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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 80 of 2013
STATE
v
1. INOKE RAIKADROKA
2. MOHAMMED SAGAITU
Counsel: Mr. L. Fotofili with Ms. R. Uce for the State
Mr. J. Savou (L.A.C.) for the First Accused
Mr R. Vananalagi for the second accused
Dates of trial : 26 - 29 May 2014 and 2-3 June 2014
Date of Summing Up : 4 June 2014.
SUMMING UP
[1] Ladies and gentleman assessors.
The time has come now for me to sum up case to you and to dire direct you on the law involved so that you can apply those directions to the facts as you find them.>
[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 of what a witness says and rejectrest.
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.
[5] The Court room is no place for sympathy or prejudice. For example you must put to one side any prejudicial feelings you might have towards prostitution or people of alternative sexual orientation. You will be aware from the evidence that the two accused persons are gay, but they are not on trial for their sexual orientation but for the deeds they did. 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 the 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 them not guilty - that doubt must be a reasonable one however, not just some fanciful doubt. The accused do not have to prove anything to you. If you are sure however that these men committed the crimes they are charged with, then you will find them guilty.
[8] The two accused in this case are facing nine separate counts. You must consider each count separately and the case against and for each accused separately. The evidence concerning each count is different, so your opinions need not be the same.
[9] The first accused is charged with two counts of slavery and in the alternative for each of those counts with two counts of aggravated sexual servitude. I will define those offences in legal terms for you but before I do that I want to explain to you what "in the alternative" means for you. This is in respect of the first accused only. When you are deliberating you will look at the slavery charge against him for count one. You will after considering the evidence and accepting what I tell you about the law decide whether he is guilty of not guilty of the slavery charge. If you decide that he is guilty then you will not even consider the aggravated sexual servitude count and you will move on to the second count and repeat the process. It is only if you find the first accused not guilty of slavery that will you will go on to consider whether he is guilty or not guilty of the alternative. Remember that you cannot return an opinion on both alternatives, but you must return a verdict on each alternative (in Counts One and Two) beginning with the first option. When you have finished with Counts one and Two you will then go on to consider your opinions in resect of the first accused for the remaining charges against him which are Counts 3, 4 6, 7 and 9. These are all offences of Domestic Trafficking in Children which I will also explain to you shortly.
[10] When you have decided what your opinions are in respect of all the charges against the first accused you will then look at the evidence for and against the second accused. You will not be influenced by your decisions on the first accused's charges because you will be looking at the second accused quite separately from the first accused. Now in that regard I must direct you on the relevance of the respective number of charges. The first accused is facing 7 charges, the second accused only 2. That balance, or rather imbalance is totally irrelevant. It does not mean that the State's case is proportionately stronger against the first accused and that the evidence against the 2nd accused is that much weaker: it is just the way the State have laid the charges and you must look at the evidence on each charge separately.
[11] I am going to direct you on the law that is applicable to the offences and you must accept what I tell you about the law. It will be for you however to decide on the facts, in the knowledge of the legal definitions and give me your opinions to whether Kiki and Margie (the names I will use for the first and second accused in this summing up) did actually commit these two offences.
[12] I start with the offence of Slavery. I would ask you to put to one side your pre-conceptions of slaves either building the Coliseum in Roman times or of Africans picking cotton in the Southern states of America in the 19th century. These were indeed conditions of slavery, but in our modern world slavery exists but in entirely different situations. I will not give examples because they may influence your decision but we must be guided by the definitions and legal elements given in our Fiji law. I will do my best to set those out in understandable form as I will for each offence alleged in the Information.
[13] Slavery is defined in our law in the following way. "slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised" [1]. The definition goes on to give examples of money owing or contracts, but they are not applicable to our situation. What is clear from this definition is that slavery in our law is a condition, that is to say a state of affairs existing. It is not what anybody is doing, it is not something that depends on the intention, willingness or agreement of any party. It is a description of a condition or arrangement that has been put in place . Following on from that state of affairs, various offences arise, one of which the State has charged Kiki, the first accused, that is slavery, twice in respect of Mabel and of Merewalesi separately.
