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State v Vosabeci - Summing Up [2016] FJHC 730; HAC249.2015 (15 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 249 of 2015

STATE

V

EPELI VULI VOSABECI

Counsel : Ms. L. Bogitini with Ms. Tamanikayaroi for State
Mr. L. Qetaki with Ms. M. Tarai for Accused
Dates of Hearing : 10^th-12^th August 2016
Date of Summing up : 15^th August 2016
(Name of the complainant is suppressed. Accordingly, the complainant will be referred to as YS)

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
2. Evidence is what the witnesses said from the witness box in this court room and the admitted facts. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard such information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feeling of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
5. 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. 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. 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.
   
6. Based on the evidence of witnesses you may decide that certain facts are proved. In addition to those facts you would consider as directly proved, you may also draw reasonable inferences from those proved facts.
   
7. When you assess the testimony of a witness, 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 also the difficulties in relating those facts they remember in this environment.
   
8. In assessing the credibility of a witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Obviously, you may have a difficulty in believing someone who is not consistent. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
   
9. Experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all.
   
10. The complainant in this case is now 17 years old. The main task before you in this case therefore is to judge whether what this child witness said in her evidence is true and whether the account of the events she gave is reliable. You may have come across children of that age. You will have an idea of the way they think, talk and the way they describe things. With your life experience, you have to decide whether the complainant was a credible witness and whether you can rely on the evidence given by her.
    
11. As a matter of law you should remember that the burden of proof always lies on the prosecution. The accused is presumed to be innocent until proven guilty. 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. The prosecution should prove the guilt of the accused beyond reasonable doubt, in order for you to find him guilty. You must be sure of the accused person’s guilt.
    
12. If you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in a short while.
    
13. You are not required to decide every point which has been raised by lawyers 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 charge laid against the accused has been proved.
    
14. 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.
    
15. In this case, the Director of Public Prosecutions has charged the accused for the following offence;

Statement of offence

Rape: Contrary to section 207 (1) and 2(b) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

EPELI VULI VOSABECI on the 10^th day of May, 2015 at Lobau Feeder Road, Nausori in the Central Division penetrated the vagina of YS with his finger without her consent.

16. In this case the prosecution and the defence have agreed on certain facts. You should consider those admitted facts that are before you as proven beyond reasonable doubt.
    

Case for the prosecution

17. Complainant said that she was living with her aunt who is her mother’s cousin and her aunt’s husband at Lobau Feeder Road, Nausori as at 09/05/15. Her parents were living in Vanua Levu. By that time, she was living there for about one year. On that afternoon, she went to babysit accused’s three children on the request of accused’s wife. They were neighbours. Accused and his wife went out for dinner around 9.00pm. Two of accused’s children were at the sitting room playing video games with her cousin, and she lied down inside the bedroom next to the accused’s 5 months old baby. That night she slept in that room with the baby. The other children were sleeping in the sitting room. She woke up around 12.00am to mix the baby’s milk and went back to sleep.
    
18. Around 4.00am, she heard the accused outside the house. Then around 5.00am the accused called her and asked her to open the door. She opened the door for him and went back to where she was sleeping and the accused went to the other bedroom. After a while the accused came and asked her whether the baby wake up in the night, she said yes and he went back to the other room. Thereafter, the accused again came and laid down beside her on the ground. She gave him a pillow. Then she felt the accused touching her and she asked the accused to leave the room. He said ‘no’. She told him that then she will leave. Then the accused left the room.
    
19. She then stood up and tried to catch her breath and calm herself down. Then she took the baby out of the mosquito net. The accused came back, took the baby and placed the baby back under the net. Then the accused pulled from her hand and took her to the other room. She was telling the accused to stop and to leave her alone. She also started calling the kids but they were sleeping. The accused told her that nobody needs to know.
    
20. The accused pushed her onto the bed in the other room and came on top of her. He started kissing her and touching her body. The accused took her pants off up to her knee and inserted his finger inside her vagina. The finger went right in and was inside her vagina for about 5 seconds. She said she was helpless. She did not give her consent for the accused to insert his finger into her vagina and the accused knew that she was not consenting because she was telling him to stop and was struggling. After the accused inserted his finger, for 5 seconds, she told him to stand up so that she can take her clothes off. Then the accused stood up. She then stood up, pulled her pants up and went straight home. She woke her aunt and uncle and told them what happened. They told her to go to sleep and they will talk about it when they wake up, when the accused is sober.
    
21. Accused’s wife was not there when the incident took place. The complainant told her class teacher about the incident after 3-4 days. This was when she was not happy about the marks she received for the short test that week. She said she approached her teacher as her aunt and uncle did not do anything about her complaint. She identified the accused in court.
    
