IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 242 of 2014

STATE

V

SENIJIELI WAQANITUVA

Counsel: Ms. K. Semisi for the State
 Mr. A. Paka for Accused 

Hearing: 5th, 6th and 7th October 2015 
Summing Up: 8th October 2015

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as [M.V.]

Lady Assessors,

[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 accused and the prosecution made submissions to you about the facts of this case. It is their right as the counsel. Their submissions are not evidence. You heard the evidence of all witnesses adduced in court. 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 opinions 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 onus of 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 proven 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, 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. Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent or if the person penetrates the vulva or vagina of the woman or girl to any extent with a thing that is not a penis without her consent. 

[10] According to the particulars of the offence given in count No.1, the accused penetrated the vagina of the complainant 'M.V.' with his finger. Therefore to find the accused guilty of count No 1, the prosecution must prove beyond reasonable doubt that:

1.	the accused
2.	Penetrated his finger into her ('M.V.'s) vagina

It is not necessary to prove that there was full penetration. Slight penetration is sufficient to prove the element of penetration.

[11] The Law says that a child under the age of 13 years is incapable of giving consent. The complainant's birth certificate was produced in evidence by consent of the parties. She was born on 9th June 1999 and she was under 13 years of age at the time of the alleged offence was committed. Therefore it is immaterial whether she consented to the sexual act or not.

[12] You will also see that the count the accused is charged with is a representative count. It covers a length of time. It alleges that the offence was committed between 1st day of June 2010 and 31st day of June 2010. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of the exact date where the alleged offending had taken place during that period. You heard the complainant said in evidence that the accused inserted his finger into her vagina one night when her parents were away. It is sufficient if the prosecution proves that the offence alleged was committed during that period.

Evidence

[13] The prosecution called the alleged victim 'M.V.' to give evidence first. She was born on 09/06/1999. Her birth certificate was produced in evidence. She had been 11 years old in 2010. She said that her mother and father visited her mother's village in June 2010. She had been at home with her grandmother and her sisters. She could not recall the exact date in the month of June 2010 that the incident happened. After she went to sleep Senijieli had come home to get the phone. She said that she heard grandmother scolding him. She had woken up at that time. She said Senijieli is a cousin of hers. She had known him when he came to play in the village.

[14] After that she had been awake and the kerosene lantern had been on. Senijieli had come again inside the house and gone to the room. She said that she was inside the house but not in a room. She had seen Senijieli clearly from that light of the lantern. Senijieli had called her to the room but she did not want to go, she said. He had kept calling her. Then she had gone. Senijieli had asked her to take off her clothes but she did not want to, she said. He had kept on telling her to take off her clothes and she took off her clothes, she said. Then he had poked his finger inside her vagina. She had felt the pain. When she told him that it was painful, he had taken the finger away. She had told him that she would tell her parents. Other members of the family who were home had been sleeping.

[15] When Senijieli left she had put her clothes on and gone back to the place where her grandmother and sisters were sleeping and she had gone to sleep. She said that she told her mother about this the next day when her parents came. Then she had been scared that her mother might smack her. When she went to school her teacher had questioned her as to why her grades were dropping and whether she had any problem at home. Then she had told the teacher about the incident. She was then taken before the Head teacher and then taken to the hospital for medical examination, she said. A nurse had checked her. She also said that the teacher got her mother's consent for her medical examination. Then she was taken to Vunisea hospital and another nurse had checked her. She was given a tablet, she said. Thereafter the matter was reported to police station. She identified accused as Senijieli.

[16] In cross examination she said that she is not able to say the exact date the incident happened, but it was in June 2010. It had happened when her mother was away. On that day the generator of the village had gone bad. She had been in the sitting room and the lantern had been about 3-4 meters ways from her. She said the lantern was bright. She said that in the village it's dark in the night outside the house. She said with the light she could see what was inside the other rooms. When she was questioned about the kerosene lamp, she said it was adjusted to give more light and she identified Senijieli from the light of the kerosene lamp. She denied that identity was mistaken. She denied that it was the teacher who told her the name Senijieli. She had told the teacher that it was Senijieli. She said that she did not wake the grandmother up as she thought Senijieli could kill her. She also said that the grandmother was weak. She had not called the sisters as they would not know anything. She was also questioned about the houses close to her house and she said she did not shout as she was scared of Senijieli.

[17] She said that every month Niudua village people used to come down to her Joma village for the church service. She denied that there would be sports after church service. She said that she did not know whether 2nd half of the 2nd week of June the accused went to Niudua village. She said that she doesn't know whether he was in Niudua village on 21st June 2010. She said that her brother was not at home that night. She said Senijieli had not threatened, punched, assaulted or abused by words before. She said that she told the teacher about the incident about 2 days after the incident.

[18] In re-examination she said that the lantern was very bright and she saw Senijieli clearly that night. She had known Senijieli for about 3 months before the incident.

[19] The next witness was Sereana Vusoya who is the mother of the alleged victim 'M.V.'. In June 2010 she had gone to Muanisolo village with her husband. Children had been at home in Joma village with their grandmother. She had gone and had come back the next day around 5pm.