[14] To prove to you so that you are sure, before you can find Kiki guilty of the two slavery charges the State has laid, they must by their evidence prove the following matters:
[15] I don't think you will have any trouble in finding that it was Kiki – there has been no mistake there, so it is for you to find whether he intended that they stay with him and work for him, he receiving all the money earned and keeping it for himself, and in that exercise whether he was in doing that exercising full ownership over the girls. It doesn't have to be complete ownership, like telling them when they could go to the bathroom etc., but just any powers that would show that he was demonstrating ownership of them.
[16] In this regard, relevant questions you should be asking yourselves are questions such as:
[17] According to the answers to these questions then you might be able to determine whether they were being kept in slavery or not. If you find him guilty of slavery in Counts 1 and 2, then you will not consider the alternative charge but you will go on to consider the other charges nos. 3, 4, 6, 7 and 9 against him – charges of Domestic Trafficking in Children.
[18] However, if you find Kiki not guilty of slavery in Counts 1 and 2, then, and only then will you consider the two counts of Aggravated Sexual Servitude, which is charged as an alternative to Counts 1 and 2. The alternative charge is identical but it is charged once in respect of Mabel and once in respect of Merewalesi.
[19] The definition of "Sexual Servitude" in our law is the condition of a person who provides sexual services and who, because of the use of force or threats –
[20] Threat can mean a threat of force or any other detriment that will be occasioned to the person providing the services.
[21] Aggravation of this offence occurs when the person being made to perform the sexual services is aged 18 or under.
[22] With that being the definition, to prove the alternative charges of Aggravated Sexual Servitude, if you are indeed considering those charges, the State must prove to you, so that you are sure, that
[23] So, Ladies and Gentlemen, again as with slavery this is another conditional offence in the sense that the offence is that the accused creates a condition, or a situation in which a girl is forced to provide sexual services. The offences of slavery and aggravated sexual servitude are to all intents and purposes the same. The girl is forced in some way to provide sexual services. She does that under the control of somebody. The only difference is that the "controller" in slavery exercises more of a right of ownership and exploits the girl(s) more.
[24] I now wish to speak to you more about force and threat and threat of force. The normal meanings of force, threat, and threat of force are quite distinct with their own particular nuance but as is the case in a domestic violence context, in a slavery or sexual servitude context the meanings are blurred and overlap. You might think that if someone is forced into providing sexual services, there are locks, seized passports, guards and things like that. We have all read of and seen documentaries on such situations, especially in the case of impoverished immigrants being trafficked abroad. However more often than that, sexual workers are working willingly, as these girls seemed to do, because they have no other choice. That is the force or the threat of the alternative. It is what sociologists refer to as "situational coercion". We have heard evidence of the pathetic existence they were leading in Laucala Beach with their father. Their grandmother, in tears, told us that very often they had no food. They went to stay with her or with friends whenever they could and their father did not seem to take much interest in them.
[25] The State says Ladies and Gentleman that that was their alternative and that is why they were so vulnerable to exploitation. You might regard the evidence as evidence of manipulation by the first accused, providing them with whatever they wanted: make-overs, new shoes, food every day, an opportunity to move into new premises in Raiwai. All of this creates a dependency that creates by manipulation coercive pressure on the girl in question to succumb to the arrangement because the alternative if it exists is dire. That is just as powerful as a threat of force than a beating up or a locked door could provide[2].
[26] Please bear that in mind when you decide if the girl was performing sexual services under threat of force created by the first accused or if she was happily entering into the arrangement as a happy pastime. You have seen the birth Certificates which show that the girls were under the age of 18 at the time which proves the aggravating element.
[27] I now wish to give you legal directions on the charge of Domestic Trafficking in Children, which is the crime charged in all of the remaining charges including Charge 5 and 8 against Margie, the second accused.
