IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 200 OF 2013S

STATE

vs

TARAJIANI BAVESI

Counsels : Mr. M. Vosawale and Ms. Lodhia for State
Ms. M. Tarai for Accused 
Hearings : 16, 17 and 18 March, 2015
Summing Up : 19 March, 2015

SUMMING UP

A.	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 they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B.	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. 

C.	THE INFORMATION 

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

"… [read from the information]…."

D.	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 13 May 2013 at Wainibuku Cemetery, Nasinu in the Central Division, rape complainant no. 1?

(ii)	On count no. 2, did the accused, on 13 May 2013 at Wainibuku Cemetery, Nasinu in the Central Division, rape complainant no. 1?

(iii)	On count no. 3, did the accused, on 13 May 2013 at Wainibuku Cemetery, Nasinu in the Central Division, rape complainant no. 2?

(iv)	On count no. 4, did the accused, on 13 May 2013 at Wainibuku Cemetery, Nasinu in the Central Division, rape complainant no. 2?

E.	THE OFFENCES AND IT'S ELEMENTS

9.	Count no. 1, 2, 3 and 4 are offences of "rape", contrary to section 207(1), (2)(a) and (2)(c) 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)(a)	the accused penetrated the complainant's vagina with his penis (count no. 1 and 3); or

(i)(b)	the accused penetrated the complainant's mouth with his penis (count no. 2 and 4);

(ii)	without her consent; and
(iii)	he knew the complainant was not consenting to (i)(a) or (i)(b) above, at the time.

10.	In law, the slightest penetration of the complainant's vagina (count no. 1 and 3) or mouth (count no. 2 and 4), with the accused's penis, is sufficient to satisfy element (i)(a) or (i)(b) of paragraph 9 mentioned above. In both cases of penetration, proving ejaculation is unnecessary.

11.	"Consent" is to "agree freely and voluntarily and out of her own free will". If "consent" was obtained by force, threat, intimidation, fear of bodily harm, or by exercise of authority, 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.

12.	It must also be established by the prosecution beyond reasonable doubt that, the accused knew the complainant was not consenting to her vagina been penetrated by his penis, or her mouth been penetrated by his penis, at the time. You will have to look at, and carefully consider the parties' conduct at the time, including the surrounding circumstances, to decide this issue.

13.	Remember, there are four counts in the information, and there are two complainants. You must carefully consider each count and each complainant separately, when considering all the available evidence. 

F.	THE PROSECUTION'S CASE

14.	The prosecution's case were as follows. On 13 May 2013, the accused was aged 38 years 10 months, married with two children, aged 20 and 18 years old. He had been working as a police special constable at Nakasi Police Station for the previous 7 years. The first female complainant (PW1), was aged 20 years old at the time. The second female complainant (PW2), was aged 19 years old at the time. Both complainants were residing at Wainunu Settlement, Wainibuku, at the time. Residing with the complainant was a cousin named Waisea.

15.	Waisea made a complaint to the Nakasi Police Station on 13 May 2013 that PW1 and PW2 allegedly stole his mobile phone. The accused, dressed as a police officer, came to the complainants' residence to attend to the complaint. He later took both complainants, Waisea and another person to the Nakasi Police Station, taking a "short cut" through the Nasinu Cemetery. They came to a concrete grave. According to the prosecution, the accused had previously told Waisea, PW2 and the other person, to take the lead to Nakasi Police Station. They had all left. PW1 and the accused were alone at the concrete grave.

16.	According to the prosecution, the accused forced himself on PW1. He forced her to lie on the concrete grave. He then forcefully took off her clothes. Later, he forcefully inserted his penis into her vagina. He had sex with her for about 25 seconds, and then withdrew his penis from her vagina. Then he inserted his penis into PW1's mouth for about 5 seconds. PW1 struggled against the accused, but to no avail. The accused was stronger than her. According to the prosecution, PW1 did not consent to sex and oral sex with the accused at the time, and the accused well knew she was not consenting, at the time. Later the accused took PW1 to Nakasi Police Station. At the police station, the accused brought PW2 to their residence to recover Waisea's alleged stolen mobile phone. They took the "short cut" through the Nasinu Cemetery. The others were still at Nakasi Police Station. 

17.	While going through Nasinu Cemetery, the two came across a concrete grave. The accused told PW2 that they could resolve the alleged mobile theft case amongst them. PW2 sat on the concrete grave to listen to the accused. PW2 told the accused, she did not know what to do. At that point, the accused forced her down on the concrete grave. He forcefully took off her clothes. He took off his clothes. Then he inserted his penis into her vagina for about 7 seconds. According to the prosecution, PW2 struggle against the accused to no avail. He was too strong for her. Later, he forcefully inserted his penis into PW2's mouth. According to the prosecution, PW2 never gave her permission for the accused to have sex and oral sex with her, and he well knew she was not consenting to the above, at the time.

