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State v Korodrau - Summing Up [2014] FJHC 509; HAC219.2012S (10 July 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 219 OF 2012S

STATE

vs

ISEI KORODRAU

Counsels: Mr. T. Qalinauci and Ms. D. Kumar for the State
Mr. M. Fesaitu and Ms. K. Vulimainadave for Accused
Hearings: 7, 8 and 9 July, 2014
Summing Up: 10 July, 2014

SUMMING UP

1. 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.
   

2. 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.
   

100. THE INFORMATION

7. You have a copy of the information with you. I will now read the same to you:
   

"... [read from the information]...."

4. 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 11 February 2011, at Raiwai in the Central Division, enter the complainant's house as a trespasser, with intent to commit theft, and armed with an offensive weapon?
     
   • (ii) On count no. 2, did the accused, on 11 February 2011, at Raiwai in the Central Division, steal the complainant's properties, as itemized in the count?
     
   • (iii) On count no. 3, did the accused, on 11 February 2011, at Raiwai in the Central Division, rape the complainant?
     

5. THE OFFENCES AND THEIR ELEMENTS

9. Count No. 1 involved the offence of "aggravated burglary", contrary to section 313 (1)(b) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused;

(ii) enters or remains;

(iii) in a building;

(iv) as a trespasser;

(v) with intent;

(vi) to commit theft and

(vii) at the time;

(viii) has an offensive weapon;

(ix) with him.

10. The key word in the above offence is the word "trespasser". A trespasser is someone who does not have permission, express or implied, to be in a building. In other words, if you don't have permission to enter or remain in a building, but nevertherless entered or remained in the building, you are a trespasser. You don't have authority to enter or remain in the building. For example, a thief who enters or remains in a building, to steal, is a trespasser.

11. Furthermore, when entering or remaining in a building as a trespasser, the accused, must also simultaneously have the intention to commit theft in that building. The accused's intention could be inferred from what he said and did in the particular circumstances of the case. In addition to the above, the prosecution must also prove beyond reasonable doubt that, the accused, while acting as a trespasser with intent to commit theft, also had an offensive weapon with him. For example, a thief, who enters or remain in someone's house, as a trespasser with an intention to commit theft, gets hold of a kitchen knife, which would be an "offensive weapon", to assist him commit the offence, would be liable for "aggravated burglary".

12. Count No. 2 involved the offence of "theft", contrary to section 291 (1) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused;

(ii) dishonestly;

(iii) appropriates;

(iv) property belonging to another;

(v) with the intention;

(vi) of permanently depriving;

(vii) the other of the property.

13. "Theft" is another word for "stealing". "Stealing" is basically to take something away, without the owner's permission, and with the intention of permanently depriving the owner of ownership of that property. For example, I saw $1,000 in your wallet. I took your wallet, got the $1,000 and spent it on myself, without your permission. What I did above is basically called "theft" or "stealing".

14. Count No. 3 involved the offence of "rape", contrary to section 207(1) and (2)(a) of the Crimes Decree 2009. 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) the accused knew the complainant was not consenting to sex, at the time.

15. The slightest penetration of the complainant's vagina by the accused's penis, is sufficient to satisfy element 14(i) above. Whether or not the accused ejaculated, is totally irrelevant to element 14(i) above.

16. "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.

17. 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.

18. There are three counts in the information. You must consider each count separately, as it relates to the whole evidence presented during the trial.

F. PROSECUTION'S CASE
19. On 11 February 2011 (Friday), the complainant was 29 years old, and an Australian expatriate, working in a managerial position, in one of Fiji's higher educational institute. She was fast asleep in her apartment, somewhere in Suva. The accused was a 19 year old unemployed youth from a village in Tailevu. For a living, he did subsistence farming. On 10 February 2011 (Thursday), the accused left his village, and came to Suva, to visit some friends in Raiwaqa.

20. In Raiwaqa, he met his friends, and in the afternoon on 10 February 2011, they began to consume some liquor. The consumption of liquor continued into the night. At about midnight and the early hours of 11 February 2011, the accused left his friends, and began to walk around the streets near Raiwaqa and Nailuva Road. Sometime after 1am, on the same morning, he came to the complainant's apartment. He saw the complainant's apartment's front slide door open, but the burglar grill door was closed and locked.

