State v Vesukula - Summing Up [2014] FJHC 28; HAC348.11 (31 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 348 OF 2011

BETWEEN:

STATE

AND:

MATAIASI VESUKULA

Counsel : Mr. Prasad Y. with Ms. Vavadakua A. for the State
Accused In Person

Date of Hearing : 27th, 28th, 29th and 30th January 2014
Date of Summing Up : 31st January 2014

SUMMING UP

[With the request of the prosecution, it was ordered to suppress the name and the identity of the complainant.]

1. ROLE OF THE JUDGE AND ASSESSORS.
   

Madam Assessors and Gentleman Assessor:

(i) The evidence for the prosecution and the defense have been led and concluded. There will be no more evidence. The learned Counsel for the State and the Accused himself made their closing addresses to you. It is now my duty to sum up the case to you. After my summing up you will be asked to retire for your deliberations. Once, each of you, madam assessors and gentleman assessor, reach to a conclusion on the final verdict, the court will re-convene and your individual opinion will be asked. At any time, you will not be asked to give reasons for your opinions. The opinions of you three need not to be unanimous. Nevertheless, it would be desirable if you could agree on the final opinion. As the presiding judge of this case, though I am not bound by your opinions in delivering the final judgment of the court, I assure you, that your opinions will carry a great weight with me when I deliver my judgment.

(ii) In my Summing Up I will direct you on the relevant areas of law which apply to this particular instance. You must accept that legal position and act upon that. In another words, you must apply the law as I direct you to the facts of this case. Facts, as you heard and saw in this court room, are entirely within your domain. You are the masters of the facts or judges of the facts of this case. It is your duty to determine what exactly happened on 18th of October 2011 in the village of Nakorolevu, based on the facts of the case. The alleged victim says that the accused penetrated his penis to her mouth. The accused takes a defense of total denial and says that such an act never took place. At the end of the day, you have to decide whose version you are going to accept and believe.

(iii) In reaching to your final opinion, you have to rely on the evidence you saw and heard, from the witness box and the documentary evidence tendered in court, and nothing else. You should simply disregard what you saw or heard from the printed or electronic media regarding this case before or during the trial. At the same time, any views or opinions expressed by your friends, family members, relatives or anybody should face the same fate. It is you who have to draw your own conclusions based on the evidence in this case. The learned counsel for the prosecution and the accused himself, while making their closing submissions highlighted certain facts and tried to formulate their opinions according to their own views. You need not to accept either of those versions unless you agree with those. Same principle applies to me as well. If I express any opinion or appear to do so regarding any of the facts, do not follow it, simply because it came out of the Judge. It is solely your task to form your own opinions. In my summing up I might not touch all the areas or evidence which you think to be important. Please feel free to give due consideration to all the evidence you see fit, though I mention it or not.

(iv) You have to decide the credibility and truthfulness of each and every witness. In doing so, you can rely on not only what you heard, but what you saw as well. The way witnesses offered evidence from the witness box, how they face the cross-examination of the opposing party, questions from court, were they firm on their stand or evasive, can be helpful in determining their demeanor and in turn to judge their credibility as well. I would like to emphasis that you madam assessors and gentleman assessor, you were chosen to be judges of the facts of this trial as you represent a cross section of the pulse of the society. Your common sense and the experience in day to day life must come into operation when you deliberate this case. That common sense and the life experience have to be utilized in deciding or assessing the truthfulness or honesty of witnesses. In that task, you have the liberty to accept the whole version of a testimony of a witness or a portion of that testimony and reject the rest. You can refuse to accept even the whole testimony of a witness.

2. THE BURDEN OF PROOF
   

(i) When approaching the matter in hand, you madam assessors and gentleman assessor, I would like to draw your attention to certain basic rules which govern our criminal justice system. The accused is presumed to be innocent, though he is charged before this court with a count of Rape, until he is found guilty by this court. Proving his guilt is the sole burden of the prosecution, as it was the prosecution, who accuses the accused of committing the offence of Rape. The duty of the prosecution to prove the case against the accused continues throughout the trial and it never shifts to the accused. The law does not impose any obligation or duty upon the accused to prove his innocence or otherwise.

