State v Tawakevou - Summing Up [2013] FJHC 700; HAC170.2011 (21 June 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 170 of 2011

BETWEEN:

THE STATE
COMPLAINANT

AND:

SEREMAIA TAWAKEVOU
ACCUSED

Counsel : Mr. Yogesh Prasad for the State
: Mr. Jeremaia Savou for the Accused

Date of Hearing : 18th, 19th and 20th June 2013
Date of Summing Up : 21st June 2013

SUMMING UP

Madam Assessors and Gentleman Assessor,

1. ROLE OF JUDGE AND ASSESSORS.
   

(i) You had the privilege of hearing all the evidence led in this trial, both by the Prosecution and the Defence. You have heard both the Learned Prosecutor and the Learned Defence Counsel making their closing addresses to you. The final step remaining in this case is the Summing Up address from me before you retire for your deliberations. In my Summing Up, I will direct you on matters of Law, which you must accept as correct and act upon it. You must apply the law as I direct you, as throughout the trial, "the law" has been my area of responsibility.

(ii) In as much as I am entrusted with the responsibility of the area of "Law", Madam Assessors and Gentleman Assessor, you hold the responsibility of the "facts". You are Judges of the facts. It is you who should decide whose evidence is to be relied upon, what evidence is to be accepted, what weight is to put on a particular piece of evidence, etc.

(iii) Therefore, if I express any particular view or opinion or if I appear to do so about the facts of this case in my summing up it is solely a matter for you to decide whether to accept what I say. You can either agree with my contention or ignore the same and formulate your own opinions. In the same vein, Counsel for the Prosecution and Defence have already addressed you on the facts, but once again, you need not adopt their views of the facts, unless you do agree with their contention and analysis. The Counsel have a right to make such comments when performing their roles and duties. If you strongly think that those comments and analysis do appeal to your common sense and judgment, you are free to use them as you see fit. But, when I direct you on the Law and legal principles, you have to accept that as true and accurate and should act upon that. In the same vein, I might over look or omit certain evidence, which in your analysis, is important. You can formulate your own opinions by giving due consideration to any piece of evidence as you think necessary.

(iv) You will take into account all of the evidence both oral and documentary. You can accept all of what a witness says or reject all or accept a portion of it and reject the rest. As judges of facts, you are the masters of what to accept from the evidence placed before this court. You will not at any time be asked to give reasons for your opinions. Your opinions need not be unanimous. But it would be desirable if you three can agree upon on the final decision. As the Judge who is presiding in this case, your opinions are not binding on me, but, I assure you that I will give your opinions full weight when I decide the final judgment of the Court.

(v) It is of utmost importance that you must judge or reach to a decision of this case solely based on the evidence that you heard and seen in this court room and nothing else. There will be no more evidence. You may have read or seen about this case in the printed or electronic media or elsewhere before or during the trial. You must totally disregard those. It is your duty to apply the law or the legal principles, which I am going to explain to you in a short while in respect of the evidence you have heard and seen within the four corners of this court house.

2. THE BURDEN AND STANDARD OF PROOF
   

(i) Before reminding and analyzing the already lead evidence in this court, it is my duty to enlighten you on several legal principles, which are involved in a criminal trial. Firstly, the issue of 'PROOF'. As a matter of law, I must direct you that the responsibility or the onus of proving the case against the Accused rests upon the Prosecution. That is a continuing responsibility casts upon the prosecution throughout the trial and it never shifts to the Accused. There is no obligation or duty upon the Accused to prove anything, including his innocence or otherwise. Accused, though charged before a court of law, is presumed to be innocent until he is found guilty by a competent court of law.

(ii) What is the standard that the Prosecution has to adopt in proving the case against the Accused? In legal literature, it is said that "the Prosecution should prove its case against the Accused beyond reasonable doubt". Its simplified meaning is that if you are to find the Accused guilty of the offence charged, you must be satisfied to an extent where you are sure of his guilt. I re-iterate, that you must be "sure" of the guilt and nothing less will do. There is no mathematically proven formula for you to be "sure". In the final analysis, it rests on the robust common sense of yours, which should not be fixed from over emotional responses.

(iii) If you have any reasonable doubt, the benefit of such doubt should be given to the Accused. Then it is your duty to express an opinion of "NOT GUILTY". But, it has to be borne in mind that such 'doubts' must be 'reasonable'. If it is to be 'reasonable', it should be actual and substantial doubts as to the guilt of the Accused which arose from the evidence and it should not be an imaginary or trivial or a merely possible doubt. The doubt, if the Accused is going to have any benefit, should be based upon reason and common sense grown out of the evidence.

