IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 064 of 2013

STATE

V

ELIKISERU

Counsels : Mr. M. Vosawale with Ms. S. Lodhia for State
 Mr. S. Valenitabua for Accused
Dates of Hearing : 09th – 11th September 2015
Date of Summing Up: 14th September 2015

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1.	I will now explain to you the legal principals which you should apply in this case. You must accept those directions on law and must follow them when you analyze the facts of this case in order to provide me with your opinions.

2.	During this exercise, I may refer to certain evidence wherever necessary while explaining the legal directions and I will also be providing you a summary of the evidence. However, being the judges of fact, you and you alone should decide what weight you give to the evidence. Therefore, if I express my opinion on the facts of this case or if I appear to express my opinion on the facts, you are at liberty to either accept or disregard such opinion. Do not accept my views on the facts of this case unless you agree with them.

3.	When I say 'evidence' that includes what the witnesses said from the witness box, the exhibits tendered by both parties and the admitted facts and the documents.

4.	Please remember that this summing up is not evidence. That said, in this summing up, I will not be reproducing the entire evidence led in this case. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you may think fit.

5.	The arguments, questions and comments by the counsel for the prosecution and counsel for the defence are not evidence. A suggestion made by a counsel during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening and closing addresses made by counsel for the prosecution and counsel for the defence. That is their duty as counsel. However, the arguments and comments made by counsel in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence if you wish to do so, but you are not bound to accept them.

6.	You must not consider anything you have heard or read about this case outside this courtroom before or during the trial. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been or allow yourself to be drawn into speculation. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box, the agreed facts, agreed documents and the documents tendered in this court. You must approach the evidence with detachment and objectivity and should not be guided by emotion.

7.	You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.

8.	You should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and in relating those facts they remember in front of others not known to them.

9.	In assessing the credibility of a witness, it may be relevant to consider whether that witness is consistent in his/her evidence or whether he/she has said something different at an earlier occasion. Obviously, you may have a difficulty in believing someone who is not consistent in his/her version.

10.	If you find that a witness had given two different versions not consistent with each other, then you must consider whether that inconsistency is material and significant enough to affect the credibility of the witness in question; or whether that inconsistency is only in relation to a trivial or an irrelevant issue.

11.	In assessing the evidence of a witness who has not been consistent, you may consider whether there is a satisfactory explanation to such inconsistency and then decide what weight you can give to the evidence of that particular witness.

12.	You heard in this case that the complainant had made a complaint to the village headman after the incident. You should consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with.

13.	The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that she made a prompt and a proper complaint, then and then only you may consider that her credibility is strengthened in view of that recent complaint.

14.	Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. Then apply the relevant law as per my directionson law to those facts and inferences to form your opinion as to whether the accused is guilty or not guilty.

15.	You are not required to decide every point which has been raised by counsel in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the said charge laid against the accused has been proved.

16.	When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.

17.	The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of the accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.

18.	A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence charged, as to whether the prosecution has proved that element, then you must find the accused not guilty. However, if you find that the prosecution has proved all the elements of the offence the accused is charged with beyond reasonable doubt, you should find the accused guilty.

19.	You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my decision.

20.	Let us now look at the Information. DPP has charged the accused for the following offence;

Statement of offence
Rape: Contrary to section 207(1) and (2)(a) of the Crimes Decree 2009.

Particulars of offence

Eliki Seru, on the 10th day of January 2013 at Nasilai Village, Nausori in the Eastern Division, had carnal knowledge of Taraivini Qaravi, without her consent.

21.	To prove this charge of Rape, the prosecution must prove the following elements beyond reasonable doubt;

 - the accused
 - had carnal knowledge of Taraivini Qaravi
 - without her consent
- accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting

22.	The first element of the offence is concerned with the identity of the person who is alleged to have committed the offence. The prosecution must prove beyond reasonable doubt that this accused committed the alleged offence.

23.	Second element is having 'carnal knowledge' of Taraivini Qaravi or the complainant. Carnal knowledge in the context of this case is, penetrating the vagina by the penis. The law states that this element is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.

24.	With regard to the element based on consent, not only the prosecution should prove that the accused had carnal knowledge of the complainant without her consent, but the prosecution should also prove that the accused knew that she did not consent to the act or that the accused was reckless as to whether or not she was consenting.

