IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION 

Criminal Case No. 63 of 2014

STATE

V

KAND SAMI

Counsels:	Ms. A. Vavadakua for State
		Ms. S. Dunn (L.A.C.) for Accused

Dates of Trial		:  	16 and 17 May 2016
Date of Summing Up	: 	17 May 2016

SUMMING UP

	[Name of victim is changed to protect her identity]

1.	Ladies and Sir Assessors. 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 in 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 he or she 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 faces two counts or charges of rape. In our law and 	for the purposes of this trial, rape is committed when a person 	penetrates the vagina of another and where the person doing 	that does not have the consent of the victim or is reckless to 	whether she was consenting or not. 

9.	I will further direct you that when the female in question is 	under the age of thirteen years, in law she cannot be said to be 	consenting. That applies to the first count when the sexual act 	took place sometime within the year 2012. 

10.	So for the first count all you need to find is that the accused did 	have sexual intercourse with Linda and nothing else.

11.	For the second count however the issue of consent comes in to 	play because on the 17th August 2014 she was 13 years old.
	 For that count you must find:
	(1)	That there was an act of sexual intercourse
(2)		That it was this accused who was 
	doing that act, and
(3)		That Linda was not consenting to it, and 
(4)		The accused knew that she was not consenting or was 	reckless as to whether she was consenting or not.

12.	As I have said the accused faces two counts. You must look at 	each count separately; the evidence on each is different. Just 	because you might think he is guilty of one count does not 	necessarily mean he is guilty of the other and similarly with a 	finding of not guilty. 

13.	To find lack of consent you will of course look at all the 	evidence, including the circumstances of the act, if indeed you 	believe there was an act and of course Linda’s evidence. 

14.	I know it was a very short case and that the evidence will be 	fresh in your mind but it is my judicial duty to sum up the 	evidence to you in order that you may apply the law to it as I 	have directed you.

15.	The first prosecution witness was the young complainant in this 	case who I am going to call Linda. She told us that in 2012 	when she was 11, she was living with her Dad and they went to 	stay at Aunty Prem’s house.The aunt’s house wasn’t ready so 	they went instead to Poe and Subama’s house to spend the 	night. That night when they were all sleeping she felt a touch on 	her shoulder and a “boy” whom she later identified as the 	accused took her out of the living room to the bedroom, took her 	clothes off, took his own clothes off and had sexual intercourse 	with her. She knew the “boy” as Raj. He was a visitor in the 	aunt’s house as well – in fact he was related to Poe and 	Subama. Raj had been sleeping alone in the bedroom and all 	the others including Linda were sleeping in the living room. He 	pushed her 	onto the bed. She felt pain after the sex and she 	was bleeding. He then told her to go back to sleep.

16.	In 2014 in August when she was 13 she had been to church 	and was walking home. When she got to the middle of the road 	she saw Raj standing there. He pulled her by the hand and took 	her “up the hill”. When arriving there he kissed her on the lips, 	kissed her breasts, then took all her clothes off. He kissed her 	genitals and then proceeded to have sexual intercourse with 	her. When she got home after that she eventually told her father 	and he reported the matter to the Police. 

17.	The place on the hill was deserted with nobody around and no 	houses. She didn’t want to go up there with him and she didn’t 	want to have sex with him. She was scared he would do 	something to her if she didn’t submit. 

18.	In cross-examination she admitted that her father had given her 	a hiding and it was only after that she told him the whole story. 	She denied that she was making up this story because of the 	hiding. 

19.	The second prosecution witness was a Medical Officer who 	examined Linda on the 20th August 2014, three days after the 	“hill” incident that we heard about. From her extremely 	confusing testimony, the crux of her evidence was first that 	Linda’s hymen was not intact and secondly that there was a 	small abrasion on her vaginal wall. It is for you to make what 	you will of this evidence and to give it the weight that you think 	it deserves. 

