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State v Turogo - Summing-Up [2013] FJHC 34; HAC40.2012 (1 February 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 40/2012

BETWEEN:

THE STATE

AND

PENI TUROGO

COUNSEL: Mr S. Vodokisolomone and Ms P. Low for the State
Ms Mele Lemaki for the Accused

Dates of Trial: 29-31/01/2013
Date of Summing Up: 01/02/2013

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

SUMMING UP

Lady and Gentlemen of Assessors,

1. It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts 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 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 facts. All matters of facts 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.
   
2. You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.
   
3. Prosecution and defence made their submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgement.
   
5. 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. This is the golden rule.
   
6. 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.
   
7. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called Documentary evidence.
   
8. In assessing evidence of witnesses you need to consider certain tests. Examples:
   
   • Consistency: That is whether a witness saying the story on the same lines without variations and contradictions.
     
   • Probability: That is whether the witness was talking about in his/her evidence is probable in the circumstances of the case.
     
   • Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the available opportunity about the incident.
     
   • Spontaneity: That is whether a witness has behaved in a natural or rational way in the circumstances that he/she talking about.
     
9. The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. I will direct you shortly on how you should consider that evidence.
   
10. 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 have heard about this case outside of this court room.
    
11. 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 emotions.
    
12. Now let's look at the charges (amended).
    

FIRST COUNT
[Representative Count]

Statement of Offence

INCEST BY MALE Contrary to section 178(1) of the Penal Code, Cap.17

Particulars of Offence

PENI TUROGO between the 1st of January 2009 and the 31st day of January 2010 at Dreketi, Macuata in the Northern Division, had carnal knowledge of KT who was to his knowledge his daughter.

SECOND COUNT
[Representative Count]
Statement of Offence

INCEST: Contrary to section 223 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

PENI TUROGO between the 1st of February 2010 and the 31st day of December 2011 at Dreketi, Macuata in the Northern Division, had unlawful carnal knowledge of his daughter namely KT.

THIRD COUNT
[Representative Count)
Statement of Offence

INCEST: Contrary to section 223 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

PENI TUROGO on the 14th day of April 2012 at Dreketi, Macuata in the Northern Division, had unlawful carnal knowledge of his daughter namely KT.

FOURTH COUNT
Statement of Offence

INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

PENI TUROGO on the 21st day of May 2012 at Dreketi, Macuata in the Northern Division unlawfully and indecently assaulted a girl namely KT by kissing her on the mouth.

13. In this case the accused is charged under two different laws. The first count is charged under repealed Penal Code Cap.17. The second, third and fourth counts are under Crimes Decree No: 44 of 2009. The reason for that is that between 2009 and 2010 the Criminal Law in Fiji has been changed. The offence remains the same but the legal section referred to in the charges are different.
    

14. In order to prove the offence of Incest the prosecution has to prove following elements beyond reasonable doubt.

1. The accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina; and
   

2. At the time, the accused knew the complainant was his daughter.

15. In this type of cases, the question of whether or not the complainant consented is immaterial.
    
16. In order to prove the offence of Indecent Assault the prosecution has to prove following elements beyond reasonable doubt.
    

(i) The accused

(ii) Unlawfully, and

(iii) Indecently

(iv) Assaulted

(v) The female complainant.

The State must prove that it was this accused who assaulted KT, in a sexual manner, without her consent.

17. Now let's look at the evidence led by the prosecution in this case.
    
    1. The first witness was the victim, KT. According to her she was residing at Dreketi until she moved to Namara. She has gone to Maramarua District School up to class 08. At Dreketi she was living with her parents and her sister. She has 04 siblings and she is the fourth child in the family. Accused in this case is her father. Between 1st January 2009 and 31st of January 2010 she was residing at Dreketi. One day while she was lying in her room her father Peni Turogo came top on her and asked to have sex with him. She had agreed but unable to tell the reason. Both had taken off their cloths and had sex. Accused inserted his penis in to victim's vagina until ejaculation. She had felt pain in her vagina and she did not like it. She identified accused in the open court.
       