[28] "Trafficking" just means trading in or dealing in, or in this case dealing with girls for sex. To prove to you, so that you are sure, that Kiki and Margie, for the respective offences they are charged with, are guilty of this crime, they have to prove to you
[29] There is no more to the crime than that. So you must decide on the evidence when looking at the particular charge and looking at the particular accused whose case you are considering; did he play a part in having the girls transported somewhere? And did he know that he was helping to transport her so that she could provide sexual services? And was she (not did he know) under the age of 18?
[30] I think you will have little trouble with the under 18 part, you have seen the birth certificates of the two girls in question, and you have heard evidence of transporting. There is merely the factual finding for you to make whether the particular accused whose charge you are looking at knew that on arrival the girl would be providing sexual services.
[31] That is all I wish to say about the law at this particular time. I will come back to it at the end of this Summing Up.
[32] It is my duty to summarise the evidence for you in order that you may make a proper assessment of the elements of the Crime. Remember that if I appear to show any particular view of the evidence, you don't have to adopt that view unless you agree with me. The decisions are for you alone.
[33] The thrust of the Prosecution Case of course comes from the three sisters, two of whom are the underage subjects of the charges. The first and eldest sister Loraini said that she had 4 brothers and 2 younger sisters Mabel and Melita. She left home at the end of 2011 and"worked the streets". In other words she said she became a sex worker in Suva. In 2012 she met Darren and also got to know Kiki (whom she subsequently identified s the first accused). She met him in June or July 2012 in Sukuna Park when he came to her, her two sisters and Amy. He asked about Darren who had been pimping for her. He invited them to go and have a drink. They went to the Elixir Apartments and to Room 2-1 which she said was Kiki's room. When they were there Kiki brought in a guy and asked who wanted to "take him"; i.e. have sex with him. Loraini says she did because Amy said she would but the client didn't want her and Loraini wanted to protect her younger sisters. She said that they had no-where else to go. Mabel left the party because she wanted to go back to school leaving Loraini and Merewalesi (also known as Melita). But Mabel came back on the Friday night. They stayed at Elixir for about two months. They got paid but Kiki kept all the money, Loraini says she decided to give it to him because she had nowhere else to go. Her sisters had nowhere else to go and they were being fed. Her Grandmother had chased her out of her Dad's house and told her never to return. In those two months she saw her sisters with clients. Kiki would call the clients into the room and they got to pick which girl they wanted to go with. After about 2 months they moved into a flat in Raiwai. It was Kiki's flat but the six of them living there including Mabel and Melita. They stayed at Raiwai for about 4 months. They continued the sex business while they were there.
[34] Mabel told much the same story as Loraini. She said that she was born on August 4th 1995 which made her in June/July 2012 just 17 years old. She started the sex business in Kiki's room at Elixir during the school holidays when she found her sisters there doing the same thing. She went there with her friend Maeve. It was her first time, so some other girl came and showed her what to do to "please" a man. That was in the Elixir in Kiki's room. She identified Kiki as the first accused. She had sex when living at Elixir about 20 times, maybe more. She would normally give Kiki all the money and if she went out with a client she had to give all the money. Sometimes for example if the client gave $200 for full service, she would get $20. She stayed at Elixir for about 2 months and then she moved to Raiwai. She would go to hotels, motels, apartments, especially Annandale Apartments. Sometimes Margie (identifying the 2nd accused) would bring clients and sometimes Kiki would arrange the clients. Kiki would arrange for the clients to come and pick her up. Later in the year she left Suva and went to Nadi. She went to stay with Kiki there in a house in Martintar with one of Kiki's friends. When she was with Kiki, she said that there were rules. She couldn't go out without permission. She wanted to go home but she didn't because she was scared of Kiki and anyway her Grandmother had chased her out and she couldn't move back.
