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State v Fusi - Summing Up [2018] FJHC 1214; HAC223.2017 (10 December 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 223 of 2017

STATE

vs.

SIONE FUSI

Counsel: Mr. T. Tuenuku with Ms. S. Alagendra

and Ms. J Fatiaki for the State
Ms. N. Mishra with Mr. Verebalavu K for the Accused

Date of Hearing: 3^rd, 5^th and 6^th December 2018
Date of Summing Up: 10^th December 2018

SUMMING UP

1. The name of the complainant is suppressed.
   
2. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. As I explained you before the commencement of the hearing, we have different functions. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. Your function is to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard any comment I make about the facts of this case, unless it coincides with your own independent opinion.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box and the documents tendered as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purposes of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. Therefore, the opening address of the prosecution is not evidence. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I make my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   

Burden and Standard of Proof

8. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence.
   
9. The burden of proof of the charge against the accused is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
   
10. The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you find any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

Information

11. The accused is charged with one count of Rape, contrary to Section 207 (2) (a) and (3) of the Crimes Act. The particulars of the offence are before you. Therefore, I do not wish to reproduce it in the summing up.
    
12. The prosecution alleges that the accused had penetrated the anus of the complainant with his penis on the 16th of July 2017.
13. Accordingly, the main elements of the offence are that:
    

1. The accused,
2. Penetrated the anus of the complainant with his penis.

14. The complainant was five years old at the time of this offence took place. The defence has not disputed the age of the complainant. Hence, he is incapable of giving consent to any kind of carnal knowledge.
    

Agreed Facts

15. I now take your attention to the agreed facts. They are the facts that the Prosecution and the Defence agreed on without any dispute. Hence, you are allowed to consider the agreed facts as proven facts beyond reasonable doubt by the Prosecution.
    

The Accused

16. It is the onus of the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the anus of the complainant with his penis.
    

Penetration

17. I will now explain you the element of penetration. Evidence of slightest penetration of the anus of the complainant by the Accused with his penis is sufficient to prove the element of penetration. Hence, it is not necessarily required to adduce the evidence of full penetration.
    

Evidence of Corroboration

18. You must bear in mind that offences of sexual nature do not need the evidence of corroboration. It means that if you are satisfied with the evidence given by the complainant and accept it as reliable and truthful; you are not required to look for any other evidence to support the account given by the complainant.
    
19. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape, a rapist or a victim of rape.
    
20. Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course of the hearing.
    
21. It is your duty as judges of facts to assess the evidence in order to determine whether the prosecution has proven the charges beyond reasonable doubt. In doing that, you must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not. Demeanours of the complainant in the Court while giving evidence is not necessarily a clue to the truth of the complainant’s account.
    

Evidence of Prosecution

22. Let me now remind you briefly the summary of the evidence presented by the prosecution during the course of the hearing. This is a very short hearing with three witnesses giving evidence. Therefore, I trust that you can properly and correctly recall all the evidence adduced during the hearing.
    
23. You have heard the evidence presented by the prosecution. The prosecution presented the evidence of three witnesses, including the complainant. The complainant and the accused were living in the same village. The complainant is living with his two siblings at their grandparent’s house. The accused is one of their neighbours. On this particular day, the complainant and one of his siblings were raking, when the accused came and asked them to come and buy ice blocks. They had then gone to the house where the accused had sold them ice blocks. Having obtained the ice block, the sibling had ran away from the house. The accused then had closed the door and put his pants down. He had then asked the complainant to lie down and then penetrated his penis into his anus. I trust that you recall the words used by the complainant to explain this incident. The complainant said that the accused poked his “goli” into his buttock”. The complainant explained that it was painful. The accused had then put his pants on and asked the complainant to put his pants on. He had then taken the complainant to the bathroom. On the way to the bathroom, the accused had taken a branch of a tree and assaulted the complainant with it. The accused then put the complainant into the bathroom and swore at him.
    
24. The complainant had gone back home after this incident and informed his grandmother about this incident. You have heard the evidence of the grandmother, where she explained that she saw the complainant was crying in the house when she was washing in the bathroom. The complainant had told her that the accused penetrated his penis into his anus when she inquired about the reason for his crying. She had noticed blood in his backside. The grandmother had then taken the complainant to the police station, and then to the hospital for medical examination.
    