21. The burglar grill door key was on a coffee table near the front slide door. The accused "fished" the key to himself, by using a mop stick to get to the same. The accused opened the burglar grill door, and went into the complainant's apartment. According to the prosecution, the accused was looking for money. The complainant, at the time, was fast asleep alone in her bedroom. The accused took a kitchen knife from the complainant's kitchen. He went to the complainant's bedroom, and forcefully woke her up, by putting the kitchen knife to her neck.

22. He demanded money from the complainant. The complainant, as a result, gave him various currencies. He also took the complainant's properties, as itemized in count no. 2. Then, he demanded sex from the complainant, while still holding the knife to her neck. Under duress, the complainant gave herself to him. He later had forceful sex with the complainant twice, without her consent. According to the prosecution, the accused well knew, at the time, that she was not consenting to sex with him. After doing the above, the accused left the complainant's apartment, early in the morning.

23. The matter was reported to police later. An investigation was carried out. The complainant was medically examined at CWM Hospital on the same day. On 23 February 2011, the accused was arrested by police at Tailevu. He was cautioned by police on 24 and 25 February 2011. He was formally charged for the offences on 25 February 2011. He admitted the offences to police. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged, on all counts. That was the case for the prosecution.

G. THE ACCUSED'S CASE:
24. On 7 July 2014, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the three counts. In other words, he denied the allegations against him. When a prima facie case was found against him, at the close of the prosecution case, he choose to remain silent, and call no witness, in his defence. He said, through his counsel, that he will only address the court, through his closing submission.

25. What the accused did above were his rights. The burden to prove his guilt beyond reasonable doubt, lies with the prosecution from the start to the end of the trial. The accused is not required to prove his innocence, and in fact, there is no burden on him to prove anything, at all. Consequently, nothing negative whatsoever should be imputed to him, for exercising his right to remain silent. What you should be looking to, is as follows. Has the prosecution proven the accused's guilt beyond reasonable doubt, by making you sure that the accused is guilty as charged?

H. ANALYSIS OF THE EVIDENCE:
26. The State's case against the Accused, stands or falls, on whether or not, you accept the following types of evidence:

(i) Complainant's Evidence;

(ii) Complainant's identification Evidence;

(iii) Complainant's Medical Report;

(iv) Accused's Alleged Confessions.

(i) Complainant's Evidence:

27. On oath, the complainant said, she was fast asleep in her bedroom, at the material time. She said, she was awoken when she saw a Fijian man running towards her with a knife. She said, the man put the knife to her neck. When she tried to scream, he covered her mouth, and warned her if she screams, he will kill her. He later dragged her to the sitting room, and pinned her to the floor by holding her neck with his hand. She decided not to struggle, and the man forcefully took her to her bedroom. In the bedroom, he had forceful sex with her twice. According to her, she never consented to sex with him. He knew she was not consenting to sex with him, at the time, because he was using the knife on her. The complainant said, he later stole her properties as itemized in count no. 2. She said, the man later left in the early morning. She said, she later reported the matter to police. She was medically examined at CWM Hospital, on the same day ie. 11 February 2011. Her statements were taken by police.

(ii) Complainant's Identification Evidence:

28. Before you consider the complainant's identification evidence of the accused, at the material time, I must, as a matter of law, direct you as follows. First, whenever the case against the accused depends wholly or substantially on the correctness of one identification of the accused which the defence alleges to be mistaken, I must warn you of the special need for caution before convicting the accused in reliance on the correctness of the identification, because an honest and convincing witness could be mistaken. Secondly, you must closely examine the circumstances in which the identification was made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? Is there any special reason for remembering the accused's face? How long elapsed between the original observation and the subsequent identification to police? Thirdly, are there any specific weaknesses in the complainant's identification's evidence? You must consider the above three issues together to test the quality of the identification evidence. If the quality is good, you may rely on it. If it is otherwise, you may reject it.

29. How long did the complainant have the accused under observation? According to the complainant, she saw the accused for a total of 2 hours. So, this case was not a fleeting glance. At what distance? The complainant said, the accused kissed her and had sex with her twice. So, obviously the two were close to each other, most of the time. This will surely enable the complainant to see the accused's face properly for a period of 2 hours. In what light? The alleged rape occurred in her bedroom. The complainant said, the bedroom lights were on, thus enabling her to see his face properly. Was the observation impeded in any way? Obviously, no. Had the witness ever seen the accused before? No. Is there any special reason for remembering the accused's face? Obviously, the complainant's traumatic experience will remind her of the accused's face, possibly forever. Any weakness in the complainant's identification evidence? In cross-examination, the complainant admitted she attended a police identification parade, and could not point out the accused. However, it was not clear from the evidence, whether or not the accused was part of the line up in the police identification parade. On the whole, in my view, the quality of the complainant's identification evidence appears solid. However, whether or not you accept the same, is a matter entirely for you.