18.	The matter was later reported to police. An investigation was carried out. PW1 and PW2 were medically examined on the same day at Nausori Health Centre. The accused was later charged for four counts of rape. 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
19.	On 16 March 2015, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charges. In other words, he denied all the rape allegations against him. When a prima facie case was found against him at the end of the prosecution's case, wherein he was called upon to make his defence, he choose to give sworn evidence and called no witness, in his defence. That was wholly within his rights.

20.	The accused's case was very simple. On oath, he denied the rape allegations against him. On count no. 1, he said, PW1 seduced him. He said, PW1 kissed him and hugged him. He said, PW1 then touched his penis. He said, she then took her trousers and panty off. He said, he was sitting on a concrete grave. He said, PW1 then sat on his naked penis. He said, his naked penis came into contact with PW1's naked vagina, but his penis did not penetrate the same. He said, after 4 seconds, PW1 stood up and said it was painful. He said, PW1 gave her consent to all the above, and consequently, he had committed no rape.

21.	On count no. 2, the accused said, he did not insert his penis into PW1's mouth on 13 May 2013.

22.	On count no. 3, the accused admitted he told PW2 to give him Waisea's alleged stolen mobile phone. He said, PW1 told him PW2 had the phone, and he told PW2 about the above. He said, if PW2 gives him the phone, "everything will stop there". He said, PW2 is related to Waisea. He said, PW2 then led him to a cement grave. He said, PW2 sat down on the grave. He was standing beside her. He said, PW2 told him she didn't want her family to know anything about the alleged mobile phone theft. He said, she then stood up, kissed him, hugged him, touched his penis, open his trouser's zip, took his penis out, and sucked the same [count no. 4]. After that, he said, she took off her clothes, and laid on the cement grave. He then penetrated her vagina with his penis. He said, PW2 consented to sucking his penis, and having sexual intercourse with him on 13 May 2013. He said, he never forced PW2 to perform oral sex on him, nor have sex with him, at the time.

23.	Because of the above, the accused is asking you, as assessors and judges of fact, not to find him guilty as charged on all counts. According to him, PW1 and PW2 consented to sex with him, at the time. He said, PW2 agreed to suck his penis. He said, he did not insert his penis into PW1's mouth. That was the case for the defence.

H.	ANALYSIS OF THE EVIDENCE

(a)	The Agreed Facts:

24.	The parties have filed an "Agreed Facts". A copy is with you. There are eight paragraphs of agreed facts in the "Agreed Facts". Because those facts are not disputed by the parties, you may take it that, the prosecution had proven those facts beyond a reasonable doubt. The agreed facts are established facts.

(b)	Case and Evidence Against the Accused:

25.	The State's case against the accused was based on various types of evidence. First, was the direct evidence of the two complainants in this matter, that is, PW1 (first complainant) and PW2 (second complainant). Second, was the evidence of Doctor Arveen Maharaj (PW3), who medically examined PW1 and PW2 on the same day of the alleged rape. Third, was the evidence of Seini Koroilagilagi (PW3), who observed the demeanour of PW1 and PW2, soon after the alleged rape. Fourth, was the evidence of the accused himself, who confirmed that he was with both PW1 and PW2, at the material times, and he was engaged with them in some form of sexual acts. We will now discuss the above evidence in detail.

(c) The Complainant's Evidence: 

26.	On count no. 1, PW1 said, the accused forced her to lie on a concrete grave. She was lying on her back. This was on 13 May 2013. She said, the accused then forcefully took off her top, trousers and panty. At all times, she said the accused was pressing her chest down. He then took his penis and penetrated her vagina, with the same, for about 25 seconds. She said, she struggled against him to no avail, as he was physically stronger than her. She said, he later took his penis and inserted the same into her mouth (count no. 2). She said, she did not give her consent to the above sexual acts. For the accused to be pressing her chest, at the time, and resisting PW1's struggle, it would appear that, he knew PW1 was not consenting to sex and oral sex, at the time. However, it is a matter entirely for you to decide.

27.	On count no. 3, PW2 said, the accused told her that the mobile phone alleged theft had to be solved between him and the two complainants, otherwise both PW1 and PW2 could be arrested. The accused was in police uniform. PW2 told the accused she did not know what to do. PW2 said, the accused then pushed her to lie on the concrete grave. He then lay on her, kissed her and forcefully took off her clothes. Then he inserted his penis into her vagina for about 7 seconds. PW2 said, she struggled against him to no avail, because he was too strong for her. Later, PW2 said, he forcefully inserted his penis into her mouth (count no. 4). PW2 said, she did not consent to sex and oral sex with the accused, at the time. It would appear that the accused well knew PW2 was not consenting to sex and oral sex, at the time, because he had to force her to lie on the concrete grave and forcefully took off her clothes, at the time. However, it is a matter entirely for you.