(iv) 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.

3. THE INFORMATION
   

(i) You have been provided with a copy of the information. Please read it now.

"SEREMAIA TAWAKEVOU is charged with the following offence:

Statement of the Offence

RAPE: contrary to section 207 (1)(2)(a) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

SEREMAIA TAWAKEVOU on 22nd day of May, 2011 at Naisogovau Village, Dravo, Nausori in the Central Division penetrated the vagina of SITERI DRAU with his penis without SITERI DRAU'S consent."

4. ELEMENTS OF THE OFFENCE
   

(i) As you read, the alleged charge of RAPE levelled against the Accused is based on Section 207 (2) of the Crimes Decree 2009. It states as follows:

" A person rapes another person if –

(a) The person has carnal knowledge with or of the other person without the other person's consent; or

(b) The person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c) The person penetrates the mouth of the other person to any

extent with the person's penis without the other person's consent"

(ii) The Prosecution has to prove the following three elements beyond reasonable doubt for you to find the Accused guilty as charged.

• The Accused (Seremaia Tawakevou hereinafter referred as the Accused) had carnal knowledge with the complainant (Siteri Drau, hereinafter referred as the complainant);
• without the consent of the complainant; and
• while the Accused knowing that the complainant is not consenting, had sex at the time in issue.
  

(iii) Carnal knowledge or sexual intercourse is proved when the penis of the Accused has penetrated the complainant's vagina. In the eyes of law, even a slightest penetration of the complainant's vagina by the penis of the Accused is sufficed to establish "sexual intercourse". Ejaculation is irrelevant and not essential in proving the "penetration".

(iv) If the complainant agrees freely and voluntarily out of her own free will, she is said, to have 'consented' to the sexual act. But, if that 'consent' was obtained by force or threat or intimidation or putting her in fear of bodily harm, that is not a "free and voluntary" consent on the part of the complainant.

(v) At the same time, the Accused must know that the complainant was not consenting to have sex at the time in issue or that he was reckless in having sexual intercourse with her without knowing whether she was consenting to the act or not.

(vi) The issue you have to answer in this instance is "Did the Accused rape the complainant on 22nd of May 2011 at Naisogovau village, Dravo, Nausori?"

(vii) In this instance all three elements of the offence, which must be proved beyond reasonable doubt by the Prosecution are in dispute as the Accused totally denies the allegation of Rape.

5. THE CASE OF THE PROSECUTION
   

(i) Prosecution called 6 witnesses to prove their allegation. Ms. Drau, the complainant said that while she was watching London 7's on television at Neumi's house (her neighbour) on the 22nd of May 2011 around 2am, the Accused called her by name from outside the house. When she did not respond to the call the Accused has come inside the house and covered her mouth by one hand while putting the other arm around her waist and carried to the toilet of Raivoli. In fact, she demonstrated to court as to how she was 'carried' or 'dragged' by the accused in the described manner.

(ii) She went on to say how the Accused forcefully undressed her while covering her mouth by one hand. Thereafter, she said, the Accused took his erected penis out and inserted into her vagina. While crying and with tears, she testified that she was in pain while the Accused performed this forceful act and she could see the blood came out of her vagina. When the sexual intercourse was in progress, for about 20 minutes, according to her analysis, her father had called her and the Accused had run away from the toilet.

(iii) Her father had seen her sitting inside the toilet. She could not move as she was weak. Then her father had taken care of her and taken her to the house and called the police. While positively identifying the Accused in court, the complainant said that she was 17 years of age at the time of the incident and even today she is scared and afraid of what the Accused did to her and cannot forget the incident.

(iv) Dr. Eparama Amoe, a Gynecologist and Obstetrician of CWM hospital had examined the complainant on 22nd May 2011 around 1pm, the same day the matter was reported to police. He was invited to find out whether the hymen of the complainant is intact and to confirm whether there are any signs of recent sexual intercourse. The background of the incident that the complainant narrated in court had been told to the medical examiner as well and the medical findings are compatible with the history given by the complainant.

(v) Dr. Eparama had observed several bruising on the abdomen, and vaginal vaults or vaginal walls. Further, he had noted bleeding at the hymen site, which is evident of a recent sexual intercourse. Dr. Eparama had taken a vaginal swab of the complainant and handed over the same to the police officer for forensic analysis.