[35] In cross-examination, Mabel said that Kiki had slapped her at Raiwai and he had also slapped her when they were in Nadi. In answer to Mr. Vananalagi as to why she was working as a sex worker, she said that when she heard that her sisters were doing it she cried and had no choice but to start to do it herself. She also said that she had gone into the trade quite willingly and of her own free will.
[36] The third sister who gave evidence was the youngest, Merewalesi Grace, also known as Melita. She produced her birth certificate showing that she was born on the 15th January 1997 which means that in the middle of 2012 she was 15 years old. She has been in school that year but dropped out to join Loraini as a sex worker because they were close and she "wanted to follow her" . She told the same story of meeting Kiki and how they became to be living at Elixir where she did sex work for 2 months. After that they all went to Raiwai to do sex work where Kiki and Margie got clients for them. She would go to apartments or motels around Suva. She would go by car or taxi. Everything was arranged by Kiki or Margie. At some stage in 2012 she left Suva and went to Nadi. There was a fight at Raiwai and the landlord told them to move. In Nadi she did sex work. She went to Nadi by car which was arranged by Kiki. She was with him when he arranged the vehicle. She understood that in going to Nadi she was going to engage in the same kind of work. As for the money that she was paid for her work she said that she was not given any of it back as a "cut" but sometimes she would ask for money if she needed it.
[37] In cross-examination she denied that she was ever forced or threatened to do the work.
[38] You will remember that the girls' grandmother told us that she was very close to the girls because their mother had gone abroad and she was the only one there for them. She said that living with their father was tough because they had no food there and sometimes they had to go to school with no lunch. They had at one time done very well at school with Melita being first in the class, but in 2012 she saw a change in them. They started dressing in tight shorts. She heard that they had left Laucala and were living with friends in Raiwai and she heard that they were "call girls", not that she knew what that meant. She heard that Mabel had gone to Nadi so she told their father, her son, to get her back. When Mabel did come back she told Grandma the whole story including how Kiki and Margie were using them to sell their bodies – Kiki took the money and didn't give them anything. He said just do your job. She told Grandma that she was afraid. She said that Kiki told her if she walked out he would kill her. Grandmother then took her to the Police to report the matter. She thought it might have been in October/November 2012 but accepted on seeing her statement that it was in February 2013.
[39] The only other relative to have given evidence was the father but you might think that his evidence apart from providing a little background did not really help us much.
[40] The remainder of the prosecution case came from Police witnesses who told us about interviewing the two accused and they produced and read to us the respective records of interview of both Kiki and Margie.
[41] I must now give you a direction on how to approach these records of interview Ladies and Gentlemen. Both accused tell us that they were willing to take part in these interviews and that they were not abused or forced to give the answers they gave, but they do both dispute some of the answers that are recorded as given by them. All of that means that you can accept the records as evidence in the normal way and you can add it "to the mix" in your assessment of the State evidence. But I must remind you of what I have told you earlier. Whatever Kiki or Margie say in their interviews, if you accept what they say is true is only evidence against them and not against anybody that they talk about. So whatever Kiki says about Margie in his interview is not evidence against Margie or vice versa. However that does not apply to evidence in Court: whatever Kiki says about Margie in Court is evidence for you to consider.
[42] However where there is a disputed answer, particularly in the answers that Margie said he did not give, it is for you to decide where the truth lies in the answers given or in the answers Margie says that he gave. Did the Police fabricate the answers? Did they ignore what he said? Or did they just try to record part of what he said, given that we know how long-winded he can be? It is a matter for you.
[43] As for Kiki, he disputes the crucially important answer to question 96 in his interview where he is said to have claimed the girls as his "products". If accepted on face value it would appear to be evidence of his exercise of ownership over the girls for the charge of slavery, but he tells us that the word is common street slang for the way a pimp would describe his girls, along with other terms such as "daughters", "sisters" etc. Again it is a matter for you as to what you make of the different interpretations of the answer.
