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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 221 of 2012
BETWEEN:
THE STATE
COMPLAINANT
AND:
WAILETIA MICE
ACCUSED
Counsel : Mr. M. Delaney with Ms. J. Prasad for the State
: Ms. V. Tamanisau for the Accused
Dates of Hearing : 6th, 7th October 2014
Date of Summing Up : 08th October 2014
SUMMING UP
Madam Assessor and Gentlemen Assessors,
(i) You had the privilege of hearing all the evidence led in this trial, both by the Prosecution and the Defence. You have heard both the Learned Prosecutor and the Learned Defence Counsel making their closing addresses to you. The final step before you retire for your deliberations is the Summing Up from me. In my Summing Up, I will direct you on matters of Law, which you must accept as correct and act upon it. You must apply the law as I direct you, as throughout the trial, "the law" has been my area of responsibility.
(ii) In as much as I am entrusted with the responsibility of the area of "Law", Madam Assessor and Gentlemen Assessors, you hold the responsibility of the "facts". You are Judges of facts. It is you who should decide whose evidence is to be relied upon, what evidence is to be accepted, what weight is to put on a particular piece of evidence, etc.
(iii) Therefore, if I express any particular view or opinion or if I appear to do so about the facts of this case in my summing up, it is solely a matter for you to decide whether or not to accept what I say. You can either agree with my contention or ignore the same and formulate your own opinions. In the same vein, Counsel for the Prosecution and Defence have already addressed you on the facts, but, once again, you need not adopt their views of the facts, unless you do agree with their contention and analysis. The Counsel has a right to make such comments when performing their roles and duties. If you strongly think that those comments and analysis do appeal to your common sense and judgment, you are free to use them as you see fit. But, when I direct you on the Law and legal principles, you have to accept that as true and accurate and should act upon that. In the same vein, I might overlook or omit certain evidence, which in your analysis, is important. You can formulate your own opinions by giving due consideration to any piece of evidence you think necessary.
(iv) You have to take into account all the evidence, both oral and documentary. You can accept all of what a witness says or reject all or accept a portion of it and reject the rest. As judges of facts, you are the masters of what to accept from the evidence placed before this court. You will not at any time be asked to give reasons for your opinions. Your opinions need not be unanimous. But it would be desirable if you three can agree upon on the final decision. As the Judge who presides this case, your opinions are not binding on me, but, I assure you that I will give your opinions full weight when I decide upon the final judgment of the Court.
(v) It is of utmost importance that you must judge or reach to a decision of this case solely based on the evidence that you heard and saw in this court room and nothing else. There will be no more evidence. You may have read or seen about this case in the printed or electronic media or elsewhere before or during the trial. You must totally disregard those. It is your duty to apply the law or the legal principles, which I am going to explain to you in a short while, to the evidence you have heard and saw within the four corners of this court house.
(i) Before summarizing and analyzing the already lead evidence in this court, it is my duty to enlighten you on several legal principles, which are involved in a criminal trial of this nature. Firstly, the issue of 'PROOF'. As a matter of law, I must direct you that the responsibility or the onus of proving the case against the Accused rests upon the Prosecution. That is a continuing responsibility casts upon the prosecution throughout the trial and it never shifts to the Accused. There is no obligation or duty upon the Accused to prove anything, including his innocence or otherwise. Accused, though charged before a court of law, is presumed to be innocent until he is found guilty by a competent court of law.
(ii) What is the standard that the Prosecution has to adopt in proving the case against the Accused? In legal literature, it is said that "the Prosecution should prove its case against the Accused beyond reasonable doubt". Its simplified version is that if you are to find the Accused guilty of the offence charged, you must be satisfied to an extent where you are sure of his guilt. I re-iterate, that you must be "sure" of the guilt and nothing less will do. There is no mathematically proven formula for you to be "sure". In the final analysis, it rests on the robust common sense of yours, which should not be fixed from over emotional responses.
