State v Balemaira [2010] FJHC 520; HAC116.2008 (1 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC. 116 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

KALIOVA VUKI BALEMAIRA
ACCUSED PERSON

Counsel: State - Ms. S. Puamau
Accused Person - Ms. B. Malimali

Date of Hearing: 5th October- 28th October 2010

Date of Summing Up: 1st November 2010

SUMMING UP

Madam Assessor and Gentlemen Assessors.

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The Counsel for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

[4] You will not be asked to give reasons for your opinions, but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you, that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law, that the burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system, accused person is presumed to be innocent until he is proved guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.

[7] Your decisions must be solely and exclusively upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, through print or electronic media or outside of this courtroom.

[8] As a matter of Law may I direct you on circumstantial evidence.

In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events, that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

[9] I cite the following situation as an example for circumstantial evidence. In a silent night you hear cries of a man from a neighboring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity, you go inside the house to see what really happened. You see your neighbor 'Y' lying fallen with injuries. Here you didn't see 'X' committing any act on 'Y'. The two independent things you saw, were the circumstances of the given situation. You connect the two things that you saw and draw certain inferences. An inference you may draw would be that 'X' caused the injury on 'Y'. In drawing that inference you must make sure that it is the only inference that could be drawn and no other inferences that could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn against 'X' in the circumstances. Further in evidence one witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime.

[10] Therefore you must consider all direct evidence as well as circumstantial evidence.

[11] It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused person having committed the crime. To find him guilty you must be satisfied so as to feel sure than an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt, that the Accused person committed the crime.

[12] Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt, that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven, is credible and truthful.

[13] A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case two expert witnesses gave evidence. They are Forensic Scientific Officer Epi Vakatava and Dr. Kaustino Tiko. Their expertise on the relevant field was admitted and not challenged by the defence. Therefore the opinions they gave on their relevant subject is admissible.

[14] As a matter of Law I must direct you on hearsay evidence. As an example from this case when Chad Miller gave evidence he said, when he asked Talei, for Vuki and Marjorie as he noticed one room was closed, that Talei said, they were in one of the rooms together. Here, Talei is not a witness in this case and therefore anything that Talei had told to the witness Chad is hearsay evidence. Such things said outside court by someone who is not a witness in the case, is hearsay and such evidence is inadmissible. You can however consider whether such a statement by Talei had in fact being made to witness Chad. If you consider the fact of Chad hearing such statement from Talei is relevant in assessing the evidence of Chad, you can only consider the fact of making the statement to Chad by Talei. In short what you can consider is, with such a statement was made to the witness Chad, but not the contents or their truthfulness of the statement that is alleged to have been made to Chad by Talei.

[15] In this case when the prosecution witness Taraima Mitchell gave evidence she said that she didn't see Marjorie and Vuki were hooking up, but that she heard it from Matelita. The same legal principle on hearsay as I mentioned above applies to this as well as Matelita is not a witness in this case. The same witness Tareima said in evidence, that Talei told her that she had to chase Vuki out of the room. Same principle applies, as Talei was not a witness. Likewise where witnesses gave evidence on what others said, who were not called as witnesses, are hearsay evidence and the same principle applies.

[16] Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[17] There is more than one count on the information. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty on the other.

[18] The accused is charged on two counts of rape contrary to sections 149 and 150 of the Penal Code and one count of larceny contrary to sections 259(1) and 262 of the penal code. The accused was found not guilty on count no. 3, larceny and that count need not concern you.

[19] The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence are;

1. The accused had carnal knowledge of the complainant,
2. Without her consent,
3. He knew or believed that she was not consenting or didn't care if she was not consenting.
   

[20] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.

[21] Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[22] In this case the accused admits that he had sexual intercourse with the complainant Marjorie Parr. He says that it was with her consent.

[23] Where the consent is obtained through fear or by threat, then that is not consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

[24] In this case, the victim Marjorie Parr said that the accused inserted his penis into her vagina without her consent. Evidence on each count you have to consider separately and it is a matter for you to decide whether she consented or not.

The Evidence

[25] The alleged victim Marjorie Parr gave evidence for the Prosecution first.

Her evidence was that she was selected to play in the Fiji world cup netball team. World cup championship tournament was held in New Zealand. Her husband too had been in New Zealand to support her. Out of the players in the team she had been particularly close to Taraima Rara, Talei Bari, Simoni Nailatu and Matelita Shaw she said. After the world championship tournament they returned to Fiji on 19th November 2007. She came to Fiji with the team, but her husband had to go to Sydney because of their son. On the 19th November, at Suva, the team was released by 7am at Civic Centre. In the evening they went to Taraimas' father's villa at Pacific Harbour. When they arrived at the villa it was around 7.30pm. Taraima, Matelita, her one year old son, Matelitas' Nanny and Talei had travelled with her to the villa. Taraima allocated the rooms and she was to share the bed room with Talei. She explained in her evidence, the layout of the villa.

