State v Marawa [2004] FJHC 337; HAC0016S.2003S (22 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC016 OF 2003S

THE STATE

V

NACANIELI MARAWA

Gates J.

Mr N. Lajendra for the State
The Accused in Person

22 April 2004

SUMMING UP

All 3 Assessors present

[1] Lady and Gentlemen Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused’s guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charges against the Accused. Therefore it is for the State to prove each charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of either of the two charges you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of either of the charges you must give your opinion that he is not guilty of that charge. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] The Accused is charged with two counts of rape. But you must consider each of the charges separately, when you examine the case in your deliberations. You are not obliged to find the Accused guilty either on both of the charges or not guilty on both. Look at the evidence as it affects each of the charges separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each of the charges and the evidence available on each.

[7] The Accused elected to give an unsworn statement from the dock. That statement is something which the law requires you to take into consideration together with the evidence. But it is not in itself evidence in the same sense as the statement of a witness given upon oath, for it has not been subject in any way to testing by cross-examination.

[8] You must decide this case upon the evidence presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[9] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on each of the charges against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.
[10] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[11] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statement and the charge statement. In addition, you will consider the evidence that went in by consent of both parties, listed in the paper headed agreed facts. Following correct procedure the two sides have agreed certain issues or facts. These are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed.

[12] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[13] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[14] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the Accused has been proved before you, proved with evidence on each of the two counts.

[17] I turn now to deal with what the prosecution must prove. The Accused is charged on both count 1 and count 2 in the information with rape which is an offence in our Penal Code.

[18] First it must be proved beyond reasonable doubt that the Accused had unlawful carnal knowledge, that is unlawful sexual intercourse with the complainant Salacieli Molidegei, on the two dates. She was called by her relatives Moli and I shall refer to her throughout as Moli. The physical act of intercourse must be proved, that is that the Accused’s penis penetrated the complainant’s vagina. The slightest penetration is sufficient. It is not necessary to prove ejaculation. It has not been suggested to the complainant in cross-examination that an act of penetration did not take place on these two occasions. The complainant also told you the full act of intercourse did take place.

[19] Both in questions he put to the complainant in cross-examination and in his unsworn statement from the dock the Accused accepted that sexual intercourse had taken place between himself and Moli. You will easily conclude therefore that this element of the offence has been proved beyond reasonable doubt.

[20] Second, it must be proved that when the Accused had unlawful sexual intercourse with the complainant he did so without her consent. This includes where intercourse is consented to by the complainant but who only consents because she is forced to do so or is threatened or intimidated to submit to the act, for fear of bodily injury.

[21] In relating what happened on the first occasion, 24 January 2001, the complainant said she sat on her bed in her room upon returning from school. The Accused came into the room and closed the door. He got hold of her hands and tried to make her lie down. When she tried to stand up he grabbed hold of a small stick and beat her on her back, to make her lie down. You will note that at age 17 years today she is still of short stature in comparison with the height and bulk of the Accused. She was 14 then, a school girl from the interior living away from home, and just recently placed by her parents into the care of the Accused and his wife for schooling in Suva.

[22] The second incident on 15 February 2001 was similar. Her uncle came into her room on her return from school. Again he got hold of her hands and forced her to lie down. When she tried to get up he slapped her on the cheek. Then he took away her clothes, before committing the act of intercourse.

[23] Both incidents of violence or threats are denied by the Accused in this court. If you accepted the complainant’s account, hers is clearly an account of forced sexual intercourse sufficient to establish both of these charges. But this is the main issue that you have to decide in this case. Did she consent?

[24] Thirdly it must be proved that the Accused either knew that she did not consent or was reckless as to whether she consented. We know the Accused was aged 51 at the time, married to the complainant’s Aunt and that the complainant was 14. Consider all of the circumstances to decide whether the Accused would have known that this school girl was not consenting to having sex with him. The resolution of this issue is dependent upon who you believe, bearing in mind on this issue as on all, the prosecution must satisfy you beyond reasonable doubt. If you believe the complainant, then it would be obvious that the Accused had had to use violence to get her to consent and would therefore have known she was not consenting.

[25] If you are not sure that he would have realised she was not consenting then go on to consider whether the Accused might have been reckless as to whether she consented. Did he genuinely believe she was consenting? If so, or you are not sure, he is to be acquitted on this count. If you do not believe he thought she was consenting when you consider all of the circumstances, you should convict him of rape.

[26] In all sexual cases, it is necessary that you be directed on the need for corroboration. You should look for corroboration of the evidence given by the complainant Moli that she was raped by the Accused. In the absence of such corroboration it is dangerous to convict on the evidence of the complainant alone. Having warned yourselves of the dangers of convicting on the complainant’s evidence alone without corroboration, you may still convict the Accused on the strength of Moli’s evidence if you consider her evidence alone to be accurate, reliable and credible.

