IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 059 OF 2014LAB

STATE

V

MOSESE WAQASAQA
 
Counsels : Mr. L. Fotofili for State 
 Ms. L. Raisua for Accused

Hearings : 22 and 23 June, 2015
Summing Up : 24 June, 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, between 1 and 29 February 2008, at Wainikoro Labasa in the Northern Division, rape the complainant?

 (ii) On count no. 2, did the accused, between 1 and 30 April 2010, at Wainikoro Labasa in the Northern Division, rape the complainant?

 (iii) On count no. 3, did the accused, between 1 and 31 December 2013, at Wainikoro Labasa in the Northern Division, rape the complainant?
 
(iv) On count no. 4, did the accused, between 1 and 30 April 2014, at Wainikoro Labasa in the Northern Division, rape the complainant?

E.	THE OFFENCE AND IT'S ELEMENTS

9. In count no. 1, the accused was charged with rape under the repealed Penal Code, Chapter 17. In count no. 2, 3 and 4, the accused was charged with rape under the new Crimes Decree 2009. Nevertheless, the definition of "rape" in the two laws are similar.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) he knew the complainant was not consenting to sex, at the time.

10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

11. Consent is to "agree freely and voluntarily and out of her own free will", and she must have the necessary mental capacity to give her consent.If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over her, 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. Under the Penal Code and the Crimes Decree 2009, children under 13 years do not have the necessary mental capacity to give their consent to sexual intercourse. This is a presumption in law and a policy to protect children. Once element no. 1 in paragraph 9 (i) hereof is satisfied beyond reasonable doubt, it is unnecessary to prove that an under 13 year old child did not consent. It is already presumed to be the case, in law. Note in count no. 1 and 2, the complainant was 8 and 10 years old at the time, thus incapable, as a matter of law, to consent to sexual intercourse. In count no. 3 and 4, the complainant was over 13 years old, and whether or not she consented to sexual intercourse, was a relevant issue.

13. 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. For a girl under 13 years, once element no. 1 in paragraph 9 (i) hereof is satisfied beyond a reasonable doubt, it is a presumption in law that the person knew the child was incapable of giving her consent to sexual intercourse, at the time he penetrated her, with his penis.

14. Note that all the four counts of rape are representative counts. This meant that the alleged rape occurred between a period of time. For example, in count no. 1, it was alleged the rape occurred between "1 and 29 February 2008"; in count no. 2, the alleged rape occurred between "1 and 30 April 2010"; in count no. 3, between "1 and 31 December 2013", and in count no. 4, between "1 and 30 April 2014". This is a familiar characteristic of rape complaints by children. Most child complainants often report the alleged rape late for various reasons. As a result, they cannot recall the exact time and date of the alleged rape. Hence, the birth of the so-called "representative counts". Multiple alleged rapes may occur within a period, but if one incident of rape is proved beyond reasonable doubt within that period, that is sufficient to satisfy the count.

15. You must consider the four counts of rape separately, in the light of the total evidence presented.

F.	THE PROSECUTION'S CASE

16. The prosecution's case were as follows. When the alleged raped in count no. 1 occurred, the accused (DW1) was 58 years old. In 2010, when the second alleged rape occurred, the accused was aged 60 years (count no. 2). When the third alleged rape occurred in 2013, the accused was aged 63 years old (count no. 3). When the last alleged rape occurred in 2014, the accused was aged 64 years old (count no. 4). As for the female complainant (PW1), she was 8 years old in 2008 (count no. 1); 10 years in 2010 (count no. 2); 13 years plus in 2013 (count no. 3) and 14 years old in 2014.

17. The accused is the complainant's paternal grandfather. The complainant's father is the accused's son. Ever since she was 9 months old, the accused and his wife had raised the complainant. So, in a sense, the complainant's grandparents raised her up as her father and mother. The family lived in a 24 feet by 18 feet house in a village in Labasa. There were two bedrooms in the house and a sitting room. One of the bedroom belonged to the accused, and other to his wife. The complainant and her grandmother slept in the same bedroom. The accused was very strict and disciplined in bringing up the complainant.

