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State Prosecution v Delailagi - Summing Up [2015] FJHC 346; HAC211.2013 (13 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 211 OF 2013

BETWEEN:

STATE PROSECUTION

AND:

KINIVUWAI DELAILAGI
ACCUSED PERSON

Counsel: Ms. J. Prasad and Ms. D. Kumar for State
Mr. Tawake P for Accused

Dates of Hearing: 11th and 12th May 2015
Date of Summing Up: 13th May 2015

SUMMING UP

Lady Assessors and Gentleman Assessor.

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact 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 the 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 opinions. In other words you are the judges of fact. All matters of fact 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.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The Counsel for the Defence and the Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

[4] You will not be asked to give reasons for your opinions, but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you, that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law that the 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, accused person is presumed to be innocent until he is proved guilty.

[6] 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.

[7] 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 might have heard about this case, through print or electronic media or outside of this courtroom.

[8] 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 emotion.

[9] The accused is charged with one count of rape contrary to section 207 (1) and (2) (a) of the Crimes Decree No 44 of 2009.

[10] The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence are;

1. The accused had carnal knowledge of the complainant,
2. Without her consent,
3. He knew or believed that she was not consenting or didn't care if she was not consenting.
   

[11] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.

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

[13] Where the consent is obtained through fear or by threat or by exercise of authority, then that is not consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

The Evidence

[14] The complainant Taina Loana gave evidence first. She said that in 2013 her mother Torika was in a de-factor relationship with Kinivuwai, the accused. Accused had been living with her mother in Tacirua. She had been staying with her grandfather.

[15] On 04/03/2013 she had gone to Tacirua Heights to collect her clothes. Only the Accused had been there. Accused had told her to massage his back, which she did for about 10 minutes. Accused had got ready to go to Cunningham. She had been in the room packing her clothes. After cleaning the house she had gone to sleep in the 1st bedroom, she said.

[16] Then she had seen the accused coming inside the room. When she stood up he had grabbed her hands. He was going to kiss her, she said. When she was about to stand up accused had forcefully pushed her very hard from her chest on to the bed. He had forcefully kissed her, removed the shorts she was wearing and had sex with her, she said.

[17] She said that after removing her shorts he had touched her vagina. He forcefully laid her on the bed and forcefully had sex with her. She said it was painful in her vagina when he did it. She said having sex means two people having intercourse. She got scared when he did it, she said. He then had ejaculated outside, wore his pants and left. Before leaving, the accused had hardly and strongly told her not to tell this to anybody.

[18] She then had taken her bag and gone straight to Nakasi to her Aunt's place. She said that she did not tell anybody as the accused told her that he would do something to her if she told anybody.

[19] Her mother had reported her missing. Her mother had then come to her aunt's place. They had gone to Valelevu Police Station to clear the missing report. Although her mother asked her why she was not coming home, she had been still scared to tell her the incident.

[20] Then she had gone back to Newtown. When she was with her boyfriend her mother had come again and asked her again as to what happened and why she left without an explanation. Then she had told her what happened to her on 4th March 2013.

[21] They have reported the matter to the Police Station. She said that she was medically examined by a lady doctor.

[22] In cross examination she said that she was living with her grandfather in Newtown before the incident happened. She had no boyfriend at that time, she said. She said there are other houses beside the house where the incident happened. She said she did not scream or yell because she was in a state of shock. When she was questioned about not reporting to the police on the same day of the incident, she said that she came to her aunt's place and that she did not want to stay there anymore. She also said that it did not come to her mind to report to Valelevu or Nakasi police station.

[23] In re-examination she said that she did not tell the aunt because people would spread rumors. She also said that the accused had threatened her not to tell anybody and that she told the mother when she pushed her asking what happened.

[24] The next witness was Torika Roko who is the mother of the complainant Taina. Her evidence was that the accused is her de-factor partner since 2012. In 2013 Taina had been living with her elder sister. She said, in March 2013 when she came back after work between 5pm and 6pm Taina had not been at home. Her husband had been at home. When she asked her husband he had said he doesn't know where Taina went. After checking at her sister Anaseini's house she had made a report to police station that Taina is missing. When she asked the husband he had said that he did not do anything to Taina. Then police have told her to look for Taina and when she went to her elder sister's place at 10 miles, Taina had been there. She had asked Taina to come home and she had refused. She had asked her whether Kinivuwai did anything to her. She had said nothing happened.

[25] After one month Taina had come home. However she had not wanted to sleep there and had gone back. After one week she had heard that Taina is staying with her boyfriend, who is her de-facto partner now. She had gone and asked Taina again as to what happened to her. Then Taina had told her that when she came to Tacirua Heights Kinivuwai had forced her down on bed and had sex with her. She said she felt bad when she heard that and then the matter was reported to police.

[26] In cross examination, on showing her statement to police she said that the statement was made on 29/04/2013. She said that she did not see the incident. According to her statement to police Taina had told her about the incident on 27/03/2013. She said that she continued to live with the accused despite all what happened because she knew that if she went to her sister's place the accused would have come there. In re-examination she said that she made the report to the police the same day Taina told the incident to her.