Between 1st February 2010 and 21st December 2011 accused frequently had sex with his daughter at his house in Dreketi. Accused had inserted his penis into her vagina until ejaculation. She had felt very bad at that time.

On 14/04/2012 RT was at home in Dreketi. On that day she had to go for a youth rally organized at Savadrua. When she sought permission from the accused he had demanded sex. Then she had sex with her father in order to go for youth rally. Both removed their clothes and accused inserted his penis into her vagina and had ejaculation. She felt bad and did not like it.

On 21/05/2012 RT was at home along with her parents and her sister Lusi in Dreketi.At about 10.00pm while RT and the accused were talking in the kitchen in the dark about a missing cow her mother had come there and saw both sitting close to each other. According to RT nothing happened at that time.

On 28/05/2012 while she was in school a woman police officer namely Tuliana had come there and took her directly to the hospital in Seaqaqa for medical check up. The assistant principal of the school also accompanied them. At the hospital RT was subjected to a medical check up and then taken to house of Waisele Tomu at Nabavatu. Waisele Tomu is police officer and a relation of the victim. After spending the night there she had gone home at Dreketi on the following day. On 30/05/2012 she was taken to Labasa hospital by the police for another medical check up. Her mother also present at the hospital on that day. After medical check up she had gone to Dreketi.

In the cross examination RT said that she love her family very much. She denied that she tell anything to her friends on 28/05/2012. She said that she does not know whether assistant principal knew that she was under 18 years old. She admitted that police informed the reason for the medical check up. Before the medical check up her statement was recorded by the police. She admitted that she gave two statements to police. She further said that when her statement was recorded her mother was not in the police. She said that her teacher told her to tell the right thing to the police. Victim said that she did not tell police that she agreed to have sex with her father. Police had told her that her mother had lodged first complaint in the police. She first taken to police on 28/05/2012.Victim said that police never force her to give a statement. Victim further said that her father never threatened or punished after having sex with her. She reiterated that her father had sex with her at all given dates in the information. She admitted that Dr. Atunesh Prakash had examined her before she was taken to Labasa Hospital. She further admitted that school authority never call her parents when she was taken to police station.

In the re-examination witness said that she did not divulge this incident to her mother as she feared that her mother would go from the family.

2. Dr. Brian Guevara gave evidence next. He is a MBBS graduate from Fiji National University. He was attached to Labasa Hospital since 2011. He was attached to Obstetrics and Gynaecology Unit until his transfer to Suva. He had examined about 26 sexual related cases. On 30/05/2012 he had examined the victim in this case at Labasa Hospital. The victim RT was produced by a woman police constable. Her mother had given her consent for the medical check up. According to the history given by the victim she had been forced to have sex with her father since class 08 on numerous occasions. Sex involved his penis being inserted into vagina. She did not reveal this earlier as she was frightened. She denies any intercourse with any other persons. According to doctor her vagina looked normal, ill laceration, ill bruising. Her hymen was not intact. According to him a penile penetration had taken place through the hymen.
   

In the cross examination witness said that there is a possibility of hymeneal damage due to some physical activities. Further he said fingering also may damage the hymen.

He was not subjected for re- examination.

3. Wati Vuniyasi was called next by the prosecution. She is from Dreketi and the mother of the victim. She is married to the accused and has five children. Victim is her fourth child. According to her victim was 14 years old and was in Class 08 in the year 2009. On 21/05/2012 she was at home at Dreketi with the accused, victim and another daughter Lusiana. At about 10.00pm when she went to the kitchen had seen both accused and the victim were there. Both seated separately and talking to each other. As there was no light she could not see properly. Thereafter she had gone to Nabaratu immediately. She had gone to one police officer called Waisele's house. Waisele is her husband's relation and told him what she saw in the kitchen. She identified the accused open court.
   

In the cross examination witness said nothing happened in the kitchen on 21/05/2012. She further said that she did not lodged a complaint in Dreketi Community Post.