25.	It is not difficult for you to find whether or not the accused knew or believed that the complainant was not consenting. Question is what is meant by 'reckless as to whether or not she was consenting'? If the accused was aware of the risk that the complainant may not be consenting for him to insert his penis into her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina with his penis, you may find that the accused was reckless as to whether or not she was not consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.

26.	You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. The fact that there was no physical resistance alone shall not constitute consent. A woman clearly does not have the freedom and capacity to make a choice if she is unconscious.

27.	I should also direct you with regard to the relevance of intoxication to the offence of rape. In this case there was evidence that both the complainant and the accused were drunk. Drunkenness can affect a complainant of a rape case in two ways. Firstly, a person who is drunk, depending on the degree of intoxication, may do things which he/she would not do or less likely to do if he/she is not drunk.Secondly, a complainant may get drunk to the extent that his/her capacity to exercise a choice is totally removed.

28.	But in this case, the evidence of the complainant is that she was unconscious at the time when the accused allegedly inserted his penis into her vagina and the accused's position is that he did not penetrate the complainant's vagina. Therefore, intoxication of the complainant is not relevant in this case in orderto consider whether or not the complainant gave her consent.

29.	When it comes to an accused in a rape case, according to our law, drunkenness or intoxication which is self-inducedis not a defence. You need to look at all the circumstances as they would have appeared to the accused had he been sober. It is not a defence for an accused in a rape case to take up the position that he would not have behaved in the way he did, had he not been drunk. Therefore, considering the circumstances of this case you should bear in mind that intoxication cannot be considered as a defence.

30.	If you are satisfied beyond reasonable doubt that the prosecution had proved the elements as explained above, then you must find the accused guilty of rape. If you have a reasonable doubt with regard to any one of those elements, you should find the accused not guilty.

Case for the Prosecution

31.	The prosecution says that on 10thJanuary 2013, while returning from a drinking session, the accused pushed and then punched Taraivini Qaravi, the complainant where she became unconscious and when the complainant regained consciousness the accused was on top of her and she felt accused's penis inside her vagina. Prosecution says that the complainant did not consent for the accused to insert his penis into her vagina and accused knew that she was not consenting or the accused was reckless as to whether or not she was not consenting.

32.	Prosecution called Taraivini Qaravi, the complainant as the first witness. She said that she is 22 years old and that she was drinking grog with her cousins Savuraqa, Sekove and the Accused from 11.00pm on 09th January 2013 at Drekena village at her aunt's place. She said that she has known Savuraqa, Sekove and the Accused since she moved in to the village for about six years. They were drinking till 2.00am on the following day and thereafter they were roaming around the village. Then they started drinking homebrew from around 4.00am at the Nasilai cemetery. The homebrew they drank was brought by the accused in a bucket which holds approximately 17 to 20 litres.

33.	According to the complainant, they left the Nasilai cemetery around 11.00am on 10th January 2013 after they finished drinking homebrew. Savuraqa and Sekovewere walking about 30 metres ahead of them while she and the accused followed the two. The route they took was surrounded with big tall grass. The complainant said there were para grass and it was "like a bush".

34.	Then she said that the accused pushed her on to the ground and punched her on the left side of her mouth which made her unconscious. When she regained consciousness, the accused was on top of her. The accused was surprised when she 'woke up' and he stood up. She said when he stood up she felt that the accused's penis came out of her vagina and she does not know how long his penis was inside her vagina and when this happened there was no one around.

35.	Complainant said that she did not agree for what the accused did to her, she did not like what he did to her and she was angry when the accused's penis was inside her. According to the complainant, she told the accused that she will report the incident to the Police and the accused told her that this matter should be kept between the two of them. She said that the accused thereafter wore his pants and left, whereas she ran to the village headman Mr. Malakai Raoma.

36.	She had complained to Mr. Raoma about the incident and had informed him that she wanted to report the matter to the Police. After Mr. Raoma informed the Police, the Police had arrived in the afternoon where her statement was recorded and then the Police took her to the Nausori Medical Centre for a medical examination. The complainant identified the accused in the witness box.

