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State v David - Summing Up [2013] FJHC 504; HAC243.2011 (3 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA


CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 243 of 2011


BETWEEN:


THE STATE
COMPLAINANT


AND:


BENJAMIN DAVID
ACCUSED


Counsel : Ms. P. Madanavosa and Ms. M. Khan for the State
: Mr. S. Waqainabete for the Accused


Hearing : 01st to 2nd October 2013
Summing Up : 03rd October 2013


SUMMING UP

___________________________________________________________________________


With the request of the prosecution, it is hereby ordered to suppress the name and the identity of the complainant.


  1. ROLE OF THE JUDGE AND ASSESSORS.

Madam Assessor and Gentlemen Assessors:


(i) This is the second last step of this trial in your presence. After my Summing Up you will be asked to retire for deliberations. Once you are ready with your individual opinions, this court will reconvene. You will not be asked to give reasons for your opinions. Your individual opinions can be unanimous or divided. If the opinions are unanimous, it is more desirable, but what matters is, your honest individual opinion on the already led evidence. I am not bound by your opinions when delivering the final judgment of this court. Nevertheless, the due weight and recognition will be given to your opinions.

(ii) In my Summing Up, I will mainly address you on matters of law. That is because "legal issues" are in my domain. Therefore, you have to accept and act upon on my directions in relation to the legal matters. 'Facts' of this case are entirely in your 'periphery'. In fulfilling their duties the counsel for the prosecution and defence made their submissions and made certain suggestions to substantiate their arguments. In my Summing Up, I might, though inadvertently, express or appear to express certain views. You are not bound to accept any of those views, suggestions or arguments, unless you agree with them. That is how you become the 'masters of facts' in this trial.

(iii) In this instance, it is your task to deliberate what exactly took place between 24th January 2011 to April 2011 and on 20th July 2011. That deliberation has to be done based on the evidence led in court and nothing else. There are two conflicting versions before you. The complainant says that the accused penetrated his finger to her vagina without her consent on both these instances. The accused says it was the complainant who badly wanted him to perform these acts. Your duty, after this Summing Up is to decide whose version that you are going to accept and believe.

(iv) As I said earlier, your decisions should solely base on the evidence presented in court. You must disregard anything you heard or saw in relation to this case from the electronic or printed media or from your family members, relatives, friends or anybody else, before or during the trial. Simply focus on what you heard and saw as evidence within the four corners of this court room. In my Summing Up, I might not touch or mention all the evidence that you might think to be crucial. You are at liberty to take into consideration whatever the piece of evidence you think relevant and important.

(v) Whereas this is a case which solely rests on the issue of 'consent', a proper assessment of the credibility and the truthfulness of the witnesses is vital. In deciding that, you have to consider the demeanour of the witnesses when they took the stand, especially the way they faced the cross examination. The firmness or evasiveness in stand can be a guiding factor to determine their credibility.

(vi) When it comes to the truthfulness of the witnesses, you have to utilize your day to day life experiences and common sense. You were chosen to be the judges of facts in this trial as you represent a pool of common sense and experience of human affairs in this community. You are not alien to the life pattern of the ordinary people of the society. It is that experience you have to apply to conclude whether a particular witness is honest and truthful. In doing so, you can accept the whole testimony of a witness or a portion, or else, you can reject the whole testimony or a part of it.

(vii) Madam assessor and gentlemen assessors, please recall your oath administered when you assume duties as assessors; your true opinion to be given without any fear or favour or ill will in accordance with the evidence and the law. You are not supposed to be passionate towards anybody or any party. The complainant was just over 15 years when she faced the alleged acts. The accused was over 30 and married with 2 children. The complainant had come to Suva to pursue her studies. It was revealed that she was expelled by the school she was attending in Kadavu. The reasons for such a move were not elicited. It was in your presence, she was excused to go out of the court to breast feed her baby. Any of these factors should not distract you from the main objective. Your decision should not be tainted with sympathy or hatred towards anybody. It should only be based on the evidence presented in court and nothing else. You must not speculate or presume anything apart from that evidence.
  1. THE BURDEN OF PROOF
(i) The accused is presumed to be innocent until proven guilty. Even though the accused is charged with two counts of 'Rape', his innocence is presumed until otherwise decides by this court. The burden in proving that the accused is not innocent or guilty as charged rests on the prosecution throughout the trial. That burden never shifts. The accused need not prove anything either to show his innocence or otherwise.

