State v Kalou - Summing Up [2012] FJHC 996; HAC57.2011 (28 March 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMNAL JURISDICTION

Criminal Case No. HAC 57 of 2011

STATE

V

PETERO KALOU

Counsel : Mr. M. Mataiva for the State
Accused in person

Date of Summing Up : 28 March 2012

SUMMING UP

[1] Ladies and gentleman 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 thou that 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 thes and you and only you can decide 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.

[3] Prosecution Coon Counsel has addressed you on the facts but once again you need not
his viewsviews of the facts unless you agree with them. Yol take into account all of the evidence both oral and documdocumentary. You can accept some of what a witness says and reject the resu can accept all of what heat 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 must judge udge 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.

[5] The court room is no place for sympathy or prejudice. In this regard I ask you to totally disregard the prosecutor's comments to you in closing about being the father of a daughter and it's consequences. He has no right to bring his personal circumstances into play nor to try and elicit sympathy from you by mentioning such matters.

[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 Ana then you will find him guilty.

[8] The accused in this case is charged with fourteen counts of rape. You must look at each of these 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 others.

[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 or that he sexually abused the victim by invading her with his finger,

(iii) That in the course of the assault, there was at least partial, if not full, penetration of the vagina by the accused's penis or finger

(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 must explain to you that in Fiji Law, the offence of rape is committed when the vagina is penetrated either by the penis or by the finger.You will see that the first count is one of digital penetration and the remaining thirteen are of penile penetration.

[12] The girl gave evidence before you. She says she was born in January 1994 and that the accused is her biological father. In late 2010 and in 2011 until the end of October she attended St Bede's School in Savusavu, at first as a day pupil and then later as a boarder. Just before Christmas in 2010 she was asleep at home when her father woke her up telling her to massage him. He made her lie down, took off her panties and used his fingers to fondle her vagina and then to penetrate her. She didn't tell anybody about it because he threatened her with a knife and she was scared. He told her he had killed before and he wasn't scared of blood.

[13] On the 3rd June 2011, again he woke her up. He called her to his bed, undressed her, touched her breasts and inserted his penis in her vagina. There was no knife shown on this occasion but she did not want him to do it.

[14] The witness then went on to describe other occasions on which he had penetrated her with his penis, the last occasion being when they went crab hunting some months after the June incident. He took her to a deserted house that he was looking after and had forcible sex with her there in the early evening.

[15] She said that it had happened on numerous occasions, she couldn't remember how many or remember the dates. I direct you Ladies and Gentleman that the inability of the witness to remember the dates is not crucial to the proving of the charges against the accused. He has admitted in his caution interview that there were many instances of sexual intercourse (and I will direct you on this interview in due course). He is not claiming an alibi for any particular date, so he is not prejudiced in the dates not being proved.

[16] You heard evidence from the two ladies from St. Bede's school. I ask you to approach this evidence with great caution because most of it was irrelevant to the charges and it is highly prejudicial to the accused. He is charged with rape and not with intimidation or being in possession of offensive weapons. The only value in the evidence of the two teachers is that Ana appeared to be scared of her father and that she was taken to the Police Station to make a report about him. I direct you to discard the evidence of threatening phone calls, discard the evidence of a knife being shown, and discard the evidence of the accused being angry. None of this is relevant to the charges of rape.

[17] Ladies and gentleman, you then heard the evidence of the Policeman from Savusavu
who conducted the cautioned interview with the accused. He tells us that the accused appeared normal and that nothing improper happened. I will direct you shortly on how you should approach that evidence.

[18] That was the end of the prosecution case and you then heard me explain to the
accused his options 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. The fact that he gave evidence does not relieve that burden on the State. Even if you don't believe what Petero 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.

[19] The accused told us that in December 2010, he massaged Ana because she had sore ribs. There was certainly no finger penetration of her. He said that between June and October 2011 he did have sex with Ana once but it was not forced: in fact it was at her instigation. On the night that they went looking for crabs, there was no sexual activity whatsoever.

[20] The accused told us that the answers in the Police interview are not his. The Police made up the answers and he was forced to sign. He signed because he was afraid. He admitted to the prosecutor that he had never made a complaint about this before in Court or to anywhere else for that matter.

[21] I now direct you on how to approach the caution interview. If you think that the answers in the interview have been fabricated by the Police then you will discard the interview and ignore it completely. If you think that the accused did give the answers recorded and that they are true then it becomes evidence for you to consider in the normal way.

[22] You will recall that I told you that the State have to prove lack of consent before you can find the accused guilty of rape. If you find that there was consent and that he is thereof not guilty of rape, then you can return an alternative verdict of incest. Incest is where a father has sexual intercourse with his daughter with or without her consent. If you think that the State has not proved rape to you, then you will be asked to return your opinions on whether he was guilty or not guilty of incest.

[23] Well ladies and Gentleman that is all I wish to say to you. You may now retire to consider your opinions. You will be each asked to return 14 separate opinions on the individual counts. Your opinions will be guilty, or not guilty but guilty of incest or if you think that the was no sex at all not guilty of anything. It is better that you all be agreed but that is not essential.

P.K. Madigan
Judge

At Labasa
28 March 2012