37.	In cross-examination, the complainant said that a swab around her vaginal area was taken during the medical examination and she does not know the reason. She said that the accused is from Drekena village and Savuraqa and Sekove are from Nasilai village. When she was asked whether there were any others drinking with them apart from her and the three others she mentioned during examination-in-chief, she said one Avete was there. She said that she usually drink homebrew but not that much. She admitted that she had been drinking homebrew for seven hours and grog for 3 hours which is altogether ten hours. It was suggested to her that she did not become unconscious on the day in question to which she responded saying that it is not true. She said she knows what a blackout when it comes to drinking means as she had seen someone else experiencing a blackout.

38.	Following are some of the questions and answers that were recorded during the cross examination of the complainant;

Q: What do you know about having a blackout?
A: They don't know what they are doing. The next morning when we ask they are not aware of what they have done.
Q: In this instance you say that you were unconscious before you were raped? Is that true?
A: Yes.
Q: You did not know what had happened to you until you regained consciousness?
A: Yes.
Q: You also did not know for how many minutes you were unconscious?
A: Yes.
Q: The exact period of time you were unconscious, you do not know?
A: Yes.
Q: During the time period you were unconscious you do not know what was happening to you?
A: Yes.
Q: When you were unconscious you did not know who took off your panties? Is that true?
A: Not true.
Q: Can you explain why it's not true as you admitted that you did not know what was happening?
A: When I woke up first person I saw was Eliki.
Q: I am talking about when you were unconscious, not when you woke up? Before someone penetrates, your panty should be removed, is that true?
A: Yes.
Q: When you were unconscious you wouldn't know who removed your panty?
A. No.
Q: When you were unconscious you would not know who had sex with you that day? Is that true?
A: Yes, that is true.

39.	Complainant also said that she took a bath and changed her clothes before the Police arrived and the Police did not tell her to handover the clothes including the undergarments she was wearing at the time of the incident.

40.	The next prosecution witness was Doctor TaleiTabaka. She said that she has been a Medical Officer since 2008 after she graduated from the Fiji School of Medicine in 2007. Based on the Medical Report dated 10th January 2013 which was tendered with consent as PE01, she said that when she observed the complainant, the complainant was calm, alert, oriented and the complainant had a swollen left cheek. The swollen left cheek would have been caused by a blunt force that is more forceful than a slap, she said.

41.	She had also observed among others, three love bites on the complainant's neck, evidence of previous pregnancy and 1cm tear from clitoris down from the vaginal opening. She said that the type of the tear observed can be caused by a forced trauma and that type of an injury is not expected during regular sexual intercourse. She had collected a specimen from the fluid that was oozing from the complainant's vaginal opening which was suspected to be semen.

42.	In cross-examination, the second prosecution witness said that the vaginal swab she collected was dispatched to the Police for forensic analysis. With regard to the vaginal swab collected, the following questions were asked;

Q: You gave the specimen to the Police Officer who accompanied victim?
A: yes.
Q: That's why you signed it, confirming they collected it?
A: Yes.
Q: From when they take it for forensic analysis, you do not have anything to do with it?
A: Yes.
Q: Is it true to suggest that they carry out tests?
A: They should.
Q: In your professional opinion what they look for is, is it semen or not? That's the first thing?
A: Yes.
Q: Secondly they can carry out DNA tests. Is it possible?
A: As far as I know they look for sperm. Whether they do DNA I'm not sure.
Q: Can you use semen for DNA analysis?
A: Yes.
Q: The swab was from the high vaginal area?
A: Yes.
Q: Can the swab from the person's saliva be used for DNA analysis?
A: We can use just anything, yes.

43.	Then again the witness was asked the following questions with regard to DNA;

Q: In your professional opinion how can you extract a DNA sample from the accused?
A: The easiest way is scraping from the inside cheek.
Q: In your professional opinion, that result is conclusive that it is my client's DNA?
A: Absolutely.
Q: In your professional opinion his DNA test, if it matched with the swab taken from the victim's vagina would it mean that his DNA is there at the vagina of the victim?
A: If it was a match, definitely.

44.	Thereafter the prosecution called Mr. Malakai Raoma, the Village headman as the 3rd prosecution witness. He said that on 10th January 2013, he came home from his plantation around 12.30pm to have his lunch. When he was about to have lunch, the complainant came to him and she was crying, he said. He said that the complainant told him that "Elikihassled" her. He said that he knew the 'Eliki' she was referring to as their villages are close to each other and also,Eliki is his cousin brother. He identified the accused in court. According to him, the complainant told him that the accused forced her and the accused succeeded. The witness had noticed that there was a cut on her lip and a lump on her forehead. He also said he noticed that the complainant was drunk as her eyes were red. He had thereafter contacted the Police.