(vi) Ms. Mozima Irram, Woman Corporal of the Fiji Police Force, who is attached to Forensic Science Services, confirmed that the vaginal swab of the complainant which she received contained spermatozoa or sperms. She said, they could not perform a DNA analysis, though received Accused's DNA samples, due to financial constraints. Ms. Irram was of the view that the presence of the sperms clearly reflects a recent sexual intercourse as the swab was taken on the same day of the incident.

(vii) Woman Corporal Susana Yaca (2997) was the Investigating Officer of this case reported to Nausori police. Upon her recommendation, the Accused was arrested and Detective Constable Vilivo Ratumaisara (33212) had Caution Interviewed him. Later Detective Constable Ropate Raburau (3730) had charged the Accused for committing the offence of Rape.

(viii) On the above background of facts, the Prosecution is asking from you as judges of fact to find the Accused guilty as charged.

6. THE DEFENCE CASE
   

(i) Accused offered evidence from the witness box. He said that he went to Neumi's house to take the shelter from rain on 22nd of May 2011 after returning from his club game and a drink at Nausori Club. After seeing the complainant he had recalled that one 'Wati' informed him that the complainant wishes to see him and he promised to meet her in the afternoon. Then he had called the complainant outside. She had gone to the toilet of Neumi's house and came outside after a while. Thereafter both of them had a walk to the foot path and then to the road while talking to each other. Accused said that they were talking to each other on the road, where Raivoli's toilet is just next to them.

(ii) Since the complainant's father had called her, he had told her to go home and he himself had gone to his house. He refused the allegation in full and said it is a fabricated story.

(iii) Ms. Avilina Venina, to whom the Accused is related as a nephew, said that she was watching London 7's at Neumi's house with the complainant and several others. She said that she fell asleep while watching the television and when woke up, the complainant was not to be seen. She was told by others that the complainant went to her house. Then the complainant's father had come looking for her. As the complainant was not to be seen, her father had looked for her around the village and after some time the complainant had shown up herself.

(iv) Eroni Tuisese, the brother of the Accused, said that while he was watching London 7's at Neumi's house on 22nd May 2011 around 2am with others, Accused came and called the complainant. A little while later, the complainant had gone to the toilet of Neumi's house and gone outside of the house. After the game when Eroni came out of the house he had seen both the complainant and the Accused talking to each other in front of the complainant's house. He said that Accused did not come inside Neumi's house, but, the complainant went outside to meet him.

(v) The crux of the defence case is that, the Accused did not involve in any sexual activity with the complainant apart from talking to her in that night and therefore, he is asking you, as assessors and judges of fact, to find him NOT GUILTY to the levelled charged.

7. ANALYSIS OF THE EVIDENCE
   

(i) Both the Prosecution and the Defence have agreed upon the following Facts:

• It is agreed that the accused in this case is Seremaia Tawakevou aged 25 years of Naisogovau village in Dravo
  
• It is agreed that the victim in this case one Siteri Drau of Naisogovau village in Dravo
  
• It is agreed that the accused on the 22/05/2011 was drunk.
  

It was agreed that the victim of this case is Siteri Drau. The meaning of an Agreed Fact is that the parties are not disputing that fact and thus you can assume that the Prosecution has proven the same beyond reasonable doubt. Therefore you can treat the same as an established fact. In this instance, the defence has raised an issue of identity of the victim as there is a discrepancy in the second portion of her name according to the Birth Certificate tendered with disclosures. Apart from the Agreed Fact that the victim is one Siteri Drau, the complainant physically appeared herself in court to offer evidence. Police statement and the Medical Report do reflect the name of Siteri Drau. In this back ground, first you have to decide whether you believe or not that the witness who appeared before you and testified was Siteri Drau. If the answer is 'yes' you can proceed forward to the rest of the issues.

(ii) Most importantly, the Accused admits in his evidence that he was talking to the complainant on road, next to Raivoli's toilet. In his Caution Interview he has said that "I came together with her to the main road and was telling stories with her at Raivoli's toilet". Though the versions of the complainant and the Accused are different as to the occurrence of the alleged incident, even the Accused admits his physical presence at the crime scene during the material time.