(ii) When proving the case against the accused, the law expects the prosecution to prove it beyond reasonable doubt. That means the prosecution must prove the case for you to be 'sure' of the guilt of the accused and nothing else will discharge their burden. There is no specific formula where you can have a mathematical precision to be 'sure'. It is all about your day to day experiences and common sense come into play once again. The ultimatum is that you, madam assessors and gentleman assessor, must be 'sure' of the guilt of the accused based on the presented evidence in court by the prosecution. If you have a 'reasonable doubt' over the guilt of the accused that benefit should immediately be awarded to the accused. Such a doubt, as stated, should definitely be a 'reasonable doubt'. A mere possible doubt or trivial and imaginary doubts will not create a reasonable doubt. It should be an actual or substantial doubt which shakes the foundation of the case of the prosecution. The doubts should stem out of the evidence what you saw and heard in court.

3. THE INFORMATION
   

(i) The Director of Public Prosecutions, on behalf of the State has charged the accused for the following count of Rape.

First Count

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (c) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

MATAIASI VESUKULA on the 18th day of October 2011 at Nakorolevu Village in the Western Division, penetrated the mouth of A.M. a child under the age of 13 years with his penis.

4. ELEMENTS OF THE OFFENCE
   

(i) The charge against the accused is based on Section 207 (1) (2) (c) and (3) of the Crimes Decree 2009. For the prosecution to bring home this charge successfully, have to prove the following elements in the charge.

• The accused, (Mataiasi Vesukula in this instance)
• penetrated the mouth of Ms. A.M. with his penis
  

(ii) The moment prosecution proves beyond reasonable doubt that the penis of the accused penetrated the complainant's mouth, may it be a slightest of penetrations, the element of 'penetration' is proved.

(iii) According to Prosecution Exhibit No. 2, the Birth Certificate of the complainant, she was born on 10th September 2004. Therefore, she was 7 years at the time of the commission of the alleged offence. The law says that a child under the age of 13 years is incapable of giving consent to any kind of sexual activity. Thus, there is no issue of the 'consent' of the complainant in this instance.

(iv) Madam assessors and gentleman assessor, you would have noticed that all the other witnesses, except the complainant took an oath either with the Holy Bible or Holy Ramayan to speak the truth, the whole truth and nothing but the truth. The Law facilitates the children under the age of 14 to give evidence without being sworn. Such unsworn evidence has to be treated in the same manner with the sworn evidence of the other witnesses. You have to assess all the evidence led before you using the single test of 'trustworthiness'. If you are convinced to your fullest satisfaction that the unsworn evidence of the complainant is trustworthy and worthy relying upon, there is no bar at all to do so.

(v) At the same time, 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', simply because she offered unsworn evidence.

5. THE CASE OF THE PROSECUTION
   

(i) The Prosecution called 5 witnesses to prove their case. Ms. A.M., the complainant was the 1st to give evidence. She referred to the accused as 'Uncle Ju' and said that one day when she was alone with her Grandmother at home, he called her to his house to have some rice. After she went to his house, 'Uncle Ju' had asked her to suck his penis and put his penis into her mouth.

(ii) Detective Corporal 1855, Ervin Singh testified to the effect that he interviewed the accused and recorded the cautioned interview statement after giving all his rights. He went on to say that the accused was not assaulted, threaten, coerced or given any promise before or during or after the interview. The cautioned Interview Statement was tendered to court as Prosecution Exhibit No. 1.

(iii) Police Inspector Savou, being the witnessing officer of the cautioned interview confirmed D/C Singh's narration.