45.	In cross-examination, Mr.Raoma said that he could smell homebrew on her. He said that the complainant walked towards his house and she was walking straight. He said that he cannot confirm the time when the Police recorded the statement of the complainant. He said excessive consumption of homebrew will make a person's behaviour like a pig where such person will not follow the footpath but use the drain. According to him, four people sharing 17 to 20 litres of home brew is excessive. He said that this year, he had told the complainant to move out of the village because she was not following the village rules. When he was asked the rules which the complainant was not following, the witness said, wearing of long and short pants which were not allowed in a Fijian village and drinking with young boys in the village.

46.	The prosecution then produced the Investigating Officer of the case Corporal 2997 Susana Yaca, for the defence to cross-examine.

47.	In the cross-examination, she said that she was given the vaginal swab of the complainant, but she could not take steps to send it to forensics because she misplaced the sample which was kept in her office. She said that it was an important piece of evidence. She admitted that a minute was sent to the Office of the DPP informing that the relevant swab was misplaced and the relevant minute dated 19th August 2013 was tendered by the defence as DE01. She also stated that she did not obtain the cloths the complainant was wearing when the alleged incident took place.

48.	Thereafter, the prosecution tendered the Itaukei and the English versions of the caution interview of the Accused as PE02(a) and PE02(b) respectively and the Itaukei and the English versions of the charge statement as PE03(a) and PE03(b) respectively. That was the end of the prosecution case.

Case for the Defence
49.	At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence and to subject him to cross examination.

50.	The defence says that the accused never penetrated complainant's vagina and that she is lying.

51.	Accused in his evidence said that on 09th January 2013, he was drinking grog at Drekena village with the individuals mentioned by the complainant and also some others out of which he could remember only 3 names. He said, after drinking grog the complainant, Savuraqa, Sekove, Avete and him started drinking homebrew at the Nasilaicemetery around 4.00am and 5.00am in the morning. According to him that night they drank more than 1kg of grog and thereafter at the cemetery they drank 1 gallon or 20 litres of homebrew. He said everyone was drunk and there was fighting until the complainant got injured. He said the cause of the fight was the complainant and he cannot explain how the complainant became the cause of the fight because he was drunk. According to him, all of them fought and he could remember that he punched the complainant. He said that they finished drinking between 10.00am to 11.00am in the morning and Avete left before they finished drinking.

52.	According to him, after they finished drinking homebrew, they all walked up to the main road and from there he walked alone to Drekena. He said that after he left the cemetery, he did not punch the complainant again or force the complainant in anyway. He said he did not forcefully remove the complainant's clothes and he did not forcefully insert his penis into the complainant's vagina. He went to Drekena and then he fell off to sleep until the Police woke him up to take him to Nausori. Police told him that he is the suspect with regard to a complaint made by the complainant. He said that he was taken to Nausori Police Station and he was medically examined. According to him, the examination was not conducted by a medical doctor and also, his penis area was not medically examined. He said that from the time he was drinking grog at the Drekena village and until he was taken to the Nausori Police Station he did not get an opportunity to wash himself.

53.	In cross-examination he admitted that the complainant is his cousin sister and that he had known her for about six years. He said he did not walk together with the complainant from the cemetery where Sekove and Savuraqa were ahead of them. When he was shown his caution interview which was tendered with consent where he had said "yes" to the question, "In Taraivini Qaravi's statement line 19-21 that you walk with her and Sekove and Savuraqa was ahead at you. What can you say?", the accused said that he did not have the right state of mind and the Police forced him. When he was asked how the Police forced him, he said the Police woke him up when he was still drunk and they slapped him. He said that he could not complain because he was not in his right state of mind and because everything was new to him as it was his first time.

54.	The accused denied that the complainant became unconscious and he denied the suggestions to the effect that that he inserted his penis into the complainant's vagina without her consent. In re-examination, he said that he do not trust the complainant as she is an alcoholic and whatever she says is not true.