[44] Well Ladies and Gentleman, that was the end of the Prosecution case and you heard me tell the two accused what their rights are in defence. They could remain silent and say that there was not enough evidence to prove beyond reasonable doubt that they are guilty or they could give evidence and be cross-examined. In either case they could call evidence if they wished.
[45] Both accused chose to give evidence. Now by giving evidence they do not absolve the State from proving their case. The State has that burden whether the accused give evidence or not so the accused by giving evidence do not have to prove anything to you. Even if you do not believe a word either of them says it doesn't matter if you think that the State has not proved their case beyond reasonable doubt; however their evidence is for you to accept or discard in whole or part as you think fit.
The Defence Case.
[46] The first accused Inoke Raikadroka, (otherwise known as Kiki) gave sworn evidence. He told us he is now 24. He first met the girls at Sukuna Park. He had heard that they had been arrested a few days earlier with Darren who was at that time pimping them and that they had just been released. He got talking to the sisters and Amy and their shared their "stories". He knew that they had no-where to stay. He told them that they were too beautiful to be on the streets and said that he could get good clients for them. He didn't force them to do anything. They told him that they had been kicked out of the house by their grandmother. He said that they hadn't eaten so he took them to MHCC for dinner and they talked over dinner. They talked about sex work, what was involved and how much money they could expect to earn. He discussed with them how Commission works. He needed some because he was struggling. He said that if they accepted to work for him the basic rules would be not to take contact details from the clients and not to steal from them. The girls' response was that they were eager and interested. They said that their father was an alcoholic and couldn't support them. Their mother was in Malaysia and their brothers were living away. Their grandmother had kicked them out of home, more than once. So he told them about Elixir, where a room had been booked,( who by is in dispute) so he told them they had a place to crash. He didn't force them he says but they all went to the room for drinks. Shortly after they arrived there Darren started calling and texting. He was making vile threats and threatening to kill Kiki. They then proceeded to party that night – Maeve called and came over too – They stayed at Elixir for about 2 -3 months. At first it was Grace (Melita) and Loraini. Mabel had been there the first night and had left. He said that she didn't want to be part of the sex trade but she was already "doing it". Loraini and Melita were doing sex work when they were there. There were about 2-3 clients a day but not every day. Sometimes they would go a whole week without making anything. The client or Margie (the second accused) would call and ask if the girls could do a job. He said he would send a girl but the transport was usually organized by the client and not by "us". He would ask one of the girls and she would go willingly. At first they worked on a commission basis and they would then contribute to the room rate but after a while he says they decided to give all their money to him. He told them that they didn't have to but they did it. The girl Mabel came back a few days before they left Elixir and she wanted to join the trade. Kiki says that after a while he realised that they couldn't afford to stay at Elixir so he looked for a place to rent. He paid the rent and bond out of earnings but had to borrow some which he repaid out of the girls' earnings.
[47] He found a flat in Raiwai and they all moved, but nobody was forced to move. They did the same work but clients would not come to the house - it was only a place to stay for them and their friends. Their cousin came at one stage trying to get them to go home and to go back to school but the girls didn't want to go back to live in that family. At Raiwai there were a few rules such as no glue-sniffing, have to give all the money over to him, don't discuss their sex work with others. At Elixir, they had to keep fairly low key and not go out because Darren was looking for them, but that was not the case at Raiwai. There they were free to move, he says. They had to leave Rawai after a dispute with the neighbours, the group went different ways. Kiki went with his partner and Maeve to Elixir for about 3 to 4 weeks. The girls went to Hexagon and carried on the business. Kiki then went to Nadi because he knew that he couldn't do sex work for ever and he want to make a new start. He kept contact with the sisters through a mutual friend Anna. Mabel and Amy called and asked to come to Nadi because they were getting fed up with Melita and they wanted to earn more money. Kiki told them to come. They came with a driver for the fare of $200. They didn't pay the driver because they had no money. Whether Kiki played any part in facilitating this transport for the girls to meet a client is in dispute and it will be a matter for you.
