State v Lulu [2011] FJHC 207; HAC062.2010 (18 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC. 062 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

JOSATEKI LULU
ACCSUED PERSON

Counsel: State - Mr Daurewa & Ms. Lomani
Accused Person - Mr. S. Waqainabete.

Date of Hearing: 21st, 22nd, 23rd, 24th, 28th, Feb and 3rd, 4th, 7th, 8th 9th, 10th, 14th, 15th, 16th, 17th March 2011.

Date of Summing Up: 18th March 2011.

SUMMING UP

Madam 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 Counsels 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 opinions 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 onus of 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, outside of this courtroom.

[8] 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.

[9] The accused is charged with one count of rape.

[10] I will now explain to you the elements of rape.

[11] According to the particulars of offence given in the information, the accused is alleged to have had carnal knowledge of the complainant Swastika Sharma without her consent.

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

[13] The elements that the prosecution has to prove beyond reasonable doubt 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.
   

[14] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. In this case the prosecution alleges that the accused had carnal knowledge of the complainant Swastika Sharma. Therefore the prosecution must prove beyond reasonable doubt, that the accused had carnal knowledge of the complainant without her consent, and that he knew or believed that she was not consenting or didn't care if she was not consenting.

[15] In this case the accused denies any form of sexual contact with the victim.

[16] As far as the element of consent is concerned, 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

[17] In this case the victim Swastika Sharma said in her evidence that she did not consent to sexual intercourse. Her evidence on the sexual intercourse without her consent was not challenged by the defence when she gave evidence. Not even it was suggested to her by the defence, that she was not raped or that she consented to the intercourse. You may consider all the evidence including her evidence, the evidence of the taxi driver, and medical evidence to decide whether she consented or not, and whether the accused knew or believed that she was not consenting.

[18] Prosecution must prove all the elements mentioned above beyond reasonable doubt to find him guilty on the charge.

[19] To prove the elements of the offence, especially to prove that the accused is the person who raped the victim, the prosecution relies on circumstantial evidence as well. As a matter of law, may I now direct you on circumstantial evidence.

[20] 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.

[21] I cite the following situation as an example for circumstantial evidence. In a silent night you hear a 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 of your neighbor to see what really happened. You see your neighbor 'Y' lying fallen with injuries. Here you don't see 'X' commiting any act on 'Y'. The two independent things that you saw, were the circumstances of the given situation. You connect the two things that you saw and draw certain inferences. An inference that 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.

[22] Further, in evidence, one witness may prove one thing and another witness may prove another. 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.

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

[24] 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, that the inference of guilt is the only rational conclusion that could 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.

[25] 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.

[26] In this case defence relies upon the defence of alibi. I will now explain to you what defence of alibi is.

[27] Defence of Alibi, in simple terms, is that the accused takes up the position that he was elsewhere at the time of the commission of the offence with which he is charged. The accused may suggest that he was elsewhere or he may produce evidence to that effect. But, he need not prove anything. Instead, the prosecution must prove beyond reasonable doubt, that the accused committed the crime but nobody else.
[28] The defence of alibi can be summarised as follows.

(a) If the evidence of an alibi is accepted, it destroys the prosecution case and not merely creates doubt on it but it establishes its falsity.

(b) If you reject that evidence, it does not follow that the accused is guilty, because the prosecution case must be accepted as proved beyond reasonable doubt.

(c) The intermediate position, where there was neither an acceptance nor a rejection of the evidence relating to alibi, the impact of uncertainty on that point must surely be to raise a reasonable doubt as to the identity of the accused and in that situation you must find him not guilty.

[29] However, the accused has nothing to prove; but, the prosecution must prove beyond reasonable doubt that the accused committed the crime.

The Evidence

[30] The alleged victim Swastika Sharma gave evidence for the Prosecution first.

[31] Her evidence was that on 12th March 2010 after work at around 5.10 pm she met her boyfriend Pritesh. They went to Wishbone and had wine. They had an argument, and Pritesh left.

