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State v Natau - Summing Up [2014] FJHC 711; HAC305.2012 (19 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 305/2012

BETWEEN:

THE STATE

AND :

PITA NATAU

COUNSEL : Mr Y Prasad and Ms V Prasad for the State
Accused in Person

Dates of Trial : 18/09/2014
Date of Summing Up : 19/09/2014

[Name of the victim is suppressed. She will be referred to as R.N.]

SUMMING UP

Ladies and Gentleman Assessors,

[01] 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 opinion. 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.

[02] 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.

[03] Prosecution and the accused 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.

[04] 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 judgment.

[05] 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 the accused person is presumed to be innocent until he is proved guilty. This is the golden rule.

[06] 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.

[07] 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.

[08] In certain circumstances the court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field.

[09] 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.

[10] 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.

[11] Now let's look at the amended charge.

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207(1) and 207(2) (a) and (3) of the Crimes Decree No: 44 of 2009.

Particular of Offence

PITA NATAU on the 13th day of November 2010, at Lokuya Settlement Verata, Tailevu in the Central Division had carnal knowledge of R.N. a child under the age of 13 years.

[12] In Fiji law, the offence of Rape is committed when the vagina is penetrated either by the penis or by the finger of the accused. Hence in this case the prosecution has to prove:

i) The accused had carnal knowledge of the complainant,

ii) Without her consent,

iii) He knew or believed that she was not consenting or did not care if

she was not consenting.

[13] Carnal knowledge is the penetration of vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[14] As far as the element of consent is concern, in our law, a child under the age of 13 years is incapable of giving consent. In this case the victim was 11 years of age at the time of the offence. Hence consent is immaterial in this case.

[15] I now remind you of the prosecution and defence cases. In doing this, it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by the counsel and the accused. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[16] Now let's look at the evidence led by the prosecution in this case.

[17] The victim R.N. was born on 13/12/1999 and was 11 at the time of the offence. She was living at Lokuya with her mother Unaisi and her step-father Pita Natau. She has a brother and a sister. Their house is 5 meters in length and width is about the court room size. The house has electricity and the verandah light is on during the night. They all sleep in the house during the night.

[18] On 13/11/2010 as usual she slept inside the house. Her mother had slept with her sister and Pita Natau slept with her brother. She slept on the floor. The distance between her and her mother and Pita Natau is about 2 ½ meters. At about 12.30 am she suddenly found that she was naked and was carried up to the place where Pita was sleeping. When she tried to go back to her place where she slept, Pita pulled her up and covered her mouth with a pillow. Thereafter he had inserted his penis into her vagina and kissed her. She could not go back to her mother as Pita held her firmly. After that she wore her clothes and went to the place where she was sleeping. She could not sleep thereafter and was up till morning. After the incident Pita had threatened her not to tell anybody. On the following day her cousin had seen blood on her pants. She then informed this to her mother but did not tell the incident to her as Pita is very violent person. Further she had not informed anybody at that time.

[19] She then went to live with her Aunty Mere Marama as Pita had chased her and her mother away from the house after a fight. She then told the incident pertains to this case in the year 2011. Her Aunty after hearing from her reported the matter to the police. Thereafter she was subjected for a medical examination. She identified Pita Natau as the accused in this case. She identified her birth certificate which was marked as P1 by the prosecution. According to her date of birth she was 10 years and 11 months old at the time of the offence. According to her enough light was available to identify the accused before he covered her face with a pillow.

[20] In the cross examination the victim admitted that two girls got pregnant at her Aunt's house. According to the victim blood only came after the sexual act done by the accused. Victim was at her Aunt's place for about two years and went to her mother's place thereafter. Victim admitted that she complained against her Uncle Keni to the police. The allegation is that he had gone to the bathroom when the victim was inside. Victim said that she don't know why her Uncle Keni was tried before Korovou Court. The reason she did not tell the incident to her mother as the accused told her that he would do bad things if she divulge this to anybody. Victim did not explain what meant by bad things by the accused. Victim admitted that her mother went to Nadi in the year 2011 but denied that her mother went to marry a soldier. Victim said that her Aunty had helped her to report the matter to the police. Victim admitted that she first reported the matter on 27/12/2011. The victim denied that she told police that she was afraid to tell her mother as her step father would kill her.

[21] According to Mere Marama admitted that she went to the police in the year 2011 regarding victim's complaint. Victim had told her that while she was at the acccused's house he used to carry her from her bed to his bed, fondle her breasts and insert his penis into her vagina. The victim had come to her place after the accused chased the victim and her mother from the accused's house.

[22] In the cross examination witness admitted that her two daughters got pregnant at her house. Witness admitted that she reported two matters to the police; one against the accused and one against Keni. She confirmed the allegation the victim made against Keni. She is a relation of Keni. Further she admitted that her sister, the victim's mother got pregnant by a police officer.

[23] Dr. Kelera Sakumeui a MBBS doctor with about 07 years experience had examined the victim on 07/11/2011. She is specialising in Obstetrics and Gynaecology. She examined the victim at CWM Hospital at about 4.00pm. According to the history, the victims step father used to go to her at night. He used to fondle her, insert his finger into her vagina. Further her step father sexually penetrated her only one time. And he made her to hold his penis. This had happened many times last year. Victim was calm at the time of the examination. In her professional opinion doctor stated that the posterior part of the hymen intact but lateral walls of hymen jagged.

[24] Tendering birth certificate and medical report of the victim prosecution closed their case. Defence was called and explained the rights of the accused. After understanding his rights the accused elected to remain silent.

Analysis of the Evidence

[25] Ladies and Gentleman Assessors, the victim in this case was 10 years and 11 months old at the time of the offence. You heard her evidence before this court which related only to the alleged sexual intercourse supposed to have taken place on 13/11/2010. But she had told her Aunt and the doctor that the accused used to fondle her breasts and insert his finger into her vagina on many occasions. In her evidence she has not uttered single word about those incidents. Further the victim had never said to her mother about the sexual assault of the accused though she had ample opportunity to inform this to her mother. She only came out of the incident after more than one year. The reason she said that she was scared of the accused. But she denied telling the police that she was afraid of telling her mother as the accused would kill her. Further two daughters of her Aunt got pregnant during the time she stayed with her. Further she lodged a complaint against Keni a close relation of her Aunt. This complaint was settled. At that time the victim, after more than a year lodged a complaint first time against the accused. Her Aunt Mere Marama had assisted her. Further the victim failed to explain to this court what she understood by bad thing. As assessors and judges of facts you have to consider her evidence very carefully.

[26] Ladies and Gentleman Assessors, Dr. Kelera Sakumeui confirmed that she examined the victim on 07/11/2011 and her finding is that posterior part of hymen intact and lateral walls of hymen jagged. These results are after one year of the incident. She gave evidence as an expert.

[27] Ladies and Gentleman Assessors, when the defence was called the accused opted to remain silent. That is his right. But he has nothing to prove to you.

[28] In this case the accused is charged for rape contrary to Section 207(1) and 207(2) (a) and (3) of the Crimes Decree No: 44 of 2009. I have already explained to you about the charges and its ingredients.

[29] 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.

[30] 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.

[31] Ladies and Gentleman 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.

[32] Once again, I remind you, 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.

[33] 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.

[34] Any re-directions

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

P Kumararatnam
JUDGE

At Suva
19/09/ 2014