State v Waqavatu [2011] FJHC 25; HAC100.2009S (28 January 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 100 OF 2009S

STATE

vs.

SIKELI WAQAVATU

Counsels : Mr. K. Waqavonovono for the State
Mr. R. Chaudhary for the Accused

Hearings : 24th, 25th and 26th January, 2011
Summing Up : 28th January, 2011

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.
   
6. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. Sikeli Waqavatu was charged with one count of "robbery with violence", contrary to section 293(1)(a) of the Penal Code, Chapter 17, and two counts of " attempted rape", contrary to section 151 of the Penal Code. It was alleged that, on 7th July 2009, after 11pm, he broke into Bindu Kumar's house at Rosi Street, Nasinu and violently stole her two mobile phones and a gold chain, valued at $957. It was also alleged that, during the robbery, Sikeli attempted to rape Ms. Kumar and her daughter Karishma Komal.

D. THE MAIN ISSUES

8. The task for you, in this case, is to answer the following three questions:

(i). Did Sikeli Waqavatu violently rob Bindu Vineeta Kumar of two mobile phones and a gold chain worth a total of $957, on 7th July 2009, at Nasinu in the Central Division? (Count No. 1).

(ii). Did Sikeli Waqavatu attempted to rape Karishma Komal, on 7th July 2009, at Nasinu in the Central Division? (Count No. 2).

(iii). Did Sikeli Waqavatu attempted to rape Bindu Vineeta Kumar, on 7th July 2009, at Nasinu in the Central Division? (Count No. 3).

E. THE OFFENCES AND THEIR ELEMENTS

9. For Sikeli to be found guilty of "robbery with violence", the prosecution must prove beyond a reasonable doubt the following elements:

(i) Sikeli

(ii) Stole

(iii) Bindu Vineeta Kumar's properties, and

(iv) used violence to effect the stealing.

"Stealing" is the act of taking someone's property without his permission, and with an intention to permanently deprive him of that property. Violence means any type of violence, and includes threat of violence. Violence could mean threatening someone with a knife, or any forms of threat, on the one hand, to striking someone with a knife or a weapon, on the other hand. The motive behind the violence or threat of violence, is to effect the theft of the complainant's property".

10. "Rape", in law, consists of the following elements:

(i) the accused;

(ii) had sexual intercourse with the complainant;

(iii) without her consent; and

(iv) he knew the complainant was not consenting to sex at the time.

For someone to be found guilty of "rape", the prosecution must prove the above elements beyond a reasonable doubt.

11. For Sikeli to be found guilty of "attempted rape", the prosecution must prove beyond reasonable doubt the following elements:

(i) Sikeli;

(ii) attempted;

(iii) to have sexual intercourse with the complainant;

(iv) without her consent; and

(v) he knew the complainant would not be consenting to sex at the time.

12. "Attempt", in law, is defined as follows, "...When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence..." So, a man who forces two females to have sex with him, and uses a knife to threaten them, takes one to the sitting room to have sex with her, but was disturbed and fled, would be taken to have attempted to have sex with the two females. This is so eventhough, at the end, he didn't have sex with either of them. He nevertheless attempted to have sex with them.

F. THE PROESCUTION'S CASE

13. The prosecution's case was simple. On the 7th July 2009, Ms. Bindu Vineeta Kumar, was a tenant at Lot 10, Rosi Street, Kalabu. She resided with her three children namely, Krishneel Nath (son), Karishma Komal (daughter), and Reshma Nath (daughter). During the day, Ms. Kumar and her son Krishneel went out to work, while Karishma went to school. Reshma stayed at home. At about 5pm, Karishma returned from school. Her mother returned from work between 7 and 7.30pm. Mother and daughters had dinner and watched movies until 9.45pm, when they went to sleep. They slept in one bedroom.

14. Karishma couldn't go to sleep as she was hot. Sometimes between 10 and 11pm, she woke up to go to the washroom. She saw a man standing in their house. He threatened her with a knife and demanded money. He forced her into their bedroom. Karishma turned the light on. Bindu Kumar and Reshma woke up. The man demanded and took Ms. Kumar's gold chain and two mobile phones. The man continued to ask for money but they had none.

15. The man then demanded sex from Ms. Kumar and Karishma. He said, he was going to take turns on them. He had a knife in his hand. Ms. Kumar asked that the man go out with her, and not her daughter. They went into the sitting room. The man demanded she lie on the floor for them to have sex. Ms. Kumar asked for the settee, to enable her to escape. Her son, Krishneel knocked on the front door, at about 11pm. He had returned from work and his church.