Analysis
55.	With regard to the element based on identification, there is no issue in this case with regard to any mistaken identity.

56.	There is no dispute that the complainant and the accused are related to each other as cousins and they were known to each other for about six years. The complainant says that she was walking with the accused after the drinking session at the Nasilai cemetery when the other two, Savuraqa and Sekove were about 30 metres ahead of them. She says that accused pushed her, the accused punched her on the left side of her mouth and then she became unconscious. Complainant says that when she regained consciousness, accused was on top of her and then the accused stood up, she spoke with the accused, the accused spoke with her, the accused dressed up and then the accused left. She identified the accused in court as the 'Eliki' she was referring to in her evidence. The third prosecution witness, Mr. Raoma also identified the accused as the 'Eliki' the complainant was referring to when she made the complaint to him.

57.	The accused says that he did not commit the offence he is charged with and that the complainant is lying. He says that he punched complainant when all of them who were drinking homebrew were fighting. He says that he never walked together with the complainant alone.

58.	The question you have to determine is whether the complainant is telling the truth when she says that the accused committed this offence.

59.	With regard to the element concerning penetration, you should remember that according to our law, full penetration or ejaculation is not necessary to satisfy the element of penetration in a rape case. A slightest penetration is sufficient. Further, according to our law, it is not required to look for corroboration ofthe evidence of a complainant in a case concerning a sexual offence. To look for corroboration is to look for the existence of independent evidence to support the evidence of a particular witness. Therefore, in a rape case you do not have to look for any other evidence to support the complainant's evidence.

60.	In this case, you heard the complainant's evidence when he said that the accused was on top of her when she regained consciousness, and she felt his penis inside her vagina. When the accused stood up, she felt the accused's penis coming out from her vagina.

61.	The accused said that the complainant never became unconscious on the day in question and he did not insert his penis inside her vagina. It was suggested by the counsel for the defence that the Police were negligent in handling the vaginal swab taken from the complainant's vagina where they misplaced it and therefore they failed to conduct a DNA test which would have proved whose semen was there inside the complainant's vagina. The defence says that the accused should be found not guilty due to that negligence.

62.	You should consider the evidence before you in light of what the law says with regard to the evidence which is sufficient to establish penetration in a rape case and the direction by law to the effect that corroboration of a complainant's evidence in a rape case shall not be necessary.

63.	With regard to the element concerning consent, you have to first consider whether the complainant gave her consent for the accused to insert his penis into her vagina. The evidence for the prosecution in this case relating to complainant's consent was that she was unconscious when the accused had allegedly inserted his penis into her vagina. If you believe the complainant's evidence, then you must consider that the complainant did not have the freedom and the capacity to give her consent.

64.	However, the matter does not end there. If you come to the conclusion that the complainant did not have the freedom and the capacity to give consent and therefore, she did not give her consent, then you have to consider whether the accused knew or believed that she was not consenting or whether the accused did not care whether or not she was consenting.

65.	According to the complainant, she became unconscious as a result of the punch she received from the accused, when the accused while being on top of her with his penis inside her vagina noticed that she regained consciousness, he was shocked and he stood up. The complainant told him that she will report the matter to the Police. He told the complainant that the matter should remain between the two of them.

66.	Then again, the accused's version is that he did not penetrate the complainant's vagina with his penis.

67.	From the evidence you have decided to accept as being credible and reliable,if you are sure that the accused did penetrate the complainant's vagina with his penis, and that the complainant did not consent to that act, then you should consider;

- whether the accused knew or believed that the complainant was not consenting? or,
- whether the accused did not care whether or not she was not consenting?

68.	I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused's evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

69.	You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.

70.	Generally, an accused would give an innocent explanation and one of the three situations given below would then arise: 

(i)	You may believe him and, if you believe him, then your opinion must be that the accused is 'not guilty'.

(ii)	Without necessarily believing him you may think, 'well that might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be 'not guilty'.

(iii)	The third possibility is that you reject his evidence. But if you disbelieve him, thatitself does not make him guilty of the offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proven the case beyond reasonable doubt. If you are sure that the prosecution has proven all the elements, then your proper opinion would be that the accused is 'guilty' of the offence charged.

71.	Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.

72.	Any re-directions?

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : S. Valenitabua, Barrister and Solicitor, Suva.