State v Koroitamana - Summing Up [2013] FJHC 706; HAC008.2010 (22 August 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 008/2010

BETWEEN:

THE STATE
AND

SAILASA KOROITAMANA

COUNSEL: Ms S Babitu for the State
Mr J Savou for the Accused

Dates of Trial: 20-21/08/2013
Date of Summing Up: 22/08/2013

[Name of the victim is suppressed. She will be referred to as CL]

SUMMING UP

Ladies and Gentleman of Assessors,

1. It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about facts of the case or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of facts. All matters of facts are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
2. You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.
   
3. Prosecution and defence made submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgement.
   
5. On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.
   
6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
   
7. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called Documentary Evidence.
   
8. The facts which agreed between the prosecution and the defence are called Agreed Facts. You may accept those facts as if they had been led from witnesses from witness box. The following facts are agreed between the parties:
   
   1. It is agreed that Sailasa Koroitamana is the Defendant in this case.
   2. It is agreed that the victim and the defendant were at Korovuto in Ba on the 12th of October 2008.
      
9. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you have heard about this case outside of this court room.
   
10. Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.
    
11. Now let's look at the charge.
    

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap.17.

Particulars of Offence

Sailasa Koroitamana on the 12th day of October 2008 at Korovuto,Ba in the Western Division had unlawful carnal knowledge of CL without her consent.

12. In order to prove the offence of Rape the prosecution has to prove following elements beyond reasonable doubt.
    

1. The accused had carnal knowledge of the complainant,

2. without her consent,

3. He knew or believed that that she was not consenting or didn't care if she was not consenting.

13. Carnal knowledge is the penetration of vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
    
14. As far as the element of consent is concern, in our law, a child is under the age of 13 years is incapable of giving consent. In this case victim was 18 years of age at the time of the offence and, therefore, she had the capacity under the law to consent. Therefore, the offence of rape is made out only if there was no consent from the alleged victim.
    
15. I now remind you of the prosecution and defence case. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by the counsel. I will summarize the salient features.
    
16. Firstly Dr Fane Lord gave evidence on behalf of the prosecution. She was attached to Lautoka Hospital in the year 2008. She had checked the victim on 12/10/2008 at Accident and Emergency Unit. Though she obtained the consent of the victim but failed to obtain her signature. In the history victim said that while they were in the bus shelter, accused touched her and forcefully had sexual intercourse.
    
17. On the examination she had found victim suffering pain over her vagina canal and perineum. No hymen visible and extremely tender around vaginal area. Also noted whitish discharge.
    
18. According to her professional opinion there is evidence of forceful penile penetration of the vagina of the victim.
    
19. In the cross examination witness said that she obtained her consent before the examination and a staff nurse and victim's aunt were present at the time of examination. Not any infections or discharge of blood noted on victim's vagina.
    
20. According to victim (CL), in the year 2008 she was staying at Lovu Seaside, Lautoka. On 11/10/2008 a lady said to be her mother's relation arrived there at 2.00am and wanted to take the victim to Ba. She had gone with her to Ba and spent that night. On the following day she requested accused wife to arrange somebody to take her back to her original place. She arranged her husband (accused) who is said to be victim's brother (not own brother), to help her. At about 3.00am on 12/10/2008, the accused woke her up with her bag. Both left the house in the early hours. After walking some time accused suggested to take rest in a bus shelter. At the bus shelter accused touched her body, put her on the ground and had forceful sexual intercourse. He had removed her clothes before the act. While accused was on her body a vehicle came and accused ran from the bus shelter. Victim then ran off the road, went to a nearby house and informed the incident to them. They accommodated her after seen her sorry plight. From there she had called her aunt and went straight to Lautoka Hospital. After examining her, doctor called the police. She had given consent for the checking. Victim identified the accused in open court.
    
21. In the cross examination witness admitted that at Lovu Seaside she was staying with her female partner. After a grog session she only requested help from accused wife. Though she tried to run away from the scene but accused held her firmly. As it was an isolated place her cries were not heard by anybody. She denied that she made a false allegation against the accused. Also said that she never consented for sex with the accused.
    
22. W/DC 3059 Miriama Nadumu is the Investigating Officer in this case. According to her the doctor who examined the victim first reported the matter to the police. After recording the statement of the victim she was produced before the doctor for a medical examination. Thereafter she had arrested the accused and produced before the court. She identified the accused in open court.
    
23. State counsel marking exhibit 01 closed the case for the prosecution. A copy of the exhibit is given to you.
    
24. Defence was called and explained the rights of the accused in Fijian language. Accused elected to give evidence from witness box.
    
25. According to the accused he is married with 5 children. On 12/10/2008 he lived in Korovuto. On that day after dinner, they had a grog session. While having grog, the victim had asked him whether he could drop her off to Ba town. As he agreed, victim woke him up at 3.00am and both left the house. They missed the road and came to a place called Namada. When he went to a nearby house, the victim ran to another house. As it was day light, he came back home. He denied the charge.
    
26. In the cross examination accused denied that he had forceful sexual intercourse with the accused. With regard to the charge he said "yes" to the police as he was arrested for charge of Robbery, assaulted and recorded the statement pertaining to this case.
    

Analysis of the Evidence

27. As assessors and Judges of facts, according to victim accused under the guise of taking her to Ba town raped her at an isolated place. As she trusted him, went alone with the accused to go back to her original place. Immediately after the offence she ran to a nearby house, informed the incident to her aunty and straight went to Lautoka Hospital and given consent for a medical examination. The first information was supplied by the doctor to the police. She never consented for sex with the accused. But in the history given to the doctor she had said that she ran into the cane field after the forceful penetration. No description given in the history as to how far she ran into the cane field.
    
28. The doctor in her evidence said that she obtained victim's consent but not entered in the report. But victim confirmed that she gave her consent for examination. As per the medical report evidence of penile penetration to victim's vagina is present. But no bruises found on her body. She had reported the matter to the police.
    
29. You heard the evidence of a woman police officer who arrested the accused.
    
30. In this case the accused denied the charge of committing rape on the victim .But he admitted that he went along with the victim in the early hours on 12/10/2008.
    
31. In this case the accused is charged for rape contrary to sections 149 and 150 of the Penal Code, Cap 17. Force insertion of the penis into the vagina of the victim is sufficient to prove the charge of rape.
    
32. Ladies and gentleman of assessors, in this case State has to prove lack of consent before you can find the accused guilty of rape. If you find there was consent and that he is thereof not guilty of rape.
    
33. You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his/her evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject.
    
34. You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
    
35. Ladies and gentleman of assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
    
36. Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
    
37. This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
    
38. Any re-direction?
    

P Kumararatnam
JUDGE

At Lautoka
22 August 2013