[26] They had dinner and were planning to go to Uprising. They had drinks at the dining table. Taraima got a phone call from Lionel. Taraima asked them if Lionel comes to Uprising to join them.

Originally she and Talei said 'No' as it was the girls going out.
Lionel called again and Lionel arrived between 9-10 pm. Then Vuki whom she didn't know had called Matelita to join them. They briefly discussed and Talei said 'No' as they didn't want any boys there. As two girls vouched for him, she had said that he could come. Vuki arrived with Chad Miller around 11 pm. There had been another guy as well. Four girls and four boys went in two cars to Uprising, and the bar was closed. They came back to the villa. They started drinking outside the pool. They were pushing each other into the pool. Witness said that she went to the bedroom to change, where Taraima had to fetch her, a towel. Talei came to check on her. At that time as Vuki had been standing at the door, Talei had yelled at Vuki saying get out what does he want. Talei had basically told him that he should not be at that end of the house. She went back outside to say good night to boys and girls, finished her drink and went to bed.

[27] She said that she fell asleep and was awaken by somebody pulling her legs. She felt someone grabbing her breasts. Then she realized that she had no bottoms on, no pants on. She heard a voice, telling her to keep still and to keep quiet. She realized what was happening. There was a man with no clothes on. She felt his hand going up her top. She tried to put his hand down and said 'No', she said. She was on the bed facing up and she felt her leg pinned up. It was his torso, upper part of his legs, his groin pinned her she said. She had her eyes closed, her head was turned. He kept telling her to keep still. She could feel his penis going inside of her. She had told him "No, I have my periods. I am married and I have a son." He had said "I don't care, I don't mind" He kept going. He was having intercourse by putting his penis inside her vagina. He stopped and she felt that he finished. She said that he then pulled up her shoulders and turned her over. Then she was face down and he tried to enter her from behind.

[28] She said, at that time he tried to move her knees, her legs. He was trying to separate. He separated and managed to put his penis inside her vagina. She said that she remember moving her arm and her legs, pushing him off. She remembers pulling a bed sheet, which he pulled back. She pulled the sheet over her body. She got to the door, to see the door was locked. She unlocked and opened the door and he was sitting on the bed. She stood in the doorway and had said "Do you know what you have done to me. In the eyes of god and the law and my family do you know what you have done?" He had said "Yes". She had further said that she was 31, married and had no intention to sleep with another man. She was hurt that somebody disrespected her, she said. She identified the man as the accused.

[29] Then she left the room, to the living room. Talei and Taraima had been sleeping on the couch. She was feeling faintish. She woke them up and told them that she was just been raped. She said that Talei said, "What" and Taraima turned up and said, "where". Taraima and Talei took her to the master bed room. She was in a shock she said. She called and told her husband, and at the same time Taraima was on the phone calling the police. Her husband had informed her cousin and her cousin arrived.

[30] Police arrived and she went to the police station with them. Her statement was recorded. Recording of statement was interrupted and she was taken to hospital. She was examined by a doctor, and then was taken back to police station and recording of her statement continued. She was taken back to the villa for the forensic police to identify the room. Forensic police took photographs, and collected her underpants and shorts. From there she went home. Her husband arrived that night. They left the country about 24 hrs later.

[31] On the way they stayed in Nadi at Radisson Hotel. She got stomach pains and she said that she passed a tampon in the bathroom. She said that she doesn't even allow her husband to have sexual intercourse with her when she is having her periods.

[32] In cross examination she was questioned at length on the positions she played and her role in those positions in the Net Ball team. She said she did counseling, and for last three years she and her husband rarely discussed this sexual attack. She said that at the party they were joking around, but denied any flirting going on. She could recall her and Taraima in the pool, but said that she can't recall Chad and Talei in the pool. She said that she was in the pool for about a minute or two minutes. She admitted, that she had not told in her statement, that Talei came to the room to check on her.