(iii) If you have any reasonable doubt, the benefit of such doubt should be given to the Accused. Then it is your duty to express an opinion of "NOT GUILTY". But, it has to be borne in mind that such 'doubts' must be 'reasonable'. If it is to be 'reasonable', it should be actual and substantial doubts as to the guilt of the Accused which arose from the evidence, but should not be an imaginary or trivial or a merely possible doubt. The doubt, if the Accused is going to have any benefit, should be based upon reason and common sense grown out of the evidence.
(i) You have been provided with a copy of the information. Please read it now.
"WAILETIA MICE is charged with the following offence:
First Count
Statement of Offence (a)
RAPE: contrary to section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.
Particulars of the Offence (b)
WAILETIA MICE on the 23rd day of June 2012 at Naqarawai village in Navua, in the Central Division, had carnal knowledge of MEREWALESI LIKUSELALA, without her consent.
Alternative Count
Statement of Offence (a)
DEFILEMENT OF A YOUNG PERSON BETWEEN 13 AND 16 YEARS OF AGE: contrary to section 215 (1) of the Crimes Decree No. 44 of 2009.
Particulars of the Offence (b)
WAILETIA MICE on the 23rd day of June 2012 at Naqarawai village in Navua, in the Central Division, had unlawful carnal knowledge of MEREWALESI LIKUSELALA.
(i) The charges against the accused are based on Section 207 (1) (2) (a) and Section 215 (1) of the Crimes Decree 2009. For the prosecution to bring home these charges successfully, they have to prove the following elements to your fullest satisfaction.
For the first count of 'Rape', the elements are as follows:
(ii) Carnal knowledge or sexual intercourse is proved when the penis of the Accused has penetrated the complainant's vagina. In the eyes of law, even a slightest penetration of the complainant's vagina by the penis of the Accused is sufficed to establish "sexual intercourse". Ejaculation is irrelevant and not essential in proving the "penetration".
(iii) If the complainant agrees freely and voluntarily out of her own free will to perform the sexual intercourse in issue, she is said to have 'consented' to the alleged sexual act. But, if that 'consent' was obtained by force or threat or intimidation or putting her in fear of bodily harm or false and fraudulent representations about the nature and purpose of the act or sexual intercourse, that is not a "free and voluntary" consent on the part of the complainant. Furthermore, if the consent was obtained by exercise of the authority of the accused, it is not a free and voluntary 'consent'. Therefore, 'consent' is not proper or legitimate in the eyes of law, though it is visible on the face of it, had it been obtained in such a manner described above. It is this 'consent' which is mainly disputed by the parties in this trial.
(iv) At the same time, the Accused must know that the complainant was not consenting to have sex at the time in issue or that he was reckless in having sexual intercourse with her without knowing whether she was consenting to the act or not. The main issue you have to answer in this instance is "Did the Accused rape the complainant on 23rdh day of June 2012 or not?".
(v) As a matter of law, I am directing you that there is no need to look for any corroboration of the complainant's evidence for an Accused to be convicted on a charge of 'Rape'. If the evidence of the complainant is so convincible that you can place your reliance beyond reasonable doubt, you can solely act upon it even in the absence of any corroborative evidence. As a matter of law I am directing you that the absence of injuries or remarks for physical resistance on the complainant does not necessarily mean that she 'consented' to the sexual act in issue. But, you know that prosecution is relying on some 'lacerations' reflected in the Medical Examination Form of the complainant.
(vi) You would recall that a medical professional took the stand as an 'expert' in her respective subject area. Expert evidence is permitted in the criminal trials to provide the panel of assessors and the court a better view on certain scientific information, which is outside our experience and knowledge. An expert witness is entitled to express an opinion in relation to the issues arisen within their subject area of expertise. Nevertheless, after a careful consideration of the expert opinion, you can either accept such opinion or reject it. Once again it is for you to decide whose evidence and whose opinion you are going to accept or reject.