20.	The third prosecution witness was a Police Officer who said that	he interviewed the accused in Nabouwalu in 2014. He knew the 	accused as Kand Sami otherwise known as Raj. 

21.	You might think that his evidence was not very helpful. 

22.	Well Ladies and Gentlemen that was the end of the Prosecution 	case and you heard me tell the accused what his rights are in 	defence. He could give evidence and be cross-examined or he 	could remain silent and say that the State had not proved their 	case to the required standard. In either case he could call 	witnesses.

23.	He chose to give evidence, saying that he had been advised by 	his Counsel. Now Ladies and Sir, the accused did not have to 	give evidence and the fact that he did does not shift the burden 	on the State to prove their case beyond reasonable doubt. Even 	if you don’t believe a word he and his witnesses say then that 	does not necessarily make him guilty. It is however evidence 	that you must weigh up in the normal way and give it whatever 	weight you see fit. If you think what he says is true then you 	will find him not guilty of both counts.

24.	Kand Sami toldus that until 3 years ago he was living in Bua, 	in Sawani. With reference to Linda’s evidence about the night in 	2012, he said that he slept in the living room and Poe and his 	wife were in the bedroom. He slept next to Pita Kaisau. He did 	not have sex with Linda, nothing happened at all. 

25.	In 2014 he never took her up a hill. That day he had worked his 	dalo crop and later, at 11am had gone to Poe’s house to drink 	grog. He aunt (Poe’s wife) had made him vakalolo and he had 	left at 2.30pm and eaten his vakalolo under a coconut tree. 

26.	In cross-examination, he said that Linda was there with her 	father but they left at 1.30pm. 

27.	The second and third defencewitnesses were mother and son 	respectively. 
28.	The mother (DW2) isSubama Reddy. The accused is her 	nephew. She is the wife of Poe and on the night that visitors 	were staying in 2012 they all slept in the living room while she 	and Poe slept in the bedroom. Raju was in the living room and 	Linda was there sleeping with her father. 

29.	When asked what happened on 17th August 2014 she 	gratuitously said “Raju was eating vakalolo. I kept it for him.”  	You might think that it is very odd that she would say this of all 	things, I certainly did but as I say it matters not what I think; it 	is what you think that counts. 

30.	She said that Raju came to her house in the afternoon that day. 	Sifra was also there and she left in the afternoon around 3 to 4 	pm. She doesn’t know anything about Sifra having bad things 	done to her. But in 2012 Sifra was sleeping in the sitting room 	with her family and nothing happened to her.

31.	The third defence witness was Pita Kaisau the accused’s cousin 	and theson of DW2. On the 17th August 2014he was at home. 	His grandfather had come for a function and they and many 	others were drinking grog from 11am onwards. At about 2pm 	or 2.30pm he went to fetch more water for the tanoaand when 	he was at the well just near Prem’s house he could see into that	house because the door was open. He could see Linda lying on a 	bed sleeping and her father on another bed. He took the water 	back. On the way to get the water he saw the accused eating 	vakalolo under a coconut tree.

32.	In 2012, he was sleeping at the house with all the visitors. He 	was sleeping next to the accused in the living room. Linda was 	sleeping with her father a few people distant. He is a very light 	sleeper and if someone moved he would wake and stand. His 	parents were sleeping in the bedroom. 

33.	In cross-examination he started to forget things and wasn’t sure 	if his sister was there or not. The only time he woke up was 	when the accused went out to relieve himself.

34.	Well Ladies and Sir, that is my summary of the evidence. If I 	have omitted to remind you of evidence that you think is 	important, give it the weight you think it deserves. I have not 	covered in detail the cross-examination by both sides but you 	will be aware of it and will take it into account.

35.	That is all I wish to say to you. Take as much time as you need 	and let a member of my staff know when you are ready with 	your opinions and I will reconvene the Court. You may retire 	now but just before you do I will ask Counsel if they wish me to 	alter or add anything to this summing up.

36.	Counsel?

						P.K. Madigan
						Judge

At Labasa
17 May 2016