16. Ms. Kumar raised the alarm by shouting. Krishneel forcefully banged the door. The man panicked and fled through the window. The matter was reported to police. An investigation was carried out. Three days later, on 10th July 2009, Ms. Kumar and Karishma identified Sikeli Waqavatu in a police identification parade at Valelevu Police Station. The police later charged him for violently robbing Ms. Bindu Kumar of two mobile phones and a gold chain, and attempting to rape her and Karishma on 7th July 2009. According to the prosecution, Sikeli was the person that broke into the complainant's house on 7th July 2009, and attempted to rape Ms. Kumar and her daughter. That was the case for the prosecution.

7. THE ACCUSED'S CASE
   

17. When the information was put to Sikeli on 24th January 2011, the first day of trial, he pleaded not guilty to all the charges. At the close of the prosecution's case on 25th January 2011, Sikeli choose to remain silent and call no witness, in his defence. As assessors and judges of fact, you must impute nothing negative whatsoever to Sikeli choosing to remain silent and call no witness. That was his right. The law places the burden on the prosecution to prove Sikeli's guilt beyond reasonable doubt, and that burden stays with the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence. In fact, he is well within his right to say nothing and call no witness.

18. You may wonder what is the accused's case? Well, even though he said nothing, and called no witness, he pleaded not guilty to all the charges. In other words, he denied the allegations against him. In his closing submissions, through his counsel, he repeated the above denials. Through his counsel he said, the prosecution have failed to prove his guilt beyond reasonable doubt. Karishma Komal (PW1) could not identify him in court. According to the defence, Ms. Bindu Kumar (PW2) was a great story teller. They ask you not to accept her evidence. As for Reshma Nath (PW3), she did not attend a police identification parade. They said, the police identification parade was flawed. Through his counsel, Sikeli said, he was not the person who entered the complainant's house on 7th July 2009 after 11pm. He asked for an acquittal. That was the case for the Defence.

H. ANALYSIS OF THE EVIDENCE

Robbery with Violence:

19. As assessors and judges of fact, if you accept the evidence of Karishma Komal (PW1), Bindu Vineeta Kumar (PW2), Reshma Nath (PW3) and Krishneel Nath (PW4), then the facts establishing the fact of "robbery with violence" existed in this case. Karishma Komal said, she could not sleep on 7th July 2009 after 10.30pm. As she was going to the washroom, she saw a man standing in their house. The man threatened her with a knife and demanded money. Her mother, Bindu Kumar and her younger sister, Reshma, woke up.

20. Bindu Kumar said, the man threatened her with a knife and demanded money. They had no money and the man forcefully took her two mobile phones and her gold chain. This evidence was confirmed by Karishma Komal (PW1) and Reshma Nath (PW3). The man fled the house when Krishneel Nath (PW4) knocked on the door. So, in terms of the definition of "robbery with violence" in paragraph 9 hereof, a man came into the complainant's house on 7th July 2009 after 11pm, threatened the complainant with a knife, and stole her two mobile phones and gold chain, worth a total of $957. The fact of "robbery with violence" had been proven by the prosecution beyond reasonable doubt, if you accept PW1, PW2, PW3 and PW4's evidence. As to the identity of the thief, this matter will be discussed later.

Attempted Rape:

20. Again, as assessors and judges of fact, if you accept the evidence of Karishma Komal (PW1), Bindu Vineeta Kumar (PW2) and Reshma Nath (PW3), then the facts establishing the fact of "attempted rape" does exist in this case. Karishma Komal said, in her evidence that, when she was talking to the male intruder in their bedroom on 7th July 2009 after 11pm, when the robbery was in progress, the robber told her that because she was talking too much, he would have sexual intercourse with her. The man had a knife. Karishma said, her mother offered herself to the robber for sex, to save her from being raped.

21. According to Karishma, her mother and the robber then went into the sitting room for 5 minutes to have sex. Bindu Kumar confirmed what her daughter said above. Ms. Kumar said, the man had a knife on her throat, and ordered her to lie down in the sitting room. Ms. Kumar said, the man started pulling her top off, when her son Krishneel rang the door bell. Ms. Kumar said she then raised the alarm by shouting loudly. The man panicked and fled through the window.

