IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No HAC 30 of 2017

STATE

V

TAITUSI MANUCA
1st Accused

JONE COLATA
2nd Accused

Counsels:	Ms. A. Vavadakua for the State
		Mr. J. Korotini for the 1st Accused
		Ms. K. Boseiwaqa for the 2nd Accused

Dates of Hearing:		30, 31 July 2018
Date of Summing Up:	01 August 2018

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 just 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.	Each 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 direct you to note that penetration by finger is rape as well as 	penetration by the penis. 

10.	The first accused is charged with one count of penile rape and 	one count of sexual assault. 

11.	The second accused is charged with one count of digital rape 	(i.e. rape with finger) and one count of penile rape. 

12.	Before I direct you on the law of these offences, I direct you to 	look at each accused separately and each offence separately. 	That is that if you find that Taitusi sexually assaulted Mrs. 	Briscoe it does not necessarily mean that he raped her. In the 	case of Jone, you must look at the evidence of rape by finger 	and rape by penis separately.

13.	Again if you think that Taitusi is guilty it doesn’t follow that 	Jone is equally guilty. The evidence in respect of each accused 	is different and you will look at each accused differently.

14.	So to prove a charge of rape, the Prosecution must prove to you 	so that you are sure that

•	It was indeed the accused whose case you are 	considering, who
•	Penetrated the vagina of Mrs. Briscoe either with his penis 	or his finger, and 
•	When he did this act Mrs. Briscoe was not consenting and 	he knew that she was not consenting, or that he was 	reckless in penetrating her without knowing if she were 	consenting or not. 

15.	An accused is reckless if he did not believe that she was 	consenting and could not have cared less whether she was 	consenting or not but pressed on regardless.

16.	To prove a charge of sexual assault, the State must prove to you 	that it was indeed the particular accused who is charged and 	that he assaulted the victim in a sexual manner without her 	consent. If you accept the evidence that Taitusi did in fact 	massage Mrs. Briscoe by way of masturbation then I direct you 	that this is sexual assault in law. 

17.	I know that you heard the evidence only in the last few days and 	that it will be fresh in your mind. However it is my duty to 	remind you what I think are the important pieces of evidence for 	you to consider. I remind you that as masters of the facts, you 	do not have to accept what I think is important unless you 	agree with me. It is for you to place weight on whatever evidence 	you may think appropriate. 

18.	Mrs. Briscoe is the complainant and the alleged victim of this 	case. She told us that she is a New Zealander who moved to 	Tavenui with her husband in May 2017, to set up a business. 	She gave evidence screened from the two accused. The witness 	was very nervous and distressed as you saw, and I allowed a 	screen to be used to alleviate any additional pressure she may 	have felt describing these assaults while looking at her alleged 	assailants. Please do not judge the evidence either for the 	accused or against the accused because of this. The screen does 	not give the witness any special status, nor should it be 	regarded as a slight against the accused. Please don’t use the 	use of a screen as a factor in your deliberations. 

19.	On the 7th July 2017 Mrs. Briscoe and her husband decided to 	go to the beach in the evening to relax and drink some beer. 	They were joined by the second accused and his girlfriend and 	then later by the first accused and his girlfriend. Beer was 	shared, with a trip to the liquor store to get more. At midnight 	they all went to town where they bought a bottle of rum and 	went to a drinking spot that the two accused recommended. 	They spent an hour there then the two girls were delivered 	home. 

20.	At about 3am, it was decided after discussion that they would 	have a final drink at Korean Wharf another local popular venue. 	It was at this place that Mrs. Briscoe alleges the offences took 	place. Both she and her husband went for a short swim then 	returned to the vehicle. Her husband and the two accused were 	drinking the rum at the back of the vehicle and she drank some 	as well. At this stage Mrs. Briscoe said she had had enough and 	she went to sit in the front passenger seat with the door open. 	Music was being played from a facility on her phone. She had 	been wearing long trousers covered with a long top earlier but 	she had removed the trousers to swim. When resting in the 	front seat she was wearing only the long top over her 	underwear. 

