State v Moceituba - Summing Up [2014] FJHC 547; HAC114.2013 (24 July 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 114/2013

BETWEEN:

THE STATE

AND:

SEMI MOCEITUBA

COUNSEL : Mr.S.Babitu for the State
Accused in Person

Dates of Trial : 22-23/07/2014
Date of Summing Up : 24/07/2014

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

SUMMING UP

Ladies and Gentleman 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.

[03] Prosecution and the accused 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 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.

[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. Theses witnesses should be experts on that particular subject. For example, you get experts on medical field.

[09] 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 the witness box. The following facts are agreed between prosecution and the defence:

(1) Semi Moceituba was born on 1st October 1951. He is a retired Public Works Department worker.

(2) Semi Moceituba is referred to as Tai Semi by his step-grandchildren.

(3) Mesake Turuva and Nunia Turuva are S.L"s parents. Semi Moceituba is Nunia Turuva's step-father.

(4) Semi Moceituba was taken into Police custody

[10] 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.

[11] 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.

[12] Now let's look at the charges.

The First Count

Statement of Offence

RAPE: Contrary to Section 207(1) and (2) (b) and (3) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Semi Moceituba between the 1st day of January 2013 and the 2nd day of June 2013, at Nadi in the Western Division, used his finger to penetrate the vagina of S.L, a 7 year old.

The Second Count

Statement of Offence

RAPE: Contrary to Section 207(1) and (2) (b) and (3) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Semi Moceituba, on the 3rd day of June 2013, at Nadi in the Western Division used his finger to penetrate the vagina of S.L, a 7 year old.

[13] 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:

1. It was the accused,

2. Who had sexual intercourse with the victim or that he sexually abused the victim by invading her with his finger,

3. penetrated the vulva or vagina of the victim to some extent, by inserting a finger,

4. without her consent.

[14] 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. In this case victim was 07 years of age at the time of the offence and, therefore, she did not have the capacity under the law to consent. Therefore, consent is immaterial in this case.

[15] 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.

[16] Now let's look at the evidence led by the prosecution in this case.

[17] According to victim's mother Nunia in the year 2013 her family lived in Navo with her brother's family. She lived there with her husband and four children. Her step-father also lived in the house. Victim was 07 years old last year. She was born on 17/03/2006 .One day she asked from the victim as anything going on between the step-father (accused) and the victim. She was seen scared and she did not say anything. This prompted her to ask from the victim as most of the times the victim and the accused were seen together. After some time the victim told her that the accused used to touch her body after she takes shower. Further the accused touched her face, kissed her breast and inserted his finger into her vagina.

[18] In order to double check she has taken the victim to a nearby shop and asked again. The victim while crying reiterated the same. She had further said that the accused had threatened her not to tell anybody as he would beat her up and kill her mother. The accused last touched her in the month of May 2013 and this was happening for some time. Though she informed this to her brother and his wife nobody believed this story. Hence she kept an eye on the victim. One day between 21-25/05/2013, the victim went missing when she went for a wash. She came from the room with her change clothes in her hand. The accused was also in the room and he told her he was looking for his clothes. Thereafter the victim had told her that the accused touched her face, breast and vagina.

[19] After this one evening all had Kava outside the house. She was lying on the settee in the sitting room with her children. All watched T.V. In the mid night the victim jumped on to the settee and slept with her. On the following morning the victim had told her that one hand went to her vagina and it was paining. When she looked up had seen the accused standing there.

[20] On the following morning she told this to everybody in the house. The accused denied the allegation. Due to this a fight broke out among them. She first went to hospital for a medical examination but was asked to lodge a complaint in the police. The matter then reported to the police. She gave her consent for a medical examination. She identified the accused in open court.

[21] In the cross examination witness denied that she was swearing at the accused at 5.00am on 28/05/2013. Witness said that she occupied the sitting room and kept their clothes in the room. She further said that the house was rented by her brother and her family stayed in the house. The portion where her family stayed had no electricity. Witness reiterated that she stayed in the house where accused also stayed.

