State v Makrava - Summing Up [2012] FJHC 1283; HAC98.2011 (16 August 2012)

IN THE HIGHCOURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 98 of 2011

BETWEEN:

STATE

AND:

FILIPE MAKRAVA
1st Accused

PETERO JOPE RAVAI
2nd Accused

BEFORE: MR. JUSTICE P. K. MADIGAN

COUNSEL: Mr. A. Singh with Ms T. Leweni for the State
Mr. D. Toganivalu for the First Accused
Mr. S. Waqainabete for the Second Accused

DATES OF HEARING: 13, 14, and 15 August 2012

DATE OF SUMMING UP: 16th August 2012

SUMMING UP

[1] Madam and gentlemen assessors,

The time has come now for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them.

[2] ind you that I at I am the Judge of the Law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can e where the truth lies in this case. If I express any partiparticular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

] Counsel have addressdressed you on the facts but once again yod not adopt their views oews of the facts unless you agree with them. In that regard I ask you to ignore Mr. Waqainabete's ssionou that when Pete Petero was speaking to Filipe on the phone, Makarita by saying "fuck-face-face" was signalling agreement to him that she was consenting to the "arrangement". There is no evidence of that before the Court whatsoever. You will take into account all of the evidence both oral and documentary. You can accept some of what a witness says and reject the rest. You can accept all of what he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] You must judge this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what evidence there might have been or should have been. You judge the case solely on what you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. This has not been an easy case or a particularly pleasant case and you could well be very disapproving of what we have heard about the sexual lives of others, but you must not let that cloud your view.

You must judge this case solely on the evidence produced in this Court and nothing else

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If you are sure however that Filipe raped Makarita and Petero assisted him in that, then you will find them guilty.

[8] There are two accused in this case who are facing two separate counts. You must consider each charge separately and the case against and for each accused separately on each count. The evidence concerning each count and concerning each accused is different, so your verdicts need not be the same.

[9] The first accused is charged with one count of rape. Rape is committed when a person unlawfully penetrates the vagina, the anus or the mouth of another with his penis or an object, without that other's consent.

[10] The State must prove to you in this case the following elements:

(i) That it was Filipe (the first accused), who

(ii) penetrated the vagina of Makarita with his penis

(iii) when he did so Makarita was not consenting and he knew that she was not consenting, or that he was reckless in having intercourse with her without knowing whether she was consenting or not.

[11] An accused is reckless if he did not believe that she was consenting and could have not have cared less where she was consenting or not but pressed on regardless.

[12] Now the first two elements in this crime are not in dispute. Filipe admits that he had sexual intercourse with Makarita that night; so the element in dispute is whether Makarita was consenting to this act or not. That is the only issue that you must decide on the evidence. If you think that she was consenting, then you will find Filipe not guilty of rape, however if you think that she was not consenting then you will find him guilty of rape as charged.

[13] Our law also says that if another is forced to give herself up to sex, then there is no consent. That force can be physical force, a threat, a fear of bodily harm or the exercise of authority. If you believe Makarita in that Petero was forcing her to allow Filipe to have sex with her and she wouldn't have done so without that force, then there is no consent and you will find Filipe guilty of rape.

[14] The second accused is charged with aiding and abetting Filipe to rape Makarita. To prove this offence to you, so that you are sure, the prosecution must satisfy the following elements:

(i) that Filipe did in fact commit the offence of rape

(ii) that Petero assisted Filipe in committing that offence

(iii) it was Petero's intention to assist Filipe in committing the offence and with that intention he did acts which he thought would help Filipe.

[15] Madam and Gentlemen, that is the law involved for you to apply to the facts. I want to now turn to the evidence in this case. I do not intend to dwell too much on the evidence for two reasons. First, there has been an awful lot of irrelevant and unpleasant evidence in this case, and secondly you have heard it only in the last few days and I am quite sure that is fresh in your mind. Nevertheless it is my duty to remind you of the relevant and what I consider to be the important evidence, both for the prosecution and for the defence. I remind you again that if I stress something and seem to think it is important, you do not necessarily have to agree. You are masters of the facts and it is for you to decide what is important or not.

