State v Latu [2011] FJHC 355; HAC134.2010 (22 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC134 of 2010

STATE

v.

WALTER LATU

Counsel: Ms T. Leweni for State
Ms N. Nawasaitoga for Accused

Hearing dates: 20 – 21 June 2011
Date of Summing Up: 22 June 2011

SUMMING UP

Madam and Gentleman Assessors,

[1] It is now my duty to sum up to you in this case. In doing so I shall direct you on matters of law which you must accept and act upon. In other words you must apply the law that I tell you in this case. As for the facts of the case however, what you think really happened, which witnesses are reliable and credible, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to express any opinion on the facts, then it is entirely a matter for you whether or not you accept what I say or form your own opinions. In other words you are the judges of fact.

[2] Both counsel made strong submissions to you in their closing addresses as to how you should find the facts of this case. They had the right to make comments about the case to you. You are not bound in any way by what they said about the facts of the case. If you think that the comments they made appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community in this trial and it is for you to decide what really happened in this case.

[3] You will not be asked to give reasons for your opinions but merely your opinions themselves and your opinions need not be unanimous, although 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 come to deliver my judgment.

[4] On the question of proof I must direct you as a matter of law that the onus or burden of proof lies fairly and squarely upon the prosecution to prove the charge against the accused. This burden remains throughout the trial upon the prosecution and never shifts. In this case, the accused has given evidence but there is no obligation upon him to prove his innocence. Under our system of criminal justice an accused is presumed to be innocent until he is proved guilty.

[5] The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you are sure of the guilt of the accused before you express an opinion that he is guilty. If you have any reasonable doubt, about the accused's guilt, then you must express an opinion that the accused is not guilty. It is only if you are satisfied so that you are sure that the accused committed the offence alleged, that you may express an opinion that he is guilty.

[6] Your decisions must be based only on the evidence you have heard in this court. You must disregard anything you may have heard about this case outside this courtroom. Remember also to apply the law to the facts dispassionately, without being swayed by emotion. The law should be applied in a gender-neutral way, without any value-laden pre-conceptions about conduct of men and women, or boys and girls. So you must be dispassionate and neutral in your approach to the case.

The law

[7] The accused, Walter Latu is charged with rape of Mereseini Rewa on 5 June 2010 at Vanuabalavu. The offence of rape has three elements.

[8] Firstly, it must be proved beyond reasonable doubt that the accused had unlawful sexual intercourse with the complainant. The physical act of intercourse must be proved, that is that the accused's penis penetrated the complainant's vagina. The slightest penetration is sufficient. It is not necessary to prove ejaculation. The first element is not in dispute.

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

[10] The prosecution says that the accused forced the complainant to have sex with him. The defence says that the accused had consensual sex with the complainant. If you accepted the complainant's account, hers is clearly an account of forced sexual intercourse sufficient to establish this element. But this is the main issue that you have to decide in this case. Did she consent?

[11] Thirdly, it must be proved that the accused either knew that the complainant did not consent or was reckless as to whether she consented. Consider all of the circumstances to decide whether the accused would have known that the complainant was not consenting to having sex with him.

[12] The question for you to consider is whether the complainant consented to sexual intercourse with the accused. The resolution of this issue is dependent upon who you believe, bearing in mind on this issue as on all, the prosecution must satisfy you beyond reasonable doubt. If you believe the complainant, then it would be obvious that she had not consented and that the accused knew she had not consented or was reckless as whether she had consented.

[13] Those are my directions on the elements of rape.

[14] You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth.

[15] I will now remind you of the evidence led by the prosecution and the defence. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel, that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

The evidence

[16] The first witness was the complainant, Mereseini Rewa. On 5 June 2010, she accompanied her cousin to the Lomaloma hospital compound. She met the accused for the first time at the health inspector's residence. From there, he followed and grabbed her from behind. He covered her mouth with one hand and dragged her into a nurse's quarters. Upon realizing the quarters was occupied he took her to an old vacant nurse's quarters. Mereseini said she was scared. She couldn't scream. He forcefully removed her pants and panty. He pinned her down by pressing her thighs with his knees. He had sexual intercourse with her. She did not consent to sexual intercourse. After having sex, the accused threatened her not to tell his girlfriend, Sylvia or he would kill her. She said the accused followed her to the hospital. She told her school friend, Vilisi that the accused had raped her. She said she did not complain to her parents or teachers because she was scared of the accused.

[17] The next witness was Seini. Seini said she accompanied Mereseini to the hospital compound on the evening of 5 June 2010. When Mereseini returned on the second occasion after looking for Miri, she was not walking properly. Seini said Mereseini did not complain about anything to her on the evening of 5 June 2010.