22. The above evidence was also confirmed by Reshma Nath. So, in terms of the definition of "attempted rape" in paragraphs 10, 11 and 12 hereof, a man came into the complainant's house on 7th July 2009 after 11pm, and then "attempted to rape" Ms. Bindu Kumar and her daughter, Karishma. It was obvious that, by his words and actions, the man wanted to have sex with Ms. Kumar and Karishma, without their consent, and knew they were not consenting to sex, at the time. As to the identity of the man, we will discuss this later.

23. Was the man in Ms. Bindu Kumar's house on 7th July 2009 after 11pm Sikeli Waqavatu? Did Sikeli Waqavatu rob Ms. Kumar of her two mobile phones and gold chain, on 7th July 2009 after 11pm? Did Sikeli Waqavatu attempted to rape Ms. Bindu Kumar and her daughter Karishma, in their home, on 7th July 2009 after 11pm? These are the questions that need to be answered by you, as assessors and judges of fact, in this case. Whether or not you accept the prosecution's version of events, or Sikeli's denial, is a matter for you.

Identification:

24. In this case, nothing connects Sikeli Waqavatu to the crimes, but the identification evidence of Ms. Bindu Kumar. In connecting Sikeli Waqavatu to the crimes, the prosecution relied primarily on Ms. Bindu Kumar's identification evidence. So, as assessors and judges of fact, you will have to carefully analyse the circumstances in which Ms. Kumar made her identification. In a nutshell, the case for the State stands or falls, on whether or not you accept the identification evidence of Ms. Bindu Kumar.

25. The State's case against Sikeli Waqavatu depends wholly and substantially on the correctness of Ms. Bindu Kumar's identification of him, which the defence alleged to be mistaken. As a matter of law, as assessors and judges of fact, I must warn you of the special need for caution before convicting Sikeli Waqavatu in reliance on the correctness of Ms. Bindu Kumar's identification evidence, because an honest and convincing witness, may be mistaken. You must therefore closely examine the circumstances in which the identification was made. You must consider the following questions:

(i) How long did Ms. Kumar have the accused under observation?

(ii) At what distance?

(iii) In what light?

(iv) Was the observation impeded in any way?

(v) Has Ms. Kumar seen the accused before?

(vi) If so, how often?

(vii) Are there any special reason for remembering the accused?

(viii) Was a police identification parade made?

(ix) Are there any specific weaknesses in Ms. Kumar's identification evidence?

26. On the issue of identification, Ms. Bindu Kumar said the following when examined-in-chief, "...He was wearing a jacket with a hood on it. It was green. The hood was in front. He covered his face with the hood ie. his mouth, chin and nose. When he was talking to me the hood fell off his face, and I could see his face. I first saw him in the house for about 15 to 20 minutes. He was one footstep away from me. I saw the man's face clearly. The mask came off – that's the time I saw his face. The mask came off three times. I saw his face for a few seconds, but I recognize his face. I saw his face clearly. The light in the bedroom was on. When I saw his face, my view was not blocked. We were a footstep away from each other. I have not seen the man before the incident. The man was not very tall. He was the same height or a little bit taller than me. He was not fat. He was a dark man..."

27. Ms. Kumar continued, "...when he was in the house, I saw his forehead and eyes throughout the time he remained in the house. Whatever happened to me, I cannot forget this person's face ever..."

28. When cross-examined, Ms. Kumar said, "... I first saw him in the house for 15 to 20 minutes. He was in the bedroom for 15 minutes. During that time, the bedroom light was turned on. My bedroom had a two feet tube light. The man had a hood covering his nose, mouth and chin for those 15 minutes in the bedroom. From part of the nose, eyes, forehead and top of head, they were not covered for the 15 minutes in the bedroom. He was talking to me in the bedroom. He talked for the whole 15 minutes. When the hood fell down, I cannot say whether it was one second or more. The hood fell down. The hood fell down three times... The man's hood fell down three times and it was pulled up immediately. One of the time the hood fell down when he slashed the mattress. The hood fell and it was pulled up again..."

29. When re-examined, Ms. Kumar said, "...what I told the court is the truth. The light was on in the bedroom. I observed the man when he was in the bedroom. When the hood fell off, I saw his face clearly. He was one footstep away. The man who dropped the hood is the accused, and I remember his face. What happened that day is still in my heart and I remember him. When in the sitting room, he touched me there... I am sure the accused is the man I saw that night in my room..."