[16] The first witness for the prosecution was Makarita, the wife of the second accused. She married young and said things were difficult at first because Petero always used to beat her up for nothing. However her sex life was good. They never needed sex counselling. Filipe, the first accused, was their good neighbour, a kind and helpful man. On the 12th January last year he had called Petero while they were in the fields and she suspected something was wrong. That night after dinner she went to bed. Petero had dressed to go out, but he came to bed and they slept in the bure. She woke up at about 10am and went to the washroom. Petero was not in the bed. While she was up she saw him coming in the door still in his going out clothes. He said that Filipe is outside and at he wanted to have sex with her. Makarita got angry because Filipe was married, she was married, but her husband wanted Filipe to have sex with her. She told Petero to tell Filipe to go home. Petero went out and then came back within one minute. They started to have sex on the bed. She said he was doing things to her that he doesn't normally do. The uncles that live with them were away. Filipe suddenly walked in through the door. She got up and covered herself. Filipe said: "I thought you two would be doing something so I didn't go. Makarita was angry. Petero got the mat, covering himself; he wanted the three of them to yarn outside. The men went outside but she stayed in to feed the baby. She then went outside wearing a T-shirt and sulu. Both men were lying on the mat "yarning". She lay on the mat next to her husband; Filipe was not far from her husband. He was wearing shorts but nothing else. She could see them by the solar lights from the house and from the roadside lights. Petero asked her to have sex in front of Filipe but she said no. Her husband forced her. She saw Filipe rubbing himself on her husband and she was angry. He had taken his shorts off. Petero told her to take Filipe in her mouth but she said no. Petero grabbed her head and Filipe forced his penis into her mouth. She bit it and he removed it. After that, Petero pinned her down while Filipe "had his turn". She tried to free herself but she just couldn't. She couldn't do anything. Filipe was strong, her husband was holding her hands on the ground. She said she was angry and helpless. She told Petero not to do it but he still forced her. Filipe thanked her and kissed her. She then said that she did not report the rape because Petero had threatened to kill her and he locked her in the house so she would not talk to people.

[17] The second witness for the prosecution was Dr. Yumis from Lautoka hospital. She examined Makarita on the 16th March 2011, two months later. She says Makarita was very unhappy and disturbed however her medical examination revealed no evidence of abuse or violence.

[18] The last two witnesses for the prosecution were the two Police Officers who interviewed Filipe and Petero after they had been arrested for these offences. They read to us the cautioned interviews conducted with each accused. Now neither of these interviews is in dispute so they are evidence for you to take into consideration in the normal way. I do have to tell you this however, as a matter of law, whatever somebody says in his interview is evidence for or against him alone and not evidence for or against anybody he is talking about. Let me give you an example. If Mr. A. says in a cautioned interview: "I went with B. to M.H.Flagstaff and we stole a bottle of whisky and a carton of cigarettes". Now that is good evidence that A. went to M.H. and stole the goods but it cannot be used as evidence against B. Unless of course B. says the same thing in his own statement.

[19] So treat the statements as evidence, give them what weight you will and decide whether you believe what the accused say, believe part of what they say or reject all of what they say - the same way you will do with all evidence.

[20] Well that was the end of the prosecution case and you heard me tell both of the accused what their rights are in defence. They each elected to give evidence. Neither of them was obliged to give evidence. They could just say nothing and say then that the State had not proved their case to the requisite standard. They have nothing to prove to you and the fact that they give evidence does not relieve the State of their burden to prove to you, so that you are sure, that they each committed these offences. Their evidence is for you to consider in the normal way and I now remind you of the salient points of that evidence.