[18] The next witness was Vilisi. Vilisi said sometime in June 2010 Mereseini told her that the accused had raped her. Vilisi told you the details of rape as relayed to her by Mereseini. Vilisi said Mereseini was crying when she relayed the incident of rape. Sometimes this type of evidence is referred to as recent complaint evidence. This type of evidence given can show consistency on the complainant's part.

[19] Vilisi was cross-examined on her statement that she had made to the police on 29 June 2010. In that she statement, Vilisi did not mention that Mereseini told her that the accused had raped her. As a matter of law, I must direct you that what Vilisi said on oath are evidence. What Vilisi said in her police statement is not evidence. However, previous statements are often used to challenge witnesses' credibility and reliability because a previous inconsistent statement may indicate that a witness has told a different story previously and are therefore not reliable. The only use you can put Vilisi's police statement to, is to assess her credibility if you find she has given a material inconsistent statement for which she has offered no explanation.

[20] The next witness was Dr. Bakani. Dr Bakani medically examined the complainant on 28 June 2010, that is, 23 days after the alleged rape. The only injury found was a tear of the hymen which according to Dr Bakani was more than two months old. Dr Bakani said since the injury was inconsistent with the history relayed by the complainant, upon further inquiry, the complainant admitted she had sex before 5 June 2010.

[21] As a matter of law, I must direct you that the medical evidence is not conclusive on the issue of consent or lack of it and when you consider the issue of consent, you may think that the medical evidence is of little assistance and therefore you may give it such weight as you think fit.

[22] The next witness was A/Cpl Senibui, who caution interviewed the accused. In his interview, the accused said he had consensual sex with the complainant. He threatened her because he did not want her to tell his girlfriend, Sylvia.

[23] That was the evidence for the prosecution.

The accused

[24] At the end of the prosecution case, you heard me give the accused his options. He could have remained silent, or given evidence. The accused chose to give evidence. The accused said on 5 June 2010 at about 10pm he met Mereseini outside the health inspector's residence where she came to inquire about Miri. The accused asked Mereseini if she was dating someone. She replied no. They hugged and kissed. They went to Miri's house but the door was locked. They kissed again. Some people passed by. Mereseini told him to find another place. They went to an old vacant nurse's quarters. She asked about Sylvia. He said he did not know her. Mereseini took off her clothes and told him to do it slowly and not to ejaculate inside. The accused said he had sexual intercourse with Mereseini and he ejaculated outside. They kissed. They dressed up and came outside. The accused said he threatened her not to tell Sylvia to scare her. They walked together to the hospital. The accused said he did not force Mereseini to have sex with him. He said Mereseini consented to sexual intercourse.

[25] I must remind you that when an accused has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

[26] You will generally find that an accused gives an innocent explanation and one of three situations then arises:

[27] You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

[28] Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is a reasonable doubt in your minds and so again your opinion must be not guilty.

[29] The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation would then be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be guilty.

[30] The next defence witness was Sylvia Turaga. Sylvia said on 5 June 2010 at around 10pm she left her residence for night shift duty at Lomaloma hospital. When she arrived at the hospital, she came to know Mereseini who was visiting a patient with other women. Mereseini then left the hospital. After a while she returned. Sylvia said she could not tell if anything was wrong with Mereseini. Mereseini left the hospital for the second time. When she returned she opened a packet of bongo and started eating while lying on the bed. She asked Sylvia where the accused was. Mereseini then left the hospital with two boys and returned at 5am.

[31] That was the case for the defence.

Summary

[32] As I said earlier, it is not in dispute that sexual intercourse took place between the complainant and the accused on 5 June 2010. What is in dispute is whether the complainant consented to the sexual intercourse and whether the accused knew that she was not consenting or was reckless as to whether she was consenting.

[33] The resolution of this issue will depend on which version of the facts you want to accept, the complainant or the accused. Remember the accused does not have to prove any motive for the complainant to cry out rape, or to prove anything for that matter. If you consider the complainant's evidence as being credible and reliable, and are satisfied beyond reasonable doubt that she did not consent and that the accused knew or believed that she did not consent, then your proper opinions would be guilty.

[34] If you disbelieve the complainant on lack of consent, your opinions should be not guilty. Similarly you should advise me the accused is not guilty if you have a reasonable doubt.

Conclusion

[35] I will now ask you to retire. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive your opinions.

Daniel Goundar
JUDGE

At Suva
22 June 2011