25. I now take your attention to the evidence given by the grandmother, stating that the accused had approached her once she received summons to appear in court. The accused had approached and requested her not to take the complainant to the Court. Instead, he had requested the grandmother to inform the Court that the complainant had gone somewhere during his school holidays.
    
26. Doctor Alofa Funaki in her evidence explained the finding that she made during the medical examination of the complainant on the 16th of July 2017. She tendered the medical report that she made based on those findings as prosecution exhibit. You may recall that the Doctor explained the findings which she has recorded in the medical report under the headings D12, D14, D16 and the appendix.
    

Evidence of Defence

27. You have heard that the learned counsel for the prosecution cross examined the witnesses of the prosecution. She has specifically asked the complainant that the accused was sleeping at that time and this alleged incident, that the complainant was telling, had never taken place. The complainant denied that preposition of the defence and said that the accused had inserted his anus with the penis of the accused.
    

Right to remain silence

28. At the conclusion of the prosecution’s case, the accused was explained about his rights in defence. The accused opted not to give evidence. The accused does not have to give evidence. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing. It does nothing to establish his guilt.
    
29. This is the summary of the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.
    

Analysis and Directions

30. You heard the evidence presented by the prosecution. The defence presented their case by cross examined the witnesses of the prosecution. The prosecution and the defence have conflicting versions of events. The prosecution alleges that the accused had penetrated the anus of the complainant with his penis, when the complainant went to buy ice blocks. The defence suggested in the cross examination of the witnesses of the prosecution that this incident had never taken place.
    
31. You must keep in your mind that questions put to the witnesses by the counsel are not evidence, unless they are admitted or affirmed by the witness in his or her answering.
    
32. The prosecution presented evidence in the forms of direct evidence, expert evidence and documentary evidence.
    

Direct Evidence

33. In some instances, you may find that some facts can be proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw or felt the accused was committing the offence; or if there is a video recording of such an incident that plainly demonstrates his guilt; or if there is reliable evidence of the accused himself having admitted it, these would all be good examples of direct evidence against the accused.
    
34. In this case, the evidence of the complainant is direct evidence. He gave evidence based on something that he encountered and felt.
    

Documentary Evidence

35. The evidence presented in the form of documents is considered as documentary evidence. In this case, the prosecution tendered the medical examination report of the complainant as documentary evidence.
    

Expert Evidence

36. It is the general rule that witnesses are normally not allowed to give opinion and only allow to give evidence on what they have seen, heard, or felt by their physical sense. However, the exception is that the evidence of expert witnesses. Expert witnesses are those who are learned and experts in a particular subject or field with relevant experience. Such witnesses are allowed to give evidence of their opinion.
    
37. In this case you have heard the evidence of Doctor Alofa Funaki . She is a medical doctor and gave her professional opinion about the medical observation that she made about the complainant.
    
38. Expert evidence is permitted in a criminal trial to provide you with scientific and professional information and opinion, which is within the witness' expertise, but which is likely to be outside your experience and knowledge. It is by no means unusual for evidence of this nature to be called; and it is important that you should see it in its proper perspective, which is that, it is before you as part of the evidence as a whole to assist you with regard to the injuries, the physical and medical condition of the complainant subsequent to this alleged offence.
    
39. With regard to these particular aspects of the evidence you are not experts; and it would be quite wrong for you as assessors to attempt to and/or to come to any conclusions on those issues on the basis of your own observations or experiences. However you are entitled to come to a conclusion based on the whole of the evidence which you have heard, and that of course includes the expert evidence. You should bear in mind that, having carefully considered, if you do not accept the evidence of the expert, you do not have to act upon it.
    

Presentation of the Evidence of the Child Complainant

40. You saw that the complainant gave evidence without taking oath. He was seated next to a counsellor when he gave evidence. The judge was seated on the clerk’s table. Neither the judge nor the counsel were robed. Giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness to feel more at ease when giving evidence. It is not intended to prejudge the evidence which the witness gives. The fact that the evidence has been given in that manner, must not in any way be considered by you as prejudicial to the accused.
    

Evaluation of Evidence

41. Ladies and Gentleman assessors, I now kindly request you to draw your attention to the directions on evaluation of evidence.
    