21.	She fell asleep and woke to feel a man’s body on top of her. Her 	pantie had been pulled to one side and he was penetrating her 	while kissing her neck and mouth. She immediately realized 	that it was not her husband and she was confused because she 	did not know where her husband was. She was frightened, did 	nothing and said nothing. She knew that the man on top of her 	was Taitusi, the first accused. The second accused whom she 	referred to as Jo was standing outside the vehicle talking to the 	first accused. She said that she knew it was Tai because they 	had different body types and after spending the night with them 	she was familiar with their voices. In addition she said that the 	second accused had a distinctive bad body odour and she knew 	it was Taitusi and not Jo. The first accused apart from 	penetrating her, masturbated her with his hand and tongue. He 	massaged her breasts and thighs. He ejaculated on to her. 

22.	Taitusi then stepped aside and Jo took his place. Jo put his 	mouth on her and penetrated her as had Taitusi done. She 	knew it was Jo because she heard them talking. They were not 	violent or nasty; they were almost gentle. She said she was 	drifting in and out of consciousness. 

23.	She could recall that she was penetrated by each of the men’s 	fingers. 

24.	After Jo had finished she heard her husband’s voice outside the 	vehicle; he was obviously unaware of what had taken place. 	When the two accused heard the husband come back, they 	immediately adjusted Mrs. Briscoe’s clothes and put her into a 	sitting position in the front seat. Her husband said it was time 	to go home and the two accused got into the back seat. Mrs. 	Briscoe pretended to be asleep but whispered to her husband to 	“get them out of the car”. Mr. Briscoe was disorientated and she 	wasn’t sure that he heard her. They drove to the main street 	and the boys got out of the car. It was then that the witness told 	her husband that she had been raped. She saw that her 	husband had a bruise or mark on the top of his head. She 	thought it looked like the mark of assault. They immediately 	went and alerted family who arranged for them to go to the 	Police and from there to the Hospital. At that time it was dawn. 	In cross-examination she said that there were no other people 	around at Korean Wharf. 

25.	The second prosecution witness was the husband, Mr. Kent 	Briscoe. He told us of the well-known early stages of drinking at 	Denny’s Park and Matei until they got to Korean Wharf. It was 	about 3 to 4 am. At the wharf they opened up the doors, folded 	the back of the truck down and played music. They went for a 	swim. He got out dressed and they were talking and laughing. 	That is all he can remember. There was no one else around at 	Korean wharf. They dropped the 2 boys off and it was then that 	his wife told him that she had been raped. He said that she was 	shaking, crying and completely distraught. She told him about 	it as soon as the boys got out of the car. Mr. Briscoe said he had 	a swollen lump on his head and he was bruised. He doesn’t 	remember being hit. He was unaware that he had been 	unconscious and thought perhaps he had concussion. 

26.	He had spent several hours with the boys and identified them in 	Court. He noted the significant difference in their body size. He 	remembers that his wife went for a swim while he and the two 	others were standing around the back of the car. After swim she 	drank one more rum and then went to sit in the car to rest. He 	doesn’t remember anything after that. He went to the Police, to 	the hospital where he was examined, and then back to the 	Police Station to make a statement.

27.	In cross-examination he denied that a third boy came to ask 	him for cigarettes as well as denying that Jone helped Taitusi to 	help him back to the vehicle before driving off. 

28.	A medical officer gave evidence about her examination of both 	Mr. and Mrs. Briscoe on the 8th July 2017 at the Taveuni 	Divisional Hospital. Her examination of Mrs. Briscoe revealed a 	swollen lower lip, an injury that appeared to be 2 to 3 hours 	old. There was an obvious laceration/bruise noted on a vaginal 	examination. The patient was smelling of alcohol but not 	disorientated. 

29.	She said that the examination of Mr. Briscoe revealed a wound 	on his scalp with fresh blood noted. That wound and its 	resultant bruise would have been inflicted within the previous 	12 hours. He was distraught, smelling of alcohol, crying while 	pacing up and down. He was in a state of shock and his injuries 	were not consistent with having fallen over. 

30.	Well Ladies and Sir, that was the end of the prosecution case. 	You heard me tell the accused what his rights are in defence. 	He could remain silent and say that the prosecution case could 	not prove the charges beyond reasonable doubt or he could give 	evidence before the Court. In either case he could call 	witnesses.

31.	As you know, both accused chose to give evidence to the Court. 	I must direct you that an accused person does not have to prove 	anything to you. Even if you don’t believe a word he says, that 	doesn’t make him guilty if the state have not proved to you so 	that you are sure, that he committed these offences. The burden 	of proof is always on the Prosecution even throughout the 	defence case. 

