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State v Verevou - Summing Up [2014] FJHC 308; HAC185.2012 (6 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

HIGH COURT CASE NO. HAC 184 OF 2012
(consolidated with HAC 185/12 – 193/12)

BETWEEN

STATE

AND

1. ATAMA VEREVOU
2. MINIUSE RARASEA
3. EPINERI LATA
   

BEFORE THE HON. JUSTICE PAUL K. MADIGAN

Counsels: Mr. M. Vosawale with Mr. S. Nathand Ms. R.Uce for the State
Mr. K. Maisamoa forall accused

Dates of trial: 28 April to 5 May 2014
Date of summing up: 6 May 2014

SUMMING UP

[1] Ladies and gentleman, the time has come for me to sum up this case to you and to direct you on the law involved so that you can apply these 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 judges of the facts and you and only you can decide where the truth in this case. If I express any view of the facts then you must ignore it unless of course you agree with that view.

[3] You must judge udge this case solely on the evidence you have heard in this Court room. You are not to speculate on wvidence there might have been or should have been.In this regard it was most improper for Mfor Mr. Maisamoa to tell you in his closing that you should have regard to medical evidence in this case. There is no medical evidence and you are not to think about medical evidence and you will ignore what Mr. Maisamoa said on that matter.

[4] The Court room has no place for prejudice or sympathy. In this case it is not easy to be objective but we must be. We are not to have sympathy for the young boys and we are not to feel prejudice against men who are accused of raping young boys. You must put those sympathies and prejudices to one side and judge the case solely on the evidence that has been placed before you.

[5] I am not bound by your opinions but I will give them full weight when I decide the judgment of the Court.it is most important that I remind you of what I said when you were sworn in. The burden of proving this case against these accused is on the prosecution and how do they do that? By making you sure of it. Nothing less will do. That 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. That accused does not have to prove anything to you. If you are sure however that each of these accused raped either Semisi or Netani in the manner charged then you will find him guilty.

[6] On the information before you there are four accused. The first accused faces three charges and the others one each. However the fourth accused, EsalaRayawa, is not here anymore. He has been discharged by me for reasons which need not concern you and therefore you need not turn your minds to Count Six on the Information. You will assess the evidence against each accused separately. Just because you might think one accused is guilty, it doesn't mean that any other one is also guilty. The evidence against each is different so you will form your opinion on the accused persons individually and not jointly.

[7] Similarly, with the first accused facing three charges you will look at each charge separately. Guilty of one doesn't necessarily mean guilty of the others.

[8] Now I turn to the law on rape, and unnatural offence

[9] "Unnatural offence" is the old term for anal intercourse or "buggery". It is laid in this information because the date of the offence alleged (2008) means that the old law in Fiji is applicable. What you must find proved by the prosecution for the first count is

(i) that it was Atama

(ii) that had anal intercourse with Semisi in 2008

(iii) there was at least some degree of penetration.

For the purpose of that offence consent was not an issue. The crime was complete on penetration only with or without consent.

[10] Under the new law and for the purpose of the fifth count, anal intercourse is a form of rape. All that must be proved is that Epineri penetrated the anus of Semisi. That is all. Consent is not an issue because Semisi being under 13 years old is not capable in law in giving consent.

[11] The second count against Atama is a charge that he penetrated the anus of Netani with a piece of stick. Under our new law (called the Crimes Decree) penetration of the anus with penis, finger or stick is rape. So to find this charge proved you must find that Atama did penetrate Netani's anus with a stick. No consent needed again. If however you find that although Atama was using the stick there was no penetration then it is open to you to find a lesser alternative offence of sexual assault. To use the stick to poke Netani's bottom without penetration would be sexual assault if you think that is what happened.

[12] The third count against Atama is charged as penetration of Netani's anus with his finger. Again, ladies and gentleman, if you find that there was penetration of the anus with the finger then it is rape. However as with the second count if you find that there was no penetration but still an assault with the finger it is open to you to find not guilty of rape but guilty of the lesser offence of sexual assault. I will come back to that when I discuss the evidence.

[13] The fourth count against Miniuse, the second accused, is an allegation of a third kind of rape in our law. To penetrate another's mouth without consent is rape and to find this count proved you must find that Miniuse's penis penetrated Semisi's mouth. No consent is needed because Semisi was under the age of 13 and is deemed not able to give consent.

[14] The first witness for the prosecution was the young boy Semisi who told us that he is now 13 years old which means that in 2008 (Count 1) he would have been 7 years old. He talked in his evidence about the boys at the back and first spoke of Epineri the third accused. He identified him in Court. He said that Epineri asked him to suck his penis and asked to fuck him. He sucked his penis and then "they had sex". "He put it in my anus" he said. The third accused told him not to tell anybody. He said it was in 2010 when he was 9 years old and was in Class V.

[15] He then spoke about Atama, identifying the first accused in the dock. He said that in 2008 Atama asked him to suck his penis then he asked to fuck his anus. "It means sex. He fucked my anus – right inside", he said. Atama told him not to tell anybody and he didn't because he was frightened.

[16] In speaking of the second accused Miniuse who he identified, Semisi said that he sucked his penis for about ten minutes. This was in 2011 and he was 10 years old. He couldn't remember where it was and again Miniuse said not to tell anybody. Sometimes it was at the reservoir and sometimes it was at the river.

[17] In 2010 Epi (the third accused) took his pantsoff at the river and fucked him. They were both standing up. He put his penis in his anus. He said he never told his parents about it because was frightened. In cross-examination he denied that he was making it all up, or that he was lying.