(iv) Women Detective Police Constable 3749 Ateshni Ram offered evidence regarding her role as the Investigating Officer. After visiting the alleged scene of crime she had recorded the statement of the complainant, arrested the accused and uplifted the originals of the cautioned interview statement, Charge statement and the Birth Certificate of the complainant. She tendered the Birth Certificate of the complainant to court marked as Prosecution Exhibit No. 2. The Investigating Officer said it was the 'Turaga-ni-Koro' of the village reported this incident to Nausori Police Station and he was with the accused waiting for the police at the accused's house, when they visited the scene.

(v) Detective Constable 3180 Nicklesh Chand tendered the Charged Statement as Prosecution Exhibit No. 3. He said the accused was given all his rights before him been charged.

(vi) After leading the evidence of the above 5 witnesses, prosecution closed its case. Then the court decided to call for the defence from the accused.

(6) THE DEFENCE CASE

(i) Accused opted to give evidence from the witness box, under oath and subject to cross examination. He denied having any sexual activity with the complainant. He said he called her only to have some leftover rice.

(ii) Mr. Sailasi Vesikula and Ropate Vesikula, two brothers of the accused and Ms. Vilina Madigi the mother of the accused offered evidence to the effect that the two villagers who made accusations against the accused came to their house to do a 'Bulubulu' to ask for forgiveness in the traditional way. All three claimed that the allegation of Rape is a fabricated lie.

(7) ANALYSIS

Madam assessors and gentleman assessor,

(i) As you are fully conscious, this case is totally depended on what version or whose narration you are going to believe, the complainant's or the accused's. The complainant said that the accused put his penis into her mouth. I directed you earlier that, penetration of the penis to a mouth does amount to 'rape'. Therefore, if you have fully satisfied that the complainant is telling the truth, you must find the accused 'guilty' to the charge of 'rape'.

(ii) The accused said that he did not commit any sexual act to the complainant, but called her to his house only to give her some 'rice'. If you feel that it is the truth or there could be some truth in it, that means you are in doubt of what the complainant said in court. The benefit of such a doubt should be resulted with a finding of 'not guilty'.

(iii) On the other hand, the learned prosecutor cross examined the accused when he came to the witness box to testify. The accused admitted him calling the complainant to his house to have some leftover rice. He admitted that he was wearing only a towel and an underwear after a bath when the complainant came along with him to his house. He admitted that the complainant came to the room where he applied oil on his body and changed himself. He admitted that the complainant did not eat rice though she came to his house. But, he denied that he performed any sexual act with the complainant or his niece. Madam assessors and gentleman assessor, you have to deliberate now whether you are going to accept this version of the accused or not.

(iv) Further to the evidence of the accused, his mother and two brothers offered evidence to the effect that two 'accusers' came to their house for a 'Bulubulu' seeking an 'apology' in the traditional way. We did not have the privilege of listening to the so called two accusers. On the other hand, the said witnesses are close family members of the accused. Their relationship towards the accused does not necessarily mean that they are 'untrustworthy' witness. Nevertheless, when you assess the weight of their evidence, it is always better to be mindful of those two aspects.

(v) I remind you once again that the accused need not to prove anything to show his innocence. The fact you do not believe his version, does not necessarily mean that he is guilty of the charge. The prosecution must still prove the charge beyond reasonable doubt or to your fullest satisfaction over the guilt of the accused. If you have any reasonable doubt on the case of prosecution, you have to find the accused 'NOT GUILTY'.

(8) SUMMARY

(i) Finally, I recall the instruction I gave you in my opening address. I hope you approached this case with an open mind. The accused is presumed to be innocent until proven guilty by a court of law. Thus, if you are satisfied beyond reasonable doubt or for sure that the prosecution has proved its case, or all the elements of the charge, you must find the accused guilty to the charge of Rape. If you are not sure of the guilt of the accused after having analyzed the evidence of the prosecution, you must find him 'NOT GUILTY'.

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

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

(iv) Any re-directions or additions to what I said in my summing up Mr. Prasad?

Janaka Bandara

Judge

At Suva
Officer of the Director of Prosecution for State
Accused In Person