[27] The corroboration required is evidence which is independent of Moli’s evidence and which implicates the Accused in some material way relevant to the charge. Identification of the Accused as perpetrator and the fact of acts of sexual intercourse having taken place are not in dispute here. But there is no evidence that corroborates the complainant’s evidence on the issue of lack of consent. You must decide this issue on Moli’s evidence alone. You may also consider the cross-examination of her by the Accused who suggested that they had had consensual sex together on several occasions. How well did she cope with these suggestions? She denied them and said it was only on two occasions not several that sex had taken place, and she kept to her account that she had been forced. Do you believe her? Bear in mind also the unsworn statement of the Accused that they had had unforced sex on four occasions. Remember though that the Accused did not have to undergo cross-examination on his statements, whereas the complainant was cross-examined on her sworn evidence.

[28] The Accused has had to conduct his defence without the assistance of counsel. Do not hold against him the fact that he may not have conducted that defence ably. Make allowances for him with that disability.

[29] The complainant told you that prior to the day of the first rape incident she had been a virgin. At the first incident, she bled and she suffered "a strong pain" she said. The blood went on the floor and on her uniform. She related how these matters eventually came to light. One of her Aunts, Merewalesi Baba, who testified in this trial, asked her on 13 July 2001 if she were pregnant. The complainant replied that she did not know. Her Aunt made a physical examination of her and concluded that she was. She asked the complainant who the father was and Moli said it was her Uncle Nacanieli Marawa, the Accused.

[30] Sometimes this type of evidence is referred to as recent complaint evidence. In this case the complaint was not really volunteered. It was brought to light by the prodding of another, the all-knowing Aunt. Second, the complaint was made some 5 months after the last incident and could hardly be regarded as recent. The complainant told you why she had not dared to tell anyone what had happened.

[31] The Accused had threatened to kill her and Moli believed him. He had already meted out violence with the stick and the slapping. This type of evidence given by the Aunt of the complaint made to her cannot corroborate the complainant’s story but it can show consistency on Moli’s part. Very little assistance however can be derived from this particular evidence for the reasons I have given. It could equally be inferred that the complainant wanted to conceal an illicit affair with the Uncle and only when her pregnancy had been discovered by others did she come out with an allegation of force. It could lend support on the other hand to her account that she was still subject to the threats and force exerted by the Accused on her to consent and to keep quiet.

[32] My direction to you is to place little weight on this recent complaint evidence and to concentrate instead on whether you believe the account given by the complainant in the witness box, and when cross-examined by the Accused.

[33] I turn now to the forensic evidence. Originally in his caution interview statement the Accused had denied responsibility for making the complainant pregnant, and appeared to deny any improper sexual involvement with her. Later in court, as we have heard, he said he had had sex 4 times with her, all with her consent.

[34] The total effect of the forensic evidence is to say that the blood samples taken from the Accused, the complainant and her child, meant that the Accused could not be excluded as a potential father. Dr Prashant Samberkar, the forensic pathologist, said that if he had had DNA samples he could have been 95% specific as to the father of the child. But with blood grouping he could only be 50% sure the Accused was the father.

[35] This was less than scientifically conclusive. The Accused no longer denies intercourse with the complainant at the times alleged in the charges. The complainant said she gave birth on 23 October 2001, which is almost exactly 9 months after the first incident. This incident could have been the relevant date of conception, and the forensic evidence does not exclude the Accused as the father, because of the child’s similar blood group.

[36] So the case now centers on the issue of consent. However when charged with the offence the Accused said:

"I wish to state that this is a lie and that when this Salacieli Molidegei became pregnant that (is) when she accused me."

[37] Nowhere in the caution interview had the Accused indicated that he admitted having consensual sexual intercourse, whether on several occasions or 4 times with the complainant. There was no mention of an affair between Uncle and niece. Everything appeared to be denied. Nor was there an admission of consensual sex made in the Agreed Facts. When asked if he wished to say anything else the Accused in his interview said:

"I would like to say that I am very ashamed of the allegation against me since it is such a big allegation and also lies. I did not believe that Moli would do this to me."

[38] If you disbelieve the complainant on force, that is the end of the matter on the charge of rape. Similarly you should acquit the Accused on rape if you have a reasonable doubt.

[39] The Accused has addressed you and said he had sex with consent of the complainant. If you have doubts about the complainant’s evidence or disbelieve her when she said she was forced, the correct opinion to tender would be one of not guilty of rape but guilty of defilement of a girl between the ages of 13 and 16, an offence contrary to section 156(1)(a) of the Penal Code.

[40] By virtue of section 176 of the Criminal Procedure Code when a person is charged with rape and the court is of opinion that he is not guilty of that offence but guilty of an offence under one of a list of alternative offences, the relevant one of which here is the offence of defilement which I have just referred you to, the court may find the Accused guilty of the alternative offence.

[41] There is no suggestion that the Accused thought this Form 3 student in his care was over 16 years of age, whilst consent is not a defence in law to a charge of defilement. The acts of unlawful sexual intercourse have been admitted in this trial.

[42] To return to the information before you. If you believe the complainant is telling you the truth about being forced and threatened and accept her explanation for not bringing this matter to light earlier, you may properly convict the Accused on the 2 counts of rape. But if you believe the complainant gave her free consent, then your opinion will be not guilty of rape but guilty of defilement. These are matters for you to consider along with all my directions before you arrive at your opinions.

Please now retire to deliberate on your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: In Person