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State v Vila [2012] FJHC 908; HAC136.2010 (29 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 136 of 2010

BETWEEN:

STATE
Prosecution

AND:

NIKO VILA
The Accused

Dates of Trial: 27-28 February 2012
Date of Summing-Up: 29 February 2012

Ms S Paumau for the State

Mr T Terere for the Accused

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

SUMMING UP

Madam Assessors and Gentleman Assessor

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 by majority; 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 of your selecting 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 counsel for 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 child. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps 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. In as much 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. Ladies and gentleman, 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) (b) of the Crimes Decree No 44 of 2009. The particulars of the offence, as alleged by the prosecution, are:

'Niko Vila on 25 September 2010 at Nadi in Western Division had penetrated the vagina of AV with his finger 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.

(iii) If a person penetrates the mouth of a woman with the penis to any extent without the consent of the woman then again it becomes rape under Section 207 (2) (c) of the Decree.

These two parts of the offence are irrelevant to the facts of this case.

(iv) If a person penetrates the vagina to any extent with a part of another's body, which is not the penis of that person, without the consent of the woman, that is rape under Section 207 (2) (b).

This is what we are concerned with in this case according to the charge.

(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 only of 6 years of age and, therefore, she did not have the capacity under the law to consent. So, the prosecution does not have to prove the absence of consent on the part of the girl because law says that she, in any event, cannot consent.

20. So, the elements of the offence in this case are that the accused penetrated the vagina of AV to some extent, which means that the insertion of a finger fully into the vagina is not necessary.

21. 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 on identification of the accused-person and connect him to the offence that he is alleged to have committed.

22. 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.

23. You can also consider circumstantial evidence - that is that you can put together two or more circumstances that are established by evidence and draw certain irresistible inferences. Those inferences or conclusions should be consistent only with the guilt of the accused but not with his innocence or you should not have any doubt over that.

24. 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.

25. 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.

26. 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.

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

(a) Consistency: That is whether a witness has been saying the story on the same lines without variations and differences. You must see whether a witness is shown to have given a different version elsewhere. If so, whether what the witness has told court contradicts with her earlier version. You must consider whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time.

(b) You must remember that merely because there is a difference, a variation or a contradiction in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility. Equally you must consider whether a witness has omitted to do something and see whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave that, you may consider, could be even a contradiction so as to affect the credibility or weight of the evidence or both.

(c) In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses.

(d) 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.

(e) Spontaneity is another factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that she/he is talking of, whether she/he has shown spontaneous response that demanded at the occasion.

(f) Motive: That is whether there was some animosity or enmity or some other reason for a complaint to be made against the accused person and falsely implicate him.

You need to consider all these 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 evaluate the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.

28. I will now deal with the evidence in this case briefly.

29. A V, an eight year old student giving evidence said that she was living in Uto Village with her mother, brother, father and grandfather Ragigia. She said she could not remember the month of September 2010. Members of her extended family were also living in the village and that her grandfather's brother Niko Vila, the accused, too, was living in Uto. She said that, on the day of the incident, she was playing around her tin house where there were flower plants and a mango tree. Answering the question as to why she came to court, she said "I came for trial". As she went to pick up chilies, Tai Niko Vila showed her some beans and called her inside the house. Then, she was asked to take off her undergarments; but, she didn't want to. But Nikovila removed her undergarments and touched her private parts having blocked her mouth. She said the private parts that Nikovila touched was her vagina, vio, referring to the vagina in Fijian language and she said it was painful. Thereafter, she stood up and ran to Marica's place and told her what happened. The witness, having moved around the court room, identified the accused in the dock as Tai Niko Vila.

30. Answering cross-examination the witness said that her mother told her to explain in court what Tai Niko did and further said that her mother and father had no problems with Tai Niko. She denied that she was asked by someone to tell bad things about Tai Niko and that it was he who touched her vagina on that day.

31. Iliana Adi, 36, said that she was living in Uto Village and knew A V who was about 20 steps away. Witness said that the house of the accused was clearly visible both from inside and outside of her house. On 25 September 2010 at about 1.00 p.m., she saw the accused calling Viutu while standing in front of his house. AV, thereupon, went to the accused and placed her hands on him. The witness saw AV running out of Niko's house after about 20 minutes to Marica's house. Marica brought her to her house; and, as she was asked as to what happened, the victim told her the story. Tai Niko called her showing beans and as the victim went inside the room she was put on a bed, took clothes off, kissed her lips and touched her private part. She was crying as she was narrating the story. They then waited for the parents of the victim to return from their work.

Answering cross-examination, the witness said she was looking through the window when she saw the accused waving AV to come, at which point of time, the victim ran to him.

32. Doctor Tiare Margaret Konrote said that she was a Pediatric Registrar attached to the Lautoka Hospital. She said that the field of pediatrics dealt with the health conditions of the children below 13 years of age. In 2010, she was at Nadi Hospital and had examined the children subject to cases of abuse. She recalled examining the victim in this case and prepared the medical report dated 27 September 2010 marked PE1. The victim, who was only 6 years of age, was unwilling to talk to her about the incident but the mother was giving her the history. In the presence of the mother, she examined the genitalia of the victim where she observed redness on the vaginal area and the vagina hymen was not visible. She said the vagina was the internal cavity interior to the vulva. She observed a perforated hymen, which meant that hymen had been penetrated.

33. Answering further, the doctor said that any form of irritation could cause redness around the vagina including self-exploration or external force or fondling. Inflammation on the opening of the vagina could be visible even after two days. She said that she did not observe evidence suggestive of the fact that the hymen could have been perforated within two days before the date of examination.

34. Marica Tawakuru said that she was 18 years of age and was living in Uto with her father, mother and brother. She knew A V, as her father was a cousin of hers. Niko Vila, the accused, too, was known to her who was a grandfather of hers and living about 35 steps away from her house. The victim was with her on 25 September 2010 as her parents went to the town. She left her house in the afternoon. When asked on her return as to where she was, the victim started crying. The victim said that Tai Niko took her to a bed, removed her undergarments, touched her private part and kissed her lips. The witness took the victim to Iliana's house, which was 10 steps away. As the victim was questioned, she told the story of what happened at the accused's house.

35. WDC 375 Virisila in her evidence said that she had been in the Fiji Police Force for the last 6 years serving at Nadi Police Station. She received a report on 25 September 2010 about an incident on the victim. The report was against Niko Vila, who is alleged to have touched the vagina of the victim. The witness proceeded to the village of Uto and took the victim for medical examination and recorded the statements of Marica and Iliana at Uto Village. Thereafter, the accused was arrested and produced before the Magistrate having formally charged for the offence of rape.

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

37. 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 give evidence. That is his legal right and you must consider that evidence too in the way you consider the evidence of the prosecution.

38. Niko Vila, the accused, 68 years old, said that he was a farmer by occupation and living in Uto Village. He was married with three children aged 45, 42 and 39. He had nine grandchildren. On 25 September 2010, he was at Uto preparing to go to Logi at 1.00 p.m. He said that he met A V in the village at about 12.30 midday as she was picking chilies. AV was a granddaughter of Ragigia, who was a younger brother of the accused. He said that he gave only an affectionate kiss to AV who was his granddaughter. The accused denied the allegation of rape and said that it was a made-up story by someone else. He said that his younger brother Ragigia had an exchange of words at a meeting in the village and that would have been the reason for them to make up the story against him. He said that he was arrested in Logi Village and his statement taken where he voluntarily answered the questions. He said that he was shocked and amazed to hear the allegation of rape for which he was not responsible.

39. Answering cross-examination the accused said that he did not have any issues with AV's mother or father or Iliana or Marica who gave evidence in court but said that still they could create stories. Answering further, he said his wife was away in town and he was all alone at home at the time of the alleged incident. He admitted that he was at the house by 1.00 p.m on 25 September 2010 and denied having taken the child inside the house but admitted that he gave an affectionate kiss. He denied the suggestions that he inserted a finger into the vagina of AV having taken her inside. The accused further admitted that no person with proper senses would ever allow a granddaughter to go through the trauma of making up a story of rape against another.

40. 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.

41. The prosecution relies on two kinds of evidence. Those are direct evidence as spoken to by the victim AV and the other is based on circumstances. You must consider both kinds of evidence carefully.

42. 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 and/or on circumstantial evidence. You may, however, as a rule of prudence, consider whether it is safe to have some corroboration if you feel such corroboration is of necessity according to how you look at the facts of the case. Corroboration is to have another piece/s of evidence in addition to the evidence of the victim to support.

43. In dealing with the issue of penetration, medical evidence may be helpful. You must consider the issue of penetration in light of the medical evidence. In this regard, you must consider the doctor's observation that she saw redness on the vaginal area and that it was consistent with the history given. She said that any form of irritation including 'fondling' or external force could cause redness and inflammation. The doctor could not tell how old the perforation of the hymen was.

44. If the evidence of the accused is accepted that he did not touch the genitalia of AV but gave only an affectionate kiss, then the prosecution case fails. Or, if you feel that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted of the charge.

45. In assessing the evidence of the accused, you must apply the same rules as you did for the prosecution witnesses. You can consider his position as given in the statement to police, if you think that he, in fact, made that statement, to see whether it supports his version or contradicts it. Moreover, you can consider whether his evidence is consistent with what the other witnesses said on material points or not, in accepting or rejecting the prosecution evidence or accused's evidence. You may also consider whether it was possible for the accused to deny the act only to save him of the charge.

46. Please remember, even if you reject the version 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 established its case beyond a reasonable doubt that the accused did put his finger into the vagina of AV for the prosecution to succeed in the charge of rape.

47. So you must consider the evidence of witness AV very closely in relation to the issue and must be satisfied beyond a reasonable doubt after considering the evidence of the accused too in order to come to a conclusion on the charge.

48. You can also consider whether the evidence is consistent and corroborative of each other or whether they fall apart. That is, whether the evidence of the witnesses supports each other fully or in material parts or whether they go in opposite directions. Also, you must consider whether surrounding circumstances also reveal the same line of events as narrated by the victim or whether they do not match each other.

49. If you believe that the charge of rape, after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty of the charge. If you believe that the charge, after consideration of all evidence, is not proved beyond reasonable doubt, then you must find the accused not guilty.

50. 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. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society.

• Upon being asked both Ms Paumau and Mr Terere, whether any further directions require to be given or whether directions already given should be supplemented, both counsel informed that they were content with the summing-up already delivered.
  

51. Madam assessors and Gentleman assessor, 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.

52. I thank you for your patient hearing to my summing-up.

You may retire for your opinions now.

Priyantha Nāwāna
Judge

High Court
Lautoka
29 February 2012