[33] Further she admitted that she has not mentioned in her statement to police, that when Talei was going out, she yelled at Vuki to get out, what does he want. She admitted that it was an important piece of evidence. She said that she was in shock. Couldn't believe what happened and that her head was spinning when she was sitting at the police station. Further she said that the witnesses were lining outside the window from where she was sitting. She admitted that she had not told the police in her statement, that her leg was pinned up to the side, but said that she had said to the police, that he was locking her legs. Further she admitted not telling the police that his torso was pinning her legs to the side. When she was asked why she didn't scream, she said that she partially froze, her mind stopped, he told her to keep quiet, and that she felt that she was in danger. Further she said that she started crying. She couldn't understand what he was saying and that she got scared. Answering further questions she said that she didn't scream, because she thought that she would be harmed, and that she wouldn't be able to see her husband, kid and the family. She denied the suggestion put to her, that she did not scream because she was not raped. She denied when it was put to her that, she made this story up because other people in the house knew that the two of them had hooked up and gone off to the bedroom together. She didn't agree with the suggestion of the defence, that it was physically impossible to insert the penis into the vagina in that position, and she explained how it was done. She said that it was wrong when she told the police that he was locking up her legs when he was penetrating. On this she said, what she was telling at the police station was very confusing, repeated sentences were being asked, whole time she was crying and wanting to stop. She wanted the statement completed because it was taking too long.

[34] She denied lying to court, and denied that it was a physical impossibility to have intercourse for the second time as she described in her evidence.

[35] In cross examination, on the tampon, she said that she couldn't remember whether she told the Doctor about her periods, and further said that the Doctor at the examination did not mention about a tampon. She said that she didn't realize that she was wearing one. The version of the defence was put to the witness, that they had sex with consent which was denied by the witness. It was put to her that she was not raped, and that she was feeling guilty, which she denied.

[36] The next witness for the prosecution was the husband of the alleged victim, Scott Keneth Parr. His evidence was, on 20th November 2007 when he was at his parents house he received a call from his wife Marjorie. The call came early in the morning and she called in terror he said. She was sobbing and struggled to talk. She said she was raped. He felt sick and helpless. He inquired more from her and asked her to call the police. She had said that the girls are already on the phone for police. He called her cousin Lagi Peters and told him to go to Pacific Harbor straight. He had many conversations with her that day. He booked the 1st available flight from Sydney to go to Fiji. He arrived at Nadi on 20th November by 9.30-10.00 pm, and arrived at his wife's family home in Nausori about 1.00am. Wife was crying and he tried to comfort her. She was pale and somewhat lifeless.

[37] On police instructions they went to Navua Court house as charges were being read to accused. They booked the flights to travel back to Sydney and went to Nadi in the afternoon. Flights were booked for next morning and they stayed at Radisson Hotel. He said, wife was in pain and had cramps. After dinner wife went to the bathroom and called him shortly afterwards. She passed a tampon. She had said "My god I still had a tampon in." She felt sick and was scared because they were planning to start a family. That she may have had some serious or permanent damage. He called a doctor. Dr Francis Bingwor, he said. Early in the morning before the flight, he tried to contact the police but failed.

[38] He said that after the incident she was depressed, short memory, and sudden changes in movements. She was seeing counselling. He too attended sometimes. He said finally his wife is scared of all Islanders. They don't mix with the Fijian community any more.

[39] In cross examination he said that he didn't give a statement to police on the day he went to Navua Court, as he was not asked to. He said that he also contacted the Australian Federal Police. On counselling he said that it was not directly at the hospital. She was physically examined at the hospital and was referred to a sexual assault clinic in Wollongong. He said that he couldn't recall the exact words Marjorie told the doctor there, when she gave the history.

[40] The prosecution then called Forensic Scientific Officer Epi Vakatawa to give evidence. His expertise as a Forensic Scientific Officer was not challenged by the defence. Two reports prepared by him were marked and produced in evidence as prosecution exhibits 2 and 3. Report exhibit 2 was on vaginal swab of Ms. Parr, and exhibit 3 compiled on clothing, worn by the victim at the time of the incident, and the beddings. On examining the vaginal swab, sperm heads were detected. It indicates that there was sexual activity, he said. He further said, that the next test would have been to extract and to go ahead with the DNA process against the accused, which was not done. In exhibit 3 report, from the panty centre crotch region, blood like stain was uplifted. It was positive for blood he said. From the crotch area of the panty, two semen like stains were uplifted. Those two samples were examined, and test for semen was positive he said. Samples taken from the bed sheet was positive for semen and blood.

[41] In cross examination he said that outside of the human body, the sperm can live for 72 hours. First the tail of the sperm, and then the head will die off. He said that the genetic material (DNA) will be intact. Answering a question by the defence Counsel he said, that he cannot say that the blood that was detected was menstrual blood. He had not examined the victim to see whether she was menstruating or not. He further said that none of the items of clothing belonged to Marjorie Parr, were torn or ripped.

