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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 087/2011
BETWEEN:
THE STATE
AND:
JOSEVATA MASALA
COUNSELS : Mr L Fotofili with Ms J Fatiaki for the State
Mr A Vakalaloma for the Accused.
Dates of Trial : 30/06 & 01-03/07/2014
Date of Summing Up : 04/07/2014
[Name of the victim is suppressed. She will be referred to as L.B.]
SUMMING UP
Madam and Gentlemen Assessors,
[01] 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.
[02] 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, in respect of each counts separately.
[03] 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.
[04] 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 judgment.
[05] 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 persons to prove their innocence. Under our criminal justice system the accused is presumed to be innocent until he is proved guilty. This is the golden rule.
[06] 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.
[07] 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.
[08] In certain circumstances the court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field.
[09] The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. I will direct you shortly on how you should consider that evidence.
[10] In assessing evidence of witnesses you need to consider certain tests. Examples:
[11] 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.
[12] 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.
[13] Now let's look at the charge. The trial commenced on amended information filed against the accused.
FIRST COUNT
Statement of Offence
RAPE: Contrary to Section 150 of the Penal Code, Cap 17.
Particulars of Offence
Josevata Masala, between the 1st of February and 28th of February, 2009 at Nasinu in the Central Division, had carnal knowledge of L.B. without her consent.
SECOND COUNT
Statement of Offence
RAPE: Contrary to Section 207(1) and (2) (a) of the Crimes Decree No.44 of 2009.
Particulars of Offence
Josevata Masala, between the 1st of May and 31st of May, 2010 at Nasinu in the Central Division, had carnal knowledge of L.B. without her consent.
THIRD COUNT
Statement of Offence
ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Decree No.44 of 2009.
Particulars of Offence
Josevata Masala, on 12th March 2011 at Nasinu in the Central Division, attempted to have carnal knowledge of L.B. without her consent.
[14] In this case the accused is charged under two different laws. The first count is charged under repealed Penal Code Cap.17. The second and third are under Crimes Decree No: 44 of 2009. The reason for that is that between 2009 and 2010 the Criminal Law in Fiji has been changed. The offence remains the same but the legal section referred to in the charges are different.
[15] In Fiji law, the offence of Rape is committed when the vagina is penetrated either by the penis or by the finger of the accused. Hence in this case the prosecution has to prove:
i) The accused had carnal knowledge of the complainant,
ii) Without her consent,
iii) He knew or believed that she was not consenting or did not care if
she was not consenting.
[16] In order to prove Attempted Rape the prosecution has to prove:
[17] 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.
[18] As far as the element of consent is concern, in our law, a child under the age of 13 years is incapable of giving consent. The victim was born on 07/06/1991. In the year 2009 she was 18 years old 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.
[19] According to Section 206(1) of Crimes Decree No. 44 of 2009, the term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.
According to Section 206(2) without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained:
[20] I now remind you of the prosecution and defence cases. 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. If I do not mention a particular witness, or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
[21] Now let's look at the evidence led by the prosecution in this case.
[22] The victim L.B was 18 years old in the year 2009. In the year 2009 she stayed at Cunningham Place with her Aunty Meresiveli and her Uncle Kelepi Funilagi. She came to Meresiveli's house to look after a small child namely Jethro. She takes Jethro to school in the morning and brings him home in the noon. Her cousin Ivamere Diriwai also stayed in the house.
[23] Before she went to Cunningham her Aunty's family stayed at Nadera. Jethro's parents and the accused also stayed with them. Accused is her uncle. She came from a village called Natuva. She had studied up to class 08. The accused was following a course at USP in the year 2008. At Nadera in the morning hours only the victim, Jethro and the accused stayed in the house. One day the accused pushed her on a bed, removed her undergarment and inserted his penis into her vagina. But she did not tell anything to him. She did not tell anybody due to fear of her parents. Further she was frightened and ashamed. She did not like what the accused had done to her. After few days the accused had sexual intercourse again.
[24] The accused continued to have sex with her even after her Auntie's family shifted to Cunningham Place. The accused put her on the bed, forcibly removed her undergarment and had sex with her which she did not like it. Due to fear she did not divulge the incident to anybody.
[25] One day in the night while she was sleeping in the room the accused came up to her bed and requested for sex. When the accused said once more the victim said "no. At that time Ivamere who was also sleeping in the room saw this and the accused went away from the room. She told Ivamere what happened in that night on the following day. Further she had told Ivamere about the sexual intercourse happened to her at Nadera and Cunningham Place. But Ivamere did not believe it. She identified the accused in open court.
