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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 053 OF 2013LAB
STATE
V
SAIMONE COLAINIMA
Counsels : Ms. A. Vavadakua for State
Ms. L. Raisua for Accused
Hearings : 17 and 18 August, 2015
Summing Up : 19 August, 2015
SUMMING UP
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.
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.
7. You have a copy of the information with you, and I will nad the same to you:
"... [read from the information]...."
8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
(i) Did the accused, between 1 and 30 June 2013, at Naweni Village in the Northern Division, rape the complainant?
9. The accused was charged with "rape", contrary to Section 207 (1) and (2) (a) 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) 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. 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.
13. Note that the particulars of offence said the alleged rape occurred between 1 and 30 June, 2013. That means the prosecution need prove only one incident of rape between 1 and 30 June 2013, to satisfy the charge. If there's more incident of alleged rapes, only one is necessary to satisfy the charge. Of course the prosecution must prove the alleged rape beyond a reasonable doubt.
14. The prosecution's case were as follows. The female complainant (PW1) was 66 years old in June 2013, while the accused (DW1) was 60 years old, at the time. PW1 was previously married, and her husband died in 2001. The accused was also married, and his wife died in January 2013. Both the complainant and the accused were residing in a village in Cakaudrove. The accused was the complainant's nephew by marriage. The accused was living alone in the village, and all his children had grown up and gone to Suva and Taveuni to pursue their own life. The complainant only had an adopted daughter.
15. The complainant was suffering from a disease, wherein she was experiencing breathing difficulties. In the "i-taukei" culture, the disease was often known as the "roko". The accused's family were often held out to be able to cure the above disease by massaging people in the village. In fact, the accused did massage people, who suffered from the "roko". In June 2013, according to the prosecution, the complainant went to the accused for a massage because she was suffering from the "roko". She went to the accused on three occasions.
16. On the first occasion, the accused was alone in his house at night. PW1 went to his house and asked to be massaged because of her "roko" sickness. She sat on the floor, while the accused sat on a settee, with her back to the accused. She was naked from the waist up. The accused massaged her chest, stomach area, back and shoulders. After the massage, PW1 returned to her home. However, at home, when she laid down, she was still experiencing the "roko" disease.
17. According to the prosecution, she returned to the accused for another massage. This was at night, and the accused was alone. On this second occasion, the accused asked the complainant to lie face up on a mattress in his sitting room. The complainant was told to remove all her clothes, except her panty. This was to enable the accused to massage her properly. The accused massaged her from head to toe. Later, he took off the complainant's underwear, laid on top of her, inserted his penis into her vagina and had sex with her. According to the prosecution, the complainant never consented, and the accused knew she was not consenting to sex at the time. The complainant later reported the accused to the police, for an alleged rape.
18. She made a third trip to the accused for another massage. According to her, the accused massaged her for her "roko" and the accused did not try to have sex with her. The police investigated the rape complaint. Accused was interviewed by police. He was charged for rape on 15 July 2013, and appeared in the Savusavu Magistrate Court. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
19. On 17 August 2015, the first day of the trial, the information way put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the rape allegation 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 right.
20. In his evidence, the accused admitted he does massaging for "i-taukei" disease called "roko" and "kasi". He said, he had been massaging people for the last 20 years. He said, he also gives herbal medicine. On the allegation against him, he denied the complainant's rape allegation. He admitted he massaged the complainant four times in 2013. He said, the first occasion was in March 2013. He said, the complainant sat on the floor and he sat on a settee from her back. Then he massaged her on her back, neck, shoulder, arms, back to waist line and her chest. Later, he asked her to lie on the mattress. He then massaged her from head to toe. She was naked all over. The accused said, the complainant then begged him for sex. They had sex. Thereafter, she slept with him in his home. He said, he later massaged her twice in June 2013, but they did not have sex. He said, he last massaged the complainant on 4 July 2013. He said, they again had consensual sex.
21. According to the accused, he never raped the complainant. He agreed they had consensual sexual intercourse in March and July 2013, while he was massaging her. He said he did not have sex with her in June 2013. Because of the above, he asks you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.
22. The two main witnesses in this case were the complainant (PW1) and the accused (DW1). The two agreed that they had sexual intercourse in 2013, that is, they agreed that the accused's penis penetrated the complainant's vagina in 2013. However, they differed as to the amount of times they had sexual intercourse in 2013. According to the complainant, they had sexual intercourse once only in June 2013. She could not remember the exact date. As for the accused, he admitted they had sexual intercourse twice in 2013, one in March and the other on 4 July 2013. The important point here was the fact that both parties agreed, the two had sexual intercourse somewhere between March and July 2013. So, in a sense, they agreed on the first element of rape, as described in paragraph 9(i) hereof.
23. According to the complainant, she did not consent to the accused penetrating her vagina with his penis, at the material time. The accused said, the complainant begged him for sex after a thorough massage all over the body. You have heard the parties' version of events on the issue of consent on 17 and 18 August 2015. PW1 said she did not shout or raise the alarm because she was worried about the reputation at her late husband. The defence said she didn't raise the alarm because she was enjoying the sex. The complainant said, if she enjoyed the sex, she wouldn't report the matter to police. The defence said, if she didn't like the sex, why visit him the third time, after reporting the matter to police. The complainant said, she wanted to be healed from "roko", not been sexually molested. You have heard the parties evidence. Which version of events to accept on the issue of consent is entirely a matter for you.
24. On the issue of whether or not the accused knew that the complainant was consenting to sex, at the material time, you will have to take on board my direction in paragraph 12 hereof. The complainant was lying down naked on the mattress while been massaged from head to toe by the accused. Of course, the massage was done to treat the "roko". The accused said, the complainant begged him for sex. The complainant said, she did not consent to sex and struggled with the accused to avoid sex. Your decision on this issue will depend on whose version of events you accept. It is a matter entirely for you.
25. You have heard both the complainant and the accused give evidence in the courtroom. Who do you think was the credible witness of the two? Who do you think was forthright as a witness? Who was evasive? Who do think was telling the truth? If you think the complainant was a credible witness, then you must find the accused guilty as charged. If you think otherwise, then you must find the accused not guilty as charged. It is a matter entirely for you.
(i) Rape : Guilty or Not Guilty.
28. 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, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa
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