State v Ratukana - Summing Up [2014] FJHC 689; HAC160.2013S (22 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 160 OF 2013S

STATE

vs

TOMASI RATUKANA

Counsels: Mr. S. Nath and Ms. S. Lodia for State
Ms. N. Nawasaitoga for Accused
Hearings: 18 and 19 September, 2014
Summing Up: 22 September, 2014

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   
   • (i) Did the accused, between 1 and 31 December 2012, at Suva in the Central Division, penetrated the vagina of the complainant with his finger, without her consent?
     

5. THE OFFENCE AND ITS ELEMENT

9. Previously, under the repealed Penal Code, Chapter 17, counts no. 1 was treated as "Indecent Assault". Under the Crime Decree 2009, counts no. 1 is now classified as "Rape". For the accused to be found guilty of rape the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused penetrated the complainant's vagina with his finger;

(ii) without the complainant's consent; and

(iii) he knew the complainant was not consenting to (i) above, at the time.

10. The slightest penetration of the complainant's vagina by the accused's finger is sufficient to satisfy element 9(i) above.

11. It must also be shown by the prosecution, beyond reasonable doubt that, the complainant did not consent to 9(i) above, at the time. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.

12. It must also be shown by the prosecution beyond reasonable doubt that, the accused knew the complainant was not consenting to 9(i) above, at the time. To decide this issue, you must consider what the complainant and the accused did at the time, including the surrounding circumstances.

6. THE PROSECUTION'S CASE

13. The prosecution's case were as follows. The alleged rape was said to have occurred on a Saturday (ie. 22 December 2012) before Christmas in December 2012. The female complainant was 19 years old and single, at the time. The accused was 41 years old and married, at the time. The accused lived in Reservoir Road Samabula, and worked at the nearby M. Y. Transport container yard, Suva, as a security guard. The complainant used to live near the accused at Reservoir Road, but at the time, resided at Davuilevu Housing in Nakasi, with her mother and other siblings.

14. On this Saturday, the complainant visited her uncle at Reservoir Road, at about 7pm. She somehow met the accused, who was proceeding to buy some liquor to take to his work place. The complainant joined him to buy the liquor. They bought the liquor, and later went to the accused's workplace at M. Y. Transport container yard. At the yard, approximately between 7pm and 8pm, the two consumed the 4 bottles of "tribe" (liquor) they previously brought. The accused drank three bottles, while the complainant, drank one bottle.

15. When the two finished drinking the liquor, the accused asked the complainant for sex. According to the prosecution, the complainant asked the accused to go. The accused then forced himself on her. He forcefully kissed her, and threatened her to take off her clothes. According to the prosecution, he forced her to take off her clothes, he then sucked her breast. He forcefully took off her pants and panty and sucked her vagina. The complainant struggled to free herself to no avail. He threatened to kill her if she screamed. He then penetrated her vagina with his right finger. He later forced her to suck his penis. While they were doing the above, a taxi arrived at the yard, which forced the accused to attend to the same.

16. The complainant later escaped from the scene. She rang the Samabula Police Station. She was formally interviewed by police on 11 March 2013. She was medically examined at Nausori Health Centre on the same day. An investigation was carried out. The accused was cautioned interviewed by police on 28 March 2013. On 30 March 2013, the accused appear in the Suva Magistrate Court charged with raping the complainant. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE
17. On 18 September, 2014, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, he choose to give sworn evidence, and called a witness, in his defence. That was his right.

18. The accused's defence to the allegation against him, was very simple. On oath, he denied penetrating the complainant's vagina with his finger. In other words, he denied poking the complainant's vagina with his finger. He admitted, on oath that, he was at the crime scene, at the material time, with the complainant. He admitted, he was drinking liquor with her, at the material time. He admitted, he asked her for sexual intercourse, at the material time. He admitted they were voluntarily kissing each other, when a taxi disturbed them.

19. When caution interviewed by police on 28 March, 2013, at Samabula Police Station, he denied inserting his finger into the complainant's vagina. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged, and acquit him accordingly. That was the case for the accused.

8. ANALYSIS OF THE EVIDENCE

(a) The Agreed Facts:
20. The parties have submitted on Agreed Facts. A copy of the same is with you. There are seven paragraphs in the Agreed Facts. Because the parties are not disputing the Agreed Facts, you may take it that the prosecution had proved those facts beyond a reasonable doubt, and you may treat the same, as established facts.

(b) The Complainant's (PW1) Evidence:
21. This is what the complainant said on oath, when the accused and her arrived at her workplace,

"...We sat down and started drinking the bottle of tribe. There were 4 bottles of tribe. He drank 3 bottles and I drank 1 bottle. He talked to me about himself and his wife. He told me his wife had a boil and he wanted to have sex with her. I told him that was their problem, not mine. While we were talking he called his wife and told her not to bring his dinner. We finished the beer. After that I asked to go.