22. During cross examination, she agreed that she told her uncle that the accused tried to remove her clothes, but she ran away and that if she had told him that the accused inserted his finger, the uncle would have taken the matter to the police. She said that the accused called on his wife’s phone to tell her to open the door. She denied that she woke the accused up and then both of them started kissing. She said she did not leave the house at the time she got scared. She denied the suggestion that it was her who suggested to the accused that they should go to the other room because the baby was on the bed.
    
23. She said, she was wearing a three quarter that night. She denied the suggestion that it was hard to take the three quarter pants off. Then she admitted that she told the accused she will take her pants off because it was hard to remove. She denied the suggestion that the accused never inserted his finger in her vagina as she had her clothes on. She agreed that she told her teacher about the accused because she received bad marks. She also agreed that she had to maintain good marks in return of her aunt and her uncle looking after her.
    
24. During re-examination, she said, when she got scared on the first occasion she was going to leave the house and that’s why she took the baby from the mosquito net, but the accused came and took the baby and then he took her to the other room. She said she told the accused that she will take her clothes off so that the accused will move away from her for her to leave the house. She said because of what happened to her, she was lost during classes and could not concentrate. That was the reason she got bad marks. So she told her teacher.
    

Case for the Defence

25. 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 call witnesses.
    
26. Accused said in his evidence that on 09/05/15 he went out for dinner with his wife and then they went to a party. He came back home alone as he could not find his wife in the club. He knew that his wife’s phone was with the babysitter so he called the babysitter on his wife’s phone and asked her to open the door. After the door was opened, he went inside the house and asked her whether the baby woke up and she said no. Then he went to the other room and laid down. Few minutes later, he heard his daughter crying and he went and asked the complainant whether the daughter is ok. The complainant said yes. Then he laid down beside the bed.
    
27. When he was falling off to sleep he heard someone calling and he thought it was his wife. He stood up and said “Ma” as he calls his wife, “Ma”. She said nothing. He laid down again. According to him, she called another 2 more times but did not say anything when he responded. He thought that she was into something. So he touched her thighs. He then got onto the bed and kissed her. She did not resist and kissed back. When he got on top of her, she said they can’t do it because the baby was there, so they went to the other room. He took the lead and she followed.
    
28. They sat on the bed in the other room and started kissing. Then they laid down and he got on top of her. He tried to remove her pants, but couldn’t as she was wearing very tight jeans. He kept on trying and then she told him that she will do it herself. He stood up as he thought she was going to remove her pants. But she just pushed him and walked out. Then he sat on the bed and he saw the complainant walk out from the door. Then he laid down on the bed and the next thing he know is his wife calling him for lunch. After lunch Mr. Augustus came and asked him about what happened that morning. He told him the same story.
    
29. He said he did not insert his finger into complainant’s vagina. He said the complainant was wearing black tights inside the three quarter pants she was wearing. He denied pulling her to the other room. He said the complainant did not ask him to leave the room and that she gave him a pillow. He thought she was all into it.
    
30. During cross examination, he denied that the complainant was calling the other children when he was pulling her to the other room and said that she called for her cousin when they were inside the room. He said he saw that the complainant was wearing black tights when he opened the first button of the three quarter pants she was wearing and denied pulling her pants down. He said the complainant was not calling for help but was calling her cousin. He admitted that the complainant told him to get off of her for her to take her clothes off and when he did, she ran away. He said Augustus had been his friend for a long time and had been his neighbour for a year and a half.
    
31. Second witness for the defence was complainant’s uncle, Augustus. He said the accused is a friend of his. He said the complainant told him on that morning that the accused wanted to have sex with her and she pushed him and came home. He got angry when he heard this but his wife told him not to get angry and to talk to the accused later. In the afternoon he went over to the accused and asked him if he could remember what happened that morning. While the witness was talking to the accused, the accused was carrying his baby daughter and the complainant came and took the baby from the accused as if nothing happened in the morning. He was surprised to see this. He said he asked the complainant whether she want to take the matter forward and she said ‘no’.
    
32. He said, two to three weeks later, the complainant told his wife and then him, that the accused put his finger inside her vagina. One afternoon, the complainant told them that her school principal wants to see them. The complainant was vomiting and not eating properly and she had the feeling that she might be pregnant. The principal told them that the complainant was not concentrating on her school work. That day when he came home, he asked the complainant about her not concentrating on her school work. She told him that when she is doing her school work, when she look up, she thinks about what happened and it makes her feel bad. It makes her want to vomit and sometimes it makes her feel good.
    
33. He said he did not report the matter to the police because the complainant told them that the accused just wanted to have sex with her and she did not want to proceed further with the matter.
    
34. During cross examination, he said that the complainant was shivering and crying when she woke him up that morning. He denied that the complainant told him at the time she woke him up, that the accused inserted his finger inside her vagina. He said when he asked the accused about what happened between the accused and the complainant, the accused told him that he can’t remember and therefore the accused did not tell him about what transpired that morning.
    