Then she called Vikash,a workmate of Pritesh. She had a can of Burban and Cola at Liquids night club with Vikash. Then Vikash dropped her at her home drive way. It was about 12.30am and she had called Pritesh. While talking to him on the phone she had walked along the road to get a taxi to go to Nadawa to meet Pritesh. She walked up to the main road, couldn't get a taxi, and then she started walking towards Nadawa.

[32] She said that it took about 5 minutes for her to come to the Ratu Dovi Road Junction bus stop. She was still talking to Pritesh on the phone when somebody came from the front, held her and dragged her into the grass area. He had pushed her on to the ground. He was on top of her. He had pulled her top and then her bra. He was keeping his hands on her mouth and when she said that she couldn't breathe, he had removed her hands and put them on her neck.

[33] She said that he pulled her skirt up, removed her undergarments forcefully and raped her. He penetrated his penis into her vagina and while doing this, she said that he told her not to shout. He did it for about 5 to 10 minutes until he ejaculated inside her, she said.

[34] Suddenly she had realized that he had gone, and she was lost, she said. Then the police officers had come and taken her to the Valalevu police station. She was taken to the hospital and was examined by a lady doctor. She identified her medical examination form.
She said that the man who raped her was a Fijian.

[35] She said that her hand bag was given to her mother by the police. Her mobile phone was missing and her mother had called the police about the phone. Later two police officers had come home with the mobile phone, where she identified it as her phone.

[36] When she was shown a rough sketch of the area, she said that the bus stop was on the Ratu Dovi Road. Further explaining she said, that road leads towards 8 miles and Nausori.

[37] In cross examination she said, that in Suva, Wedge and wish bone is the same restaurant. She was cross examined at length, as to how long, how much she was drinking. She said that at the time she left the Liquids night club, she was a bit drunk.

[38] The next witness was Pritesh Pratap, the boyfriend of the complainant Swastika Sharma. He almost corroborated the evidence of Swastika Sharma as to how they met in the evening and how he left after the argument with Swastika.

[39] He said that he called Swastika about one or two times to check her whereabouts. He had received a call from her the same night at about 12 or 1 am and while they were talking suddenly the phone went diverted, he said.

[40] In cross examination he said, his statement to police was not taken in detail, and that he didn't know that phone calls would be necessary when giving the statement. He said that he didn't tell the police that he received a phone call from his girlfriend at about 12 or 1 am.

[41] The next witness for the prosecution was Vikash Sharma. He is a workmate of Pritesh. He almost corroborated the evidence of Swastika, on his having drinks with her at Liquids and dropping her at the drive way of her house in a taxi.

[42] In cross examination he said when he said drunk, he meant when they are not in a state of walking. Explaining that, he further said, that Swastika was able to walk by herself.

[43] Prosecution called witness Ramila Sharma, mother of Swastika to give evidence next. Giving evidence she said that on 12th March 2010 Swastika went to work and as she was late to come home, she had called Swastika by 7 pm. She had been with Pritesh. Later by 9pm Pritesh had called and asked whether Swastika had come home, and told her about the argument he had with Swastika.

[44] At around 1 am Police had arrived and had told her that Swastika is at the police station. When she went to the police station she was told that Swastika had been raped. She said that she saw the marks of injuries on he legs, hands neck and her back.

[45] She gave evidence as to how she was given Swastika's hand bag by police, and how the mobile phone was given by the police later. She said that on Monday, Swastika searched for her mobile phone in the hand bag, which she couldn't find. Then she had called the police and inquired from them about the phone. After about one and a half to two hours later two police officers had brought the mobile phone home.

[46] The next witness was Aziz Hussain. His evidence was after having grog with his friends, he was driving his taxi on the Kings highway to go home with his small son. When he was going towards Nausori he saw an Indian girl talking on the phone and going towards 7 miles. Then he suddenly saw a Fijian man grabbing her and dragging her towards the bushy side. The Indian lady shouted "help". Then he turned a U turn and parked the car near the left hand side of the road. Then the road behind him was Ratu Dovi Road. Then he said, he got down, ran towards them and shouted in Fijian language, that he would get a police officer. When he stood on the foot path, he said that he couldn't hear anything nor he could see them as it was a bushy area.

