IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 39 of 2017

THE STATE

V

ULIANO SAMUNAKA

Counsels:	Mrs. A. Vavadakua for the State
		Ms. L. Boseiwaqa (L.A.C.) with Mr. U. Koroi 
		for the Accused

Date of Trial: 		16, 17 August 2018
Date of Summing Up: 	17 August 2018

SUMMING UP

1.	Ladies and Sir,

2.	The time has now come for me to sum up this case for you. My 	duty in summing up is two fold. I will direct you on the 	applicable law and you must accept what I say about the law. I 	will sum up the evidence for you but you don’t have to accept 	what I say about the evidence or the facts. That is because you 	are my advisors and you will assess the evidence and after 	applying the law to that evidence you will tell me in your 	opinion whether the accused is guilty or not of rape. I don’t have 	to follow your opinions, but I will give them great weight when I 	come to the make the final judgment of the Court.

3.	You must judge this case solely on the evidence that has been 	placed before you in this Courtroom and on nothing else.

4.	Evidence in any case consists of the oral testimony of all 	witnesses, together with all documents, and in this case that is 	the evidence of two prosecution witnesses, four defence 	witnesses and the medical report. You may accept the evidence 	or reject it. You may also accept part of a witness’ evidence or 	part of a document and reject the rest. It is entirely a matter for 	you. You will not consider as evidence anything that someone 	has told you outside or anything that you may have read or 	seen in the media. You may have heard me in the course of the 	trial express an opinion or make a remark about the evidence. 	You must ignore that completely and come to your own views 	about the evidence placed before you.

5.	Counsel addressed you this morning on how you should find 	the case. That is their duty to the court. You do not have to 	accept what Counsel tells you, unless you agree with them. You 	will make up your own minds on the evidence. 

6.	Please do not be influenced by any sympathy or prejudice you 	may feel towards anybody connected with the trial, it is your 	duty to come to your opinions solely on the facts as you find 	them in accordance with my directions on the law.

7.	I repeat what you have been told several times about the burden 	and standard on the prosecution. You hear this often because it 	is very important. The State must prove to you so that you are 	sure that the accused is guilty of these crimes. That is a burden 	on the State throughout the trial and to be sure means that 	there can be no reasonable doubt in your minds. 

8.	As you are aware, the accused has been charged with rape. For 	the purposes of this trial the Law says that rape is committed 	when a man penetrates a woman’s vagina with his finger or 	fingers without her consent. 

9.	Therefore before you can find Uliano guilty you must be sure 	that it was Uliano and that he had used a finger or fingers to 	penetrate Koleta’s vagina that night and it was without her 	consent. 

10.	You will note that the defence are not disputing that this 	happened to Koleta against her will but they are saying that it 	was not Uliano. That remains then the sole issue for you to 	decide assessors, was it Uliano or not?

11.	I know that you heard the evidence only yesterday bit it is my 	duty to summarize it for you in fairness to both sides

12.	Koleta told us that she is married and that she lives with her 	husband, her mother-in-law and a young uncle called Sakeo.

13.	During the night leading to the 23 July 2017 she awoke from 	sleeping in pain. There was a heavy person lying on top of her. 	She opened her eyes and saw the accused. He was using his 	fingers to play with her and penetrate her. She asked him what 	he was doing, and telling him that it was very painful. He 	pressed his hand and mouth on to hers to keep her from 	shouting out. She tried to move around to evade him and shout. 	He punched her twice on her right thigh. He tried to force her 	legs apart but wasn’t able to. He then stood up and went to 	stand in the kitchen, where she could see him by the light that 	was on there. She had known him for 14 years because they 	lived in the same village. When this happened it was sometime 	between 2am and 	3am and he was in her room for about 15 	minutes. At the time her husband was in another part of the 	village drinking yaqona. 	He didn’t return until about 3pm that 	afternoon. She told him 	what had happened. He wanted to go to 	find Uliano but she said: “Enough already. I have already told 	the Turaga-ni-Koro and the Police. ”

14.	In cross-examination she added that after the accused had left 	her house she had shouted out and had asked her young uncle 	Sakeo to run after the fellow. She told Sakeo that he was the 	same build as Mokambo. She didn’t want to tell Sakeo that it 	was Uliano because she was ashamed and her body was weak. 

15.	The young Doctor told us about his medical examination of 	Koleta the next day, (the 24th) at the Korovesi Medical Centre. 	He noted two bruises on her right leg one on her lower thigh 	and one on her upper inner thigh. He said that these would be 	caused by violent blunt force trauma and were likely to be 	caused by a punch etc. 