[26] In the cross examination the victim said that Jethro is her cousin and was 5 years old when she was at Cunningham place. Victim admitted that she gave a statement to the police. Victim was living with her Aunty from 2009 to 2011 and left for her village after reporting the incident to police. Victim cannot re-call how many times she had sexual intercourse with the accused but she said many times in the morning and afternoon. Victim admitted that she told police that accused had sex all the day with her before and after she brings Jethro from school. She further said whenever the accused push her on to the bed she understand that the accused wants sex. She further said that whenever the accused push her she fell on the bed and the accused removed only her pants. She did not tell anybody as she was ashamed. At Cunningham Place she used to sleep in the room where Ivamere also sleeps. One day, it was the first time the accused came in the night and woke her up when she was on the bed. Accused told her "once more" and tried to take off her undergarment. But Ivamere had seen this. When the victim said "no" the accused went out. On the following day Ivamere asked her why the accused came to her room last night.
[27] In the re-examination the victim said that she told Ivamere that the accused was having sex with her and she really wanted the accused to stop this.
[28] According to Ivamere, she stayed at Cunningham Place with her Aunty Meresiveli in the year 2011. The victim is her cousin who also stayed there to look after Jethro. The Cunningham Place house is a three story house. She did the domestic duties. Her relationship with the victim was good. While talking to her, the victim said that the accused used to force her to sleep with him. Victim further said to her that the accused force her to the bed and remove her clothes. This happened at Nadera too. The accused is related to her. He is her uncle. The accused stayed in the ground floor. One day in the month of March, 2011 they watched a movie and went to sleep. Accused also watched the movie. The witness and the victim slept in a room. While sleeping she had seen the accused entering the room and called the victim. At that time victim was sleeping on a bed and the witness was lying on a mattress. Further she had seen the accused was trying to take off her clothes while she was sleeping. The accused told the victim in I-Taukei language 'Le Vatuga na" (hey,only once). She heard the victim saying in I-Taukei language "Kua, Toso(Don't, move) and pushed the accused away from her. Then the accused left the room. She did not speak to her at that time but asked her in the morning. Thereafter this was reported to her Aunty. She identified the accused in the court.
[29] In the cross examination the witness said the victim takes Jethro to school in the morning and returns at 12.00pm. She had not seen the accused coming to her house between 8am-12pm. Before the accused came to her room she knew that the accused slept with the victim. But the victim had told her that she does not want to sleep with the accused. She agreed that the victim was sleeping with the accused for about 2 years. But no one knew this it only came to light after the accused came to their room in March 2011. When the accused came to their room, others were sleeping in their room. She could not see the face of the accused as it was dark in the room. She did not shout after seeing this.
[30] In the re-examination the witness said that the victim told her in the morning. But she admitted stating in her statement to the police that the victim said nothing to her.
[31] DC/2688 Samuela had recorded the caution interview statement of the accused on 23/03/2011. WPC/Caroline was present as witnessing officer. The caution interview statement was marked as P1.
[32] After calling three witnesses prosecution closed their case.
[33] Defence was called and explained the rights of the accused. The Accused elected to give evidence from witness box and called three witnesses.
[34] Accused in his evidence admitted that he stayed at Nadera and Cunningham Place when the victim was there. Also described how he was related to the victim and Ivamere. Meresiveli is his own sister. The victim was entrusted to take Jethro to school. In the year 2009 he had intimate relationship with the victim. They associated as girlfriend and boyfriend. He started to have sex with the victim from mid 2009 at Nadera and continued after they shifted to Cunningham Place. He used to have sex three times a day and three times a week with the consent of the victim. In 2009 he was studying at the University of South Pacific. He explained to the court how he became close to the victim. According to him he never pushed the victim on the bed. The victim voluntarily came up to him for sex. Apart from the people mentioned above, Jale, Nabo and Meleki also stayed with her sister's family at Cunningham Place. The victim never informed anybody and kept it secret until 2011. He joined the Fiji Police Force when he was at Cunningham Place.
[35] On 12/03/2011 at about 10.00pm the accused, the victim and Ivamere watched a movie at the second floor. At that time he requested for sex from the victim. When he went to the victim's bedroom where Ivamere was also sleeping she refused. He then went to his portion and the victim came and closed the door. The accused said that he never forced the victim for sexual intercourse and the victim never complained to anybody in the house.