[47] Then he went to the 8 miles mobile police station and informed them. The police officers there called the mobile patrol. Then he came to the place of incident with the two police officers. He then showed the place to the police officers and they started searching. Police officers found a pair of shoes. By that time the mobile police vehicle arrived and flood lights were switched on. One of the police officers had gone down the cliff with the torch searching, and found a ladies purse he said.

[48] He said that he saw a human figure running towards the settlement. Then police officer had run towards the figure. He saw the Fijian man only when he was arrested and brought to the vehicle, he said. He had been wearing a ¾ pant and was wearing nothing on top. The man was taken to the police station. The witness had gone home to drop the son, and gone back to the police to give the statement.

[49] In cross examination, when it was pointed out to him that his evidence on his taking a u turn and coming back to the scene was different from what he had said in his statement to police, he said that the evidence what he gave in court and what he told the police were both correct. Explaining the difference he said that the police officer did not put the whole evidence in his statement. Further explaining he said that when he told the police officer that the girl screamed saying 'help' the police officer had said that word screaming is enough.

It was suggested to him that he was drunk after having grog, which he denied.

[50] The next witness was Suliano Saunitoga who was attached to Police Southern Region Command Centre, located at Nabua Police station. His evidence was that he received a message seeking assistance after 1 am on 13th March 2010. Message had been from the officers of the Nasinu Police station, stating that a male person pulled a female person along King's Road to the nearby ground. He directed the patrol vehicle for assistance. He arrived at the scene at 1.40am. Two officers from Nasinu police station and an Indian man had been there. The Indian man had explained to him what happened.
He had started searching with the help of a torch light. He had found a hand bag and a face towel.

[51] Suddenly their driver had called saying that a male ran across the ground and then he saw a person running. Then he gave evidence as to how he ran after him and caught him when the man went inside a house. A draft sketch of the place was marked and produced in evidence. He pointed out the places from the sketch where he found the hand bag, where he saw the person running and where he was standing when he saw him. He further said as to how the accused was arrested and brought to the police station. He confirmed that he never lost sight of the accused until he was arrested and said that it was the same person that he chased from the ground that he arrested.

[52] In cross examination it was suggested to him, that the accused started running from the ground as he was punched by an unknown person while returning from buying beer. Witness denying the suggestion said that the accused was the only person who was present.

[53] It was suggested to the witness that when he approached the accused, he pulled the white short sleeved T shirt that the accused was wearing and in the process the T shirt was torn. Further it was suggested that the accused was sitting on top of his uncles bed, waking him up to inform him of what happened to him when he was punched by unknown person at the ground, which the witness denied.

[54] It was suggested to him that the accused was punched at the time he was arrested, punched on the way to the vehicle and also in the vehicle while he was taken to the police station. Witness denied any kind of assault or threat to accused by the police officers. Further it was suggested to the witness that before the accused was handed over to the officer in charge, the accused was assaulted by the other police officers at the station, which he denied.

[55] Prosecution called Woman Detective Sgt. Sunita Devi next. She was the police officer who took the victim Swastika Sharma for the medical examination to C.W.M. hospital. When she saw the victim at the Valalevu Police station early hours on 13th March 2010, she said that the victim was very uncomfortable and was shaking. Victim had told her that she was raped by an unknown Fijian. She had taken the victim Swastika to the crime scene, where Swastika had showed her the place where the crime was committed.

[56] At C.W.M Hospital the victim was medically examined by the Gynecologist at about 6 am she said. Later on Sunday she had recorded the victim's statement.