[22] Victim S.L. in her evidence said that she was in class 01 in the year 2013 and stayed in Navo with her family and her Uncle's family. One day after having shower when she went to the room for dressing the accused touched her face, body and her vagina. Further he has inserted his finger in to her vagina. This had happened number of times when her mother does the cooking. After penetrating he rounds it with his finger in her vagina. She could not remember the dates. One day when her mother was sleeping on a settee the accused came and touched her. She identified the accused in open court.

[23] In the cross examination victim said that she is sure that the incidents were done by the accused. Victim denied that she slept together with the accused. The incident happened in the room not in the bathroom. Further victim said that the accused do this bad thing every times not on certain times. Answering to the question put forward by the accused victim said that she saw the accused touching her body while sleeping.

[24] D/Cpl Jona Toga had recorded the caution interview of the accused. The caution interview notes were not tendered to the court by the prosecution. Hence it is not evidence before this court.

[25] DC 4184 Laitia had charged the accused on 10/06/2013 at Nadi Police Station.

[26] Dr Lice Vaniqi was working at Nadi Hospital in the year 2013. She is a MBBS qualified doctor. She is familiar with Fiji Medical Examination Form. She had examined the victim S.L. on 08/06/2013 at Nadi Hospital. Consent for the examination was obtained from the victim's mother Nunia. The history was given by the mother of the victim. According to her the child claims that she has been sexually assaulted by step-grandfather. Her body was checked full. Her hymen not intact and the genital area appeared with red bruises. According to her this is significant.

[27] In her professional opinion witness said that injury corresponds to being sexually assaulted. She has explained the injury through a diagram. This is consistent with inserting a finger in to the victim's vagina. According to the doctor hymeneal tear could happen due to sexual penetration (digital or penile), cycling, horse riding and gymnastic exercise or entering a blunt object. She further said that the injury seen in victim's vagina is unusual considering the age of the victim.

[28] After calling five witnesses Prosecution closed their case.

[29] Defence was called and explained the rights of the accused. Accused elected to give evidence from witness box.

[30] According to him on 28/05/2013 early in the morning at about 5.00am heard victim's mother was swearing at him. He then came out of the room and held her head and reprimanded for creating a scene. His son was there and he left for work at 7.00am. When he was at home after breakfast two police officers had come to his house and took him to police station after informing the charge. He was locked in the cell for one week. His son visited and tried to call victim's family but they refused to come. His daughter has taken the car and went away from the house. He suspects this could be the reason for the complaint. He denied the charge. According to him victim's mother is not his own daughter. She had sold his belonging.

[31] In the cross examination accused said that the house which they occupied at Navo was a rented one. The reason for the fight was due to misplacement of a DVD disc. He denied the charge and threatening victim's mother with death. He further denied that the house was shared with her daughter. He said that he had good relationship with his daughter.

[32] This is the end of defence case.

Analysis of the Evidence

[33] Ladies and Gentleman Assessors, in this case the victim was 07 years old at the time of the incident. She vividly explained how the accused committed the act on her. She is unable to remember the dates of offence. But it is not important in this case. As assessors and judges of facts, you have to consider this evidence very carefully.

[34] You heard the evidence of victim's mother. She first inquired from her daughter before she complained to the police. She also observed some time until 28/05/2013. She is the step-daughter of the accused. Consider her evidence carefully.

[35] The doctor expressed her opinion that hymen could be damaged due to insertion of any foreign object including a finger. She also said that loosing hymen at this age is very unusual. She had not only found distraction of victim's hymen, but also found red-bruises over victim's vagina. Consider her evidence very carefully to arrive at your decision.

[36] In this case the accused is charged for rape (two counts) contrary to section 207(1) (2) (b) and (3) of the Crimes Decree No: 44 of 2009. The first count is a representative count. I have already explained to you about the charge and its ingredients.

[37] Ladies and Gentleman Assessors, in this case accused opted to give evidence from witness box. That is his right. But he has nothing to prove to you.

[38] The accused in his evidence denied the charge. He said that his daughter has taken his car. He suspects this could be the reason for this false allegation.

[39] 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 evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject.

[40] 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.

[41] Ladies and Gentleman Assessors, as per section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases.

[42] Ladies and gentleman 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.

[43] 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.

[44] 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.

[45] Any re-direction?

I thank you for your patient hearing to my summing- up.

P Kumararatnam
JUDGE

At Lautoka
24/07/2014