[36] In the cross examination accused said that if Ivamere was not in the room he would have had sex with the victim on 13/03/2011. He was 27 years in 2009. He admitted that the victim was younger to him and as he is the victim's Uncle and he has the duty to look after her. But the victim was the person who made the first approach when they were playing. The sexual relationship ended after the victim's complaint to the police. He said that he was planning to marry her. As he was studying in the year 2009 he did not have enough money to have a wedding.
[37] Dr S Kelera[Mrs] has examined the victim on 22/03/2011 at CWM Hospital. She is MBBS qualified doctor and is working at Obstetrics and Gynaecology Unit at CWMH. The victim in her history to the doctor said that her uncle forced her to have sexual intercourse from 2009 and this was caught by her cousin. Her hymen is not intact and this suggest of penetration to her vagina.
[38] DC/Pita Qiolevu has charged the accused on 24/03/2011 at Valelevu Police Station.
[39] Final witness for the defence is the victim's Aunty and the accused's sister Meresiveli Moroka. She brought the victim in the year 2009 to look after her adopted son Jethro. In the year 2009 she stayed in Nadera and moved to Cunningham Place in later part of 2009. Witness said that she did not know that her accused brother was having sexual relationship with the victim until this was intimated to her by Ivamere on 14/03/2011. When she interrogated the victim she had told her that the accused was having sexual intercourse without her consent starting from Nadera. She admitted that the victim did not tell her until Ivamere brought it to her notice.
[40] In the cross examination the witness said that she assisted the victim to report the incident to the police. When she asked her about the incident the victim started to cry. Normally the victim is a calm and quite person.
[41] This is the end of defence's case.
Analysis of the Evidence
[42] Madam and Gentlemen Assessors, in this case the victim gave evidence first. According to her she was raped by the accused since 2009 in the absence of the inmates of the house. Whenever accused forced her, he pushed her on to a bed and had sexual intercourse forcibly. Although the accused had sexual intercourse for about 2 years in the house where the victim's Aunty stayed, the victim did not take endeavour to inform this to her. Further the incident came to light when her cousin Ivamere saw the accused pulling the victim on 13/03/2011. Until such time, the victim kept it secret from others. At all relevant time several people were in the house both in Nadera and Cunningham Place. According to the victim Jethro's parents also stayed in the house at Nadera. The victim nowhere in her evidence said that the accused threatened her before or after having sexual intercourse. As assessors and judges of facts, you have to consider this evidence very carefully.
[43] Although Ivamere said that the victim told her the incident has been happening to her since 2009, but it was not clear from evidence actually when Ivamere came to know the incident from the victim. But Ivamere informed the incident on the following day to her Aunty Meresiveli when she saw the accused on 13/03/2011 night sleeping over the victim and requesting for sex. Her Aunty Meresiveli had helped her to report the matter to the police. According to Meresiveli, Jethro's parent's were not permanently stayed with her family at Nadera.
[44] According to the doctor, the victim was subjected to sexual intercourse.
[45] The caution interview statement of the accused is evidence against him. What an accused says in his caution interview statement is evidence only against him. The accused denied the rape charges but admitted consensual sexual relationship with the victim. What weight you give to the accused's caution interview statement is entirely a matter for you to decide. In this case the accused had given his caution interview statement voluntarily to the police.
[46] In this case the accused is charged for two counts of rape and one count of attempted rape. I have already explained to you about the charges and its ingredients.
[47] Madam and Gentlemen Assessors, in this case the accused opted to give evidence from witness box and called witnesses. That is his right. But he has nothing to prove to you.
[48] I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every items of evidence and you should remind yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.
[49] You have heard all the prosecution and defence 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 evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject. Use the tests mentioned above to assess the evidence of witnesses.
[50] You must also carefully consider the accused 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.
[51] Madam and Gentlemen Assessors, as per Section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases. This means you can rely solely on the victim's evidence to come to your findings.
[52] Madam and Gentlemen Assessors, remember, it is for the prosecution to prove the accused 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 guilt beyond reasonable
doubt, and that burden stays with them throughout the trial.
[53] 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.
[54] 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.
[55] Any re-direction?
I thank you for your patient hearing to my summing- up.
P Kumararatnam
JUDGE
At Suva
04/07/2014
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