State v Bale - Summing Up [2012] FJHC 1181; HAC120.2010 (27 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 120 of 2010

BETWEEN:

STATE
PROSECUTION

AND:

EPARAMA BALE
ACCUSED PERSON

Counsel: Ms. Koto for the State
Mr. Sharma for the Accused
Date of Hearing: 19th, 20th, 22nd, 25th June 2012
Date of Summing Up: 27th June 2012

SUMMING UP

Madam Assessors and Gentleman Assessor.

[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 Counsel for the Defence and the Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State 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 opinion 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 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] The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence 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.
   

[11] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.

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

[13] In this case the accused admits that he had sexual intercourse with the complainant Peniana. He says that it was with her consent.

[14] Consent is defined in section 206 of the Crimes Decree 2009. The term 'consent' means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

[15] 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.

[16] In this case, the victim Peniana said that she was drunk and that the accused escorted her home. Last she remembered was that she reached the porch of her house. When she was woken up by aunty Sewe she had been on the floor of aunty Sewe's kitchen. According to her she could not remember what happened while she was sleeping. It is a matter for you to decide whether she consented for sexual intercourse with the accused or not.

The Evidence

[17] The prosecution called 4 witnesses to give evidence. The 1st witness for the prosecution was the alleged victim complainant Peniana Vukicanatani.

[18] She is now 22 years old. On 06/06/2010 she had gone to uncle Meli's house to celebrate the first communion in Dranikula. After drinking grog she had gone home and come back. She had met uncle Bale. He had told her to join him to wash down. There they drank whisky, she said. From there they had gone to buy beer. After drinking beer she has got drunk and accused had escorted her home.

[19] She said she last remembered reaching the porch. She had slept in the porch. She was woken up by Aunty Sewe early morning and then she realized that she was sleeping at Aunty Sewe's kitchen which is about 5 steps away from her house. She had been naked and her clothes scattered all over, she said. Her lips had been paining, ear was injured, stomach and thighs were paining, she said. She had felt weak. She had reported the matter to the police on 09/06/2010 and was medically examined at Navua medical centre.

[20] In cross examination she admitted that she told the police that she went to buy beer with 6 people. She said, she left before beer was finished. She had been fit enough to walk. While drinking beer, she said that she was sitting beside the accused and no one forced her to sit there. When it was suggested to her, she denied that she woke up and spoke to the accused asking 'what's up'. She denied asking the accused to go ahead pointing to the door to the kitchen. She denied walking to the kitchen. She denied removing her clothes and lifting her legs to allow the accused to remove her panty. She denied having consensual sex with the accused.

[21] Answering further, she said that she first went to the Galoa nursing station as she was feeling weak. Then from there only she was referred to the police station. At the nursing station she was seen by one Qisa. She denied telling the nurse that she was raped by four boys.

[22] The next witness was Filomena Sewe. On the 7th June 2010 early morning when she went to the kitchen, Peniana had been lying on the floor naked. Her clothes had been scattered all over the kitchen. She had seen blood on Peniana's private parts. She had tried to wake her up. She had informed Loro. When she came to the kitchen again with Loro and his mother, Peniana had been trying to put her clothes on. Peniana had told her that she was drinking with boys and that the person whom she could recall was who came with her. That was Bale. She had answered crying. There had been love bites on her neck.

[23] In cross examination she said that the kitchen door cannot be closed properly and that it is easy for people to come to the kitchen.

[24] The next witness was Doctor Alipate Vakamocea. His expertise as a medical doctor was not challenged by the defence and therefore his medical opinion is admissible. He had medically examined Peniana on the 9th June 2010. The medical report was produced in evidence. There had been minor healing lacerations in vaginal introitus. He said that the injury could be consistent with dry penetration. He explained to you about dry penetration. He said that it is possible that the injuries caused by nonconsensual intercourse. He said that it is unlikely that those injuries caused by having nonconsensual intercourse with 4 boys.
[25] In cross examination he said that it is possible to have those lacerations through rough consensual sex. In re examination he said that it is more likely by repeated penetration by nonconsensual sex.

[26 Prosecution called Police Constable 2930 Iliesa Ratulevu to give evidence next. He had been the Investigating officer as well as the Interviewing officer. He has recorded the caution interview statement of the accused and said that it was made voluntarily. The caution interview statement was produced in evidence and was read before you. In that the accused has related his version to the police. He had told the police that after Peniana was lying down on the porch, she herself went to the kitchen where he followed and he suddenly stepped on her head. He had touched her and felt that she was naked and that she had undressed herself. He had pulled down her panty. Then she had lifted her legs up and he had put his erected penis into her vagina. He had sex with her for about 4 minutes and she had told her to leave her there. That was what the accused had told the police.