30. On the police identification parade, Ms. Kumar said, "...On 10.7.09, I went to the Police Station at Valelevu to identify the thief. They took me upstairs. There were a lot of people there. I couldn't count the number. The room was big. One police officer took me to the room. There were roughly 10 men in the line up. 2 Fijians and 8 Taukei. I cannot recall their faces, but the men look like Form 5 or 6 students. The policeman asked me to identify the man that entered my home on 7.7.09. I pointed to one man. He was the fourth person to my left. He was same person who entered my house. I am sure that was the same person who entered my house. When I saw him that night, until today, I cannot forget his face. That man is present in the court room today. [PW 2 points at accused in the dock]. I can recall his face... I am sure he is the man who came that night. His face is in my mind. [Witness cries in the witness box]. I feel like the same thing is going to happen to me now..."

31. Inspector Josevata (PW5), a policeman of 26 years experience, organized and supervised the above police identification parade. He said, he had done more than 10 previous police identification parade. He said, the identification parade was properly and fairly done, in accordance with standing orders and procedures. He said, he identified 9 men of similar characteristics to the accused. They were lined up in a room. The process was explained to the accused, and he was given the freedom to choose where he stood. He choose to stand fourth from the left. Ms. Kumar was brought in. She was asked to point out the person who entered her house on 7th July 2009. The parade was done on 10th July 2009. Without any hesitation, Ms. Kumar pointed out the accused. She was later escorted back to her room.

32. As assessors and judges of fact, you must analyze Ms. Kumar's evidence in the light of the warning and questions I gave you in paragraph 25 hereof. How long did Ms. Kumar have the accused under observation? She said, she observed the accused for 15 minutes in her bedroom, and 5 minutes in the sitting room. At what distances? She said, the accused was mostly one footstep away in the bedroom, and likewise in the sitting room. In what light? For the 15 minutes in the bedroom, a two feet tubelight was turned on, while in the sitting room, there was no light turned on. Was the observation impeded in any way? In the bedroom, Ms. Kumar said, there was no impediment, while in the sitting room, it was dark. Has Ms. Kumar seen the accused before? She said no. Are there any special reason for remembering the accused? She said, given the serious attack on her that night, she will never forget the accused's face. Was a police identification parade held? Inspector Josevata organized a properly held police i.d. parade 3 days after the alleged crimes, and Ms. Kumar identified the accused, without any hesitation. Are there any specific weaknesses in Ms. Kumar's identification evidence? Ms. Kumar said, the suspect's eyes, part of his nose, his forehead and the top of his head were exposed to her throughout the 15 minutes he stayed in the bedroom. However, the lower part of his nose, mouth and chin were covered by a hood most of the time in the bedroom. According to Ms. Kumar the hood fell down for approximately one or more seconds, wherein he identified the accused's face. S he said, the hood fell down three times. So in a sense, the accused's face was exposed to Ms. Kumar, in the bedroom, for 3 seconds or more.

33. The question you will have to ask yourselves now, as assessors and judges of fact, is as follows: Was the quality of Ms. Kumar's identification evidence of a high quality? If your answer to this question is "yes", then you will have to accept Ms. Kumar's identification evidence, and find the accused guilty as charged on all counts. If your answer to the question is "no", then you will have to reject Ms. Kumar's identification evidence, and find the accused not guilty as charged on all counts.

34. You have heard all the prosecution's witnesses. You have observed them give evidence in the courtroom. You have observed their demeanor in the courtroom. Were they well mannered or otherwise? Were they evasive while giving evidence? Were they argumentative, while giving evidence? How did they dress to court? Given the above, my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence or part of his evidence, you consider unreliable and therefore to reject.

35. You must also carefully consider the accused's position as outlined in paragraphs 17 and 18 hereof.

I. SUMMARY

36. Remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of the accused's guilt, you must find him guilty as charged on all counts. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt, and are not sure of the acused's guilt, you must find him not guilty as charged on all counts.

37. Your possible opinions are as follows:

(i) Count No. 1 - Robbery with Violence - Guilty or Not Guilty

(ii) Count No. 2 - Attempted Rape - Guilty or Not Guilty

(iii) Count No. 3 - Attempted Rape - Guilty or Not Guilty

38. You may now retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene, to receive them.

Salesi Temo
ACTING JUDGE

Solicitors for State : Office of Director of Public Prosecution, Suva
Solicitors for Accused : Gordon & Chaudhary, Suva