[57] The next witness for the prosecution was P.C. 3454 Niumaia.
He was the interviewing officer of the accused. On 14th March 2010 the crime officer had instructed him to record the interview of the accused. He had taken the accused from the cell to the crime office to record the statement. According to his evidence before the interview started Josateki Lulu had not complained on anything to him. He had not required any medical assistance nor had he requested. His general appearance had been normal. Accused chose to be interviewed in English he said. He had cautioned him before the interview started. Accused had understood the allegation and the nature of caution put to him. Accused was offered the right to a lawyer, but he didn't exercise that right he said. Right to a family member or a friend to be present was given to him, but he had not wanted to use that right he said.

[58] The caution interview statement was marked and produced in evidence.

[59] In his statement to police accused had admitted seeing the Indian girl on the road and that he dragged her to the road side. He had asked for her phone and the hand bag. Then he threw her into the slope where she fell. She had started running and she had fallen again. He had pulled her down to the bushy area, removed her clothes, sucked her breasts and licked her vagina. The he felt suspicious that some people were around. He saw the police vehicle and then he ran across the ground. He had denied inserting his penis into her vagina in his statement

[60] The witness gave evidence as to how the accused was taken to Laqere for reconstruction of the scene. Police officers Kamal(driver), Constable Navnit, the accused and the witness had gone to the scene. Accused had showed them the places of crime, and the rough sketch was marked and produced with the points as shown by the accused. A sanitary napkin and a ladies panty was found at the scene he said.

[61] From Laqere they had gone back to the police station, and had continued and completed the interview. Then he had handed over the record of interview and the accused to constable Navnit.

[62] In cross examination it was suggested that, he was away from the room to get documents for the interview for 20 minutes, and during that 20 minutes police officers Kamal, Suman and Navnit heavily assaulted the accused. They had told the accused to make things easy, otherwise he would suffer more.
Witness denied the allegations put to him.

[63] It was suggested that the accused wanted to be interviewed in Fijian language which he denied. The witness said that he put the questions to the accused in Fijian and that he translated it into English.

[64] It was suggested by the defence that the accused did corporate with the witness at the interview, as he couldn't bear the assault by the police officers for two days.

[65] It was further suggested that at Laqere he told the accused the story about the rape. Denying the suggestion he said that the accused related the story and showed him the place of crime. Further he denied any kind of assault on the accused at the crime scene an on the way back to the police station after the reconstruction of the scene.

[66] In re examination he said that the questions were put to the accused in Fijian, and that he translated into English correctly.

[67] The next witness was PC Suman Dall.

[68] He said in evidence that he witnessed when the accused was charged by PC Navnit. Josateki Lulu had not complained on anything. Charging was done on 14th March 2010. Josateki Lulu's physical appearance had been good.

[69] In cross examination it was suggested to him that after charging, Police officers Navnit, Kamal with the witness started assaulting the accused in the crime room, which he denied.

[70] It was suggested as to how he was assaulted heavily. Witness denied any kind of assault on accused.

[71] The next witness was PC Alvin Kumar who escorted the accused with 2 other suspects to Magistrate Court Nasinu on 17/3/2010.

[72] He said the accused was taken to Magistrate Court Nasinu walking. The distance had been about 200 meters.

[73] Accused was handcuffed with another suspect he said.
He said when they were walking, all 3 accused seemed fine to him. He said that he didn't notice any injuries or fresh marks of violence on accused. Accused had not asked for any medical assistance. He had handed over the accused to the court orderly.

[74] In cross examination it was suggested to him that the accused was handcuffed alone and he was dragging his feet due to pain as a result of injuries which the witness denied.

[75] Witness said if the accused was injured he wouldn't have made him walk. It took about 5-10 minutes to walk to court he said when it was suggested to him that it took more than 10 minutes.

[76] It was suggested to him that the sister of accused was present in court where she saw his injuries. The witness said that he couldn't recall meeting anyone before entering the court room.

[77] Further the witness said, if there were injuries on accused the Magistrate would have ordered him to take him for medical treatment.

[78] Next witness was Dr Litia Narube who was the doctor who examined the victim Swastika Sharma. Her expertise in the medical field as a doctor was not challenged by the defence.

[79] On 13/3/2010 at 6.00am she had examined the victim Swastika Sharma. The medical report was marked and produced in evidence.