(ii) The prosecution must discharge their burden by proving the charges against the accused beyond reasonable doubt. That is for you to be 'sure' of the guilt of the accused. If you have any reasonable doubt over the guilt of the accused after analyzing the evidence, the benefit of such a doubt should be awarded to the accused. Nevertheless, a 'doubt' must be reasonable or substantial and stemmed out of the evidence. A mere trivial or imaginary doubt won't create a reasonable doubt.
  1. THE INFORMATION
(i) The information filed by the Director of Public Prosecutions against the accused contains following two counts of Rape.

First Count
Statement of Offence


RAPE: Contrary to section 207 (1) and (2) (a) (b) of the Crimes Decree 44 of 2009.


Particulars of Offence


BENJAMIN DAVID between the 24th day of January 2011 to the 29th day of April 2011 at Davuilevu in the Central Division raped A.V. by penetrating the vagina of the A.V. with his finger without her consent.


Second Count
Statement of Offence


RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree No. 44 of 2009.


Particulars of Offence


BENJAMIN DAVID on the 20th day of July 2011 at Davuilevu in the Central Division raped A.V. by penetrating the vagina of the said A.V. with his finger without her consent.


  1. ELEMENTS OF THE OFFENCE
(i) The charges against the accused is based on Section 207 (1) (2) (a) of the Crimes Decree 2009. For the prosecution to bring home this charge successfully, they have to prove the following elements in the charge.

(ii) According to the legal definition of 'Rape', if any person penetrates the vulva, vagina or anus of the other person to any extent with any object or any part of the body, other than the penis, such an act constitutes the offence of Rape. In this instance, prosecution claims that the accused inserted his finger to complainant's vagina. As explained, inserting a finger to a vagina is sufficient to constitute the offence of 'Rape'.

(iii) As a matter of law, I am directing you that there is no need to look for any corroboration of the complainant's evidence for an accused to be convicted on a charge of 'Rape'. If the evidence of the complainant is so convincible that you can place your reliance beyond reasonable doubt, you can solely act upon it even in the absence of any corroborative evidence.
  1. AGREED FACTS
(i) The following facts are been agreed between the prosecution and the defence at the beginning of this trial. Thus, the prosecution is relieved from proving those facts. You madam assessor and gentlemen assessors, can positively assume that the prosecution has proved those facts beyond reasonable doubt. A copy of the Agreed Facts is provided for your perusal.
  1. CASE OF THE PROSECUTION
(i) Ms. A.V, the alleged victim testified first on behalf of the prosecution. She was born on 21st of September 1995 and was turning to 16 years at the time of the alleged incidents. She said that she came from Kadavu leaving her parents there to go to Dilkusha High School and stayed at her cousin's house. She positively identified the accused as the husband of her cousin, Rotabu. The accused, her cousin, their two children and the mother and the sister of the accused were said to be at the house where Ms. A.V. stayed.

(ii) She recalled, one Sunday between 24th January 2011 to 29th April 2011, during the 1st school semester and said that she felt someone was touching her body while she was sleeping in the night. The elder daughter and the sister of the accused had also been in the room where Ms. A.V. was sleeping. She said that person was the accused and he kissed her, touched her breasts by pulling her top and put his hand inside her vagina by removing her underwear. Whilst claiming that it was painful to her, she said that she tried to stand up and scream, but failed as the accused closed her mouth. She said why she wanted to scream was to get someone's help. It was alleged that the accused told her that if she shouts he will do 'something' to her. She had not informed or reported this to anybody as, according to her, she was scared over the accused's wife; her cousin. Further, she told that though she tells her cousin, she would not have believed her.

(iii) Ms. A.V. recalled 20th of July 2011 and said the accused approached her when she went to sleep around 9.30pm after her studies. Repeating the same sequence of events of the first occasion, she said that the accused touched her breasts and inserted his finger to her vagina. She re-iterated that it was painful and could not get up though she wanted to do so. Later, Ms. A.V. had told about these incidents to one of her friends in school and to Ms. Taupati, a teacher. She confirmed that she visited the doctor on 29th of July 2011 for a medical examination and thereafter to Nausori Police Station. After that she was sent to Dilkusha home temporally and back to Kadavu.