42. You must be satisfied that you can rely on the evidence as the true, correct evidence. If you accept them as true and correct evidence, then you have to decide what weight you give to those evidence. For that you have to determine the reliability and credibility of the evidence.
    
43. In order to determine the reliability of the evidence, you have to be satisfied that the evidence is free from mistakes, errors and inaccuracies. If you find the evidence is free from such mistakes, errors and inaccuracies, you can take the evidence into consideration as reliable evidence.
    
44. The assessment of credibility of evidence does not concern with unintended inaccuracy, mistakes or errors. It is focused on the lies or inaccurate facts that is an intentional and motivated attempts to deceive. The credibility depends on the individual who gives evidence, his motivations, his relationship to and the reaction to the particular situation.
    
45. Evaluation of the reliability and credibility of evidence will assist you to determine what evidence you may accept and what part of the evidence you may refuse. In doing that, you may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
    
46. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.
    
47. It is your duty to consider the demeanour of the witnesses, how they react to being cross examined and re-examined and were they evasive, in order to decide the credibility of the witness and the evidence. Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
    

Evidence of the Child Complainant

48. The most important part of your task is to judge whether the child witness has told the truth, and has given a reliable and credible account of the events that he was describing. Some of you may have children and grandchildren who are of a similar age to the complainant. If so, I think you will recognize the sense of the advice that I am going to offer you about your judgment of the evidence of the child complainant, but remember that I am speaking only about an approach to consider the evidence. Still the evaluation of the evidence is your responsibility. You do not have to accept my advice, if you do not agree with it.
    
49. Children do not have the same life experience as adults. They do not have the same standards of logic and consistency. Their ability to understand certain events may be severely limited for a number of reasons such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realize that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it. The might think that using of some words are naughty, and therefore find it difficult to speak.
50. Experience has shown a number of things. A child may not fully understand the significance of sexual activities and that may be reflected in the way they remember it or describe it. A child’s perception of the passage of time is very likely to be different from that of an adult. A child’s memory can fade even in the short term. When recounting events later, even a fairly short time later, a child’s recall of when and in what order events occurred may not be accurate. She or he may well not be able to speak of the context in which those events occurred. A child may have particular difficulty dealing with conceptual questions such as how she or he felt some time ago, or why she or he did or did not take a particular course of action.
    
51. Remember how you normally talk to children of this age. You should bear those difficulties in mind when you consider the answers given by the child complainant. All decisions about the evidence are for you to make.
    

Evidence of Recent Complaint

52. You have heard that the complainant had told his grandmother about this incident soon after he came home. The grandmother of the complainant gave evidence explaining how the complainant related this incident to her. This form of evidence given by the grandmother of the complainant is known as evidence of recent complaint. It is not an evidence as to what actually happened between the complainant and the accused. Grandmother of the complainant was not present and witnessed what happened between the complainant and the accused.
    
53. You are entitled to consider the evidence of recent complaint in order to decide whether or not the complainant has told the truth. It is for you to decide whether the evidence of recent complaint helps you to reach a decision, but it is important that you must understand that the evidence of recent complaint is not independent evidence of what happened between the complainant and the victim.
    

Evidence of subsequent behaviour of the accused

54. You may recall that the grandmother of the complainant said in her evidence that the accused approached her once the summons was served. The accused had requested her not to take the complainant to the court. This form of evidence is referred to as evidence of subsequent behaviour of the accused. It is not a direct evidence that can establish that the accused had committed the offence as alleged. You are allowed to take these evidence into your consideration when you consider the whole of the evidence presented during the trial. However, you must be mindful that such behaviour of the accused only cannot make him guilty for this offence. He may have some other reasons to act like this. You have to take into consideration all of these circumstances when you consider the evidence of subsequent behaviour of the accused.
    

Final Directions

55. Madam and Gentleman assessors, I now take your attention to the final directions of the summing up.
    
56. Having taken into consideration all the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged, you can find the accused guilty for the offence of Rape.
    
57. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged, you must find the accused not guilty for the count of Rape.
    

Conclusion

58. Madam and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
    
59. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R.D.R.T. Rajasinghe

Judge

At Suva
10^th December 2018

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Defence.