[80] The witness doctor said that Swastika had abrasions like fresh scratch marks all over the arm and her torso and along thighs.

[81] She had had some green grass, mostly around the breasts. Her hymen had not been intact.

[82] There had been abrasions all over the area around the vaginal opening. Scratch marks had been there as well. She said those abrasions around the vaginal opening are usually formed when you have sexual intercourse without adequate lubrication or forceful penetration. There had been a collection of white fluid at the end of the vagina.

[83] Further she said that the victim was slightly intoxicated with alcohol.

[84] She was prescribed with emergency contraceptives and advised to do counseling. She was further advised to do blood tests for sexually transmitted disease.

[85] In cross examination she said that vaginal swab and a slide was taken from the said white fluid for microscopic examination to see whether the white fluid is semen. She further answering to the questions of Defence Counsel said, that no DNA test was done to prove that the semen belongs to the accused. Further she said that white fluid inside the vagina looked like semen.

[86] Prosecution called PC 3172 Navnit Chandra next, who was the Investigation Officer.

[87] He said that Josateki Lulu was searched when he was brought to the Police Station by him. It was at about 2.40am he said.
[88] Accused had been in good health, no injuries and didn't make any complaints according to the witness.

[89] When he searched the accused, some cash, a mobile phone and a wrist watch had been in his possession. Cash was entered in the cell book entry he said. After buying the Fiji Times and snacks for accused on his request, the balance money was taken by the accused wife. All items seized from the suspects' possession were noted in the cell book as suspects' property.

[90] He said that on 14/3/2010 he assisted the reconstruction of the scene. He said how the accused pointed out to them the place of crime. He pointed out those places from the rough sketch. After the reconstruction they had gone back to the Police Station and Niumaia had recommenced the interview.

[91] After interview Niumaia had handed over accused to him. He charged the accused where PC Suman witnessed.

[92] He said that on the following day on the 15th, the victims' mother telephoned and asked for the mobile phone. The description was given as Nokia 1200. Then he recalled that when he searched the suspect he recovered a similar phone from his possession.

[93] According to the cell book accused wife had taken the phone.
Then he explained to court as to how he went and recovered the phone from the accused's wife. Then he had gone with PC Kamal to the victims' house where she identified the phone as her phone. He identified the phone in court as the phone he recovered from the accused.

[94] Accused was then produced in court only on 17th, as 15th and 16th of March the Nasinu Court was not functioning due to cyclone 'Tomas' warning.

[95] In cross examination it was suggested to the witness that when he searched the accused he was badly hurt by the assault of Police Officers who brought the accused to the station.

[96] Further it was suggested that he could see the marks of the punches on accused, which he denied. He said that he didn't see any visible injuries.

[97] It was suggested to him that before the interview of suspect when Niumaia was away for 20 minutes, he with officers Kamal and Suman assaulted and threatened the accused and told him to make things easy, which the witness denied.

[98] It was further suggested that at the reconstruction of the scene he assaulted the accused with Kamal, which he denied.

[99] Answering the suggestion he said accused pointed out the place of crime, not Niumaia.

[100] It was further suggested to him that they threatened the accused of raping his sister and wife for what he had done to the Indian girl. He denied all the allegations of assault and threats.

[101] On questioning about the mobile phone it was suggested by defence that it was a Vodafone mobile phone which was taken from possession of accused but not a Nokia phone, which he denied.

[102] Explaining the deletion of the entry of a mobile phone in the cell book, he said that when the entries were checked and when it was identified that there was an extra entry it was crossed off.

[103] It was suggested that after the reconstruction of the scene at Laqere the Police officers without going to the Police Station straight went to the accused wife to get the phone.

[104] Denying the suggestion witness said that they went to get the phone on 15th but not on 14th March, 2010.

[105] Witness further denied all kinds of verbal and physical assaults on the accused as suggested by the defence.

[106] 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. The accused chose to give sworn evidence and to subject him to cross examination. Further he called witnesses to give evidence on his behalf. Therefore you must give his evidence careful consideration.

