State v Naigani - Summing Up [2010] FJHC 581; HAC121.2010 (3 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 121 OF 2010

STATE

vs

LAISIASA NAIGANI

Mr. J. Singh for the State
Accused in Person

SUMMING UP

[1] Madam and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions in this trial have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the State's closing speech you heard yesterday afternoon but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are at liberty to accept the whole of witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. In that regard please do not be prejudiced by the unpleasant nature of the facts this case. You should try to put that aside and look at the evidence alone when deciding.

Onus and burden of proof

[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

[10] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

[11] The accused faced two counts on the information against him. He pleaded guilty to the first count but not guilty to the second. The second count is one of rape as you have seen and is the count on which you must deliver an opinion. Before I tell you what rape is in law, I repeat what I said at the beginning of this trial and that is the fact that the accused has pleaded guilty to the first count on the information is totally irrelevant to the count of rape. You are to judge the accused on the count of rape alone and on the evidence for that adduced in this Courtroom and on nothing else.

[12] In law, the offence of rape is committed when a man has sexual intercourse with the victim and in doing so, he knew or believed that she was not consenting or didn't care if she was not consenting. The definition of sexual intercourse is penetration of the vagina with some or all of the penis.

Consent cannot be freely given if it is obtained by force, threats or intimidation or any other bodily fear.

[13] I will not go over the facts in detail, because you only heard them yesterday. The State says that on the 21st of August 2010, Avelina went to Ba town where she happened to meet the accused. He liked her immediately and dressed in a navy jump suit, he told her to come with him as he was investigating the whereabouts of a missing girl. He took her to a dark staircase near Anita's Jewellery Shop. Now, none of those facts are in dispute. What happens next is in dispute: Avelina says the accused punched her and she blacked out, only coming to at 8.00pm at the Ba bus stand. She vaguely remembers him removing her clothes.

[14] The accused says in his evidence that he never punched her but told her he wanted sex with her and would marry her. He took her to a cane field where they had sex – she being a willing partner. He has no idea how she got bruises and the doctor who examined her is lying both in her medical report and in Court.

[15] You will realize that the accused gave a very different version of events in his caution interview. Then he admits assaulting the girl and forcing himself sexually on her. He tells us now that he was scared in the Police Station so all of his answers there are lies. It is of course a matter for you to decide which version is true: the caution interview or the evidence in Court.

[16] I must say a word about the Doctor's medical report. She examined Avelina the day after the "incident" and she found evidence of one day old penetration and of forceful penetration. This evidence is consistent of course with consensual and non consensual intercourse. In this respect the report does not assist either side, apart from proving that there was intercourse, which of course is admitted anyway.

Where the report does assist, if you accept that the Doctor was not lying, is in her findings of bruising on the right cheek which bears out the evidence of the victim. Nevertheless it is a matter solely for you.

[17] That then is a simple summary of the evidence. You alone must act on this evidence as you find it and if you are not sure that the State has proved its case of rape, then you must find the accused not guilty. If you are sure, then it is your duty to return a verdict of guilty.

[18] Lastly, I remind you of the accused's case: he says that his evidence to the Police was all lies because he was scared. He says that the girl consented and that he never assaulted her.

[19] You may now retire and tell my clerks when you are ready with your opinions.

P.K. Madigan
Judge

At Lautoka
03 November 2010