She said that she felt frightened. He had told her to suck his penis. When she closed her mouth, he had punched her forehead. She then had felt weak and lied down. He had then kissed her breasts and the mouth. He had inserted is finger into her vagina and moved it in and out, she said. He had been sitting on her thighs.
    
20. Then her cousin brother had called her name. Then the Fijian man had sworn at her brother saying 'Magaitinamu' meaning mother fucker and had said to get out. The Fijian man had then wanted her to suck his penis. She had pushed him and run away to the cousin brother.
    
21. Her cousin brother had run to one of the security guards. Then had called the police. Police had come and started to find the Fijian man. The Fijian man had run away and police had caught him down the Rewa bridge, she said. The accused was then taken to the police station. Her complaint was recorded and she was medically examined by a doctor, she said. She said in her evidence that the Fijian man was with her for about 2 hours that day from the time they met at R.B. Patel.
    
22. In cross examination she said that the accused was sober when she saw him for the first time. She said that there were people inside the club and only four of them were at the bamboo tree. She said that people in the club could not see what was happening down below at the bamboo tree.
    
23. The next witness for the prosecution was Penaia Waqanitabua. He said that after drinking the 4 bottles of beer with the two Fijian men beside the bamboo tree, Kalesi asked him to look for a taxi. He had gone to look for a taxi with one Fijian man but could not find a taxi he said. He said that it took about half an hour for him to look for a cab. When he came back the gate of the club had been closed. He called Kalesi's name but no response. He had asked the security, whether he saw a Fijian man coming out with Kalesi. He had said 'No' but he heard some noise under the bamboo tree. He had gone inside and called Kalesi. Kalesi had said 'Pena'. Then the Fijian man had sworn at him saying 'magaitinamu' and had said to him 'You go or I will kill you'. Then Kalesi had come to him only wearing a panty. She was injured on her lips. The Fijian man had climbed the gate and had gone to the town. He had telephoned the police. They had followed the Fijian man. Then the police had come and they found the man under the Rewa bridge, he said.
    
24. In cross examination he said that there were no people standing nearby at the club. In re-examination he said that only four of them were drinking under the bamboo tree.
    
25. The next witness was Woman Special Constable Ana Batibawa. On 25th June 2010 night she had been on duty at the Nausori police station. On receiving a call from a woman that she was raped, Officer in Charge had instructed her to attend to it with Special Cpl. Leone. In less than 5 minutes they have gone to the location. The victim had been hiding behind the recharge telephone booth and she had been crying, shaking and frightened, she said. She said that the victim had a cut on her upper lip and bruises on her face. Victim had pointed to the accused who had been standing few feet away in front of the Deoji shoe shop. They had asked the accused to come with them to the station. She had come with the victim and Leone had escorted the suspect. Near the Courts shop when she turned around, she said that she could not see Leone and the suspect and that it was apparent that the suspect had fled. Later Cpl. Leone had brought the suspect to the station. Cpl Leone had told that the suspect had hid in the grass behind the river bank.
    
26. The prosecution called P.C. 2414 Leone Naravi to give evidence next. He said that he went to the scene with WPC Ana. He also had seen injuries on the victim's face. Victim had been crying and had been frightened. Suspect had been beside the hotel. He had escorted the suspect. When they reached the Deoji shoe shop, the suspect had run away down to Syria Park. He had followed the suspect and arrested him when lying down the grass beside the Rewa River. In cross examination he said that when he met the suspect for the 1st time the suspect was drunk.
    
27. The next witness was the Investigating Officer WPC Ateshni. She had recorded the statement of the victim and of the witnesses. She also had visited the crime scene and had uplifted the exhibits a ¾ pant, a tea shirt and the bra. She had got the victim medically examined. She said that the victim had injuries on her face and upper lips.
    
28. The last witness for the prosecution was Dr. James Fong. He has graduated as a medical doctor in the year 1989. He obtained the diploma in Obstetrics and Gynecology in 1996. Completed his Masters in 2001 and had registered as a specialist obstetrician and gynecologist in 2002. Presently he is the head of the department of Obstetrics and Gynecology at the CWM hospital. His expertise in the medical field was not challenged and therefore his opinion on the matters in the said field is admissible in evidence.
    