[107] Accused giving evidence said that he was drinking grog at Sailasa Naucukidis' place with Manoa, Taufa and Tau on 12/3/2010. At about 10.00pm Taniela Mafi also joined them. They finished grog by 12.30am. Then they started drinking beer at the shed. Tao left early and Sailasa joined them. When they finished the beer it was about 2.00am he said. Then he went to bring more beer. He went to Muanikoso settlement walking. Then he went running, as his cousins Manoa and Taniela were waiting for beer. He crossed the ground and went to Muanikoso. He went inside the house took the money, went to Makoi black market and bought 4 bottles of beer. When he reached the ground he saw a vehicle parked at Laqere, Kings Road. When he crossed the ground he was shocked, and he fell when he received a punch on his chest. He believed that was from one of those people who drink and rob at the ground.

[108] He dropped 1 plastic containing beer, and carrying one plastic he ran across the ground. He realized somebody following him. He left the remaining plastic too and ran to the shed where he was drinking, he said. As Taniela and Manoa were sleeping he walked down to Sailasa's house. He explained to you giving evidence, as to how he was arrested by the Police officer inside the house when he sat on his uncles' bed.

[109] He further explained how his T-Shirt got torn and how he was assaulted and taken to the Police Station. Police officers kept on assaulting him asking for the Indian girl. He had told them that he was coming after buying beer. At the Police Station too he was heavily assaulted he said.

[110] When officer Navnit searched him he took out a Vodaphone mobile phone from his pocket he said. It belonged to his father.

[111] He was accused of raping the girl. He explained in court how he was assaulted time to time at the Police Station.

[112] He was told that his wife and daughter brought his clothes, but he was not allowed to see them he said.

[113] On 14th Sunday he was interviewed by a Fijian officer after he wanted a Fijian officer, as he preferred to speak Fijian.

[114] Even before the interview he was assaulted for about 20 minutes by other Police officers when Niumaia was away. He said that he was given the right to a Counsel or of a family member or a friend to be present at the interview, but he didn't use it. However, he was not offered medical assistance he said.

[115] Then he testified as to how he was taken to Laqere for reconstruction of the scene and how he was assaulted. He said that he never pointed out the places but Niumaia started telling the same story.

[116] After he was boarded to the vehicle from Laqere they went to Narere Stage 1 Muanikoso settlement took his wife and went to Vunivaivai settlement. Police officers went to bring the phone and he saw Navnit holding a plastic which he knew it was the phone.

[117] In the vehicle he saw his wife holding a phone he said. Wife was holding a Vodaphone, which Police took from him when he was arrested he said.

[118] At Valelevu Police Station the interview was completed. It was written in English language. He signed the book. He didn't understand the contents he said.

[119] Thereafter he was assaulted again before he was put inside the cell.

[120] On 17th he was taken to Magistrates Court walking. He was handcuffed alone. He was very weak and the Police officer had assisted him to walk. It took about 20 minutes to walk the 200 metre distance to court.

[121] In court his sister was shown his marks of injuries. Accused demonstrated to you how he walked in court when his case was called and how he was leaning on to the accused box.

[122] When the Magistrate asked him whether he was the person who committed the offence he had said yes. He had said so because the Police wanted him to make things easy he said.

[123] He was taken back to Police Station and after lunch was taken to Korovou Prison. He said that he didn't ask for medical assistance from the Magistrate as he didn't know.

[124] In cross examination he confirmed that they finished drinking on 13th March 2010 morning after 2am and it took about one hour more to buy 4 bottles of beer and when he reached the ground it would have been about 3.00am.

[125] He further said that he didn't tell the Police that he was punched at the ground by someone, as they kept saying that he knew about the girl.

[126] When questioning about the phone he said that he doesn't have the Vodaphone phone to prove what he said.

[127] He further said that even on the 13th morning after breakfast Police officers while assaulting asked him about the girl.

[128] When he was told, that by that time the girl has already left the Police Station, he said that he was telling the truth. He denied raping the girl or having anything to do with the victim that night.

