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State v Yabakiono - Summing Up [2016] FJHC 365; HAC77.2014 (4 May 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC77 OF 2014

STATE

V

TOMASI YABAKIONO

Counsel: Ms A. Vavadakua for State
Mr.A.Paka (L.A.C.) for accused

Dates of Hearing : 2, 3 May 2016
Date of Summing Up : 4 May 2016

SUMMING UP

[1] Ladies and Sir. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

[2] As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

[3] Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case, they have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.

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

[5] On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until is proved guilty.

[6] The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

[7] Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else.

[8] The accused has been charged with one count of rape, one count of sexual assault and three counts of indecently annoying another which is an old fashioned term for what in these days would be called sexual harassment.

[9] In our law and for the purposes of this trial rape is committed when a male penetrates the vagina of a woman with his penis without her consent, knowing she is not consenting or being reckless as to whether she is consenting or not.

[10] So, in order to prove the rape count (Count 3) beyond reasonable doubt the prosecution must prove to you, so that you are sure, the following factors:

(i) that it was indeed this accused, who

(ii) penetrated to some extent the vagina of Maritina ,and
(iii) she was not consenting to this activity, and
(iv) he knew or was reckless as to whether she was consenting or not.

[11] Furthermore I must direct you on the element of consent. The law says that not only must be the lady in question say “no” or by her actions and behaviour demonstrate an unwillingness to the sexual encounter, her consent is not freely given if it is obtained by the exercise of authority over her even though she might not physically resist.

[12] You might think that the facts as told by Maritina in this case are a very good example of that legal principle. She said that she didn’t protest, she even took her own panties off because she was afraid of the accused who was her boss. She felt that it was impossible for her to say no.

[13] The defencesay of course that sexual intercourse never took place and that Maritina is fabricating the allegation.

[14] The second count is one of sexual assault. Sexual assault is committed when a person either intentionally or recklessly causes another to apprehend immediate sexual attack. The attack need not take place but there must be present the intention on the part of the assailant and the apprehension on the part of the intended victim.

[15] What that means in this case in that if you are sure that the accused intended to kiss Maritina and that she expected him to kiss her and if you think that such an assault would be sexual in nature, then you may find the accused guilty.

[16] You may think that such an intention on the part of the accused was not serious enough to be a sexual assault then it is open to you to make an alternative finding of not guilty of sexual assault but guilty of indecent assault. An indecent assault is a threatened assault on a person which the average person would regard as morally reprehensible.

[17] It is a matter for you. Remember the kissing does not have to take place, just the intention to kiss and the fear on the part of the lady that she will be kissed. That being so, if you think the assault was sexual you may find him guilty, or alternatively you may find him not guilty of sexual assault but guilty of the lesser account of indecent assault. Of course if you don’t believe he was going to kiss her, then he will be not guilty of anything.

[18] The offence of indecently annoying a person is committed for the purposes of this trial if the accused utters any words, intending those words to be heard by a person and by uttering those words he intends to insult the modesty of the listener.

[19] So for you to find the accused guilty of the three insulting charges he faces you must find:

(i) it was this accused, who
(ii) uttered words, which were
(iii) intended to be heard by the three ladies in question, and which wereintended to insult the modesty of each of the ladies in question.

[20] When deciding whether the modesty of each of the ladies would be insulted, bear in mind that each of these three ladies was comparatively young and a very Junior Officer.

[21] Well that is all I wish to say about the law. I know that it has been a short case and the evidence will be fresh in your mind. It is however my judicial duty to remind you of the evidence so that you can apply the legal principles to that evidence as I have directed you. Please remember however that whatever I say about the evidence, you don’t have to accept. It is what you think of the evidence that is important.

[22] We first heard from MaritinaYavala who is referred to as the alleged victim of the first three counts. She was working in the Police Station as a Special Constable which is a very junior officer.

[23] She is, and was at the time, married. In 2013 the accused was the Officer in Charge (“OC”) of the Taveuni Police Station and her boss. He was very strict and made them work long hours.

[24] In respect of the first count she said she went to him to brief him on her duties as the Tourist Police Officer.At that time he told her that her husband was having an affair, so why shouldn’t she have an affair. She said that she was afraid but couldn’t tell anybody because there was nobody to tell.

[25] In respect of the second count she said that a fax was received at the station from Labasa. She took the fax to give to the OC (accused). At the time he grabbed her hand and tried unsuccessfully to kiss her on her lips. She was scared as a result of that incident.

[26] The third allegation of rape is the most serious charge on the indictment and she told us that the incident came about when on their way back from a Police operation. She was in a Police vehicle with the accused and Sergeant Lepani. Although her home was on the way to Sgt. Lepani’s home the accused insisted on dropping Lepani off first, and keeping her in the vehicle because he said he was afraid to drive back alone. It was late at night, about 11pm to 12 midnight. When nearing her home he turned the vehicle off the road and stopped on the road near Nakia junction. The accused was driving and Maritina was sitting in the rear passenger seat. He asked her to have sex with him. She was very scared. He was the boss and the Senior Officer and it was not good, she said. He knew that she had a family and children. He stepped out from the driver’s seat and came and opened her passenger door. All the time he was asking for sex. She was frightened. It was a deserted place with no street lighting and no houses around.