She was not re-examined by the prosecution.

4. WPC/Tuliana Cua gave evidence next. According to her she has completed about 08 in the Fiji Police Service. At present she attached to Dreketi Community Post. She is attached to Uniform Branch. She was the initial investigator in this case. On 21/05/2012 when she was at police post she had received a call from call centre. WPC/Angela from call centre had informed that a lady namely Wati had called the call centre and informed that her husband is having sexual relationship with her daughter. She had informed this to her superiors and got instructions. At about 2.00pm she had gone to victim's school with PC Saki and met the school principal and vice principal in their office. After informing their purpose of visit she had recorded her statement in the principal's office in the presence of principal and vice principal of the school. After recording her statement victim was directly taken to Seaqaqa hospital. Vice principle of the school also had come with the victim. At the hospital Dr.Atinesh had done the examination of the victim. After the examination doctor had informed that the hymen of the victim was intact. Further doctor had informed the witness to seek a second opinion from Labasa hospital. After that they had come to Seaqaqa police Station with the victim. In order to prevent possible interference victim was sent to PC Waisele's house to spend the night.
   

In the cross examination witness admitted that she knew that the parents or guardian should be present in respect of case pertains to juvenile. She said that consent of teachers obtained before recording her statement. She further said that victim had given consent for the 1st medical check up. Witness further said that victim never said that she was forced make a statement.

In the re-examination she confirmed what said earlier.

5. PC/Waisele Tomu gave evidence next for the prosecution. He is serving the Fiji Police Force for last 11 years. He is attached to Dreketi Community Post. On 28/05/2012 WPC/Tuliana had requested whether he could accommodate the victim to spend the night in his residence. As the victim is his relation he agreed and victim spent the night at his residence. She had been given a separate room. After giving breakfast on the next day victim was sent home.
   

In the cross examination witness said that he does not know the places where victim goes.

He was not re- examined by the prosecution.

6. DC/3033 Nacanieli gave evidence next. He is serving the Fiji Police Force for the last 13 years. Currently he is attached to Criminal Investigation Division. On 29/05/2012 he had received instructions to record interview of the accused in this case. He had recorded the interview of the accused at Seaqaqa Police Station. Interview was recorded in Fijian language. Both accused and witness signed interview notes after its completion. Original Interview was marked as P2 (a) and English Translation was marked as P2 (b).Accused was identified in the open court.
   

In the cross examination witness said that accused denied the charge during the record of the interview.

He was not re-examined.

7. DC 3191Neori Tavakaturaga gave evidence finally on behalf of the prosecution. He has completed 03 year service in Seaqaqa Police Station. Currently he attached to Criminal Investigation Division. He is the second investigation officer in this case. On 28/05/2012 his crime Office had directed him to take over a rape case from Dreketi police post. He had commenced investigations after getting down all notes pertains to this case from Dreketi police post. He had questioned the victim at Dreketi police post. After that he had decided to have second opinion from doctor at Labasa Hospital. On 29/05/2012 he had arrested the accused and brought to Seaqaqa Police Station. On 30/05/2012 he had taken the victim to Labasa Hospital for a medical check up. Thereafter he charged accused in English language. Accused charge statement was marked as P3.
   

In the cross examination witness said that he recorded second statement of victim on 29/05/2012.He further said in the second statement victim stated that she had sex with her father.

He was not re-examined by the prosecution.

State counsel marking P01-03 closed the case for the prosecution. Copies of all the exhibits are given to you.

18. When the defence called and explained rights of the accused he elected to give evidence from witness box and called a witness. Accused did not take oath due to his religious belief. He gave evidence after affirmation.
    

Accused in his evidence said the he is 55 years and married. He has 05 children and victim is his fourth child. He said that he understood his charges. During the period pertains to this case he was in Dreketi.He had come to know about the case on 28/05/2012.He had gone to Dreketi police post on 29/05/2012 to inquire about the case. He was shown the report book. Police had told him that his daughter had been taken to hospital for medical check up. When her daughter returned home on 29/05/2012 she had told him that police had told her that her mother had reported the matter to police call centre. When he inquired this from his wife in front of the police she had denied. After his arrest he denied all the charges levelled against him. According to him some body in the name of his wife had lodged a complaint in the police. When his daughter returned from police on 29/05/2012 she had told him what police had done to her.