[129] Answering the questions further he said that the Magistrate could have had a clear view of him limping in court and that he was not ordered to be medically examined.

[130] The next witness was Sekoula Tawake.

[131] Her evidence was that on 13th March early morning when she was sleeping accused Josateki entered her home, went straight to Isireli's room and was sitting on the bed. After a while someone kicked at the door and a Police officer entered and arrested the accused. She explained to you how he was arrested and assaulted when he was taken to the Police vehicle.

[132] In cross examination she said that before Josateki came she heard someone shouting "stop running stand still". It had been 5 minutes before Josateki came. All that 5 minutes Josateki didn't do anything. She asked him what happened, but he had not said anything.

[133] Sailasa Naucukidi gave evidence for defence next.

[134] His evidence was that Josateki and the others finished drinking beer at around 2.15am. To confirm the time he said, that day he finished his work at 1.30am and came home by 1.45am.

[135] Then Josateki had left to buy more drinks. Then he went to sleep. He then told court as to how Josateki was arrested by the Police Officer. He further told how Josateki was assaulted by the Police.

[136] The next witness was Meriani Radrodro. She said in evidence that on 14th March 2010 Sunday after lunch when they were lying down, Police came in search of Akosita. Police asked her about Vodaphone and she was taken away by the Police. After Akosita came back, she only had said that Police asked for a phone and that she didn't know of any phone.

[137] Then she testified about what happened in Nasinu Magistrates Court on 17th March 2010. She said that she saw Josateki limping when walking, and also that she saw the marks of injuries on his calves and back of the chest. She said his head was swollen.

[138] Manoa Draunibaka giving evidence said that they finished drinking beer at about 2.00am and Josateki left to buy more beer. Then he had fallen asleep.

[139] In cross examination when he was questioned about the time he had told the Legal Aid Counsel when they finished drinking beer, he said the Counsel would have mistaken the time.

[140] Witness Alumeci Watitukana giving evidence said that on 13th morning while she was sleeping Josateki came home after 2.00am. He went straight to his bedroom and opened the bag waited for 10 minutes and went she said. She said that he came after 2.00am as she heard the time on the radio at 2.00am before she went to sleep.

[141] She further gave evidence to corroborate the evidence of Mereani, that on the 14th March Police came in search of Akosita to get the mobile phone. The witness is the sister of Josateki. She denied that she was lying in court.

[142] The final witness for defence was Akosita Bula – wife of the accused.

[143] Her evidence was that she was given a plastic containing a phone and some money by a man at the Police Station, as items belong to Josateki Lulu. She then put the plastic inside her bag. She went to Vunivaivai settlement, and on 14th Sunday she went to Muanikoso settlement for a prayer meeting.

[144] She told in court as to how Police officers came on the 14th and asked her about the phone. She went with them to Vunivaivai settlement and handed over the plastic which contained the phone to Police. The accused had been in the Police vehicle she said. She said until then she never touched the phone.

[145] The Police officer had given her a mobile phone. It was a Vodaphone mobile phone. She produced the phone in evidence as an exhibit.

[146] In cross examination she confirmed that the Police officers came in search of the phone on the 14th, not on 15th. She denied lying in court. She further said that this phone was with the father in law at home and that it was never lost.

[147] That was the evidence for the defence.

[148] Madam 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.

[149] 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.

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

Analysis

[151] The prosecution has to prove all elements of the offence of Rape which I mentioned before, beyond reasonable doubt.

[152] The written agreed facts are before you. You may consider those as evidence lead before you.

[153] The victim Swastika Sharma testified in court as to how she was raped by a Fijian man. She said that man inserted his penis into her vagina and that she never consented.

[154] Her evidence was that the said Fijian man grabbed her, took her to the bush area of the ground and raped her. The medical report shows that she had injuries to show that sexual intercourse was done without her consent.

[155] The evidence shows that the man who raped her knew that she was not consenting.