[18] The second prosecution witness was Netani a young boy of 12 years old. You will remember that he was very reluctant to say anything – he was obviously very scared and shy. Eventually after a little coaxing he said that Atama poked his anus with his finger. He said he felt it. He said that Atama didn't put it right in but when asked by me he said that he had "put it in the hole". This then ladies and gentleman, is a contradiction that you must as finders of fact resolve. If he 'put it right in' then it is rape, if he didn't but just put it in the area then you may find proved the lesser alternative of sexual assault. It is a matter for you. It was in cross-examination of this reluctant witness that defence counsel took the extraordinary step, despite my warnings, of putting the child's police statement to him. That allowed a whole lot of evidence to go before the Court relating to Count 2 which had never been canvassed in the examination in chief. He said that Atama (first accused) had a piece of wood which he used on his anus. He said that the wood didn't "go in the hole", which means ladies and gentleman that it cannot be rape as charged. I direct you on Count 2 to find Atama not guilty as charged but I invite you to consider whether the use of wood at or near his anus to be sexual assault. If you think he is telling the truth and Atama did use the wood to "prod" his anus then it is open to you to find him guilty of the alternative charge of sexual assault. If you find that he didn't use the wood at all, you will find him not guilty of anything.

[19] The 3rd witness for the prosecution was the Head Mistress of the school where the boys studied, Yala District School. She said that on 17th May 2012, one of her teachers Mr. Seniuhad told her of his suspicions of sexual assault of some of the boys at the school. She told Mr. Seniu to investigate further and to report back to her. He did so and she reported the matter to the Ministry of Education. It was then that the Police were brought in. You might think that Ms. Ravono's evidence did not really help us.

[20] Mr. Seniu himself gave evidence in which he said that on 19 March 2012 he had noticed blood on Semisi's chair. When asking the child about it, Mr. Seniu immediately "sensed that something was going on". Eventually he was able to talk to Semisi when he was told the whole story. The abuse had started in Class 3 and now he was in Class 7. He used detailed and surprising words in the telling; just as he surprised us in Court with his vocabulary. He said the other students were also victims. He mentioned that one of the perpetrators was Atama. The teacher said he knew these village boys (the accused) because he used to play rugby with them and he socialized with them. He told the story to the Head Ms. Ravono but he spared her some of the details. He finished by saying that when it had all been revealed he sought a transfer back to Viti Levu because he feared for his safety.

[21] In cross-examination, Mr. Seniu denied that he had seen blood on Semisi'ssulu, it was on the chair. He denied that he had forced the boys to talk by threatening them and he denied that he fabricated the story to make his transfer easier.

[22] The last witness for the prosecution was the Police witness WPC Taraivini who presided over 2 interviews under caution with Atama, the first accused. She interviewed him in the Fijian vernacular but recorded it in English by typing. She produced the record of the two interviews and they are before you and have been read to you. She said that she had followed all proper procedures and the first accused, Atama, was treated well.

[23] She denied in cross-examination that she had made up the interview or that the answers were all lies. She explained in the light of repeated confused questioning her witnessing officer was there for the whole of the first interview and for the second was "coming or going". There is nothing sinister or improper about this arrangement.

[24] I now direct you how to approach the interviews under caution. If you think that the answers said to be given by Atama were answers really given by him and they are true then they become evidence that you may rely on and act on accordingly. If you think that there was anything improper going on in the interviews then you will discard them. I remind you that there is no evidence before you of any impropriety. Mr. Maisamoa's questions and propositions which have been denied are not evidence.

[25] You will see from the interviews, if you accept them as true, that Atama has said in the first interview that he had poked Netani's anus with a piece of stick and he admitted that he had poked Netani's anus on another occasion with his finger. In the second interview he admitted that Semisi had sucked his penis and he did admit that he had inserted his penis in Semisi's anus in 2008.

[26] That Ladies and Gentleman was the end of the prosecution case and you will recall that none of the accused chose to give evidence or to call any witnesses.

[27] None of the accused has to give evidence. That is his right. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume anyone of them is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the accused to undermine, contradict or explain the evidence put before you by the prosecution. However you still have to decide whether, on the prosecution's evidence you are sure of the accused's guilt.

[28] There is no evidence from any of the accused but Mr. Maisamoa has suggested to you in closing that there is a discrepancy between the evidence of the two teachers. He says that Mr. Seniu saw blood on the chair, Ms. Ravono says Mr. Seniu told her he had seen blood on his sulu. Mr. Maisamoa is correct in his submission and it is up to you what you make of it, if anything. He says that Netani says his evidence was coached because Netani said his aunty told him what to say. Netani explained this however by saying that his aunty had merely told him to tell his story and not to waver from it.

[29] Well that is all I wish to say about the evidence. You may now retire and consider your opinions. When you return you will be asked individually for your opinions on each count. It is best that you be all agreed, but that is not strictly necessary. When you are ready please let my clerk know and I will reconvene the Court. I now list your possible verdicts:

Count 1 (1st accused): Guilty of unnatural offence (sodomy).

Not guilty.

Count 2 (1st accused): Guilty of rape.

Not guilty of rape but guilty of sexual assault.

Not guilty of anything.

Count 3 (1st accused): Guilty of rape.

Not guilty of rape but guilty of sexual assault.

Not guilty of anything.

Count 4 (2nd accused): Guilty of rape (by mouth).

Not guilty.

Count 5 (3rd accused): Guilty of rape (anal).

Not guilty.

[30] Any redirections Counsel?

P.K. Madigan
Judge

At Suva
6 May 2014