[20] When she reached home the teachers from 'M.V.''s school had come to get her consent to medically examine 'M.V.'. They had told her that her daughter 'M.V.''s school work had been dropping. She had given her consent to medically examine the child. She said that they were to medically examine 'M.V''s vagina. She had been present when she was examined. She also said that she did not know about the incident until teachers came home.

[21] After the medical examination they had gone to the police station. Police have questioned them as to what happened. From the police station they had gone back home. When they went home 'M.V.' had told her what happened. 'M.V.' had told her that Senijieli had come and touched her private part. Then she had checked 'M.V.''s private part, she said. She had known Senijieli for years. She identified the accused as Senijieli.

[22] In cross examination after refreshing the memory from her statement to police, she said that she went to Muanisolo village with her husband on Monday 21st June 2010 and came back on 22nd June. She said that it was the only time she went to Muanisolo village in June 2010.

[23] When she came back from the village 'M.V.' had told her that Senijieli came and took the mobile phone. She also said that when she came home from the village, at the dinner 'M.V.' told her that Senijieli touched her. However, on showing her the statement to police she said that 'M.V.' did not tell her about Senijieli touching her, but she only found out that on following Monday when teachers came home. She said that it was conveyed to her by Ms. Salanieta, who was 'M.V.''s class teacher.

[24] She said that Niudua villagers would come down to Joma village for the church service. She said that she could not recall whether Senijieli came in 1st week of June 2010. She was questioned about kerosene lamp at home. She said sometimes they adjust the lamp low when they sleep. She said only if the lamp is made really low one cannot see who is walking around inside the house. You won't be able to see other rooms from the lamp when it is kept in the sitting room, she said. She said as a parent she always advises not to turn up the lamp to save kerosene oil and also as it can cause fire.

[25] In re-examination she said that it was after the daughter informed about the incident to the teachers, teachers informed her. She said her daughter also informed her about the incident. She said that she would not know the brightness of the lamp that night as she was away. When the lamp is on in the sitting room, if the lamp is high, one can see who is coming and leaving, she said. 

[26] The next witness was Salanieta Tatiki. She was the class teacher of the alleged victim 'M.V.'. She said that she interviewed 'M.V.' as the teacher as her exam marks were dropping. 'M.V.' was not paying attention in the class and like she was lost, she said. She also did not make it to the toilet in time to pee, she said. 'M.V.' had told her initially that her brothers and sisters fight with her. When the witness kept on asking, 'M.V.' had started crying, she said. When she encouraged 'M.V.' to tell the truth she had told her about 3 incidents. 

[27] One night Senijieli had entered the house, called 'M.V.' to the room and had laid on top of her. He had put his penis into her vagina. 'M.V.' had told her that on another day one boy had entered her house took her clothes and touched her vagina and she had yelled. 'M.V.' had not named the boy. On another day in the afternoon, Senijieli had entered her house with Kesaia who is 'M.V.''s sister. They had gone out locking the door from outside. Kesaia had gone to bake and Senijieli had come back to the room and had sex with 'M.V.'.

[28] After 'M.V.' told about these three incidents the witness had informed this to the head teacher and informed the parents. With the consent of the parents she had taken 'M.V.' to the Soso Nursing Station. 'M.V.' was examined by a nurse there. Thereafter with the parents 'M.V.' was taken to the Vunisea hospital where she was examined by a doctor, she said. Doctor had advised them to go to the Police Station. They have reported the matter to police.

[29] In cross examination she said that she is the one who asked 'M.V.' whether a boy was touching her. She said she asked that because women if something like that happened to them they also can be late to the washroom. She said that she was not a medical expert. On the 2nd incident, when the witness asked 'M.V.', who was the person who touched her body? 'M.V.' had told her that she did not know. After refreshing her memory from the statement to police, she said, that she went to see 'M.V.''s parents on 29/06/2010.

[30] Prosecution called Ro Iva Naivalurua to give evidence next. She had served as a nurse in Soso Nursing Station in June 2010. She had examined 'M.V.'. She said that she checked 'M.V.''s vagina to see whether there was any external bleeding. She said there was no external bleeding. She said 'M.V.' was brought to her by the teachers because she wets her panties in her class. She had contacted Dr. Toka and doctor had already left. Nurse Practitioner had advised her to bring the child, parents and teachers to her. She said that Nurse Practitioner Anaseini Lilicama has passed away.

[31] The last witness for the prosecution was D/Sgt 2080 Josua. He had been the Investigating Officer in this case. The accused Senijieli had been caution interviewed by PC 4650 Eroni Seruvatu on 13/07/2010. The caution interview statement of the accused was produced in evidence and read over to you in court.

[32] In cross examination he said that he did not know whether 'Vilimone' referred to in Q21 of the caution interview statement is a son of Waisake Vakorovanua.

That was the evidence for the prosecution.

 Lady assessors, 

[33] 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 all times. The accused chose to give evidence and subject himself for cross examination. So you have to give his evidence careful consideration.

