State v Gonedau - Summing Up [2013] FJHC 79; HAC014.2012 (26 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC014 of 2012

BETWEEN:

THE STATE

AND:

TAITUSI GONEDAU

Counsel : Mr. J. Niudamu with Mr. M. Maitava for the State
Mr. N. Sharma (L.A.C.) for the accused

Dates of trial : 25 and 26 February 2013
Date of Summing up : 26 February 2013

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 remind hou 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 the facts and you and only you can decide where the truth lies in this case. express any particular vier 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] Counsel have addressed you on the facts but once again you nee adopt their views oews of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. You can accept some ot a witness says and reject the rest. You can accept all ofll 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.

[4] You 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 d have been. You judge the the case solely on what you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. This has been a very short and straightforward case but you must give it your full attention without emotion as I am sure you will. 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 you are sure however that the Pastor indecently assaulted Kasanita on the 3rd January and that he raped her on the 4th January, you will find him guilty.

[8] Indecent assault is committed in law when a person unlawfully assaults another in a sexual manner. Included in such activity could be anything from a brushing of breasts in the bank queue to fondling of breasts or rubbing genitalia through clothing. If you believe Kasanita that the Pastor fondled her breast in the kitchen and made her touch his penis, then that is enough for you to find that indecent assault is proved.

[9] In our law, rape is committed when someone invades the body of another (including mouth, anus or vagina) with his penis, fingers or any object, unlawfully and without the consent of another. Consent must have been freely given and not given in fear of authority or by threat.

[10] In this case, it is not in dispute that there was an act of sexual intercourse in the early hours of the 4th January 2012. What IS in dispute is the issue of consent. If you believe Kasanita that the Accused woke her in the early hours and forced her on to his bed and had sex with her against her will, then you will find him guilty of rape. The accused however says that the sex was by mutual agreement and that Kasanita agreed to it all along. It is a matter for you.

[11] Well, Madam and Gentlemen, that is all I need to tell you about the law, except as to say this: the accused is charged with two counts. You must look at each of these counts separately; just because you think he might be guilty of one count does not mean that he is guilty necessarily of the second count. The evidence on each count (that is indecent assault and rape) is different and you will consider them separately.

[12] You only heard the evidence as recently as yesterday, and it will still be fresh in your minds, however I am duty bound to remind you of the evidence both for the Prosecution and for the Defence.

[13] Kasanita told us of the trouble between her and her husband and as a result she ended up staying at the house of the accused and his wife. She arrived there on the 2nd January and stayed the night without incident. The next day she looked after the children until the accused came home early suffering he says from a boil and from a headache. He asked her for a massage to which she agreed. Kasanita says she massaged his head, shoulders and back, and then his chest. At that time the Pastor was asking her questions about an affair he suspected she was having. They were interrupted by a boy calling from outside. Kasanita then went to the kitchen to cook. Taitusi followed her into the kitchen. He took her hand and put it down his pants to feel him and he fondled her breast. Kasanita said she didn't like this at all. He started fondling her private parts and after he had ejaculated he went and slept and Kasanita continued to work in the kitchen. That evening the accused and his wife left together to go to a funeral. The next thing Kasanita remembers is that at about 3am the accused tried to wake her up about four times, asking for sex. Kasanita said no but he forced her to go to his bed. Her sulu fell on the floor and he tore her panties trying to get them off her. He then raped her.

[14] The second witness for the Prosecution was the lady Investigating Police Officer who produced a sketch of the houses near the Pastor and who confirmed that she had conducted the caution interview with the accused, an interview which is now in evidence before you by consent. You might feel that the Police woman's evidence does not help us determine the issues in this trial.

[15] The doctor who examined Kasanita at CWM produced her medical report. There were no medical findings that would help either the Prosecution or the Defence, but what is interesting about her evidence and the report that she produces by consent is the history of the complaint relayed to the Doctor by Kasanita. She told a story to the Doctor which was consistent with what she told us in her evidence.

[16] Well that was the end of the Prosecution case. You heard me explain to the accused his rights in Defence and he elected to give sworn evidence from the witness box. Now I have to direct you as a matter of law that the accused did not have to give evidence because the burden is on the State to prove to you so that you are sure that he committed these crimes. However the fact that he has given evidence is all evidence for you to consider in the normal way, but bear in mind that he does not have to prove anything. Even if you feel he is not telling you the truth, then you must still look at the evidence of the State and see if it proves beyond reasonable doubt that he committed these two offences.

[17] The accused told us that Kasanita came to stay with him and his wife on the 2nd January 2012. He came home early from work the next day with a boil and a headache. He asked Kasanita to massage his head which she did. However during the massage she started playing with his nipples which aroused him. They started hugging each other and Kasanita tried to kiss him. They were touching each other sexually. He could tell that she liked what they were doing, she performed oral sex on him. She did this willingly for about 10 minutes. He ejaculated and then they went to his bed where they had sex. That night he went to a funeral in Raiwai with his wife. They returned and early the next morning Taitusi dropped his wife at a bus stop to go to Naitasiri. When he got home he woke Kasanita up and told her to come to his bed. He says he was shocked that she came. They had consensual sex including oral sex on his bed. After that they both went to sleep.

[18] The accused called his wife as a witness. Once again her evidence is to be considered in the normal way and you will give it what weight you think fit. She confirmed details of Kasanita's movements and her husband's movements on the relevant dates. She told us that on the afternoon of the 3rd January she spent about 30 minutes with Kasanita preparing a mat for the funeral but in that 30 minutes Kasanita didn't say anything about what had happened between her and Taitusi. She told us that she and Kasanita are close friends and usually they discuss everything. Her husband had told her of what he said was consensual sex between him and Kasanita, and she admitted that she could have no idea of what had happened between the two on 3rd and 4th January.

[19] That was the end of the defence case Madam and Gentlemen.

[20] The issue is simple and it is a question of consent. It is not a matter of whether you believe Taitusi or not, it is a question of whether you are sure that the prosecution has proved that the accused committed these offences. It is all a matter for you.

[21] You may now retire. When you return I shall ask you individually for your opinions. It is better that you be all agreed, but this is not strictly necessary. When you are ready you will tell one of my staff and I will re-convene the Court.

[22] Your possible opinions for each offence is –

Guilty; or
Not Guilty.

[23] Re-directions counsel?

Paul K. Madigan

JUDGE

At Suva

26 February 2013