(iv) Ms. Sereana Taupati, the teacher of Geography and Social Science in Dilkusha High School in 2011 testified next. She said that Ms. A.V. approached her on 21st of July 2011 through another teacher to discuss some problems that Ms. A.V. was facing at home. Ms. Taupati said that Ms. A.V. looked very distressed, confused and uncomfortable when talking to her about the issues such as the work she has to do at home, difficulties with her cousin and the relationship with her cousin's husband. According to the witness, Ms. A.V. had told her that the accused comes to her room in nights and touches her body in an "inappropriate manner". Ms. Taupati had advised her to report these incidents. Instead, Ms. A.V. had told her that she will go and sleep in a neighbour's house as these incidents mostly happened in nights. Then Ms. Tuapati had reported this matter to the Vice Principal of the school.

(v) Mr. Inoke Leweni, a Detective Constable in 2011 attached to Nakasi Police Post was the last witness of the prosecution. He had caution interviewed the accused after giving all the rights. Whilst confirming that the caution interview statement was voluntarily made by the accused, Mr. Inoke tendered the statement as Prosecution Exhibit No. 1. He read the whole statement in open court and said during the interview the wife of the accused was also present.

(vi) The learned prosecutor submitted to court that she is not relying on the Medical Report prepared after Ms. A.V. was medically examined by the doctor. Thus, she neither tendered that report to court nor called the doctor who prepared it to offer evidence. At the same time, the defence did not challenge the charge statement to be tendered in court. It was produced to court as prosecution Exhibit No. 2.
  1. THE DEFENCE CASE
(i) Mr. Benjamin David, the accused opted to give evidence from the witness box, under oath and subject to cross examination. He recalled one afternoon in early January 2011 and said that while he was cleaning the kitchen, Ms. A.V. told that she started admiring and loving him when he visited to Kadavu with his wife and she does not care whether he is married or having children.

(ii) Referring to the 1st alleged finger penetration, the accused said that when he returned home around 2am after driving the taxi, Ms. A.V. came and opened the door and pulled him towards her room by holding his hands. The accused had tried to pull his hands out, but failed in his task. Then Ms. A.V. had started to kiss him. At the same time she had taken his hand, put it through her undergarments and inserted to her vagina. He had managed to get rid of her and even after he went to his room, Ms. A.V. had been staring at him at the door. The following morning, according to the accused, Ms. A.V. had asked him "when is the next time we will meet again".

(iii) The accused narrated the same sequence of events in relation to the 2nd incident, alleged to have taken place on 20th of July 2011. Instead of kissing and insertion of his finger to Ms. A.V's vagina, this time, the accused said that Ms. A.V. pulled his head down to her breast and asked him to make a love bite. Once again, he had gone to his room after making the love bite and Ms. A.V. had been staring at him at his room door.

(iv) Ms. Lice Rotabu, the wife was the next witness of the defence. Her evidence was mainly based on the love bite or the mark she saw on Ms. A.V's left side neck. Ms. Lice said that upon questioning about the mark, Ms. A.V. told that it is just a scratch from playing Netball at school. She re-iterated that her relationship with Ms. A.V. was very good and her cousin never raised any problem at the family devotion had at their house in every afternoon.
  1. ANALYSIS
(i) Upon listening to the evidence of both the prosecution and defence, you now know that there is no dispute between parties about the all-important "penetration". The prosecution claims that in both the occasions, first in somewhere between 24th January 2011 to 29th April 2011 and second on 20th July 2011, the accused penetrated his finger into Ms. A.V's vagina without her consent and he was fully aware that she was not consenting. In contrast, the defence says, though the accused inserted his fingers to Ms. A.V's vagina, it was done with her full consent as she badly wanted to do so. Madam assessor and gentlemen assessors, you have to decide to which version you are going to align with. The most crucial factor, in this instance is, whether the complainant 'consented' to the alleged sexual acts or not.

(ii) As a matter of law I am directing you that 'consent' should be free and voluntary. If the 'consent' is obtained by force, threat, intimidation, fear of bodily harm or exercise of authority, it is not considered as a free and voluntary 'consent'. The person who 'consents' must have the necessary mental capacity to do so. Most importantly, the absence of physical resistance shall not alone constitute 'consent'. In this context, if you are sure of yourselves that the complainant did not 'consent' to the alleged sexual acts performed by the accused, you must return with an opinion of 'Guilty'. Likewise, if you think that the complainant did 'consent' to the alleged acts, it must be an opinion of 'Not Guilty'.