16.	Now that was the end of the prosecution case. You heard me 	explain the charge again to the accused and you heard me tell 	him what his rights are in defence. He could give evidence and 	be cross-examined or he could remain silent and say that that 	the prosecution had not proved the case against him beyond 	reasonable doubt. Either way he could call witnesses.

17.	As you know he elected to give evidence. Now I must direct you 	again that the accused does not have to prove anything to us. 	The burden of proof always remains on the State. Even if you 	don’t believe his evidence it does not make him guilty if the 	State hasn’t made you sure that he raped Koleta with his 	fingers.

18.	Uliano told us that in the evening of the 23rd July 2017, he was 	drinking grog in the village with a group of his friends. They 	drank until about 11 pm. It was after that that Sakaraia invited 	him to drink home brew in a deserted house in Navutu, a 	neighbouring settlement. He went and drank there with some 	others. In the course of the night, he had an argument with 	Uraia which developed into a physical fight. They were very 	drunk. He left the house and went to the roadside where the 	home brew drinking had resumed. He joined his friends who 	had two buckets of home brew with them. After drinking one 	and a half buckets, he went home with Sakaraia. They were 	drunk but he says they knew what they were doing. 

19.	When they got to the village Sakaraia went to Alipate’s house to 	get food and he went to the toilet. He then went to Kolinio’s 	house with Sakaraia and they slept in the sitting room there. 	He woke up at about 10.30 in the morning and Sakaraia was 	still asleep. 

20.	He never went to Koleta’s house that night and when he heard 	the allegations, he just laughed. He said that he had travelled a 	lot at both home and abroad and he had met lots of women. It is 	for you to decide what he meant by that statement.

21.	He didn’t sleep in his own house because he didn’t want his 	family to see him so drunk. 

22.	Uliano called Sakaraia as his first witness. He is what we call an 	alibi witness, who along with Mataiisi were called to say that he 	was not at the scene of the crime when it was committed. As the 	prosecution has to prove his guilt so that you are sure of it, he 	does not have to prove that he was elsewhere at the time. On 	the contrary, the prosecution must disprove the alibi. 

23.	Even if you conclude that the alibi was false, that does not by 	itself entitle you to convict the accused. It is a matter which you 	may take into account but you should bear in mind that an alibi 	is sometimes invented to bolster a genuine defence. 

24.	Sakaraia told us that he was drinking grog then a few of them 	went to drink home brew. He saw the accused and Uraia have 	the fight and he tried to stop the fight twice. He (Sakaraia) and 	Kolinio took one bucket to drink outside. They sat at the 	roadside. Both Uraia and Uliano came and joined them. They 	drank a lot and then Uraia ran away. Then he and Uliano 	walked back to the village. He went to his sister’s house to get 	food and Uliano went to his own house. Sakaraia went to 	Mataiasi’s house and slept. At some stage he “felt” that Uliano 	had come into the room to sleep.

25.	It is of course for you to decide what to make of Sakaraia’s alibi 	evidence. You should ask yourselves.

•	Did his evidence accord with what Uliano told us?
•	Were there times that he was unable to account for 	Uliano’s whereabouts?

26.	The second alibi witness was Mataiasi Kolonio, another friend of 	the accused. He said that the accused and Sakaria slept in his 	house that night, but once again he was not able to help us 	account for the accused’s movements and whereabouts for the 	whole night. You might think he was not a very helpful witness 	at all, but again it is a matter for you to decide, not me. 

27.	The final witness for the defence was Sakeo Matakuru.  The 	young boy Sakeo told us that on the night of 23 July 2017 he 	was sleeping at Koleta’s house when he heard Koleta shout out. 	She said that somebody had been in her room and had “done 	something” to her.  It was somebody of a big build and she gave 	two names, Uliano and Makama.  After the culprit had left her 	room and went outside, Koleta had heard a dog barking and she 	told Sakeo to go and look for the man.  He couldn’t see anybody.

28.	Well that was the end of all the evidence in the case and you will 	consider it all in your deliberations. Remember that the defence 	case is that the wrong person has been charged. Uliano says he 	never went to Koleta’s house that night. 

29.	Your possible opinions on the evidence are guilty or not guilty. I 	would ask that you try to be all agreed on your opinions but 	that is not strictly necessary. If you cannot agree, I will accept 	your 	individual opinions.  Please let a member of my staff know 	when 	you are ready and I will reconvene the Court. 

30.	You may leave us now but just before you go I will ask Counsel 	if there is any matter of law that they want me to add or amend.

31.	Counsel?

		P. K. Madigan
	   Judge
At Labasa
17 August 2018