[42] The next witness for the prosecution was Dr. Kustino Tiko who examined the complainant Marjorie Parr. His expertise as a medical doctor was not challenged by the defence. The report prepared by him after examining Ms Marjorie Parr was marked and produced as Prosecution Exhibit No. 4. He explained the contents of the medical report. He said that the only new bruise he observed in the victims body was, which was in the right forearm. He said, when he asked the victim whether there were bruises in the body, victim had pointed to that. Further he said that the victim was very fair complexioned. She was quiet emotional. When a fair complexioned person blushes all over its read he said. In this victim, from upper trunk to the thigh it was red. It hindered his examination he said. He had tried to locate bruises and scratches all over. He said that because she is fair complexioned, it was difficult to isolate the bruises.

[43] He had used a speculum to examine the vaginal passage, and found no bruises or injuries. He further said if the woman was menstruating at the time of contact, the actual blood floor will function as a célèbre media, thus reduce the chances of bruises being inflicted. He said that during the examination no tampon was noted. He explained the possibility of the blades of the speculum pushing a tampon aside at the examination, so that he would not be able to visualize. He recommended counseling for the victim.

[44] You remember, when the doctor gave evidence, in the original report which was with the state counsel, in column D 16, Summary and conclusions, it was mentioned as SEXUAL ASSAULT (RAPE). But another original document which was with the witness doctor, it was mentioned as SEXUAL ASSAULT. Therefore the document which was with the State Counsel was also marked and produced as Exhibit 4(1). Witness said that both the documents are of his writing. He explained how it happened. When he was questioned, whether in his mind there is a difference between term Sexual Assault and Sexual Attack (Rape), he said that he actually thought that they are used interchangeably.

[45] In cross examination he said, that he cannot say which report he filled first. Further he confirmed that both were filled by him. He was questioned at length on the possibility of a tampon being inside the vagina without seeing at the visual examination. He said that, a point of a speculum is made in such a way, that when it is inserted, it has to slide through the vaginal track despite a tampon in it, and it still has a capability to slide over.

[46] Further he said "one example, vaginal passage quite stretchable, especially in ladies where already conceived. In that case when you insert a speculum, it's possible when you open the speculum, you stretch the muscles in vagina and the blades of the speculum push the tampon to a side. 2nd, if the lady is bleeding the tampon soaks blood. Then the tampon changes colour and there are times when tampons are pushed to the upper end of the vaginal track, it coils around the mouth of cervix. In that case it's hard to pick up the tampon."

[47] Witness said that he cannot recall whether the victim said, that she was having her menses, and if she had said he would have documented. No stomach cramps were informed. He didn't see any tares or lacerations in the genital area. Victim had not told her how many times she was raped. He said that the alleged victim had no injuries other than what was mentioned in D 12 of the medical report. He further said that he cannot say whether the injury mentioned in D 12 is defensive or not.

[48] Answering the questions put to him on the refactoring period of men, he said that lot of factors can change it. They are: age, how healthy and fit the man is, and stimulants. He said that usual refactoring period of a healthy man in his twenties is about 15 to 20 minutes. Further he said putting aside the history given, on the physical examination and the investigation carried out, putting aside the history, there would be no confirmation of rape.

[49] Answering the questions by the State counsel in re-examination the witness said, that on the demeanor of the patient, and the request provided for examination, some sort of sexual attack has happened. Further he said, that it is possible for a healthy young man of 24 years old, to have sexual intercourse with a woman, ejaculate, and then be sufficiently aroused to have intercourse 2nd time without ejaculation, within a span of 5 minutes. Further he said that any blunt force may give rise to the bruise found in Ms Parr's fore arm.

[50] The next witness for the prosecution was Taraima Mitchel. She was a member of the netball team which played for the world championships. The party was organized at her fathers' villa. She was going to the villa with Marjorie and Talei, and they picked up Matelita Shaw on the way. On the way to Pacific Harbour, Vuki called Matelita on the phone, she said. Vuki and his friends wanted to come to the party as well. Witness's response was 'no'. She just wanted to be with girls and only invited person was Lionel.
That was not the only call Matelita got from Vuki that evening. But her answer was still 'No'. When they arrived at the villa, there was another call to Matelita from Vuki. Then there was a discussion between girls, and they decided to say yes, to allow them to come. They started drinking and Lionel came around 8.30-9.00. Vuki and others arrived around 10-10.30. They went to Uprising around 11-11.30 pm, but it was closed. They came back to the villa. Matelita went to bed. Marjorie went to bed a few minutes after. Witness took her to the room. Then she went back to the boys and Marjorie too came back. Then she realized that Marjorie had gone to the room because Talei had taken her to the bedroom. Talei had told the witness that she had to chase Vuki out of the room. Boys continued drinking. Talei and her were watching TV in the living room. At about 3.00 am she started cleaning the kitchen area, but the boys were trying to finish the drinks.