(vii) The prosecution says that the accused made a confession to the police during his cautioned interview and for you to rely on it. Defence does not challenge the voluntariness of the said caution interview. In fact, the accused said that all what he had to tell to court is been stated there. Now, madam assessor and gentlemen assessors, you may take the caution interview statement into consideration when deliberating your opinions. This caution interview stands against the complainant's version. It is your choice to pick what appeals to you most.
(viii) For the Alternative count, the following elements are to be proved by the prosecution beyond reasonable doubt;
- The accused (Wailetia Mice)
- Had unlawful carnal knowledge
- Of the complainant who was above 13 years and under 16 years of age.
(ix) As a matter of law, I am directing you that it is no defence to this charge to prove that the complainant did consent to have the alleged sexual act. But it is a positive defence available to the accused to show court that he had a reasonable cause to believe and in fact he did believe that the complainant was over 16 years of age at the time of the alleged incident. I remind you once again, that the accused does not have to prove his innocence. But this is an available defence for him to take in respect of this charge.
(i) The following facts are agreed between the Prosecution and the Accused under the provisions of section 135 of the Criminal Procedure Decree of 2009.
- That the accused person in this matter is Wailetia Mice, (hereinafter referred to as "the Accused").
- That the accused is charged with One Count of Rape under section 207 (1) and 2(a) of the Crimes Decree No. 44 of 2009 and an Alternative count of Defilement under section 215 (1) of the Crimes Decree No. 44 of 2009.
- That the complainant in this matter is one Merewalesi Likuselala.
- That the accused and the complainant both attended the same school being Wainimakutu Secondary School in the year 2012.
- That the accused was a Vocational Student of the above mentioned school at the time of the alleged offending while the victim was a Form 3 student.
- That the accused resided at Wainimakutu during the year of the alleged offending being 2012, but is originally from Naitasiri.
- That the accused visited the Naqarawai village on the 23rd of June 2012.
- That there was a Seventh Day Adventist function at Naqarawai village on the evening of 23rd day of June 2012.
- That the Seventh Day Adventist function was being held at the village hall in Naqarawai village.
- That the complainant was also present in Naqarawai village on the 23rd day of June 2012.
- That the accused met and spoke to the complainant at Naqarawai village on the 23rd day of June 2012.
- That the accused was cautioned interviewed on the 30th of June 2012.
- That the accused admitted to having sexual intercourse with the complainant on the 23rd of June 2012.
- That the complainant was medically examined on the 28th of June 2012, as submitted in the disclosures.
- That the accused was charged on the 1st of July 2012.
(i) Ms. Merewalesi Likuselala, an 18 year old was the first prosecution witness. She was around fifteen and a half years of age at the time of the alleged incident. The alleged incident runs back to one Saturday in June 2012. Ms. Likuselala recalled that she was a Form 3 student by that time and they had a function of Seventh Day Adventists in her village on that Saturday.
(ii) Ms. Likuselala had been sent by another lady along with two other girls to a five minutes away home to get a kettle to make tea. Whilst she was going to this place, the accused had pulled her by hands and told to pass a message to one Sereana that he wants to talk to her. She had then gone back to the village hall to pass the massage to Sereana. But, Sereana had told that she cannot come as she is with her mother. The witness had relayed the message back to the accused.
(iii) The accused had asked her to go back to Sereana. She had refused to do so. The accused had been standing in a verandah of a house by that time. Ms. Likuselala told that there were lot of people in that verandah at that time waiting for tea. Then she claimed that the accused pulled her by her hand and dragged inside the house. The house is of one Temo's. Even though she wanted to come out of the house, Ms. Likuselala told that she could not get rid of the accused. Then the accused had asked her to remove her under pants. He had pushed her on to a bed inside that room. The accused had then pulled her pants and had taken-off his pants as well.
(iv) She was specific that she did not want to have sex with the accused and she in fact wanted to come out of the room. She claimed that she thought the accused dragged her inside the house to tell something about Sereana's message. She expressly admitted that she did not make any noises, alarms, screams or complains or in fact did not utter anything throughout this whole process. She told court that she really can't say why she did so. She further told that she did not make any efforts or took any steps to show the accused that she is not happy of what he is doing even though she did not like of what he did.