18. According to the prosecution, the accused started to abuse the complainant (PW1) in February 2008 (count no. 1). On two occasions, the accused called her into the bedroom, took off her clothes, parted her legs, put oil on the same, inserted his penis into her vagina, and had sexual intercourse with her. At the end of the first incident, he warned her not to tell anyone or he will kill her. Thereafter, the complainant never told anyone about the incidents.

19. In April, 2010, according to the prosecution, the accused called the complainant into her grandmother's bedroom (count no. 2). The grandmother was out washing the family's clothes. The accused told the complainant to undress, lie on the bed and part her legs. Because she feared her grandfather, she did as she was told. The accused laid ontop of her, inserted his penis into her vagina and had sexual intercourse with her. Afterwards, he told her to dress up quickly because her grandmother was returning after washing their clothes. She never reported the incident to anyone.

20. In December 2013, while out collecting firewoods in the forest, the accused again forced himself on the complainant (count no. 3). In a secluded spot, he told the complainant to lie on the ground, to take off her clothes, and to part her legs. Been fearful of the accused, the complainant did as she was told. The accused then laid ontop of her, inserted his penis into her vagina, and had sexual intercourse with her. At the end of the incident, he told the complainant to dress up, and return to their house. The complainant never told anyone about the incident.

21. In April, 2014, according to the prosecution, the complainant and her younger siblings were at the accused's house, because their parent had gone out fishing. In the middle of the night, the accused woke the complainant up and told her to go to her grandmother's room. Her grandmother was away in VitiLevu. He told her to lie on the bed, take her clothes off, and to spread her legs. He brought oil and put it on her vagina. He then laid ontop of her, inserted his penis into her vagina, and had sexual intercourse with her (count no. 4). After that he told her to dress up, and sleep on the bed. She never told anyone about the incident.

22. However, on 5 June 2014, the complainant reported the first 2008 incident to her aunty, Salote Senirewa (PW2). PW2 discussed the matter with her parents, and the matter was reported to police. An investigation was carried out. The accused was interviewed by police on 16 June 2014. He appeared in the Labasa Magistrate Court on 11 July 2014 charged with raping the complainant on four different occasions. 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

23. On 22 June 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 all the counts. In other words, he denied 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 put to his defence, he choose to give sworn evidence and called no witness, in his defence. That was his right.

24. The accused's case was very simple. On oath, he denied the rape allegations against him. He said, all these allegations against him were nothing but lies. He said, he couldn't do such things to the complainant, because she was her grand-daughter, and he had brought her up since she was 9 months old. He said, he never threatened to kill her in 2008.

25. He said, he was always strict on the complainant, and instilled discipline on her. He encouraged her to study hard and succeed in life. However, she had been subjected to outside influence, and wanted to free herself from the tight discipline he had imposed on her. He said, this was why she came up with these false rape allegations against him. He said, he never raped her at any time whatsoever. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged on all counts. That was the case for the accused.

H.	ANALYSIS OF THE EVIDENCE

(a) Agreed Facts:

26. The parties had submitted an Agreed Facts, dated 4 March 2015. A copy of the same is with you. There are four paragraphs of Agreed Facts. You may take it that the prosecution had proved those facts beyond a reasonable doubt, because they are undisputed facts. You may treat the same as established facts. 

 (b) Complainant's (PW1) Evidence:

27. The State's case against the accused stands or falls on whether or not you accept the complainant's evidence and her version of events. As far as the elements of the offence of "rape", as described in paragraph 9 (i), 9 (ii) and 9 (iii) hereof, she said, at all material times in counts no. 1, 2, 3 and 4, the accused penetrated her vagina with his penis and had sexual intercourse with her. As for count no. 1 and 2, she was 8 years and 10 years old, at the time, respectively. Given our discussions in paragraphs 10, 11, 12 and 13 hereof, once penile penetration of the complainant's vagina is proven and accepted by you, her non-consent to sexual intercourse is presumed in law, and a person is presumed to know that an 8 year old or 10 year old child cannot consent to sex with him, at the material time. So, in a sense, for count no. 1 and 2, once it is proven and accepted by you that, the accused's penis penetrated the child complainant's vagina, at the material times, he is liable for rape. The child's non-consent to sex and the accused's knowledge of the above, at the time, are presumed in law.