[51] Chad had left to Suva after 3.00-3.30. She went to shower. Isaac, Kevin and Vuki were inside the house. When she came out of the shower around 4.00 am, Isaac and Kevin had gone to see Chad, as Chad had broken his car down on the way. Vuki was still outside drinking and Talei and the witness were watching TV until they fell asleep.

[52] Around 5.00 am she woke up when Marjorie called her. When she asked what was wrong, Marjorie didn't reply. When she woke up Marjorie had come to the living room. As she didn't reply witness went back to sleep. Then she started screaming at Vuki to get out. Then Talei and the witness woke up, she said. When they asked Marjorie, what happened, without responding, she kept telling Vuki to get out of the house. Witness went and woke Matelita up. Marjorie kept telling Vuki to get out and Vuki was in the living room then. Then Vuki was walking towards the deck. When Matelita asked what happened she had said that she had been raped. Then Police were called. 1st Police officers came around 6.00 am she said. Her father too came in the morning. Police took their statements at the station.

[53] In cross examination she said, boys went to pick Chad between 3.30- 4.00, and not between 6.15 and 6.30 as defence suggested. She said that she lived with Marjorie and her husband for 10 months in year 2004 and at that time they were like a family unit. She said that Talei called the police around 6.00 am or after 6.00, but not around 8.30 am as defence suggested. She said that she remember Marjorie saying "Oi au na yalewa ni Kuku" meaning "I am a girl from Kuku" several times while they were partying. Explaining why it happened she said that, Marjorie was proud of the fact that she was half Fijian. But the accent she used was not quite how you pronounce it in Fiji. Hence there had been lot of laughter every time she said it. Witness couldn't remember, Marjorie showing her injury at her right forearm. She could remember Marjorie sitting and chatting with Vuki after her coming out of her bedroom. She didn't see two of them holding hands.

[54] Answe-ring further questions by defence counsel, she said, she wanted to get Matelita because Marjorie was screaming at Vuki to get out, and she wouldn't tell Talei and her, why. If Marjorie screamed from the 1st bedroom, witness could have heard from the living room where she was, she said. Further she said that she didn't see any injuries on Marjorie's face, nor she was limping, but Marjorie was in a state of shock. In re examination she said that as friends Matelita was much closer to accused.

[55] Prosecution called Inspector Josaia Naimasi, who was the Crime Sergeant at Navua Police station. He arrived at the Pacific Harbour Police post at 8.15 am, and the accused had been there. Then he visited the scene with other police officers at about 8.30 am. When he arrived at the villa there had been a policeman and a policewoman at the scene. Marjorie was making a phone call to her husband and crying. He spoke to other ladies in the house and then Marjorie. Marjorie, when asked what really happened had told him that she was raped by the accused. He secured the scene, removed the people to Police Station and directed his men to record statements. Ms Parr was taken to Navua Hospital. Her statement was recorded by Corpl. Pradeep in the presence of WPC Litia. Chad Miller's statement was recorded on the 26th. Nov. 2007, as he had not been at the Police Station on the 20th. He accompanied the officers of the scene of crime to the scene in the afternoon. Ms Parr was also taken to the crime scene, to show the scene and to collect her bag. This was before she made the written statement, he said.

[56] Accused persons cautioned interview statement was recorded by him, which was marked and produced in evidence without any objection. His statement is before you. Original statement and the typed copy were produced and it was read before you.

[57] He said that according to the Pacific Harbor Police post records, report was lodged at 7.00 am in the morning.

[58] In cross examination he said that, from the time he saw the accused, through the formal interview and even afterwards he denied raping Marjorie Parr.

[59] Chad miller's statement was recorded later than anybody else, because he had left for Suva before they arrived at the villa, he said. When the witness was questioned, on what basis he put question No. 76, on the assumption that she was under the influence of liquor, he admitted that Marjorie never mentioned that she was drunk, or that she was so drunk she didn't know what she was doing. He further said that the accused was interviewed on an allegation made by Marjorie Parr that she was raped by Vuki between 1.20 am and 6.00 am. He was charged with one count of rape, one count of larceny. The second count of rape came into play after file was transferred to DPP's office he said. On this, in re examination he said that Marjorie in her statement didn't refer to exact times of rape. The questions were prepared by him on the evidence gathered so far.

[60] The charge statement of the accused was marked and produced in court as exhibit P 6, and it is before you.

[61] At the end of the prosecution case you heard me explain several options to the accused. He has these options because he doesn't have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution at all times. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. He also called witnesses to give evidence on his behalf. You must give his evidence as well as the evidence of other witnesses on his behalf, careful consideration.