(iii) In support of their stance, the prosecution mainly relies on Ms. A.V's and her school teacher Ms. Taupati's evidence. Based on their testimonies, the prosecution alleges that Ms. A.V. was ill treated by the accused's wife and she could not divulge her experiences with the accused to anybody at home. The prosecution highlighted that Ms. A.V. had reported these incidents to her teacher on 21st July 2011, the very next day after the 2nd incident and said that shows Ms. A.V. did not put any reliance on the family members. Further, it was suggested by the prosecution that Ms. A.V. could not tell her experiences to any of the family members because she was scared of the accused. The same argument, that she was scared, was put forward to the alleged 'silence' of Ms. A.V. during the two incidents of alleged rape as well. You madam assessor and gentlemen assessors have to assess the weight that you are going to give to these propositions put forward by the prosecution.

(iv) In presenting their case, the defence highlighted certain facts. Their contention was that Ms. A.V. would have raised her voice to alert other 2 who were sleeping with her in the said room to get some assistance from them. It was stressed that the whole compound of the accused's house was comparatively small and any sound raised by Ms. A.V. would have been heard by the other occupants. Whilst denying the way the finger insertion took place as narrated by the complainant, defence suggested that it was she who badly wanted to have this acts performed. It was contended that in fact she took the hand of the accused and slipped it to her under garments to get the accused's finger inserted to her vagina. You madam assessor and gentlemen assessors, have to decide whether you are going to accept these propositions by the defence instead of the prosecution's.

(v) This case is solely dependent on whose testimony that you are going to keep your reliance, either the complainant's or the accused's. The defence says that the complainant did not report these incidents promptly to any third party and that is a sign of her willing participation to the incidents. On the other hand, the accused admitted that he did not tell the 'misbehavior' of the complainant, though it was a pain to him, to his wife until the last minute. According to the wife of the accused, apart from the accused saying that the dress-up of Ms. A.V. is not appropriate, nothing else was told about her misbehaviours. You might have to consider all these factors when you deliberate the issues.

(vi) Prosecution Exhibit No. 1, the Cautioned Interview Statement was tendered to court and copies were given for your perusal as well. In that statement the accused had admitted his culpability to certain things. In giving evidence, the accused said that he was shocked with fear when he was questioned by a police officer. You saw and heard the Interviewing Officer giving evidence in court on behalf of the prosecution. Had the voluntariness of the statement been challenged by the defence, they would have questioned the Interviewing Officer to that effect. You know by now, it was not done so. Therefore, the Caution Interview of the accused (Exhibit No. 1), though contains certain admissions, is admissible as evidence. Nevertheless, madam assessor and gentlemen assessors, it is you who have to decide whether or not you are going to accept the contents of the Caution Interview. At the same time, you have to be mindful that it was admitted by the wife of the accused that she was present throughout the Caution Interview.

(vii) Madam assessor and gentlemen assessors, you would recall that the wife of the accused offered evidence on behalf of the accused. There is no legal barrier for a spouse to testify in support of the other spouse in a criminal matter. Nevertheless, a spouse is obviously an interested witness. Still, that should not be a ground for you to dismiss or reject her evidence. After a careful analysis and scrutiny, if you think that Ms. Rotabu's evidence appeal to your conscience and no reason to disbelieve her, you can act upon her testimony.
  1. SUMMARY
(i) Please recall that the accused need not to prove anything to show his innocence. You might not agree with the explanation offered by the accused. That does not necessarily mean the accused is guilty as charged. The burden of proving the guilt of the accused beyond reasonable doubt still lies on the prosecution. The evidence adduced by the prosecution to prove their case must be appealing to your conscience to be sure of the guilt of the accused.

(ii) I have directed to you at the very beginning that you have to approach the case in an open mind. That is because the accused is presumed to be innocent until proven his guilt. If you are satisfied that the prosecution has proven the guilt of the accused to your fullest satisfaction or for you to be sure, you must return with an opinion of 'guilty'. If you are not sure of the guilt of the accused, it must be an opinion of 'not guilty'.

(iii) Your possible opinions in this instance are 'GUILTY or 'NOT GUILTY' to the charges of Rape.

(iv) You may now retire to deliberate your opinions. When you are ready with the opinions, I will reconvene the court and ask your individual opinions.

(v) Any re-directions or additions to what I said in my summing up Ms. Madanavosa?

(vi) Mr. Waqainabete?

Janaka Bandara
Judge


At Suva
Office of the Director of Prosecution for State
Office of the Legal Aid Commission for the Accused


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