(d)	Doctor Arveen Maharaj's (PW3) Evidence 

28.	Doctor Maharaj (PW3) said, he medically examined PW1 on 13 May 2013 at 11pm, and PW2 on the same night at 11.20pm. This was approximately 4 to 5 hours after the alleged rape. For PW1, the doctor tendered her medical report as Prosecution Exhibit No. 1, and for PW2, he tendered her medical report as Prosecution Exhibit No. 2. For PW1, in D(10) of her report, the doctor recorded her history as follows, "…client was sexually assaulted by Bavesi at around 6pm. Incident happened in Nasinu. He was taken to the cemetery and raped…" In D(12)(a) of her report, the doctor recorded his medical finding as follows, "…0.5cm laceration noted at the vaginal introitus at 6 o'clock position, with minimal bleeding seen…" In D(16) of her report, the doctor concluded as follows, "…hymen not intact. Evidence of recent forceful sexual intercourse present. History consistent with examination finding…"

29.	For PW2, in D(10) of her medical report, the doctor recorded her history as follows, "…client was sexually assaulted by Bavesi at around 7pm today. Incident happened in Nasinu…" In D(12) of her report, the doctor recorded his medical findings as follows, "…(a) hymen not intact (b) fresh blood noted in vagina coming from cervical os (menstrual bleeding)…" In D(16) of her report, the doctor concluded as follows, "…Hymen not intact. Cannot determine when the hymen was broken. No evidence of sexual intercourse…" What you make out of the complainants' medical reports are matters entirely for you. However, I would ask the question: Would a person who is telling the truth risk her vagina been medically examine by a male doctor, soon after the alleged event?

(e)	Seini Koroilagilagi's [PW4] Evidence:

30.	PW4 said, PW1 was her cousin and PW2 was her cousin sister. On 13 May 2013, at about 8pm, she went to Nakasi Police Station to get PW1 and PW2. She went with others, and saw PW1 and PW2 standing in the driveway to Nakasi Police Station. She went and told them they were going to their home in Wainibuku. She took them home. She said, PW1 was crying. She asked her why she was crying. PW1 told her the police officer (Bavesi) did something to her. She said, PW2 also told her Bavesi also did something to her. At the time, Bavesi was with them. She pointed out Bavesi in the court room. She also said PW1 was crying at the Nakasi Police Station and PW2 looked shocked and lost. Would a girl who had consensual sex and oral sex with a man be crying, shocked and looking lost, so soon after the event? What you make out of PW4's evidence is a matter entirely for you.

(f)	The Accused's Sworn Evidence:

31.	On count no. 1, the accused said, at the material time, PW1 seduced him. She kissed him, hugged him, touched his penis, took off her own clothes and sat on his naked penis. He said, she was facing him. He said, although she sat on his penis, his penis did not penetrated her vagina. He said, after 4 seconds she stood up, and she said it was painful. He said, their above sexual acts were consensual. He said, he did not force PW1 to do the above. On count no. 2, he said he did not insert his penis into PW1's mouth.

32.	On count no. 3, the accused admitted penetrating PW2's vagina, at the material time. He said, she willingly consented to it. He said, before penetrating her vagina with his penis, she was kissing and hugging him. He said, she willingly fondled his penis, whereupon it became erected, and she took the same into her mouth willingly (count no. 4). He said, he never forced her. However, he admitted he was in police uniform, and was investigating a case against PW2. He admitted saying to PW2 that they could resolve the case against her, if she gave the phone back, and they can stop the case there. What you make of the accused's evidence is a matter entirely for you.

(g)	Considering All the Evidence Together:

33.	You will have to collectively consider all the evidence we have discussed above. It all boils down to the issue of credibility. You have heard all the witnesses, both for the prosecution and the defence, give evidence in the courtroom. You have watched their demeanours while they were giving evidence. You will have seen and heard how they respond to questions been put to them. Who do you think was forthright? Who do you think was evasive? Who do you think was hiding something from you? Who do you think was the credible witness? If you think the complainants, the doctor and PW4 were the credible witnesses, then you should find the accused guilty as charged on all counts. If you find the accused a credible witness, then you must find him not guilty as charged on all counts. It is a matter entirely for you.

I.	SUMMARY

34.	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.

35.	Your possible opinions are as follows:

(i) Count No. 1:	Rape:	Accused:	Guilty or Not Guilty	
(ii) Count No. 2:	Rape:	Accused:	Guilty or Not Guilty	
(iii) Count No. 3:	Rape:	Accused:	Guilty or Not Guilty	
(iv) Count No. 4:	Rape:	Accused:	Guilty or Not Guilty	

36.	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 the same.

Salesi Temo
JUDGE

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