[62] The accused is employed as a life guard at Olympic swimming pool. He is also a swimming coach. He has coached school swimming teams, and taught both males and females. He did coaching in swimming clubs. He said that to his knowledge he had no complains on his behavior. He said that he knew Matelita as he worked with Matelita for 3 years at Fiji Sports Council. He knew Taraima Rara in 2007. She was a good friend of Matelita and he used to drink with them most of the time. He said, on 19th November 2007 he went to Chad Miller's house and with him they went and picked Kevin Skibber from Flagstaff and went straight to Pacific Harbour. He said that earlier in the day he met Matelita and they discussed about meeting up at Pacific Harbor that night. He had told Matelita that he would come if he gets transport, he said. Then he told about the party to Chad when he met him, then Chad called Kevin. Then he informed Matelita that he is bringing them with him. They arrived at Pacific Harbor around 7.30 pm. He said that he can't remember the exact time, but it was dark when they arrived. When they arrived at the house, Marjorie, Talei, Matelita had been there. He said that before they came to the villa they got lost and he called Matelita to ask her where the house was. Then Marjorie picked up the phone, he said. He didn't know her, but Marjorie had said." Hello Vuki, u guy's coming." When they went to the villa they started drinking. They went to Uprising at about 11.30- 12-00, but it was closed. They came back and started drinking again. They moved outside. Taraima, Talei, Chad and Marjorie started swimming.

[63] He said that he went to bed with Marjorie that night. It was in the 1st bedroom on to your left. He said that night he was hooking up with Marjorie. He said that Taraima and Skibber were doing their own thing, Chad and Talei were doing their own thing, and Matelita, Marjorie and him were doing there own thing. When Matelita went to bed it was Marjorie and him. When Matelita went to bed, may be around 1 or 2 am. Marjorie and him were drinking. They moved on to the kitchen counter. They went to the bedroom. Talei had been there and, Talei asked,' You guys ok?" Marjorie was smiling, and he said "Yes we will be ok." And the Talei walked out of the room. He said that Talei never chased him out of the room. He said, after Talei left they rolled over to the bed, started kissing. They were kissing, kissing, and kissing, and started sexual intercourse. She never said' No'. She never pushed him away. He said she didn't say anything. She didn't say yes or no, he said. He said when he inserted his penis into her vagina at no time he could hear her say "No'. When they were having sex he was on top of her and they were making a lot of noise because of the bed. He could hear somebody knock on the wall. They both laughed and moved on to the floor, he said. Then Marjorie sat on top of him and continued having sex. He said it was two to three minutes until he came. He said he never threatened her nor he told her to keep quiet. She never told him that she was having her periods. He said, when she was on top she was moving very fast, and when he told her to go slowly, she had said "Oi au na yalewa ni Kuku."

[64] After having sex he wanted to have a shower as they were sweating badly. He found that they were not in the master bedroom. So they lied down and fell asleep. They woke up when somebody knocked at the door. He didn't know who it was until he opened the door, he said. It was Chad Miller. Again he said, that Marj told him not to open the door as it was Chad. He had said that it was Chad, and that he won't tell anybody. Then he said that he could hear his voice calling up his name when knocking at the door. When he opened the door Chad had said, Vuki, we have to go' and he had said 'I am coming'. Marjorie was still in the room. When they closed the door Marjorie had said "How I am going to face my husband and family". What we are doing is wrong in the gods' eyes. He was trying to say that Chad won't say anything.

[65] She had said, "Is this what the Fijian boys do". They laid down again, and then he went out of the room. Taraima, Kevin and Isaac were still drinking in the sitting room. Taraima had said "Vuki, fuck you she is my friend you Kalavo" she was joking. When they were drinking again Kevin got a call from Chad. Chads' car had broken down on his way to Suva. Then Isaac and Skibber got Lionel Evans car and went to Chad. Taraima was still drinking and she went to shower. He then went to Marjorie in the room. Marjorie was lying down on her back with her eyes closed. They started talking on the bed. They started kissing and having sex again. While they were kissing she never told him to stop. When he put his penis into her vagina she never asked him to stop. She never said 'No'. He said that she liked it. Then he rolled over and she was on top of him. She sat on him. For 1 minute she was on top of him, then she stood up. Then she told to herself "What am I doing". Then she grabbed the quilt, wrapped it around and opened the door. He thought that she was thinking of her kid. She didn't say anything, she didn't scream at the door. She left the room. He thought that she was thinking of the kid, and at the same time she was feeling guilty, as how she felt earlier. He was not worried. Second time when they were having intercourse, she never said that she was having her periods. He never locked her legs with his. He never took her by the shoulders and turned her on to her stomach. She never screamed when he left the room, he said. He said that, he found that she had made an allegation of rape against him when the police arrived. Before police arrived, Taraima and Matelita had asked him "What happened to you two." He went to the pool side and sat down. He didn't know that they have called the police.