[27] Dr. Elvira Ongbit who medially examined the alleged victim Taina gave evidence next. The medical report of the victim was produced in court. She is a qualified medical doctor. Taina was examined by her on 30/04/3013. According to the history related to her by the victim, her stepfather forcefully had sexual intercourse with her on 04/03/2013.

[28] She had observed 7 healed old complete lacerations on the victim's hymen. She said that lacerations will heal within 5 – 7 days and therefore it could have happened on 04/03/2013 as related by the victim. She also said that because of the multiple lacerations the cause for the lacerations have been forceful penetration of an erect penis. Taina looked bit depressed, she said.

[29] In cross examination she said that she did not write in the report that Taina looked bit depressed. She also said that as she examined the victim after more than 30 days of the alleged incident, it may be possible that the lacerations would have occurred after 04/03/2013. She said that she could not determine the date it happened. She also said that she did not write anything in column D 14 of the medical report where her professional opinion is asked for.

[30] The last witness for the prosecution was the Investigating officer D/Cpl Vinod Chand. He had arrested the accused on 24/05/2013 at about 5am. Caution interview statement and the charge statement of the accused were recorded at the crime office. Both caution interview and the charge statement were produced in evidence. In cross examination he said that the accused denied the allegation.

[31] Ladies and Gentleman assessors,
At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution at all times. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. You must give his evidence careful consideration.

[32] The accused said in evidence that he was alone at home at about 1pm on 04.03.2013. Taina had come home and he had asked her to massage her neck as it was painful. Then he had told Taina to have lunch and he had gone to his brother Josua's place in Cunningham. After having grog there, he had come home after 12 midnight, he said.

[33] When the police questioned about the allegation he had denied. He said that after the alleged incident he continued to live with Torika as her de-facto partner. They have a 4 month old son, he said.

[34] In cross examination he said that he asked Taina to massage his back. He denied coming back within 2 hours from Cunningham. He denied entering the room when Taina was sleeping. He denied pushing her on to the bed. He denied grabbing Taina's hands. He denied kissing her. He denied forcefully removing her pants. He denied touching her vagina. He denied penetrating her vagina with his penis. He said that he was at Cunningham and that Taina had gone when he came back. He denied Torika's evidence that he was at home when Torika came home after work. He said that he did not challenge her evidence as he did know what to do.

That was the evidence for the defence.

[35] Ladies and gentleman assessors,
You heard the evidence of many witnesses. If I did 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 in coming to your decision.

[36] The written agreed facts are before you. Those facts are agreed by both parties, and you may accept them as if you have heard them led in evidence from the witness box unchallenged.

[37] You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.

[38] May I also direct you that a witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case Dr. Elvira Ongbit gave evidence on her medical examination of the alleged victim Taina. Her expertise on the medical field was not challenged by the defence. Therefore the opinions she gave on her relevant subject are admissible.

[39] The alleged victim Taina says that the accused forcefully penetrated her vagina with his penis. The accused denying the allegation says that after taking the massage from Taina, he went to Cunningham and that he came back only after midnight. However the witness Torika says that the accused was at home when she came home after work between 5pm and 6pm. Therefore you decide which witnesses are truthful and which are not. If you accept the version of the accused that he was at Cunningham and that he did not rape Taina, then you must find the accused not guilty. However if you do not accept his version, that alone does not mean that he is guilty of the charge because the burden to prove the accused persons guilt beyond reasonable doubt remains with the prosecution at all times. It is for the prosecution to prove that the accused committed the crime and not for the accused to prove that he did not rape her and that he was at Cunningham.

[40] You may remember when the witness Torika gave evidence she said that she asked the accused whether he did anything to Taina. She further said that she asked him that because one night the accused came right inside the room drunk when they were sleeping. You may disregard that piece of evidence because what is relevant and admissible is the evidence on the alleged incident and not on any previous incidents. You may also remember when the accused gave evidence the state counsel asked him whether he said that this was his first time in court, where the accused answered that this was his first time in the High Court. You may disregard that answer as well, as what you have to consider is whether the accused committed the alleged crime in this case and not whether he had come to any court before.

[41] The defence questioned the alleged victim as to why she failed to report the matter to the police immediately and as to why she did not tell her aunt or the mother. The alleged victim Taina said that after the incident she did not want to stay there and that she straight went to her aunt's place. She said that the accused told her harshly and strongly that he would do something if she told somebody. She also said that she did not tell the aunt because people would spread rumors. She had later told her mother as she pushed her asking what happened. You may consider all the circumstances including the social background and Taina's relationship with the accused when you decide whether the delay in complaining is justified.

[42] I have told you the elements of the offence of rape you have to consider. Which version you are going to accept whether it is the prosecution version or the accused version is a matter for you. You must decide which witnesses are reliable and which are not. You may use your common sense when deciding on the facts. Assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[43] I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you, when you consider the charge against the accused have been proved beyond reasonable doubt.

[44] Your opinions on the charge will be either guilty or not guilty.

[45] Lady Assessors and Gentleman Assessor,
This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

At Suva
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for Accused