When I was about to go, he asked me for a kiss and I said no. This was inside the container. He pulled my shirt and he grabbed my neck with his right hand. I was wearing a white T-Shirt and ¾ lee. He told me to take off my clothes. He swore at me. He told me to go into the container, because he wants to have sex with me. He pushed me into the container. I struggled with him. He told me to take my trousers off and lie down.

I was crying and I was trying to escape. He forced me down and pulled up my T-Shirt and started sucking my breast. I pushed him away. He was ontop of me. He sucked my breast and went down. He took off my trouser's and panty. He started licking me. He started poking my vagina with his finger. He poked me with the right finger. I was struggling. I was pushing his head and trying to remove his finger from my vagina. He threatened me not to scream. He said, he will kill me if I scream. I then didn't struggle.

He was licking my vagina. He told me to stand up and take off his trousers and suck his penis. He was bigger than me. He was stronger than me. He threatened to harm me. He told me to suck his penis. I sucked it. He threatened to punch me if I didn't suck his penis.

A taxi came and stopped near us. He pulled up his trousers and went outside. He went out and came back again. I was looking for my clothes. He laid me down again, licked my vagina and poked my vagina. I was lying down. I was trying to escape. He later punched my left thigh. Another taxi came. I found my trousers. He went to the taxi. I escaped. I climbed through the fence..."

22. The State's case against the accused stands or falls on whether or not you, as assessors and judges of fact, accept the complainant's evidence, regarding the allegation of rape.

(c) The Accused's (DW1) Evidence:
23. This is what the accused said on oath, when he and the complainant were drinking at his workplace, at the material time:

"...While we were drinking, I ask PW1 that I want to have sex with her. She told me, after the drink, then we can have sex. I ask her if we can kiss. She threw her head towards me and we kissed. While we were kissing, a taxi came to the front gate and was "sounding' its horn. I went to the taxi to fill the diesel for the taxi. I ask PW1 to wait. She said, she will wait.

We were drinking outside the container. I did not take off her clothes. I did not lay her down and poked her vagina. Yes I asked her to join me because she wanted to drink. I deny the allegation against me..."

24. When comparing the complainant's evidence as to that of the accused's evidence, as far as the rape allegation was concerned, it was obvious that the two had different version of events. The complainant's version was that the alleged rape occurred, while the accused's version was a total denial.

(d) Complainant's Medical Report - Prosecution Exhibit No. 1:
25. On 11 March 2013, the day the complainant formally gave her statement to police at Nausori Police Station, she was medically examined by Doctor Talei Tamaka (PW2), at Nausori Health Centre, at 11.35am. This was approximately 2 months 11 days after the alleged incident. The doctor tendered the complainant's medical report into evidence, as Prosecution Exhibit No. 1.

26. In D(10) of the report, the doctor recorded the complainant's history as follows, "...alleges that one Saturday in December 2012, while visiting a friend at Neptune Container Yard, the friend made her drink with him, then forced her to undress, he allegedly fondled her, performed cunnilingus on her, then threatened her with a knife to perform oral sex on him (which she did under duress), says she managed to escape when a taxi came to fill fuel, and ran to Valenimanumanu..."

27. In D(12) of the report, the doctor recorded her medical findings when examining the complainant's vagina, as follows, "...vaginal examination: partially penetrated hymen at 12 o'clock (allegedly fingered by assailant) otherwise grossly intact. Some genital ulcers noted – scratch marks..." In D(14) of the report, the doctor said, her medical finding was consistent with the history given by the complainant. In D(16) of the report, the doctor concluded, as follows, "...partially destroyed hymenal membrance in a virgin – consistent with history of finger penetration previously..."

(e) Considering All the Evidence Together:
28. You will have to consider all the evidence together. On the one hand, you have the complainant's evidence that, at the material time, the accused penetrated her vagina with his right finger. On the other hand, you have the accused's evidence, denying the above. Then you have Doctor Talei Tamaka's (PW2) medical report (Prosecution Exhibit No. 1), which record's the complainant's history, and her medical findings after examining her, and her conclusion. The doctor said, her
conclusion, as recorded in D(16) of the complainant's medical report, appear to confirm the complainant's version of events. The doctor is unrelated to the parties to this criminal proceeding. She is not interested in the result of this case. She is a professional person, interested in nothing, but to state her professional findings and opinion in this case. If you accept the doctor's evidence, it will have the effect of strengthening the complainant's version of events, and her credibility as a witness, and you will thereby find the accused guilty as charged. If you do not accept the doctor's evidence, you will have to work on the complainant and accused's evidence alone, and may be, you'll find a reasonable doubt, and find the accused not guilty as charged. Note that the doctor said, "...The initial injury most possibly bigger than the healed tissue. The tissue appeared as scars and it was a bigger teared hymen initially and its presence was noted 2 months 11 days after the event..." Whatever version to accept, is a matter entirely for you.

I. SUMMARY
29. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

30. Your possible opinions are as follow:

(i) Count No. 1 - Rape : Accused : Guilty or Not Guilty

31. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Legal Aid Commission, Suva.