IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 035 of 2016

STATE

v

THOMAS BULL

Counsel:	Ms A. Vavadakua for the State.
		Ms S. Nasedra for the Accused

Date of Trial			: 8, 9 May 2017
Date of Summing Up	: 10 May 2017

SUMMING UP

1. 	Madam and Gentlemen 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. It is at this stage that I must tell you to 	put aside Ms Nasedra’s submission that the State 	should have called the Aunty to give evidence. Counsel 	should not have said that because in every case the 	facts have to be decided on the evidence adduced in 	the trial .Neither you nor Counsel must speculate on 	what evidence there should have been or might have 	been.

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.	However the law says that when the victim is under 	the age of 13 years, she is unable to consent. That 	means that although Sara (not her real name) says 	that she was unwilling for this to happen, it is 	irrelevant. All you have to find proved in this case is 	whether this particular accused penetrated her that 	night with his penis. If you do find that then you will 	find him guilty. 

10.	This has been a very brief case and I am sure that the 	evidence is still fresh in your minds. However it is my 	duty to remind you of the main points of it.

11.	Sara tells us that she was born on the 19 December 	2003, which would make her only 12 on the 22 June 	2016. She says that at the time she was going to 	primary school and living in Bua with her mother and 	stepfather (the accused).
	There were also two brothers and a sister there too. On 	the night of the 22nd June, her mother had gone to 	Nabuowalu for the week to see her sick brother. She 	had taken her little sister with her. There was only her 	stepfather her and her two little brothers sleeping in 	the house. 

12.	She woke up in the night feeling something heavy on 	top of her. The light was off but she knew it was her 	step father, Because of his size and she recognized his 	voice. He told her not to scream or say anything. He 	undressed her and “put his male organ inside her 	female organ”.  It was painful and she felt blood 	coming out. When he had finished he got up, turned 	the light on and sat on the step. With the light on, she 	could see that her brothers were still asleep. Sara got 	up and tried to go outside but the step father told her 	not to. 

13.	She said that she didn’t scream or ask for help 	because he had told her not to and she was afraid. 

14.	The next day she went to school but didn’t tell any of 	the teachers because she was afraid and ashamed. 

15.	She didn’t tell the neighbours for the same reason.

16.	She then said that after a day or two, her father gave 	her $100  and she went to Labasa to stay with her 	aunty. She told her aunty about the rape. Aunty said 	to wait until Mum got home from Nabuowalu and then 	go back and tell her. She did that, telling her Mum and 	Mum said that she would give her the fare to go to 	Dreketi to report it to the Police. Her Mother wasn’t 	very supportive of her complaint and she went to 	Dreketi to report on her own. Even when she was in 	Suva awaiting this trial her mother tried to get her to 	with draw the complaint

17.	The remainder of the Prosecution case dealt with 	photos of the scene and confirmation that the victim’s 	mother was with her brother in Nabuowalu. 

18.	Now I want to talk to you a little about Sara’s evidence.

19.	Ms. Nasedra spent a long time in cross examination 	dealing with 2 issues: first when and to whom she 	complained about this assault and secondly whether 	she was going back and forward between Labasa and  	Nasarawaqa in early July 2016.

20.	In days gone by it used to be the law that when 	persons complained that they had been raped or 	sexually assaulted, juries (or in Fiji - assessors) had 	to look for other evidence that would back up the claim  	- an element in law called corroboration. In these 	modern times that principle does not apply. There 	doesn’t have to be any other evidence to support a 	victim’s evidence. A case can be judged on the victim’s 	evidence alone. It is to be believed? Did she come 	across to you as a truthful and reliable witness?

21.	It doesn’t make any difference whether she told her 	teacher the next day or if she ran and told the 	neighbours in the morning. You are to judge this case 	on Sara’s testimony alone and decide whether by her 	evidence the State have proved to you beyond 	reasonable doubt that her step father had full 	penetrative sex with her that night.

22.	You might want to put yourselves in the shoes of a 12 	year old village girl living in very simple and 	unsophisticated circumstances. She said she was 	scared and ashamed and not being mature enough to 	deal with the situation is it possible she may not want 	to tell any strangers about what had happened to her? 	You will appreciate better than I what the Fijian 	culture would expect of her. It is a matter for you. 

23.	It is also a matter for you what you make of her trips 	between Labasa and Nabuowalu and whether they lead 	to you to conclude that they mean this rape never 	occurred. 

24.	The State suggests that the $100 her stepfather gave 	her was a “sweetener” and the defence says that it was 	for fares and dental treatment. Maybe it was both? 	Another factual issue for you to decide. 

25.	At the end of the prosecution case you heard me tell 	the accused what his rights are in defence. He could 	give evidence or he could remain silent and say to the 	court that the case has not been proved beyond 	reasonable doubt. In either case he could call 	witnesses.

26.	The accused chose to give evidence but call no 	witnesses.

27.	There is no obligation on the accused to say anything 	because he has nothing to prove. The State must prove 	its case to you so that you are sure. Even if you don’t 	believe a single word he says it doesn’t mean that he is 	guilty. But if you think what he says is true or may be 	true then you will find him not guilty.

28.	Mr. Bull told us that he is married to Sara’s mother. 	Sara is the child of his wife and another so she is his 	stepdaughter. There are three younger children issue 	of this second marriage. In June 2016, he had been 	living in Nasarawaqa for 15 years. He said that before 	2016 Tara had been living with relatives in Labasa but 	she was sent back to the village because she was 	disobedient.

29.	On the 22nd June he was home with the children. His 	wife and the youngest daughter had gone to 	Nabuowalu for 10 days or so to look after her sick 	brother. There were 2 neighbouring houses which were 	both occupied by families at the time. 

30.	Sara’s allegation of rape is simply not true. One day 	that week Sara asked him for money to pay a dentist 	in Labasa to take a tooth out so he gave her $100 for 	the dentist, for her fare and for some pocket money. 	From time to time he would give all the children $100. 	The money for Sara came from money the local Pastor 	owed him so he sent her to collect it from him the day 	before she went up to Labasa. 
	Sara went up to Labasa on the 27th June and was 	meant to return on the 28th. However she did not 	return. So he went up himself on the 1st July to get her 	and bring her home.

31.	He finished his evidence by saying that he did not 	commit this offence.

32.	Well Madam and Gentlemen, that was the end of all 	the evidence. There will be no more and you must 	Judge this case on the evidence that is before you. 

33.	Remember all you have to decide is whether the 	accused had full penetrative sex with Sara that night. 	If so he is guilty. If not he is not guilty.

34.	It is now time for you to retire and consider your 	opinions. 
	Let my staff know when you are ready and I will 	reconvene the court.

35.	Any redirections Counsel?

		P. K. Madigan
		Judge
At Labasa
10 May 2017