29. He submitted the medical report compiled by Dr. Tasveer Sing on Kalesi Cakacaka, as Doctor Tasveer in now abroad. He gave evidence on the history given by the patient, special medical findings and the professional opinion. The medical report is before you. There had been scratch marks on the victims face around the right eye and over the nasal bridge. There had been a small abrasion on the inner aspect of the upper lip. Injuries were consistent with the physical abuse and the history given by the patient.
    

That was the evidence for the prosecution.

30. Madam assessor and Gentlemen assessors,
    

At the end of the prosecution case, you heard me explain several options to the accused. He has these options because he does not have to prove anything. The accused chose to give sworn evidence and to subject him to cross examination. He also called a witness to give evidence. You must give their evidence careful consideration.

31. Accused giving evidence said that, on that particular day he was very drunk. He could only recall going to the Nausori Club. After that he had no recollection as to what happened. When he woke up the next day, he had been in the cell. Police had told him that they could not take his statement that day as he was drunk. In cross examination he denied the prosecution story when suggested to him by the State Counsel. He said that he was drinking inside the club with his cousin and cannot remember what happened thereafter.
    
32. Accused called his cousin Poasa Tikoi to give evidence. He had gone to the Nausori club with the accused his cousin on the 25th. They had been drinking there until he felt that he was really drunk. After that he had gone home in a car. In cross examination he said that after he got drunk, he could not remember anything. That was the evidence for the defence.
    

Analysis

33. You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
    
34. The prosecution has to prove all elements of the offence of Rape which I mentioned before, beyond reasonable doubt. The prosecution must prove that the accused was the person who committed the alleged offence on the victim. The victim identified the accused from the accused box in court as the person who raped her. However you must be satisfied, that the accused in court was the person who committed the alleged offence on the victim and that there is no mistake in the identity.
    
35. You should examine carefully the evidence given by the victim in court. The victim testified a series of events that took place that evening as - how she met the two Fijian men, how they were invited to drinks, how the bottles of beer was bought, that they drank the beer beside the bamboo tree, how she was assaulted and raped when her cousin went to bring a taxi with the other Fijian man, what happened when the cousin came back, how the police came and arrested the accused, how the accused escaped when being taken to the police station and that the accused was arrested and brought again. In assessing the evidence on identification of the accused, you must consider the following; Had she seen the accused before? For how long did the victim have the person she says was the accused under observation? At what distance? In what light? Did anything interfere with the observation?
    
36. The cousin of the victim Penaia also gave evidence on the events that took place and identified the accused from the accused box. You must give the same consideration as I mentioned above to his evidence as well, when deciding on the identification of the accused.
    
37. The accused and the defence witness said in evidence, that on the day in question they were drinking at the Nausori club. However both of them said that they were drunk and that they did not know what happened thereafter. You must consider all the evidence when deciding on the identification of the accused.
    
38. The accused says that he was drinking at the Nausori club, he was very drunk and that he cannot recall anything that happened thereafter. You have to decide whether the accused inserted his finger into the vagina of the victim without her consent. If you decide that the accused did so without her consent, then you have to consider his defence of intoxication. There is no evidence that the accused was intoxicated involuntarily. The only evidence available is that the accused drank alcohol voluntarily. As a matter of law I must tell you that voluntary intoxication is no defence for the offence of rape.
    
39. You will have to consider all the evidence lead before court when coming to your conclusion. You have to decide which witnesses are credible and which are not.
    

40. It is a matter for you to decide on the facts and to decide whether the accused has committed the offence as charged or not, whether the prosecution has proved the charge against the accused beyond reasonable doubt.

You must use your commonsense when deciding on the facts.

41. I have explained the legal principles to you. You will have to evaluate all the evidence, and apply the law as I explained to you when you consider the charge against the accused has been proved beyond reasonable doubt. Your opinions on the charge will be either guilty or not guilty.
    
42. Madam assessor and Gentlemen assessors,
    

This concludes my summing up of the Law. 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.

Priyantha Fernando
Judge

At Suva
22nd February 2012