[66] When police arrived, he had thought that the neighbours have complained of the noise. Then when he asked, they have told him that Marjorie had called the police. He couldn't believe it, because he never raped her, he said. When the police took him away he felt lost. When he was asked by his counsel whether she consented the two times they had intercourse, he said " To be honest she was just another white girl I slept with. because it was all good when we were having sex." He said that he never raped her.

[67] In cross examination he said that he didn't put to Marjorie when she was on the stand that they were kissing, kissing and kissing, and then had sex, as he only put to his counsel what she asked Marjorie. He said that they had to go to Isaac's place as they didn't know where Taraima lived. He admitted that he called Matelita that evening. He said that was to check and ask where they were. He denied that they were not invited to the villa. He said that the light was on, when they entered the bedroom. He said that he accompanied Marjorie to the bed room. He said that he had sexual intercourse with Marjorie twice that day on different occasions.

[68] He knew Chad Miller for 10 years. He worked with Matelita. Occasionally when they drink Matelita would invite Taraima to come he said.

[69] He said that at the police station he was scared as the way he was treated. He said he was slapped by a police officer. They accused him straightway he said. However he said that he agrees with the contents of his statement to Police. He admitted that the answers he gave in Questions No. 44 and 45 in the statement were significantly different from his evidence in court as to what happened after Matelita went to sleep. But he denied that, the difference was because he was making things up. Accused admitted that he contacted Kevin Skibber on the telephone on 28th September 2010, but denied contacting Chad miller. He denied the prosecution version that he went to the room when Marjorie was sleeping, pulled her bottom clothes and forcefully had intercourse with her twice. In re examination he said he called Kevin Skibber a week before the trial to find out if he knew about the trial.

[70] Defence then called Kevin Skibber to give evidence. His evidence was that he went to the party at Taraima Rara's place with Vuki and Chad Miller. They arrived at the house around 9.30-10.00pm. Vuki and Chad started drinking with the others at the kitchen and the living room close to the kitchen. They all went to Uprising and the bar was closed. They went back to the villa. They continued drinking. He went with Taraima in Chads' car to Isaac's house to get some CD's. He couldn't recall the time. They left the villa again to pick Isaac.

[71] He said after they came back from uprising they were drinking as a group. Chad and Talei seemed to be courting each other, Vuki and Marjorie to his thinking seemed to be coating each other as well. He said that Vuki and Marjorie were sitting close to each other, one instance they held their hands for a moment and whispered to each other. He said that he didn't sleep that night.

[72] He knew Vuki for 3 years before the incident, and met Marjorie for the 1st time that day. When he was asked by the defence counsel, whether Marjorie did anything unusual, he said "NO' except when she reported a rape case against Vuki. He said that Chad left to Suva that day at about half past five, and that he left to go to Chad around 6.00 or 6.15 am. He then returned to villa around 8.30 am. He said that when he left to Chad, he saw Vuki. Before he left he had been drinking with Vuki, Isaac and Taraima sitting outside on the deck when he received the call from Chad. He said that Marjorie showed everyone the bruises she had in her fore arm which she got at the world championships. Before he went to Chad he never heard Marjorie screaming or shouting.

[73] In cross examination he said that when he saw the police, he thought Lionel Evans had reported him to the police for taking his car. When he was confronted with his statement to police, where he had said that he thought that it was a fight, he said, that what he told the police was the truth.

[74] He again said that when he left to Chad on early hours, he saw the accused with few others drinking. He said that he couldn't remember whether accused was drinking when Chad left, but he said that the accused was with them. About the telephone conversation he had with the accused on 4th October 2010, he said nothing popped up on what evidence he was going to give in the case.

[75] In re-examination he said, that he was sure that Vuki was with them outside when Chad left in the morning, although there were periods where he left the group for reasons to use the toilet and other similar reasons. He said that when Chad left it was break of dawn.

[76] The last witness for the defence was Chad Miller who gave evidence from Scotland via skype. He has been part of Royal Marines for last 15 months. He had been a swimming instructor in Suva. On 19.12 2007 he went to Pacific Harbour in the evening with Vuki and Kevin. They left Suva around 8pm and reached Pacific harbor around 8.45 to 9.00 pm. They went to Taraima's fathers' villa. From there they went to uprising just before midnight. As it was closed, they went to another place and that was closed too. They went back to villa and sat at the kitchen counter. Girls started mixing and serving drinks. They were having drinks and talking. He said that the only unusual thing happened was Marjorie showing her bruises which happened at the Championships. Bruises were on her arms and her thighs. She didn't seem shy to lift up her clothes to show the bruises, he said. After coming from Uprising they were drinking at the pool deck area. He didn't continue to drink as he had to drive back to Suva. He and Talei got into the pool and others were drinking. He said Marjorie,Vuki and Kevin definitely didn't get into the pool. He was in the pool for about 15-20 minutes until it started raining. They started to paring off with girls he said. He was with Talei, Kevin was with Taraima, Vuki was with Marjorie. Vuki and Marjorie were always sitting very close together. He was one of the last few to go to sleep. He went to sleep with Talei and they were on the couch in the living room. Taraima and Kevin went to pick up Isaac. Vuki and Marjorie were in one of the rooms in the villa. Talei had told him that they were in one room together.