(v) Ms. Likuselala then told that the accused tried to insert his penis into her vagina, but the penis could not go inside though the vagina was uncovered. She recalled that "his penis was trying to get entry to vagina" for about three minutes. The accused had then taken "the penis out after three minutes as he could not put it inside". She had not noticed or seen any ejaculation. She said her "outside part of vagina" was painful whilst the accused was trying to insert his penis.
(vi) After all this, the accused had stood up and pulled her up as well. Ms. Likuselala and the accused had worn their clothes and both then gone out of the house. First to leave was the witness followed by the accused. She endorsed that the accused did not tell anything to her throughout this time. She said few people were still there in the verandah when they came out. She had then gone to village hall and home after the function. She had gone to bed thereafter and school on the following day.
(vii) Doctor Salma Khan was the second and last witness of the prosecution. She basically referred to the Medical Examination Report that she prepared after examining Ms. Likuselala five days (5) after the incident. She had noted three lacerations around the vagina, to be more specific, the upper outer part of the vulva. Further to that she had not visualized the hymen of the patient. She could not specifically say whether the lacerations are due to forceful or consensual sexual act. But, she said that it has to be a penetration, either by a penis, fingers or other object.
(viii) Referring to the lacerations, the doctor said that in the ordinary course, those should be healed within three days. Since those were not so even after five days, she opined that the lacerations were aged between 7- 3 days.
(i) At the end of the prosecution case, court decided to call for the defence from the accused. He informed court that he is relying on his caution interview statement, which is one of the Agreed Documents, without offering any evidence from the witness box. Copies of the said statement are been provided to you. Instead, he called a witness on his behalf.
(ii) Mr. Toloi Kolinisau, the Deputy Principal of Wainimakutu Secondary School during June 2012 was the defence witness. He told that Ms. Likuselala was called to his office to inquire over some rumours going on about certain actions done by some students. Upon asking her what happened in that particular night, she had told him that she went with three boys, Ulaiasi, Wailetia Mice and Kini Wiliame and had sex in different times at different places in the same night. She had identified the three boys when they were brought for identification. The witness had called the parents of all the students and temporarily suspended them from school.
Madam assessor and gentlemen assessors,
(i) Let us first focus on the first count of 'Rape'. As I have already directed you, one of the main elements, as it obviously should be, to constitute the offence of 'Rape' is penetration of accused's penis into the complainant's vagina. At the beginning of the trial the 'penetration' did not seem to be an issue as the Agreed Facts (para 13) itself says that the accused had 'sexual intercourse' with the complainant on 23rd June 2012. But, when the complainant offered evidence in court, several times she told that the accused "tried" to insert his penis into her vagina for about three minutes and failing which, he took it out. Now, you are left with deciding whether an actual penetration took place or not.
(ii) In deciding that, the prosecution argued that the 'lacerations' and the medical observations on 'hymen' have to be taken into account. The doctor opined that there could be a possibility of 'more traumatic' penetration to the complainant's vagina as the lacerations she observed were not healed even after five days of the alleged incident. Commenting on non-visualization of complainant's hymen, the expert said that it could well be of 'frequent use' or 'excessive exercising'. For you Madam assessor and gentlemen assessors, to move forward, first you have to satisfy yourselves beyond reasonable doubt that there was a penetration, may it be the slightest of its kind, of accused's penis into complainant's vagina. If your answer is 'No' the charge of 'Rape' fails then and there.