(iii) Complainant's Medical Report:

30. Approximately 8 to 8 ½ hours after the alleged rape, the complainant was medically examined by Doctor Litia Narube (PW3) at CWM Hospital. The doctor tendered her report in evidence as Prosecution Exhibit No. 1. You must carefully read and understand this report. In D(10) of the report, the doctor recorded the complainant's history as follows, "...she was attacked in her home by a man. He dragged her through the house and raped her twice..." In D(12) of the report, the doctor recorded her medical findings, as follows, "...Throat - tender; Left Arm – 1 cm laceration along inner aspect, dried clot; vagina – slight abrasion on labia minora; white liquid in vaginal vault..." In D(14) and D(16) of the report, the doctor gave her opinion and conclusion, as follows, "...Recent sexual activity..." It would appear that the medical report appear to confirm the complainant's version of events. Whether or not you accept the medical report, is entirely a matter for you.

(iv) The Accused's Alleged Confessions in his Police Caution Interview Statements [Prosecution Exhibit 2(a) – hand written version, and 2(b) – typed version] and charge Statements [Prosecution Exhibit No. 3(a) – hand written version, and 3(b) – typed version]:

31. Between 24 and 25 February 2011, DC 2990 Isireli Tora (PW5) caution interviewed the accused, in the crime office, at Raiwaqa Police Station. The interview was witnessed by DC 3665 Josaia Tudru (PW6) and SC 1018 Rusiate Naqau (PW7). According to PW5, PW6 and PW7, the accused was given the standard caution, he was given his legal rights and was given his meal and rest breaks. The accused was asked a total of 246 questions and he gave 246 answers. In his answers, the accused admitted the allegations against him. From Questions and Answers 5 and 68 to 105 of Prosecution Exhibit No. 2(b), the accused admitted "aggravated burglary" (count no. 1). From Questions and Answers 5 and 106 to 161 of Prosecution Exhibit No. 2(b), the accused admitted "theft" (count no. 2). From Questions and Answers 5, 162 to 175 and 191 to 196 of Prosecution Exhibit No. 2(b), the accused admitted "rape" (count no. 3). When formally charged by DC 3650 Semi (PW9), he admitted the allegations against him in his charge statements [see Prosecution Exhibit No. 3(a) and 3(b), Question and Answer 7].

32. Before you consider the above alleged confession, I must direct you as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of facts, you are entitled to rely on them for or against the accused.

33. In this case, the issue on whether or not the alleged confessions were given voluntarily, were disputed by the parties. Although the accused choose to remain silent, and call no witnesses, in his defence, he nevertheless put his challenge to the prosecution's witnesses. He challenged the police arresting officer (ie. Amani Bosenawai – PW4) through cross-examination, that they assaulted him during his arrest on 23 February 2011. He also challenged the caution interview officer (PW5) and the witnessing police officers (PW6 and PW7) that they assaulted and threatened him during his caution interview. He accused them of rubbing chillis on his body, and threatening to take him to the army camp, and the "police strike back team". He also accused the officers, through cross-examination, that they repeatedly swore at him. He also repeated the above challenges, when he cross-examined the charging officer, DC 3650 Semi (PW9). However, all the above police officers said, that they did not assault, threaten or made promises to the accused, while he was in their custody. They said, the accused gave his caution interview and charge statements voluntarily. Which version of events to accept, is entirely a matter for you.

(v) Considering All the Evidence Together:

34. You will have to consider all the above evidence together. You have heard all the witnesses give evidence in court. You have observed their demeanour in the courtroom. Do you find them to be credible witnesses? Were they telling you the truth? Were they evasive when answering questions? Were they forthright as witnesses? If you find the complainant and other prosecution witnesses credible, then you must find the accused guilty as charged on all counts. If you find them not credible, them you must find the accused not guilty as charged on all counts. It is a matter entirely for you.

I. SUMMARY
35. 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.

36. Your possible opinions are as follows:

(i) Count No. 1 : Aggravated Burglary : Guilty or Not Guilty

(ii) Count No. 2 : Theft : Guilty or Not Guilty

(iii) Count No. 3 : Rape : Guilty or Not Guilty

37. 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 your decisions.

Salesi Temo
JUDGE

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