[77] He had to go to Suva in the morning and Vuki had asked him before, to give him a lift. So he went and knocked at the room door to see whether he still wanted the ride. First time when he knocked he didn't get a reply. When he knocked again he heard them talking, and he was asked to wait for a couple of minutes. When he went back the 3rd time as he had to leave, Vuki opened the door. Marjorie was standing up behind. It looked to him as she just finished putting clothes, he said. She was just putting a T shirt over her head. She didn't seem surprised or shy. After he spoke to Vuki he left the villa. His car broke down just outside Lami. He called Kevin and Isaac whether they can help him. When he called them it was around 7.00-7.15am. He said that he was shocked when he got to know about the allegation against Vuki. Everything seemed fine when he saw them in the room together. He gave a statement to the police about a week later. He tried to go to the Central Police Station but he was referred to Navua Police Station.

[78] In cross examination he said that they were at the villa for about 3 hours, before they went to uprising, but he cant give the exact time. Before giving the statement to police, he recall meeting accused once or twice. He recalled meeting accused in town once the other time would have been in aquatic center he said. They discussed the matter. Accused told him, his side of the story and the events leading out to Navua Police Station. He said that he remember everything what happened. The last time he read his police statement would have been in 2008. He had not received a copy of his statement thereafter. He admitted that when he said Kevin, Marjorie and Vuki definitely didn't get into the pool, it was different from his statement to police. He said that the accused and him were partying together, they were friends for 9 years, so he would take his side if he is in trouble. He denied leaving villa at 3.30 am.

[79] In re examination he said that the evidence he gave was everything what he saw and heard was true and that he didn't make up any thing.

[80] Lady and gentlemen assessors,

You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[81] The written agreed facts are before you. Those facts are agreed by both sides, and you may accept them as if you have heard them lead in evidence from the witness box.

[82] You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.

[83] You must use your commonsense when deciding on the facts.

[84] You remember, in her closing address, the counsel for defence told you that, in the evidence of Scott Parr, he said that he heard Marjorie telling the doctor at the Wollongong hospital, that Vuki penetrated her anus. I must tell you that witness Scott Parr never said so in his evidence in court. According to the court record this is how he answered the questions put to him by the defence counsel.

Q. Do you recall Marjorie telling the doctor in your presence that he put his penis into her vagina?
A. Those exact words I can't recall.

Q. Do you recall Marjorie telling the doctor that he inserted his penis into her anus?
A. I can't recall exact words.

[85] I have told you the elements of the offence of rape, you have to consider. On the question of consent, did she consent to have sexual intercourse with accused? Did the accused know that she was not consenting, or didn't care if she was not consenting?

[86] Which version you are going to accept whether it is the prosecution version or the accused version is a matter for you. You must decide which witnesses are reliable and which are not.

[87] In assessing the credibility of the witnesses you have to consider the spontaneity in the conduct of the witness. For example, when it comes to the Complainant, whether she has acted in a spontaneous manner. If I put it simply, whether the complainant's conduct is consistent with the natural resistance of a woman, that could be seen in a situation such as this. Similarly you have to consider whether the Complainant has complained promptly without any delay against the act of sexual intercourse.

[88] The accused version is that he had sexual intercourse with the complainant with her consent. Prosecution has to prove their case beyond reasonable doubt. Therefore it is for the prosecution to prove that the accused had sexual intercourse with the complainant without her consent and that he knew that she was not consenting. There is no burden on the defence to prove that the accused acted with her consent.

[89] If you accept the version of the accused, he has to be found not guilty. If you neither believe nor disbelieve the accused, but if you feel that there is a reasonable doubt that arose in the prosecution case because of the evidence of the accused, that means the case is not proved beyond reasonable doubt. In that case the accused has to be found not guilty.

[90] If you reject the evidence of the accused, that solely does not mean that the accused is guilty. The prosecution has to prove their case beyond reasonable doubt to find the accused guilty.

[91] I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you, when you consider the charges against the accused,has been proved beyond reasonable doubt.

[92] Your opinions on each count will be either guilty or not guilty.

[93] Madam Assessor and Gentlemen Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Puisne Judge

1st November 2010.