[34] The accused in his evidence said that he went to Joma village in 1st week of June 2010. 1st church service for the month had been in Joma village. After church service his uncle had asked him to help him with his farm at Joma. He had stayed in Joma village in 1st and 2nd week of June and then had gone back to his village Niudua. He said that while he was staying in Joma he had helped his uncle in his farm. Uncle is Saula Rasaloga.

[35] He said that when he was questioned by the police, in his answer to Q21 he had said about Vilimone. He said that Vilimone he meant was Vilimone in his village Niudua and not the Vilimone in Joma. He denied the allegation against him.

[36] In cross examination he said that he knows 'M.V.' and also her parents. Her parents are Sereana and Vilimone. He said that he had not visited their house. He knows 'M.V.''s siblings as well. He denied that he undertook some work in Joma village to fix a water tank when he was there. When it was suggested to him, again he denied.

[37] However, when his caution interview statement was shown to him, he admitted that he undertook to carry out the work to fix a water tank in Joma. He said it was for 2 days in June 2010. He denied going to Vilimone's house in Joma. He denied that he went to get a mobile phone and that he was chased by the grandmother. He denied that he went there again. He denied forcing 'M.V.' to remove her clothes and inserting his finger into her vagina. He denied going to Vilimone's house in Joma on 21/06/2010. He denied that he returned to his village as he was afraid that 'M.V.' would tell her mother what he did.

[38] On questioning about the work he attended on fixing the water tank in Joma, he said that he helped his uncle in the 1st week of June and helped fixing the water tank in the 2nd week. He denied lying in court.

That was the evidence for defence.

 Lady assessors,

[39] 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's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[40] The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box unchallenged. 

[41] You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[42] I must also give you a direction on identification. In this case the defence says, that the identification of the accused as the person who inserted his finger into her vagina by 'M.V.', should not be relied upon. The defence says that she could not have identified the person who came inside the house properly, as there was no sufficient light that night.

[43] When an accused has been identified by a witness and when that evidence of identification is challenged by the accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.

[44] In assessing the evidence on identification, you must take the following matters into account.

1.	Whether the witness has known the accused before?
In this case, complainant 'M.V.' knew the accused before. Accused also said in evidence that he knew the complainant and the family.

2.	For how long did the witness have the accused under observation, and from what distance? Was it more than a fleeting glance? In this case according to the witness 'M.V.' she had seen the accused coming inside the house and until he left the house after inserting his finger into her vagina.

3.	Did the witness have any special reason to remember? 

She has a reason to remember because of the alleged incident.

4.	In what light was the observation made? In this case 'M.V.' says that she saw the accused with the light from the lantern that was in the sitting room.

5.	Whether there was any obstacle to obstruct the view? 

[45] The defence says that complainant has mistakenly identified the person as the accused. Considering all the evidence and the factors I mentioned above, you may decide whether the evidence of the complainant was truthful and whether she had rightly identified the accused. When you consider the credibility of the complainant you have to evaluate all the evidence adduced at the trial.

[46] The teacher in her evidence said about several incidents that 'M.V.' had told her. As a matter of law I direct you that you must disregard what the teacher said about any other incident or incidents apart from which the accused is charged for in this case.

[47] After evaluating all the evidence, if you find that the complainant was truthful, then you need not go for corroborative evidence to find the accused guilty. If you have any reasonable doubt about her evidence, you must find the accused not guilty.

[48] The complainant said in her evidence that she told her mother about the accused inserting his finger into her vagina, when she came back from the village. However, the mother in her evidence later said that she got to know about this incident from the teacher first. According to the evidence of the teacher 'M.V.' had told her about this on 29th June 2010, when she inquired from her. You decide whether there was a delay in complaining the matter to the teacher by the complainant, and if there is a delay, whether it is justified in the given circumstances. You may also take into account the child's age that she was 11 years old and the social background when you consider whether the delay is justified. Children do not have the same life experience as adults. Their understanding may be severely limited for number of reasons, such as their age and maturity. They may be embarrassed and feel guilty about what happened to them. You may consider all those factors when evaluating the complainant's evidence.

May I also direct you on the law on defence of alibi.

[49] Prosecution says that the accused during the period alleged in the charge, inserted his finger into 'M.V.'s vagina. Prosecution says that the accused went to the complainant's house on 21st June 2010 and the person the accused mentioned as Vilimone in his caution interview statement is the father of 'M.V.'. The accused denying the allegation says that the complainant has mistakenly identified the accused and that the complainant has failed to name the boy who touched her to the teacher. The accused says that he was in his village Niudua on 21st June 2010. Defence also says that the person accused mentioned as Vilimone in his caution interview statement is Vilimone in his village, not the alleged victims' father. You decide which witnesses are truthful and which are not. It is a matter for you to decide on the facts and to decide whether the accused has committed the offence as charged or not, whether the prosecution has proved the charge against the accused beyond reasonable doubt.

 [50] 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 whether the charge against the accused has been proved beyond reasonable doubt.

[51] Your opinions on the charge of Rape will be either guilty or not guilty. 

 Lady assessors,

 [52] 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
08th October 2015

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