28. As for counts no. 3 and 4, all the elements of rape, as described in paragraph 9 (i), 9 (ii) and 9 (iii), had to be proven beyond a reasonable doubt. Here we have a case where the complainant said that the accused penetrated her vagina with his penis, at the material times. She said, she was warned by the accused in 2008 not to reveal the sexual relationship between the two to anyone, or he will kill her. The accused is like a father and, in fact, her grandfather, at the material times. He brought her up since she was 9 months old. She totally depended on him. He is in a position of authority over her. When told to remove her clothes, lie on the bed or ground, part her legs, did not protest when oil was put on her vagina, did not protest when the accused laid on her and had sex with her, she appeared to be submitting to authority, and appeared to be consenting to sex under duress, given the 2008 threat to kill her, if she raised the alarm. The surrounding circumstances appear to show that the accused knew she was not consenting to sex with him, at the material times. He had total authority over her, and she did as he commanded. He knew she was scared by the 2008 threat to kill her, if she raised the alarm, and exploited the situation to his benefit.

29. If you accept the complainant's evidence and version of events, then you must find the accused guilty as charged on all counts. If you do not accept the complainant's evidence and version of events, then you must find the accused not guilty as charged on all counts. It is a matter entirely for you.

 (c) The Accused's (DW1) Evidence:

30. You have heard and seen the accused give his evidence in court. He denied the rape allegations made against him. He said, it's not possible for him to rape her in 2008 (count no. 1) as there were often 7 to 15 family members in the house. In any event, she is his grand-daughter, and wouldn't do such thing to her. He said, he is shocked by the allegations. He said, in April 2010 (count no. 2), it is also not possible for him to rape her as there were 15 family members in his house. He said, he did not rape her at the time, and it appeared she is lying. In December 2013 (count no. 3), he said he did not go out to collect firewood. He was employed as a caretaker at a nearby college. He said, he did not rape her at the time, and the allegation was nothing but lies. In April 2014 (count no. 4), he was still working, as a caretaker at the nearby college. He recalled looking after the complainant and her younger siblings, when their parents went out fishing at night. He denied raping the complainant at the time. He said, the complainant is his grand-daughter, and he would not do such a thing to her. All the allegations against him are lies. If you accept the accused's evidence and version of events, then you must find him not guilty as charged on all counts. It is matter entirely for you.

 (d) SaloteSenirewa's (PW2) Evidence:

31. Salote Senirewa (PW2) is the complainant's aunty. She is married to one of the accused's sons. The accused is her father-in-law. She said, in June 2014, the complainant told her that she is scared of her grandfather i.e. the accused. She began to question her slowly and carefully. She said, she later told her that her grandfather (i.e. the accused) raped her. She told her, she was class 3 at the time. She said, she told her it was painful and she bled. Later PW2 rang her parents, and got her husband. They sat down and discussed the matter. They decided to report it to police. Note that this information was given to PW2 by the complainant in April 2014, which was the month on which count no. 4 was based on. The evidence by PW2 is often known as "evidence of recent complaint". The evidence may be given in evidence so far as they relate to the accused, "not as evidence of the facts complained of (i.e. rape), but as evidence of the consistency of the conduct of the complainant with her evidence given at the trial". So, PW2's evidence cannot be used to support the complainant's rape allegation. It is only evidence to show the consistency of the complainant's conduct with her evidence given at the trial.
 
 (e) Considering All the evidence:

32. You will have to consider all the evidence together. The case is really based on the evidence of the complainant (PW1) as against that of her grandfather – the accused (DW1). You have heard and watched them give evidence in court. Who do you think was the credible witness of the two? Who was more forthright? Who was more evasive of the two? Who do you think was telling the truth? If you find the complainant to be the more credible witness, and you accept her evidence and version of events, then you must find the accused guilty as charged on all counts. If you find the accused to be the more credible witness, and you accept his evidence and version of events, then you must find him not guilty as charged, on all counts. It is a matter entirely for you.

I. SUMMARY

33. 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.

34. Your possible opinions are as follows:

 (i) Count no. 1 : Rape : Guilty or Not Guilty.

 (ii) Count no. 2 : Rape : Guilty or Not Guilty.

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

 (iv) Count no. 4 : Rape : Guilty or Not Guilty.
 
35. 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.

SalesiTemo
JUDGE

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