State v Kalawaci - Summing Up [2012] FJHC 964; Criminal Case 44.2011 (21 March 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 44 of 2011

BETWEEN :

STATE

AND:

JOSESE KALAWACI

BEFORE : Mr. Justice Paul Madigan

COUNSEL : Ms. M. Fong for State
Ms. M. Lemaki (LAC) for Accused

Date of Hearing : 19 & 20 March 2012
Date of Summing Up : 21 March 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. I remiu 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 decidee the truth lies in this case. If I express any particular ular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

3. cution Counsel asel and Defence Counsel have both addressed you on the facts but once again you not adopt their views oews of the facts unless you agree with them. You will take into accoll of the evidence both orah 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.

. You must judge this chis case solely on the evidence that you heard in this Court room. There will be no more evidence, you ar to speculate on what evidence there might have been or should have been. You judge the case case solely on what you have heard and seen here.

5. The court room is no place for sympathy or prejudice. 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 however you are sure that the accused raped Kesaia then you will find him guilty.

8. The accused in this case is charged with two counts of rape. You must look at each of these two counts separately: if you happen to be of the opinion that he is guilty of one of the counts does not necessarily mean that he is guilty of the other.

9. I am sure you are all probably well aware of what rape is in the general sense, but for the purposes of the criminal law in Fiji, it has specific elements on which I now give you directions.

10. For you to find that the accused is guilty of rape, you must find beyond reasonable doubt, that is so that you are sure, that;

(i) It was this accused
(ii) who had sexual intercourse with the victim
(iii) that in the course of that intercourse, there was at least partial, if not full, penetration of the vagina by the accused's penis.
(iv) that the victim was not consenting to this activity, and that the accused knew, or had good cause to know that she was not in fact consenting.

11. I now propose to look at the evidence with you and remind you of both the prosecution and the defence evidence; I don't propose to do this in much detail because this has been a very brief case and you only heard the evidence yesterday. However it is my duty to remind you of the main points before you go out to consider your opinions. Please bear in mind however that whatever I say about the evidence you do not have to accept unless of course you agree with it.

12. The first prosecution witness you will recall was Kesaia, the complainant of both rapes in this case. She was obviously uneducated and unsophisticated and found appearing in this Court rather overwhelming. She was so nervous that at one stage she even had to leave the Court to be sick. As I said to you earlier, Madam and Gentlemen, you must not let sympathy cloud your judgment: despite all of this you must judge the evidence on its strength or otherwise and give it what weight you think fit. Kesaia told us that last year she was 17 and lived in Nabua with her mother, her grandmother, and her 7 siblings. There was also a home in Natoa the family used. She has left school and stays home helping with domestic duties. She knows the accused because he is her uncle and he used to live in the same house with the family at Natoa. On the 23rd July last year, there was a funeral that many from the village including her went to it. She went to bed that night in the Natoa house and was in bed at 9 pm. She had seen her uncle drinking kava that night. After she had gone to sleep she heard him calling her from her grandfather's house. He told her to go to that house. She went. When she got there he took off all her clothes and he told her to lie down on the bed which she did. He then forcibly had sexual intercourse with her. She didn't want that and tried to push him away. She didn't like it and she felt him ejaculate, not that she knew what that was. He said nothing to her but she screamed when she felt pain. She called out to her mother but she was inside sleeping. She later told her mother what had happened.

13. Kesaia went on to tell us what happened the following Monday the 25th July 2011. At about 8.30 am she and her good friend Filomena walked from Nabua to Natoa. On the way they met Luke who is her cousin. They got to Natoa at about 9 am. She went to their Natoa house to get some clothes for her mother. When she got to the house, she says that Jese(the accused) "caught her". He followed her and made her go into the bedroom where he took off all her clothes. He kissed her on her breasts and penetrated her. She didn't agree to that and didn't want him to do it. She pushed him away. Again she says she felt "water coming out" from his penis and she felt pain. She didn't tell anyone what had happened because she was ashamed. That night she went home to Nabua and told her mother.

14. In many respects Members of the Panel this evidence was unsatisfactory. The witness appeared to be changing the details of her story as she went along. In cross examination she admitted that at the time of the first incident she had said in her Police Statement that when Jese was on top of it was in the living room area where her family members including her grandmother were sleeping. People heard her scream but nobody investigated. She also admitted that on her medical examination she had told the Doctor that the accused didn't have sex with her and that she had never had sex with anyone before. Well Madam and Gentlemen this is evidence which you must consider very carefully and decide where the truth lies.

15. Kesaia's friend Filomena gave evidence that on July 25th, the Monday, she had to go to Natoa to get some items for her mother. Kesaia went with her and they walked there. When they got there they each had chores to do. Filomena saw Kesaia go to her house then she saw Jese go to Kesaia's house and never saw him come back from there. When she later saw Kesaia she made no complaints but she looked weak.