[27] He leaned into the back seat, and took off his shorts. For about 30 minutes he was demanding her to have sex with him. She couldn’t do anything but submit. He was the boss so she removed her panties and he penetrated her with his penis. He ejaculated. He then took her home where she was greeted by her husband angry that she was so late. She didn’t tell her husband what had happened because it would have made him more angry.

[28] She identified the accused in Court, so there is no doubt that it is this accused that she was talking about.

[29] When referring to time she said that of the three incidents she gave evidence about, the first was the suggestion that she should have an affair, the second the kissing assault and thirdly the rape. She didn’t tell her fellow women PCs because she thought that they would laugh at her.

[30] In cross-examination she admitted that in June 2013 the Commissioner of Police spent a week in Taveuni along with a party of very senior officers, an Assistant Commissioner, and even the Divisional Crime Officer (Northern), who was a woman. She admitted that she didn’t report the harassment to these officers but said that she was a very Junior Officer and she had no opportunity or authority to talk to such Senior Personnel. She added later that it was shameful to report on the Officer in Charge, her boss.

[31] The second witness was Naomi who said that in April 2013 she was a Police Constable at the Taveumi Police Station. The accused was the boss and very strict. They had to follow his instructions. She had been on leave for a few months and only came back to the station in April. Every morning at the station they had to do physical training and have a lecture from the OC. On the day in question and after the lecture, the OC (accused) called her to his office to discuss witnesses for a case she was preparing. He talked to her about personal matters and then told her to stand up and close the door. She didn’t close the door however. On that he told her that the way she was acting was making him want to have an affair with her. That made her afraid and she told him that she was leaving his office.

[32] She added that in the station under his leadership everybody was afraid of him: he made them work from 6am to 8pm and if they disobeyed him they were put through disciplinary procedures.

[33] After this she had told two officers at the charge counter and they just laughed at her. She was embarrassed.

[34] She failed to report to duty on the public holidays at Christmas time that year and as a result her salary was stopped for two months.

[35] In cross examination she said she did not report to the Police Commissioner or the other senior officers with him because one cannot complain against the boss and everyone was afraid of him because they worried that they would lose their jobs. When I asked her what her reaction to the words was she said “I freaked out. I was shocked”.
[36] The third and last witness for the State was MsMarama who said that in 2013 she was living in Taveuni and working as a volunteer at the Police Station. She knew and named some of the officers there and in fact she stayed with Naomi the second witness. In 2013 Tomasi was the OC in Taveuni (she later identified him as the accused) and he made some calls to her which she disliked.

[37] Her managed to get her phone number and called that night but her aunty answered the phone. He called her several times after that and said words in Fijian which translated into English as “how is my food?” I am told by my interpreter however that it is a slang expression with obvious sexual connotations. You will have heard it Ladies and Gentleman and I am sure your iTaukei colleague on the panel will assist you in this regard. He also continued to harass her by inviting her to his house and asking her to try the “older one”. Marama said she clearly understood he was suggesting that she have sex with him. After that she would hang up the phone and avoid him in the office. She disliked him after that. She was afraid, embarrassed and ashamed.

[38] Well, that was the end of the prosecution case.

You heard me explain to the accused what his rights in defence are and he elected to give sworn evidence. Now I must direct you that in giving evidence the accused does not have to prove anything. The fact that he gives evidence does not relieve the State from proving their case to you so that you are sure.

[39] Even if you don’t believe a word he says does not make him guilty if the State have not proved their case beyond reasonable doubt. But if you think that what he says is true or may be true then you will find him not guilty of all charges.

[40] The accused told us that he is an Inspector of Police, based at Totogo Police Station in Suva. (It later transpired that he is suspended from service). He has been in the force for 21 years and has served in many stations and many branches of police work. He did an overseas tour of duty in Sudan in 2007.He told us that as a Junior Officer he was earmarked for fast progress to future leadership in the Force.He says that the then Commissioner of Police (“CommPol”) had tasked him to go to Taveuni where there had been many complaints about Police Officers and their service and where there was a big backlog of cases.

[41] He took up his post at the beginning of February 2013 and found a group of officers there with no discipline and low morale. He was determined to bring it back up.

[42] He knows Maritina (PW1). Her evidence he says that he told her on 12 March 2013 to have an affair in totally untrue. It is a date long in the past and he had forgotten what happened on that date, but he knows that he never uttered words to that effect.

[43] He agreed that he was very strict with his officers and he treated Maritina the same as all the others. Her story about him grabbing her hand and trying to kiss her is also totally untrue.

[44] With regard to the rape allegation; he admitted that he and Maritina and SgtLepani had gone to Vuna one evening and they were coming back rather late. He was driving and dropped Sgt Lepani. At his village before taking Maritina to her home. He took her home and the whole rape story he says is a fabrication.

[45] With regard to Naomi (Count 4) and her evidence that he told her in his office that he wanted to have an affair with him was totally untrue.

[46] As for Marama (Count 5) he denied ever talking to her on the phone and saying such suggestive words as “how is my food?”

[47] He said that these ladies made their complaints after they had been “defaulted” for misdemeanours in their police duties.

[48] Well Ladies and Sir, that was the end of his evidence. I may not have covered everything he said in detail but I am sure you will consider what he said and if you think that it is true you will find him not guilty of all charges. It is a matter for you.

[49] You may now retire to consider your opinions and you will let a member of my staff know when you are ready and I will reconvene the Court.

P.K. Madigan
Judge

At Labasa
4 May 2016