[21] The first accused, Filipe, is a friend of the Makrava couple. He tells us he had a relationship with Makarita before she married - "a fling" he calls it. He remembers that on the 12th January 2011 he met Petero on the way to the pig sty at about 4pm or 5pm. In what he says was their usual manner he jokingly asked Petero what was wrong with him. Eventually Petero confessed that his sex life was not everything he wanted it to be. He then offered to help by telling his wife "that she can call on me" and he says that Petero said "sure". Filipe insists that they were joking and talking rubbish. Two days later they again met at the pig sty. Again Filipe asked Petero about his sex life. Filipe says that Petero then told him that he had asked his wife and she had agreed. Filipe said O.K., when you are ready just call me. That evening he got the phone call at about 8.30 or 9pm. Petero said we have discussed it and she is lying right beside me. Filipe rode his bicycle there and texted Petero to say I am outside. Petero came out and said that Makarita had gone to the washroom. They then went into the bure and Petero came out and told him that she said it was too late and for him to go home. Filipe told us that it wasn't too late for him so he waited outside and then went into the bure where they were having sex. He said Peter, Peter I am here. They covered themselves. Petero came and said we will go to the front. They sat on a mat and Makarita was breastfeeding the baby. He and Petero lay on the mat and talked about what makes a person feel good and how to satisfy another. There were some dirty jokes. Makarita came out- they started kissing and he just sat there. Petero took off her sulu and she was naked. They engaged in sexual acts. Filipe says that Makarita stretched out her hand and beckoned him saying "you look frightened or what?." She started rubbing his leg and thighs. He took his shorts off and she started to rub his genitals until he was aroused. While Petero was having sexual intercourse with her he kissed her mouth and rubbed her hair. Petero rolled off her and Filipe started kissing her all over the front of her body and she sucked him. Petero was lying down saying "I am tired". Filipe told Makarita that he had come there to satisfy her and not himself. He says that he never forced himself on her but she wanted him and made that clear by her actions. When he had finished, he thanked her, kissed her, got his flip-flops and went home. He had seen her after that and she had never complained.

[22] Well, Madam and Gentlemen that is Filipe's evidence. It is very different from Makarita's evidence and it is for you to tell me where the truth lies.

[23] Petero the second accused also gave evidence. He was a Methodist Pastor when he married Makarita. He says he was disappointed with his sex life because his wife belittled him and complained of not being able to be satisfied by him. He too remembered a conversation with Filipe at the pig pen. Filipe said that if your wife agrees I can come and give her good sex. That night when talking with his wife he told her of Felipe's suggestion. She said you two are all talk; you two are hopeless, you will lose because you are scardey - cats. He says that she then agreed, saying "let's try Daddy". He says he did not really agree but he had to, because she was always complaining about his sexual performance. He called Filipe and during the call, she said "fuck-face" into the telephone. There is no evidence from anybody as to what she meant by that. That evening he got a text from Filipe saying that he was outside. Makarita was in the washroom so he went out and saw Filipe was standing under the coconut tree. He then told us and I quote; "I am not sure if she was approving". Petero told her that Filipe was outside and she said to tell him to go home and sleep. He did that. Later Filipe came in and Makarita said take the mat outside. He and Filipe lay on the mat and talked about sex when suddenly she came onto the mat, he was kissing his wife's genitals and Filipe started kissing her breasts. After a while Petero lay down exhausted and Filipe was having sex with Makarita. Petero says that they were enjoying it, his wife making a lot of noise of approval. When he finished he got his flip flops and left. He denied holding his wife's hands down while she was having sex with Filipe. He denied ever locking her in the house after that incident.

[24] That brought the evidence to an end members of the panel. In respect of the rape charge against Filipe, it is now for you to decide one issue alone: was Makarita consenting when Filipe had sex with her? If you think no then you will find him guilty of rape. If you think she was forced to do it, you will find him guilty. If you think she was consenting or if you are not sure then you will find him not guilty of rape.

[25] If you find Filipe not guilty of rape, then you will also find Petero not guilty of aiding and abetting that rape. However, if you find Filipe guilty you will consider the aiding and abetting charge against Petero. If you think he intended to assist Petero in that rape and that he did things to assist the rape then you will find him guilty. If he did nothing to assist, or if you are not sure, you will find him not guilty.

[26] The time has come Madam and Gentlemen for you to retire and consider you opinions. When you return you will be each asked in turn for your opinion on each count against the first and second accused. You need not be all agreed on your verdict but it would be better if you are. Please let one of my staff know when you are ready and I will reconvene the Court.

[27] Any redirections, Counsel?

P.K. Madigan
Judge

At Suva
16 August 2012