16. Dr. Alumita told us about the medical examination of Kesaia and produced the medical report. In the history that Kesaia related to the Doctor, she said that Jese had been pestering her for sex, but she had never agreed and she never had sex with him nor with anybody else for that matter. The Doctor's examination showed a perforated hymen but no evidence of recent forceful penetration. There was a vaginal discharge which may have meant the presence of a sexually transmitted disease, but the Doctor's swab samples were lost after testing: she cannot therefore be sure on this point. Madam and Gentlemen, it is up to you what you make of this rather confusing evidence.

17. WDC Maca is a police woman working in the sexual abuse unit at Savusavu. She was the investigating officer of this case. When she first saw Kesaia, she was reluctant to say anything in front of her mother, but as soon as mother was out of the way, she revealed the story of forced sexual intercourse.

18. Later WDC Maca conducted a cautioned interview with the accused who completely denied the allegations of rape. He never saw Kesaia on the night of the 23rd and on the 25th they fought on the bed over a mirror but there was no sex. He maintained this stance when formally charged when he said there was no sexual intercourse, let alone rape.

19. The last witness for the State was Luke. He lived in Natoa for three years and used to see the accused every day. They would work in the fields and drink grog with each other. He was in Natoa on the 25th July and met Kesaia and Filomena when out walking that morning. On his walk he eventually arrived at his uncle (Jone's) house where he saw Jese the accused. Filomena and Kesaia arrived. Kesaia and Jese spoke, with Jese telling her he wanted her to wash some dirty clothes for him. Kesaia left the gathering and walked to her house. Jese followed after about 5 minutes. Luke himself went home having to pass very near Kesaia's house. When he got near the door of Kesaia's house he looked in and says he saw Kesaia and Jese having sex. They were lying on the bed naked from the waist down. It was a clear day and nothing obstructed his view. He watched for about five minutes. He told the court that it appeared to him to be a forceful situation. Kesaia looked and sounded weak and Jese was holding her and she was trying to push him away. This is very crucial evidence Members of the Panel and you must weigh it up very carefully. It is of course entirely a matter for you what you make of it.

20. After that evidence the State closed its case. You heard me explain to the accused his rights in law. He elected to give sworn evidence. The accused did not have to give evidence. He has nothing to prove to you. He could sit back and say to you that the State has not proved it's case beyond reasonable doubt. Then fact that he gave evidence does not relieve that burden on the State. Even if you don't believe what Jese says in evidence, it doesn't matter. You don't have to believe him, you have to believe the State witnesses before you can convict.

21. And so what did he tell us? He says that Kesaia is his niece and he knows her well. On the 25th July he had attended a funeral and had come home to the village at about 5 pm. He then went to the Community Hall to drink grog with his friends until about midnight. He had been drinking grog, he says, at the funeral since about 11 am. At midnight Saimone walked him home, he went in, had some dinner and then went to bed. He didn't leave the house again and he didn't have sex with Kesaia. On the 25th July he woke up early and decided to take the bus to Natoa to get some fresh clothes. He arrived at Natoa at about 8 am and went to Jone's house for a rest. Kesaia arrived and he told her to go and wash his clothes. She didn't want to. He decided to do it himself and walked to Kesaia's house. He was living there at the time because his own house had been damaged. He took off his clothes and went to the river to wash. When he finished, he had a toothache and went back home to lie down. He was inspecting his tooth with a mirror when Kesaia came and a struggle developed over the mirror, Kesaia saying that it was hers. She lay face down with the mirror under her chest and Jese pulled her arms open in an attempt to free the mirror. This struggle went on for about 5 minutes on the bed. Later he cleaned up the cassava patch, and Kesaia packed some clothes and went back to Jone's house. He denied having had sex with Kesaia that day.

22. The accused called as his witness, Saimoni Tunidau. He lives in Nabua and had gone to the funeral with Josese. They had been there from early morning and got back to Nabua at 4 pm. They drank grog together that evening until after midnight. He then walked Josese home and then he himself went home for dinner and to sleep. Filomena and Kesaia were staying with him that night. He says that when he woke up at 6 am Kesaia was still there sleeping. In cross-examination he admitted that he had been drinking grog all day and if Josese had left his house and come back he would not have known.

23. Well that is the evidence Madam and Gentlemen. Do not let anything I have said about it influence you in any way; and please remember our fundamental principle of law; that you have to be sure of Jese's guilt before you can find him guilty.

24. You may retire now and consider your opinions. You will be asked individually on your return what your opinion is. It will be far better if you can be all agreed on the verdicts, but you don't have to be. Let any of my staff know when you are ready and I will reconvene the Court to hear your opinions. Just before you retire I will ask Counsel if they wish me to add to or alter my directions to you in any way.

Paul K. Madigan
Judge

At Labasa,

21 March, 2012