IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC107 of 2010

STATE

v.

JONE NAQIO SAQANAIVALU

Counsel: Ms J. Prasad & Ms N. Tikoisuva for State
 Ms N. Nawasaitoga for Accused

Hearing dates: 29 & 31 August 2011
Date of Summing Up: 31 August 2011

SUMMING UP

Ladies 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 person 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, Jone Naqio Saqanaivalu is charged with attempted rape of Kuini Radinivulagi on 7 March 2010 at Suva. Before you convict the accused for attempted rape, the prosecution must prove two elements. 

[8] Firstly, it must be proved beyond reasonable doubt that the accused intended to commit rape. A man commits rape if he has carnal knowledge of another person without the consent of that person; carnal knowledge would of course include penetration of the vagina by the penis to any extent. A man is also guilty of rape if he penetrates the vulva or vagina of another person to any extent with his finger without the consent of that person. 

[9] Secondly, it must be proved beyond reasonable doubt that the accused with the intention to commit rape did something which was more than mere preparation for that offence. It is for you to decide what the intention of the accused was and what he did was more than mere preparation.

[10] The date of the alleged offence and the identification of the accused are not in dispute. What is in dispute is whether the accused intended to rape the complainant and what he did was more than mere preparation. The resolution of this issue will depend on whether you believe the complainant's evidence. 

[11] The prosecution says that when the accused threw the complainant on the ground and forcefully removed her undergarment and climbed on top of her and tried to remove his pants while being on top of her, he intended to penetrate her vagina using his penis without her consent and what he did was more than mere preparation for rape. The defence says that the complainant consented to have sex with the accused and that he did not force her in anyway. 

[12] You must consider all the evidence to decide whether the accused intended to have sexual intercourse with the complainant without her consent and what he did was more than mere preparation. You decide intent by considering what the accused did or not do and by what he said or did not say. You should look at his actions before, at the time of and after the alleged offence. All these things may shed light on his intention at the critical time.

[13] Those are my directions on the elements of attempted 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 prosecution case is substantially based on the complainant Kuini Radinivulagi's evidence. She told you she met the accused outside Riz Nightclub while she was waiting for her friend. She had earlier consumed a few beers. She said she was drunk but aware of her surrounding. The accused introduced himself as a naval officer and after a short conversation they took a stroll to MacDonalds. From MacDonalds they went to the seashore. Kuini said she wanted to relieve herself. After relieving herself, she went and sat with the accused on the seawall. She told him that she already had a boyfriend. While they were sitting on the seawall, the accused pulled her blouse and tried to kiss her. He tried to make her lie on the seawall but she managed to stop him. Kuini said the accused then threw her on the ground. She fell on her right hand. Her fingers were injured and were painful. The accused pulled her shorts and panty. She struggled.

[17] The accused was over her and was trying to pull down his pants so that he could put his penis inside her. He was kneeling between her legs. Kuini said she tried to keep her legs together to stop the accused from penetrating her. She punched the accused three times on his face using her hand. At that moment, the accused released her. She got up, looked for her panty and walked to a police post. 

[18] In his caution interview, the accused said he asked Kuini for sex. He said she agreed to have sex with him. He did not force her. He said he wanted to have sex with her because he could not control his desire to have sex.

[19] That was the case for the prosecution.

The accused

[20] 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. 

[21] The accused said he accompanied the complainant to the seawall from Riz Nightclub. They did not go to MacDonalds. He said he approached the complainant for a date at the seawall. She agreed. When they reached the seawall, the complainant wanted to relieve herself. After she had relieved herself, they sat on the seawall and had a conversation. They kissed each other. They then moved on the ground. He asked for sex. She agreed. She pulled out her skirt. She then told him she can't have sex because she was menstruating. They agreed to kiss each other. The accused said the complainant suddenly got angry and swore at him. He said the complainant accused him of bringing her to the seawall to rape her. He said they together walked to the Terry Walk Police Post. He spoke to a police officer. She did not want to listen and ran away.

[22] That was the case for the defence.

[23] 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.

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

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

[26] 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.

[27] 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.

Summary

[28] It is not in dispute that the complainant voluntarily accompanied the accused on early hours of 7 March 2010. What is in dispute is whether the accused intended to commit rape, that is, to have sexual intercourse with the complainant without her consent, and what he did was more than a mere preparation for rape.

[29] The resolution of this issue will depend on whether you accept the complainant as a truthful witness. Remember the accused does not have to prove any motive for the complainant to lie, 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 the accused intended to have sexual intercourse with the complainant without her consent and what the accused did was more than mere preparation for rape, then your proper opinions would be guilty.

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

Conclusion

[31] 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
31 August 2011