(iii) If your answer is positive to the above, then you have to see whether the complainant consented to the said sexual intercourse or not. She said 'No'. The Deputy Principal agreed that Ms. Likuselala pointed three boys including the accused saying that they "abused" her in that night. Nevertheless, she admitted that she was dragged by the accused by her hand inside the house from the verandah whilst lot of people were there. She said from that point onwards she did not make any noises, screams, alarms or complains or even utter a word until she came out of the house with the accused. She had gone back to the village hall to see the concert after this alleged incident and then gone home to sleep. She further admitted that she did not tell this to anybody, even at school, until she was confronted by the deputy Principal. In this context, defence argued that the reason for her silence is because she consented to whatever happened between her and the accused. You madam assessor and gentlemen assessors, now have to determine the issue of 'consent'. If you are sure of 'penetration' and that the complainant did not 'consent' to such 'penetration', you have to find the accused 'GUILTY' of 'Rape'. In the same way, your opinions should be 'NOT GUILTY', if you are sure that the complainant 'consented' to have sexual intercourse with the accused, even there was a 'penetration'.
(iv) Going back to paragraph 2 of this part, if you conclude that there was 'no penetration', you have to decide whether the acts of the accused alleged to have committed over the complaint would amount to an 'attempt to rape'. But, if you are to find the accused 'GUILTY' for 'attempt to rape', once again you have to be sure or satisfied beyond reasonable doubt that the complainant did not consent to have such acts performed. As you know by now madam assessor and gentlemen assessors, if you have any reasonable doubt whether the complainant 'consented' or not, it has to be awarded to the accused.
(v) Madam assessor and gentlemen assessors, if you find the accused 'GUILTY' to the first count of Rape or the lessor offence of 'Attempt to Rape', you need not to proceed to deliberate the alternative count of "Defilement of a Young Person Between 13 and 16 years of age". In case you see the accused is 'NOT GUILTY' of the charge of 'Rape', you have to deliberate on this alternative count.
(vi) It was alleged by the prosecution that the accused had the "unlawful carnal knowledge" of Ms. Likuselala and therefore he committed the offence of this alternative count. You would recall that you have to first deliberate whether a 'penetration' in fact took place or not to pursue the count of 'Rape'. That applies to this charge as well. If, your opinion is 'NO' to the issue of 'penetration', this charge fails. But as I have already directed you that 'consent' of the complainant is not needed to maintain this charge.
(vii) All what you have to consider then is whether or not the accused had a reasonable cause to believe and in fact he did believe that the complainant was above the age of 16 years. In his caution interview, the accused had told to police that he did not know the complainant's age at the time of this incident instead of knowing that she was a Form 3 student at Wainimakutu Secondary School. (Q & A 66 – 72) It is an agreed fact without any dispute that Ms. Likuselala was under 16 years of age at the time of this alleged incident. Now madam assessor and gentlemen assessors, you have to decide whether the accused did have a reasonable cause to believe and in fact he believed that the complainant was over 16. If you say 'NO', then the accused is guilty of this alternative count.
(i) In essence, madam assessor and gentlemen assessors, you are confronted with two different versions to say how the alleged act took place. At this juncture, I have to tell you once again that there is no burden on the accused whatsoever to prove anything. He need not to prove that he is innocent. Nevertheless, the accused in this instance put forward his side of the story to you through his caution interview statement and the deputy principal of the school. It is entirely up to you to accept or reject it. If you decide to reject the accused's story that does not necessarily mean that the prosecution has proven their case beyond reasonable doubt. The prosecution, still must prove all the elements of the offences to your fullest satisfaction.
(ii) Your possible opinions in this instance are 'GUILTY' or 'NOT GUILTY' to the charge of Rape. If it is 'NOT GUILTY', you have to consider whether the accused is 'GUILTY' or 'NOT GUILTY' for the offence of 'Attempt to Rape'. If it is still 'NOT GUILTY', you can consider the alternative count. The possible opinions for the alternative count are 'GUILTY' or 'NOT GUILTY'.
(iii) You may now retire to consider your opinions. When you are ready, you may inform one of the court clerks so that I will re-convene the court. You will be asked individually for your opinion.
(iv) Before you retire, I would like to ask the Counsel of both parties if there is anything that they wish me to say in addition or want me to re-direct the assessors on any matter.
Mr. Delaney?
Ms. Tamanisau?
Janaka Bandara
Judge
At Suva
Solicitors
Office of the Director of Prosecution for State
Office of the Legal Aid Commission for Accused
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