[48] In talking about his caution interview, Kiki said that it was given voluntarily by him but that some of the answers are out of context. In particular he referred to Question 96 and the answer recorded there. He is recorded as having said that the girls are his "products". Kiki admits saying this but the meaning of it is misconstrued. Taken in its normal meaning it could denote the exercise of ownership over the girls which is one of the elements for the offence of "slavery"; yet Kiki tells us the word "products" is common street slang for a pimp in describing the girls that work for him, along with expressions such as "daughters". The State disputes this; there is no other evidence on this matter from anybody so it will be a matter for you to decide Ladies and Gentleman. Was he just using a term of street slang for his girls or was he saying that he owned them?
[49] In cross-examination Kiki admitted that on some occasions he would arrange transport for the girls when they were going out to do sex work. He said that on at least one occasion he had taken Merewalesi for a job because she didn't know where the place was. He also admitted in cross-examination that when in Nadi he had taken Merewalesi to Saweni Beach Motel for a client.
[50] The first accused called a witness in his defence . It was Amy a cousin of the sisters. She used to "hang out" with Loraini when they were both doing sex work. She first got to know Kiki when they met in Sukuna Park in circumstances that we are quite familiar with by now. After they left Elixir she went home while the other girls went on to Rawai. She joined up with the sisters again after they left Raiwai and they moved into Studio Six Apartments. Inoke wasn't with them there. From Studio Six they went to Hexagon and from there to Annandale. At all locations they were sex workers. Amy went to Nadi with Mabel. They called Kiki and asked to go. They went by private car which she herself arranged through a friend.
[51] The second accused ("Margie") gave evidence on oath. As you remember he was not an easy witness because he would not stop talking even when asked a simple yes or no question. That is certainly not to his prejudice but it means that it is not easy to encapsulate the information that is important to our case. He told us of his background and of how he got into the sex industry himself, of the part he plays in protection of sex workers network which is very admirable. He first met Amy, Loraini and Melita when they were with Darren. That was in March 2012. Darren didn't have any clients for the girls and asked Margie to organize some. The girls had no place to stay, no food and they were dirty and smelly. One even had ringworm visible on her body. They told him that they were staying at the Ocean View. He went to their room but he had no clients for them. He told them to stay the night and if any clients were asking then he would call Darren. That night he got a call from the first accused. He didn't keep the girls' numbers because they used so many different ones, so he asked that they call him. He said that they used to call at any time of the day or night. He said that he had never ever forced them to sell their bodies.
[52] The second accused then went through the record of his interview Ladies and Gentleman and disputed a lot of the answers that he gave. I will not itemize all of the disputes here because there were many. You will recall that none of these individual disputes were put to the Police officer in question who said nevertheless that he recorded every answer in the record as it was given by the accused. It is a matter for you to decide where the truth lies.
[53] The second accused did say in his evidence however that he would go with the girl, drop her to the client, knowing that she was going to perform sexual services for the client. He would wait for the client to call when it was finished so that he could get his tip. Normally he said they would get a random cab to take the girl to the client to provide sexual services.
[54] Well that was the end of the evidence. I have no more to say to you and you will no doubt think that I have said enough. It is now time for you to retire to consider your opinions. I suggest that you take the information with you and work your way through it.
[55] Your possible verdicts are guilty or not guilty. If it is not guilty of the slavery in Counts One and Two, you must consider the alternative charge of Aggravated Sexual Servitude. It is best that you all be agreed on your opinions, but that is not strictly necessary. When you return you will be asked individually for your opinions on each count. Please let my clerk know when you are ready and I will reconvene the Court to hear your opinions. You may retire now but just before you do, I am going to ask Counsel if they want me to add or explain anything I have said to you.
[56] Counsel?
P. Madigan
Judge
At Suva
4 June 2014.
[1] S.102 Crimes Decree
[2] See Sieders v R. [2008] NSW CCA 187; paras 90-102
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