[27] 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. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. He also called witnesses to give evidence on his behalf. You must give his evidence as well as the evidence of other witnesses on his behalf, careful consideration.

[28] The accused giving evidence said that, while drinking beer, Peniana on her own was sitting next to him. After beer was finished Peniana had told her to take her home. When going home Peniana held his hand, he said. Peniana laid on the porch and he had smoked a cigarette. Peniana had asked him 'What are you doing" and had pointed to the kitchen. She had asked him to take the lead. When he remained where he was, she had gone to the kitchen. Then he had stepped on to her head when he entered the kitchen. When he touched to feel her she had touched him and held his hand. She had been wearing only the panty and the bra. When he removed her undergarments she had lifted her legs. Then they had sexual intercourse, he said. Thereafter he had put on her panty and the skirt because if someone comes inside the kitchen would see her naked. While having sex he had asked whether she was OK. She had answered 'I am OK'. He said that he did not force her while having sex. He said that he did not do anything that would make her to have sex with him against her wishes. Finally he said that the victim at no time said expressly or verbally that she wanted to have sex with him.

[29] In cross examination he admitted that although he said in evidence that he never said to the police that she held her hand when walking. He admitted that he did not tell the police that she pointed to the kitchen and told him to take the lead. He had not told the police that he put on her panty and the skirt after sex. He had not told the police that when he entered the kitchen he saw her clothes by her side. He said that the light was coming through the window only on to her clothes but not to the place where she was laying. He said that Peniana was awake when they had sex. He said that Peniana did not mention about sex nor she asked him to have sex.

[30] He said that when she wanted him to take the lead to the kitchen, he thought that she wanted to have sex.

[31] In re examination he said that the reason for the omissions in the police statement was because the police did not ask him those questions.

[32] Defence called Mosese Bakaniceba to give evidence next. Accused had invited him to have drinks with him as it was accused's birthday. After drinking grog they drank whiskey he said. Peniana also had joined. They have gone to buy beer after finishing whiskey. Peniana had been sitting next to the accused while drinking. After beer was finished, Peniana had asked the accused to take her home. He said that Peniana could control herself. Accused and Peniana had followed the road to the village.

[33] The statement given to the police by the witness Lorosio Toutou was admitted in evidence for the defence with the agreement of both prosecution and the defence.

[34] According to his statement made to the police, on 07/07/2010 at about 12.30 am when he was drinking with his friend he had seen Peniana with some boys from the village going on the main road to buy beer. Peniana is his cousin sister. At about 4 am he had gone home as he was drunk. When he reached the porch of their house, he had seen Peniana lying down on the cement floor wearing a black tight and a white T shirt. He had gone inside the house and slept. In the morning at about 8 am Filomena Sewe had told him that Peniana was found naked in her kitchen.

That was the evidence for the defence.

[35] Madam assessors and gentleman assessor,

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.

[36] The written agreed facts are before you. Those facts are agreed by both parties, and you may accept them as if you have heard them lead in evidence from the witness box.

[37] 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.

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

[39] I have told you the elements of the offence of rape, you have to consider. It is an agreed fact by both prosecution and the defence that the accused had sexual intercourse with the complainant in the neighbour's outdoor kitchen. The only remaining element the prosecution has to prove is the absence of Peniana's consent to sexual intercourse with the accused. On the question of consent, did she consent to have sexual intercourse with accused? Did the accused know that she was not consenting, or didn't care if she was not consenting?

[40] Which version you are going to accept whether it is the prosecution version or the version of the defence is a matter for you. You must decide which witnesses are reliable and which are not.
[41] The version of the Prosecution is that the victim was drunk and had slept on the porch. When she was woken up by Filomena Sewe she had been laying in Filomena's kitchen floor naked. The last thing she could remember was the accused escorting her home. She never consented to have sex with the accused.

[42] The accused version is that he had sexual intercourse with the complainant with her consent. He says, when Peniana laid down on the porch, she asked him to take the lead to the kitchen. Then she had gone to the kitchen and when he stepped on her, she had been dressed only with her bra and the panty. When he took her undergarments off, she had lifted her legs. He says that when Peniana asked him to take the lead the only thing that came to his mind was that she wanted to have sex.

[43] Prosecution has to prove its case beyond reasonable doubt. Therefore it is for the prosecution to prove that the accused had sexual intercourse with the complainant without her consent and that he knew that she was not consenting. There is no burden on the defence to prove that the accused acted with her consent.

[44] 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.

[45] 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.

[46] 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 charges against the accused have been proved beyond reasonable doubt.

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

[48] Madam Assessors and Gentlemen Assessor,

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
27th June 2012.