IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 9 of 2015

STATE

V

ROPATE DULUKOBAU

Counsels:	Ms. A. Vavadakua for the State
		Mr. I. Rakaria (L.A.C.) for the Accused. 

Date of Trial		: 	19 September 2016 
Date of Summing Up	: 	20 September 2016

SUMMING UP

[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 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 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 one charge 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 have to direct you that in our law a man can rape his wife. It is 	not the case in some other countries and in some other 	cultures, but in Fiji NO means NO whether it is said by a 	girlfriend, a wife or even a sex worker. A woman has the right to 	say no. 

[10]	The accused is also charged with one count of assault with 	intent to commit rape. This crime is self-explanatory; it is 	committed when the accused unlawfully assaults another with 	the intention to cower the victim into submitting to his invasion 	of her. 

[11]	Now there is no dispute in this case that there was an act of 	sexual intercourse in the evening of the 2nd February last year 	but that is where agreement stops. She says that the accused 	assaulted her and forced himself on to her; he says that this 	was but another act of sexual intercourse that the two were 	having in the course of a relationship as husband and wife. 

[12]	That is all I wish to say about the Law at this point and I am 	now going on then summarise the evidence, first the 	Prosecution evidence and then the Defence evidence. 

[13]	The evidence was heard yesterday in its entirety and I am sure 	it is fresh in your minds. It is however my judicial duty to 	summarise the evidence for you before you make your 	deliberations. I remind you that if I appear to stress some part 	of the evidence that you do not think is important then you do 	not have to agree with me and similarly if I appear to have 	omitted a part of the evidence that you think is important then 	you will give it the weight that you think fit.

[14]	The Doctor told us that he had examined the wife some 5 days 	after the incident was said to have happened. He found no 	injuries or bruises on her but on hearing the patient complain 	of neck pain he did note that the neck was restricted in its 	movement and that it was painful to the touch. 

[15]	The wife Wainikiti told us of her version of events on the night of 	the 2nd/3rd February 2015. There was a women’s welfare 	meeting being held in the village hall. Both husband and wife 	went to the meeting but only the wife entered, the husband 	going to an adjoining house to drink grog. After the meeting the 	wife went to her Aunt’s house in the village before going home to 	sleep at around midnight. The husband returned home and ate 	his dinner before coming into the bedroom. He asked if they 	could have sex. She said no because she was tired and wanted 	to go to sleep. He then undressed her and punched her on the 	neck. She was scared. He then forced himself upon her invading 	her with his penis. She then saw that the youngest child, a 3 	year old was watching them so she told her husband to get her 	back to sleep. The next morning they were not on good terms 	and the wife did not give any indication that she was going to 	report the matter because she was afraid of what he might do to 	her. 

[16]	She eventually reported the matter to the Seaqaqa Police 5 days 	later when she had gathered enough money to pay her fare.

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

[18]	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. 

[19]	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.  

[20]	Ropate told us that they have been married for 11 years with 4 	children.

[21]	He said he did intend to go to the meeting in the hall on 	February the second but the hall was full so he went to the 	house next door to see if he could hear what was going on in the 	meeting. The other men there were drinking grog and they 	forced him to drink it too. By the time he finished there the 	meeting was over so he went home. The first thing he did was to 	have a meal. He then washed his hands and went into the 	bedroom. He lay on the mattress on the floor next to his wife 	and they talked about the meeting. He asked her if they could 	have sex and she said yes. She undressed herself and they had 	sex. The youngest child, Julie, cried and the wife told him to get 	her back to sleep. He did that then he returned to the mattress 	and they continued to have sex. When he had finished he got up 	and went to the bathroom to wash but before he reached the 	bathroom she stopped him and asked him to come back for 	more. They had further sex until she was satisfied and he then 	washed and went to sleep. He denied both charges. He never 	punched her. He loves her and she definitely gave consent to 	the sexual acts that night. 

[22]	Well Ladies and Sir, that was the end of all the evidence. The 	issue for you to decide in simple. There is no doubt that there 	was an act of sexual intercourse that night with full penetration. 	That satisfies part of the legal requirements for rape but the 	outstanding issue is the issue of consent. She says no consent. 	He says consent. It is for you to decide if the State has made 	you sure she was raped. If you think not or you are not sure 	then you must find him not guilty. 

[23]	You don’t have to be all agreed on your opinions, but it would 	be desirable if you can. Please let a member of my staff know 	when you are ready and I will reconvene the Court. Just before 	you retire I am going to ask counsel if there is anything they 	may wish me to add to or change in this summing up. 

[24]	Counsel?

					P. K. Madigan
					     Judge

At Labasa
20 September 2016