IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 159 OF 2012S

STATE

vs

ISIKELI VUETI

Counsels: Mr. S. Nath and Mr. A. Dutt for the State
Mr. S. Waqainabete for Accused

Hearings: 24th, 25th and 26th June, 2013
Summing Up: 27th June, 2013 

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

(i) On count no. 1, did the accused, on 6th May 2012, at Nasinu in the Central Division, rape the complainant? 

(ii) If you find the accused guilty on count no. 1, then you don't have to consider the alternative count. Only if you find the accused not guilty on count no. 1, then you'll have to consider the alternative count, and the question becomes: Did the accused, on 6th May 2012, at Nasinu in the Central Division, defile the complainant, a person above the age of 13 years but under the age of 16 years? 

E. THE OFFENCES AND THEIR ELEMENTS 

9. Count no. 1 involved the offence of rape. For the accused to be found guilty of "rape", 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.

10. 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.

11. 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.

12. 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 decide this issue. 

13. The alternative count involved the offence of "defilement". You will only have to consider this alternative count, if and only if, you find the accused "not guilty of rape", in count no. 1. For the accused to be found guilty of "defiling a girl between the age of 13 and 16 years", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) unlawfully 

(iii) had sexual intercourse 

(iv) with the female complainant 

(v) who was or above 13 years and under 16 years. 

14. "Sexual intercourse" has the same meaning as that ascribed for the offence of "rape", described in paragraph 10 hereof. The sexual intercourse must be performed by the accused on the female complainant, who must be aged between 13 and 16 years old. The female complainant consenting to sexual intercourse with the accused, is no defence to the accused. The law was put there to protect young girls between 13 and 16 years old, from been "preyed upon" by men. In other words, the consent issue is totally irrelevant, in a defilement charge. The girl's consent does not protect a man from being prosecuted, for defiling them.

15. However, it is a defence to the offence of defilement, if:

(i) it shall be made to appear to the court

(ii) that the accused

(iii) had reasonable cause to believe

(iv) and did in fact believe

(v) that the girl

(vi) was of or above the age of 16 years old. 

16. In other words, as assessors and judges of fact, you will have to look at and closely examine the evidence produced by the parties, in order to answer the question: whether or not, the accused had reasonable cause to believe, and did in fact believe, that the girl was of or above the age of 16 years. You must carefully look at the facts, to see whether the accused had reasonable grounds to believe, and did in fact believe, that the complainant was of or above 16 years, prior to them allegedly having sexual intercourse. The complainant's looks, conduct, and the surrounding circumstances must be examined to see whether or not they were such, as to make the accused believe, and he in fact did believe that, the complainant was of or above 16 years. If you find, on the facts that, the accused had reasonable cause to believe, and did in fact believe that the complainant was of or above 16 years, prior to them allegedly having sexual intercourse, he is entitled to be found not guilty as charged, and acquitted accordingly. If its otherwise, you will have to find him guilty as charged.

17. In this case, the act of sexual intercourse between the accused and the female complainant at the material time, were not disputed by the parties. You will have to examine the facts and the surrounding circumstances, before, during and after sexual intercourse, to find out whether or not the defence in paragraph 15 hereof is available to the accused.

F. THE PROSECUTION'S CASE

18. The prosecution's case were as follows. On 6th May 2012, the female complainant was aged 15 years 6 months 29 days. She was born on 8th October, 1996. The accused was aged 22 years 6 months 6 days. His date of birth was 31st October, 1989. Both the complainant and the accused live in the Kalabu Housing area with their families, and their house were approximately 100 footsteps apart. It appeared both of them grew up in the area, and were familiar with each other. They attended the same church, and the accused often see the complainant going to school daily in her school uniform. In May, 2012, the complainant attends Nasinu Secondary School, as a Form 5 student, while the accused worked as a cashier in Lami.

19. According to the prosecution, both complainant and the accused, because they were neighbours, passed each other daily, one on her way to school, and the other to work. On Saturday, the 5th of May, 2012, between 11.30pm and 12 am, the complainant and the accused's path crossed. They met in the Deep Sea Nightclub. The complainant and her friends were drinking liquor and dancing, and so was the accused. The accused had been drinking in Lami since 7 pm. After 12 am to 12.10 am, the accused and the complainant returned to Kalabu Housing in a taxi. They went to the accused's house, and slept in his bedroom. 

20. According to the prosecution, the accused forced himself on the complainant, had sexual intercourse with her without her consent, and he knew she was not consenting to sex, at the time. 

Alternatively, the prosecution said, the accused had unlawful sexual intercourse with a girl, who was aged above 13 years but below 16 years. They said, he did not have reasonable grounds to believe and did not believe that, she was over 16 years old. As such, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged for "rape", or alternatively, for "defiling the complainant". That was the case for the prosecution. 

G. THE ACCUSED'S CASE 

21. On 24th June 2013, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the rape charge, and not guilty to the alternative charge of defilement. In other words, he denied the allegations against him. At the end of the prosecution's case, a prima facie case was found against the accused, wherein he was put to his defence. He choose to give sworn evidence, in his defence, and called his father, as his only witness.

22. On the rape allegation, the accused admitted he had sexual intercourse, with the complainant, at the material time. However, he said, it was done with the consent of the complainant, and he knew, she was consenting to sex, at the time. He said, he was therefore not guilty of rape, because the complainant consented to sex with him.

23. On the alternative charge of defilement, the accused admitted he had sexual intercourse with the complainant, at the material time. However, he said, he was not guilty of the offence of defilement because prior to, during and after their sexual intercourse, he "had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years". He said, he was therefore not guilty of the alternative count of defilement. Given the above, he asks you, as assessors and judges of fact, to find him not guilty of rape, and not guilty of the alternative count of defilement. That was the case for the accused. 

H. ANALYSIS OF THE EVIDENCE 

(i) The Agreed Facts: 

24. The parties have submitted an "Agreed Facts". A copy is with you. You must consider it carefully. There are 11 paragraphs of "Agreed Facts" altogether. These facts are not disputed by the parties. 

As a matter of law, you may take it that the facts agreed to in the "Agreed Facts", had been proven by the prosecution beyond reasonable doubt, and you may treat the same as established facts.

(ii) Count No. 1: Rape Allegation:

25. Both the complainant (PW1) and the accused (DW1) admitted, in their sworn evidence that, they had sexual intercourse, at the material time. They admitted that, the accused's penis penetrated the complainant's vagina, at the material time. So, in terms of the elements of "rape", as described in paragraph 9 (i) hereof, the first element of rape is satisfied and not disputed, in this case.

26. The second element of rape, that is, whether or not the complainant consented to sex with the accused, at the material time, is contested, in this case. The prosecution is required to prove beyond reasonable doubt that, the complainant did not consent to sex with the accused, at the material time. Consent is a state of mind, as described in paragraph 11 hereof. We cannot physically open a person's head, and dissect her brain, to find out whether or not she consented to sex, at the material time. 

27. However, throughout the centuries, the courts had determined the state of mind of a person, by looking at her conduct, that is, what she said and did, and the surrounding circumstances, to determine her state of mind, at the particular time. In this case, you will have to look at the conduct of the complainant, from the time she left home on 5th May 2012 (Saturday) to watch movies at Village 6, her trip to Toorak, her walking around Suva looking for her cousins, her activities in the Deepsea Night Club, her trip home with the accused in a taxi, their proceeding to the accused's bedroom, the two having sexual intercourse therein, her sleeping there the whole of Sunday, and their going to work together on Monday morning. In analyzing her behaviour during this time period, to find out her state of mind, and whether or not she consented to sex at the material time, you will have to consider all the evidence given by the other witnesses, including her own evidence and that of the accused. You can draw inferences of facts from the proved primary facts. If you accept the prosecution's version that she did not consent to sex, at the material time, then you must find the accused guilty as charged. If you do not accept the prosecution's version of events, or you are not sure on whether or not the complainant consented to sex, at the material time, then you must find the accused not guilty as charged. Which version to accept or reject, is a matter entirely for you. 

28. If the prosecution had made you sure that the complainant did not consent to sex, at the material time, you will still have to deal with the third element of rape, as described in paragraph 9 (iii) hereof. Did the accused know that the complainant was not consenting to sex, at the material time. Like the issue of consent, you will have to consider the whole evidence coming from the complainant, the accused and the other witnesses. If you find that the accused knew she was not consenting to sex at the time, then you must find him guilty as charged. If you reject the prosecution version of events or you are not sure on the third element of rape, as described in paragraph 9 (iii) hereof, then you must find the accused not guilty as charge. It is a matter entirely for you.

(iii) Alternative Count: Defilement:

29. If you find the accused guilty as charged on the rape matter, then you need not consider the alternative count of defilement. Only if you find the accused not guilty of the rape charge, then you need to consider the alternative count of defilement. In this case, the parties do not dispute that the complainant and the accused had sexual intercourse, at the material time. The complainant said, she was born on 8th October 1996, and her birth certificate tendered as Prosecution Exhibit No. 1, verified the above. So, on 6th May 2012, the complainant was aged 15 years 6 months 29 days. She was therefore under 16 years old on 6th May 2012 – the date of the alleged defilement. So, in terms of the elements of defilement, as described in paragraph 13 hereof, the accused had sexual intercourse with a female complainant, who was under 16 years old. This action would only be unlawful, if he does not succeed on the defence mentioned in paragraph 15 hereof, that is, did the accused had reasonable cause to believe and did in fact believe that the girl was of or above the age of 16? 

30. In answering the above question, you will have to look at all the evidence given by the witnesses, including that of the complainant and the accused. The complainant and the accused grew up in the same neighbourhood. Their houses were 100 footsteps apart. They attended the same church. The accused often saw the girl going to school in her uniform in 2011 and 2012. The complainant's mother (PW4) knew the accused since he was a little boy. So, there was familiarity between the two, although the complainant said that, prior to the incident, she never talked to the accused. This was not a case where the complainant and the accused have never met each other before. If you accept that the accused had reasonable cause to believe, and did in fact believe that the girl was of or above 16 years on 6th May 2012, then you must find the accused not guilty as charged on the alternative count of defilement. If its otherwise, then you must find the accused guilty as charged on the alternative count of defilement. It 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 follow:

(i) Rape (Count No.1) : Accused: Guilty or Not Guilty

(ii) Defilement (Alternative Count): Accused: Guilty or Not Guilty

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

Salesi Temo
JUDGE

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