In his cross examination accused denied the entire allegation levelled against him. He had said that her daughter has lied in the court.

He was not re-examined by the defence counsel.

02.Dr.Atunesh Prakash gave evidence on behalf of the accused. He is a MBBS qualified doctor from Fiji National University. He has three years work experience. During the three years he has only checked three patients regarding sexual offences. He admitted that he examined the victim in this case on 28/05/2012.She was produced by the police. In the history to the doctor victim had said that her father had sexual activity during her in 2009(vaginal penal) has happened on many times. Her mother saw them today. (28/05/2012) The police came to the school to question her. He has done examination and expressed his opinion. According to him victim's hymen was intact. Defence then marked his medical report as D1.Copies was given to you.

In the cross examination witness admitted that all rape matter must be referred to a doctor who is experienced in Gynaecology. After the finding he had again spoken to the victim and did the second examination. Thereafter he had spoken to Dr.Brian Guevara who is a expert in Gynaecology.

Witness was not re-examined by the defence. After marking D1 defence closed their case.

Analysis of the Evidence

19. Lady and Gentlemen of assessors, in this case the victim gave evidence first. According to her she had been having sex with her father for some time. She was not threatened by her father. Police had taken her from the school and commenced investigation. She had been checked by two doctors. But she had given same history to the doctors. According to her nothing happened on 21/05/2012.This was confirmed by her mother Wati Vuniyasi in her evidence. In the cross examination victim said that she did not divulge this incident to anyone as she feared her mother would go from the family. As assessors and judges of facts you have to consider her evidence with great caution. The inability of the victim to remember the dates are not crucial to the proving of the charges against the accused.
    
20. Lady and Gentlemen of assessors, you heard the evidence of Wati Vuniyasi mother of the victim and wife of the accused.
    
21. You heard the evidence of police officers from Dreketi Police Post and Seaqaqa Police Station who conducted the investigations, arrested the accused, caution interviewed and charged.
    
22. Lady and gentlemen of assessors, as I told you earlier, the caution interview statement of the accused person is in evidence. If you think that the answers in the caution interview statement have been fabricated by the police then you will disregard the caution interview statement completely. If you think that the caution interview statement has been recorded fairly then you consider in the normal way.
    
23. Two doctors have given evidence and tendered their Medical Reports of the victim to this court. To both doctors victim had given the same history. The doctor who examined the victim first had only checked 03 patients relating to sexual offences. But the doctor who checked the victim subsequently had seen 26 sexual related cases prior to this case. The doctor who gave evidence on behalf of the accused admitted that doctor who gave evidence on behalf of the prosecution more experienced than him. You have to consider this documentary evidence very carefully.
    
24. Lady and gentlemen of assessors, in this case accused elected to give evidence from witness box. That is his right. He has nothing to prove to you. But he gave evidence. Accused took up the position that he never had sex with the victim and therefore denied charges. You have to consider his evidence carefully.
    
25. In this case the accused is charged for Incest (one count) contrary to section 178(1) of the Penal Code, Cap 17, (two counts) under section 223 of the Crimes Decree No: 44 of 2009 and one count under 212(1) Crimes Decree No:44 of 2009. I have already explained to you about the charges and its ingredients.
    
26. You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of their evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject. Use the tests mentioned above to assess the evidence of witnesses.
    
27. You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
    
28. You can also consider whether the evidence is consistence and corroborative of each other or whether they fall apart. That is, whether the evidence of witnesses supports each other fully in material parts or whether they go on opposite directions.
    
29. Lady and gentleman of assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
    
30. Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
    
31. This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
    
32. Any re-directions?
    

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

P.Kumararatnam
JUDGE

At Labasa
01/02/2013