[156] Defence did not dispute that she was raped by a man. Victims' evidence, on her being raped was not challenged by the defence.

[157] Therefore the remaining element that the prosecution has to prove beyond reasonable doubt is, that the accused is the person who raped the victim Swastika Sharma.

[158] Victim Swastika Sharma in her evidence did not identify the accused as the man who raped her.

[159] The taxi driver Aziz Hussain who saw the victim being dragged by a Fijian man did not identify the accused as the man who did it.

[160] Therefore the prosecution also relies on circumstantial evidence to prove their case. I explained to you before about circumstantial evidence.

[161] The defence says that the accused went to buy beer and on his way back he was punched by an unknown person. Believing that it was one of the persons who drink and commit offences like robberies in the area, the accused says he ran away. Accused says that he felt somebody following him.

[162] Then he ran to the place where he was drinking to see his cousins were sleeping. Without waking them up he walked to his uncles' house he says.

[163] The defence witness Sekoula Tawake who was the aunt of the accused said in evidence that before accused came she heard somebody shouting 'stop running stand still".

[164] You have to decide which version you are going to accept, the prosecution version or the defence version.

[165] As to why the accused ran, was it because of what accused says as he was punched by an unknown person, or because he saw the Police and ran to escape arrest, is what you have to decide.

[166] Prosecution further relies on the evidence of caution interview statement of the accused. The caution interview statement which was admitted in evidence is before you.

[167] You may see that the accused in his statement has not fully admitted the commission of offence. He had denied inserting his penis into the victims' vagina.

[168] The defence says that the statement was not given voluntarily for two reasons. Firstly, they say that the accused was heavily assaulted and therefore he was compelled to cooperate with the Police and to admit.

[169] Secondly, defence says that as the accused could not understand English and he signed the statement without knowing the contents.

[170] Prosecution suggests that the accused was never assaulted nor threatened and that the accused never complained even to the Magistrate or to the prison authorities.

[171] Further the prosecution says that the accused was well explained the contents of the interview.

[172] You heard evidence on both sides and therefore it is for you to decide what weight you would give to the caution interview statement of the accused.

[173] The prosecution says that the victim Swastika Sharma's Nokia mobile phone was found in the possession of the accused when he was searched at the police station, and that it was given to the wife of the accused. Nokia mobile phone which was identified by the victim as her phone, was marked and produced in evidence, as the phone that was taken from the wife of the accused.

[174] Defence says that the phone that was given to Akosita was a Vodafone mobile phone. It was produced by the defence when Akosita gave evidence. Akosita said that this phone belongs to her father in law, and it was never lost. But it was never produced before, to show the prosecution witnesses when they gave evidence, nor was it shown to the accused when he gave evidence.

[175] Prosecution produced the entries made in the cell book, with regard to the items seized from accused as accused property, where there were entries about the mobile phones. Further you heard the evidence of witnesses from both parties. Therefore you decide, whether the accused was in possession of the Nokia phone which belonged to Swastika or not.

[176] Defence says that the accused finished drinking beer after 2 am. And that it was by 3 am that he came to the ground after buying beer. Witnesses were called by the defence to substantiate that. Prosecution says that the accused was arrested and was brought to the police station, and was searched at 2.40 am. To substantiate that, they have called witnesses and produced the station diary.

[177] In terms of section 125(3)(e) of the Crimes Decree 2009, the accused has to provide to court a summery of material facts that any alibi witness might be expected to give as evidence during the trial. According to that summery filed by defence, the defence witness Manoa Draunibaka was to say that they finished drinking beer at about 1.30 am, although he said in court that they finished drinking beer after 2 am. When he was questioned by the prosecution on that, he said that the counsel has mistaken about the time.

[178] On this issue you heard all the evidence on behalf of both parties. Therefore you decide which version that you are going to accept on the time of arrest.

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

[180] 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. 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.

[181] 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 charge against the accused has been proved beyond reasonable doubt.

[182] Your opinions on the charge will be either guilty or not guilty.

[183] Madam 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 charge 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
Judge

18.03.2011