(iii) Therefore it is entirely up to you, Madam Assessors and gentleman assessor, whom to be believed, either the complainant or the accused. In reaching to your final conclusion, you might as well recall that the Accused expressly admitted that he did not have any personal grudge or a problem with the complainant for a false implication. In such a situation you may ask for yourselves as to whether there could be any practical reason for the complainant to stretch their existence to several feet and place themselves inside Raivoli's toilet with a forceful sexual intercourse.

(iv) Then the question arises about the Injuries of the complainant on her abdomen, vaginal walls and hymen. You have to decide whether you are going to believe the evidence of Dr. Eparama or not. If you do believe Dr. Eparama, you might have to consider his opinion that the complainant was subjected to recent forceful penetration and his consistent findings with the history given by the complainant. Please recall that Dr. Eparama said in evidence that what he saw on the hymen was its first injury. The complainant told that she experienced sexual intercourse for the 1st time in this instance with the Accused. You have to decide whether you are going to believe this portion of the complainant's evidence or not.

(v) At the same time, you will have to consider the weight that you are going to attach to the sperms identified in the vaginal swab taken from the complainant. As the learned Defence counsel pointed out, no DNA TEST is been performed by the police over the identified sperms to establish that those were of the Accused's. Ms. Irram of Police Forensic Services said that they do not perform DNA Analysis over financial constraints. The learned Prosecutor said that even without the DNA findings, the presence of the sperms does establish the recent sexual intercourse and in turn strengthens the credibility of the complainant. Now, being Judges of fact, you have to decide what version you are going to accept and rely upon?

(vi) When you, Madam Assessors and Gentleman Assessor, look at the version of the Accused, he said that one 'Wati' came along with the complainant and told him that the complainant wishes to talk to him. That was the reason that the Accused said for him to call the complainant outside of Neumi's house at that late hours of the night. This 'Wati' never came to court to give evidence in this case. That is the matter for you to decide whether you believe it or not.

(vii) Finally, Defence called two witnesses to testify on behalf of the Accused. They are Ms. Avilina and Tuisese. Accused is a nephew of Ms. Avilina and the brother of Tuisese. Therefore, on the face of it they are 'interested witnesses'. Ironically, both their testimonies are in favour of the Accused. As a matter of law I am directing you, that both of them being relatives of the Accused, is not a ground to reject their evidence. But, it is always safer to test the evidence of an interested witness in the light of the probabilities and the surrounding circumstances. If the evidence of an interested witness inspires confidence and in the event of unshaken credibility, there is no justifiable reason to reject the same.

(viii) The Prosecution says that the Defence witnesses are contradicting each other. Tuisese said he saw both the Accused and the complainant talking to each other in front of complainant's house when he left Neumi's house after the match. Ms. Avilina said when she woke up the complainant was not to be seen and her father came in search of her and later the complainant had shown up herself. It was highlighted in the court proceedings that there was no need for the complainant's father to call her name and search for her around the village, had both the Accused and complainant were in front of complainant's house. You have to decide what version of witnesses to be believed and what to be rejected.

(ix) Finally, you had the privilege of watching the way both the complainant and Accused gave evidence. You saw the complainant in tears and looked like she was emotionally disturbed. Even the Accused, at one point of time, while giving evidence, could not talk for a while and remained silent. Act in consistence with your oath. Please keep aside both prejudice and sympathy. Now you being Judges of fact should decide who is forthright and who is evasive? You saw the demeanour of both of them and the way they responded to the questions posed to them. You should find out who is credible and trustworthy.

8. SUMMARY
   

(i) Remember that you do not have to believe the Accused to find him 'NOT GUILTY'. It is still the responsibility of the Prosecution to prove the case against the Accused beyond reasonable doubt. If you have any reasonable doubt in Prosecution's case you still have to find him 'NOT GUILTY' to the charge.

(ii) Accused is presumed to be innocent until proven guilty and he need not to prove anything, inclusive of his innocence. If you accept the sequence of events narrated by the Prosecution and you are satisfied beyond reasonable doubt so that you are sure of the Accused's guilt, you must find him guilty as charged. If you do not accept the Prosecution version and you are not sure of the Accused's guilt due to reasonable doubts, you must find him 'NOT GUILTY' to the charge.

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

(iv) You may now retire to consider your opinions. When you are ready, you may inform one of the court clerks so that I will re-convene the court. You will be asked individually for your opinion.

(v) Before you retire, I would like to ask the Counsel of both parties if there is anything that they wish me to say in addition or want me to re-direct the assessors on any matter.

Janaka Bandara
Judge

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