32.	The first accused whom I will call Taitusi told us about being at 	Denny’s Park drinking with the European couple. I will now skip 	to his evidence about Korean Wharf because that is the relevant 	location for the purposes of the charges against him. There were 	about 8 other groups drinking there. Mr. Briscoe went for a 	swim but his wife didn’t. They all stood around the car drinking 	rum.  Taitusi lay on the vehicle tray to have a rest. He didn’t 	talk to anybody else and he was awake all the time.  Somebody 	came 	and pressed his pocket but by the time he 	looked up that 	person was walking away and he didn’t know who it was. 	Taitusi says he was not drunk. He saw Mr. Brisco sitting on the 	wharf naked. Jo was still in the back seat and Mrs. Brisco in 	the front seat. He told Mr. Briscoe that it was time to go 	because there  were  a  lot  of  people  about and morning	was dawning. However Mr. Briscoe could not stand - Tai 	couldn’t lift 	him so he went and asked Jone to help. They 	carried him and put him in the driver’s seat. He said he was 	quite capable to drive. They left Korean wharf and they were 	dropped off in town, Jone first at MH and then Tai at Naqare. 	On the way to town, the couple asked then to go for a lovo 	picnic the next day but the next day they were arrested. 

33.	In cross-examination he denied having taken advantage of Mrs. 	Briscoe and raping her and said he was not admitting to 	anything

34.	Taitusi’s witness was Mr. Tui who said that at Korean wharf he 	was in a different drinking group. At the time he saw the first 	accused with two Europeans and the second accused. He went 	over to get cigarettes and spoke to the European man who gave 	him cigarettes for free. Half an hour later he went back, saw the 	European man falling off to sleep beside the van. Taitusi was at 	the back of the car. He touched Tai on the pocket looking for 	cigarettes, No one woke up so he returned to his group. There 	were a lot of drinking parties there at the time and he saw Tai’s 	group all leave together.

35.	Ladies and Sir, it is up to you what you make of Tui’s evidence 	and whether it is useful or not to the first accused. 

36.	That was the case for the first accused in defence.

37.	The second accused gave evidence and told us that the group 	went to Korean wharf on Mr. Briscoe’s request because it was 	nearer town. There were a lot of drinking parties there at the 	time. On arrival everybody got out of the car and drank one 	round of rum. Jo vomited and went to lie down on the back 	seat. Mr. B. told him to lie there. He slept for about 2 hours 	until Tai woke him up to help carry Mr. B. back to the car. They 	did that and Mr. B. said he would drop them in town. Jo got off 	at MH. On the way to town they asked him to help make picnic 	lovo the next day. 

38.	He certainly didn’t commit the offences he has been charged 	with. He was asleep all the time and only woke up when they 	were about to leave. 

39.	Jone called Savanaia as his witness. Savanaia said that he went 	to Korean wharf to drink at about 10pm. He was drinking in a 	group of six until about 8 the next morning. There were a lot of 	groups and a vehicle came and parked. He didn’t see Jone that 	night.

40.	Well you might think that Savanaia’s evidence was of little help 	to us or to the second accused, but it is again a matter for you. 

41.	That Ladies and Sir was all the evidence in this trial and you 	are to judge the case on this evidence and nothing else. Please 	don’t judge it on what might be your disapproval of people 	drinking to excess over a long period. And I am sure I need not 	remind you that white people are not to be treated differently to 	iTaukei people in their behaviour or evidence. 

41.	Both accused say that it was not them who committed rape or 	sexual assault and therefore the issues for you to decide are 	these:
•	Was Mrs. Briscoe raped and sexually assaulted?
•	Was this done without her consent
•	Was it the first accused who raped her and assaulted her?
•	Was it the second accused who also raped her once with his finger and once with his penis?
•	If they did that did they know she wasn’t consenting or were they reckless in proceeding not knowing about that consent?

42.	If your answers to these questions is yes then you can find each 	accused guilty of the offences. 
43.	The alternative opinion you might come to is not guilty if you 	think that the State has not made you sure that either of these 	accused committed the offences. 

44.	I will dismiss you now and let you deliberate on your opinions. 	Let my staff know when you are ready and I will reconvene the 	Court.

45.	However I ask counsel if they wish me to add or to amend any of 	the legal directions I have given you.

46.	Counsel?

		P. K. Madigan
	    Judge
At Labasa
01 August 2018