35. That was a brief summary of the evidence led by the prosecution and the defence. Please note that I have not reproduced the entire evidence of the case. I have only referred to the evidence which I consider important to explain the case and the applicable legal principles. If I did not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
    
36. Let me remind you that what evidence you accept and what weight you give to the evidence led in this case are matters for you to decide.
    
37. You may consider whether there are any inconsistencies in the evidence led in this case. In dealing with inconsistencies, first you have to be satisfied that in fact there are inconsistencies. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find an inconsistency to be material and relevant, then you must consider whether there is any explanation for that inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
38. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
39. Complainant said in her evidence that the accused penetrated her vagina with his finger. The first individuals to whom she complained was her aunt and uncle and there is no dispute that she did complain to them soon after the incident. However, she admitted during cross examination that what she told her uncle was that the accused tried to remove her clothes and she ran. Her uncle who gave evidence as the second defence witness said that the complainant told him that the accused tried to have sex with her and she pushed him and came home. The defence highlights this as a major inconsistency in the complainant’s evidence.
    
40. When the accused gave evidence, he said that he told the same thing he said in court to the second defence witness when the said witness confronted him the same afternoon. The second defence witness said that the accused did not tell anything about what transpired that morning. The prosecution highlights this as a major inconsistency in the evidence given by the accused.
    
41. Considering my direction on how to deal with inconsistencies, you consider whether there were inconsistencies in the evidence given by witnesses and what weight you give to the evidence of a particular witness in the event you decide there are inconsistencies in his/her evidence.
    
42. To prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of the complainant with his finger;
    100. without the consent of the complainant;
    4. the accused knew or believed that the complainant was not consenting, or

the accused was reckless as to whether or not she was consenting.

43. The first element of the offence of rape is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
    
44. Second element involves penetration. To establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his fingers. A slightest penetration is sufficient to satisfy this element.
    
45. The next two elements involve consent. The prosecution should prove that the accused penetrated the complainant’s vagina without her consent. The prosecution should also prove that the accused knew or believed that the complainant did not consent to the act or that the accused was reckless as to whether or not she was consenting.
    
46. 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 finger inside 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 finger, you may find that the accused was reckless as to whether or not she was consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.
    
47. 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 person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
48. According to the prosecution, the accused touched the complainant inside the room which the baby was sleeping and then took the complainant to the other room by pulling from her hand. Then the accused pushed her onto the bed, got on top of her and started kissing her and touching her. Then he removed her three quarter pants and inserted his finger inside her vagina. The complainant told the accused that she will remove her cloths so that the accused would get off of her and when the accused stood up, she pushed him and ran to her house.
    
49. According to the defence, the accused came to the room the baby was sleeping that morning, after he heard his baby crying. Then he slept on the ground next to the bed. As the complainant repeatedly called him about three times, he thought that the complainant was up to something, so he got onto the bed and started kissing her. The complainant did not resist and she kissed him back. Then they went to the other room as the complainant suggested so, because the baby was on the bed. He went first and the complainant followed him. They sat on the bed and kissed each other. He was trying to remove her pants but it was too tight. Then the complainant said she will remove it herself but when he stood up, the complainant pushed him and walked out. The accused says that he thought that the complainant consented to what took place between them that morning but he denies inserting his finger inside the complainant’s vagina.
    
50. In this case, there was some evidence suggesting that the accused may have been drunk at the time the alleged offence was committed. When it comes to a rape charge, according to our law, drunkenness or intoxication which is self-induced is 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.
    
51. Considering the evidence you heard in this case and the agreed facts, you decide whether the prosecution has proved all the elements of the offence of rape beyond reasonable doubt.
    
52. In the event you find that the prosecution has failed to prove all the elements of the offence of rape, you may consider whether the evidence led by the prosecution is sufficient to prove the offence of sexual assault.
    
53. The elements of the offence of sexual assault are as follows;
    1. the accused
    2. unlawfully and indecently
    100. assaulted the complainant
         
54. Again, the first element involves the identity of the accused.
    
55. The word “unlawfully” simply means without lawful excuse.
    
56. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
57. Assault is the use of unlawful force. Accordingly, a physical contact constitutes an assault if it is done without a lawful excuse. You should also ask yourself, firstly, whether you consider the force which was used could have been sexual because of its nature; and if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual.
    
58. You must remember to assess the evidence for the prosecution and the defence using the same yardstick but bearing in mind that always the prosecution should prove the case.
    
59. 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. In the event you disbelieve the accused and/or his witnesses, that does not make the accused guilty of an offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether the prosecution has proved all the elements beyond reasonable doubt.
    
60. Any re-directions?
    
61. 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. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
62. Your opinion should be as follows;
    

Rape - guilty or not guilty

If not guilty

Sexual assault - guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva