State v Nagonevulavula - Summing Up [2014] FJHC 789; HAC283.2013S (22 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 283 OF 2013S

STATE

vs

ILIESA NAGONEVULAVULA

Counsels : Mr. M. Vosawale and Mr. A. Paka for the State
Ms. T. Rigsby for Accused
Hearings : 20 and 21 October, 2014
Summing Up : 22 October, 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 ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) On count no. 1, did the accused, between 1 and 31 October 2011, at Naulu in the Central Division, rape the complainant?
     
   • (ii) On count no. 2, did the accused, on 10 July 2013, at Naulu in the Central Division, rape the complainant?
     

5. THE OFFENCES AND THEIR ELEMENTS
   

9. Count no. 1 and 2 involved the offence of rape. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;

(ii) without the complainant's consent; and

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

10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.
    

11. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, 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 established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

F. THE PROSECUTION'S CASE
13. The prosecution's case were as follows. The female complainant was 19 years old in 2013. In 2003, her mother died. Her father re-married in 2009. At the age of 16 years, that is, in 2010, she had a child with a cousin from Verata. In 2011, she was living at Naulu Settlement with her father, step-mother, a brother and sister. They lived in a three-bedroom house. The accused was 25 years old in 2013. He is the complainant's step-mother's son. He does not live with the family at Naulu, but sometimes comes in to stay with them overnight. He is the complainant's step-brother.

14. According to the prosecution, the accused visited the complainant's family in October 2011. He came with his girlfriend. After a while, her sister and the accused's girlfriend visited the shop. While they were away, the accused told the complainant to go into the bedroom. She went there. The accused followed her. He later took off her clothes. He lifted her legs and inserted his penis into her vagina. He moved back and forth for 5 minutes. He later stood up and went to the shop. According to the complainant, she told the accused to stop putting his penis into her vagina, but he ignored her, and continued to do the same. She said, she told no-one about the incident, because she did not want to anger her father, and "ruin" their family life.

15. According to the prosecution, the accused repeated the above to the complainant on 10 July 2013. They were asleep at their house at the time. The accused visited the family between 1am and 2am in the morning. He knocked on their door, and her elder sister (PW4) opened the same. He came in and slept with the others in the sitting room. The complainant was sleeping with her child in a bedroom. When the whole family was asleep, the accused allegedly went into the complainant's bedroom. He went to her bed. He pulled her legs and tried to take her clothes off. The complainant tried to fight him off by closing her legs, and resisted her clothes been taken off. However, he was too strong for her. He forcefully parted her legs, and inserted his penis into her vagina, and moved in and out. She said, she did not consent to sex with the accused, at the time. When her father woke up, the accused stopped and went to sleep in the sitting room. She didn't raise the alarm, because she was scared she might cause "trouble" in the house, since her father was short tempered.

16. She reported the matter to her elder sister (PW4) in the morning. She also reported the matter to a nurse (PW3). The matter was reported to police. An investigation was carried out. The complainant was medically examined by a doctor (PW2). Accused was caution interviewed by police. He was later charged with rape, and appeared in the Nasinu Magistrate Court on 29 July 2013. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on both counts. That was the case for the prosecution.

7. THE ACCUSED'S CASE
   

17. On 20 October 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 both counts. In other words, he denied the allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to remain silent, and called a cousin (DW1) as his only witness. That was his right.

18. Nothing negative whatsoever should be imputed to the accused, when he choose to remain silent. This is because the burden to prove his guilt beyond reasonable doubt lies on the State from the start to the end of the trial. That burden never shifts to the accused, at any stage of the trial. He is not required to prove his innocence. In fact, he is not required to prove anything at all. He is within his right to fold his arms, and challenge the prosecution, to prove his guilt beyond a reasonable doubt.

19. He called one witness (DW1) to say that the complainant wanted to withdraw the charge against the accused, sometime in August 2014. She wrote a letter to that effect, but DW1 could not produce the same in court, as an exhibit. In any event, the defence's position on this case, was revealed in their closing submission. They denied the rape allegations. They said, they denied penetrating the complainant's vagina twice, at the alleged material times. They ask you, as assessors and judges of fact, to find the accused not guilty as charged on both counts, and acquit him accordingly. That was the case for the defence.

8. ANALYSIS OF THE EVIDENCE
   

(a) Agreed Facts:

20. The parties have submitted an Agreed Facts. A copy is with you. Please, read it carefully. There are eight paragraphs of fact. Because the parties are not disputing these facts, you may take it that the prosecution had proven those facts beyond a reasonable doubt, and you may treat the same, as established facts.

(b) The Complainant's Evidence:

21. The State's case against the accused will stand or fall, on whether or not, you find the complainant to be a credible witness. All the elements of "rape", as outlined in paragraphs 9(i), (ii) and (iii) hereof, and explained in paragraphs 10, 11 and 12 hereof, are disputed by the parties. As you have heard in the defence's closing submission, they deny that the accused ever penetrated the complainant's vagina with his penis, at the times alleged in the information.

22. As to the accused's penis penetrating the complainant's vagina, at the times alleged in count no. 1 and 2, the complainant said, the accused first penetrated her in or about October 2011, in her bedroom in their house in Naulu. This was when the accused brought his girlfriend, and while she and her sister (PW4) were visiting the nearby shops. In her evidence, she said, the accused came into her bedroom, took off her clothes, lifted her legs and inserted his penis into her vagina, and thrust the same in and out for about five minutes. On the second incident, on 10 July 2013, she said, the accused came into her bedroom between 1am and 2am in the morning, when the whole family was asleep in the house. She said, he pulled her clothes off, forcefully parted her legs, and inserted his penis into her vagina, and thrust the same in and out. He stopped when he was disturbed by her father, who woke up at the time. So, if you accept the complainant's version of events on element no. 1 of rape, then you must move on to consider the second element of rape, that is, whether or not the complainant gave her consent. If you find that element no. 1 is not proven by the State beyond a reasonable doubt, then you have to stop the case, and find the accused not guilty as charged.

23. On the second element of whether or not the complainant gave her consent, at the times the accused allegedly penetrated her vagina with his penis, you must carefully read and understand the definition of "consent" as described in paragraph 11 hereof. "Consent" is to agree freely and voluntarily and out of her own free will. If consent was obtained by force, threat, 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.

24. So, you must examine what the complainant said and did, including the surrounding circumstances, in the light of the above definition. What came out in this case, was the complainant's evidence that, on both occasions, she told the accused "softly to stop" penetrating her vagina with his penis. Coupled with the above was the complainant's fear in raising the alarm, in that, it would cause a lot of problem in the family. She knew her father was short-tempered. She knew her mother died in 2003. She knew her father married her step-mother in 2009. She knew the accused was her step-brother, being her step-mother's son. She was 6 years younger than the accused. She carried the problem in her system for two years from 2011 to 2013, when she told others about the incident. You must examine the surrounding circumstances, and the parties alleged conduct at the time, to find out whether or not the complainant gave her full consent. If you find the complainant consented, then you must stop the case, and find the accused not guilty as charged. However, if you find that the complainant did not give her consent, then you must move on and consider element no. 3 of the offence of rape, that is, did the accused know, that the complainant was consenting to sex, at the time?

25. In considering the above issue, you must consider what I said in paragraph 12 hereof. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide the issue. In this case, the complainant said, she told the accused on both occasions to stop penetrating her vagina. She said, he was physically stronger than her, and could impose his will physically, as and when he wanted to. On the second occasion, she tried to resist him by closing her legs and trying to stop her clothes been taken off by the accused. Would these actions convey to a person that the female is not consenting to sex at the time? Coupled with this, consider the surrounding family circumstances – the complainant's reluctance to raise the alarm for fear of "breaking up or causing trouble" in the family. If you find that the accused knew that the complainant was consenting to sex at the times alleged, you must find him not guilty as charged. If you find that the accused knew she was not consenting to sex at the times alleged, or alternatively, couldn't care less whether she was consenting or not, you must find the accused guilty as charged. It is entirely a matter for you.

(c) Doctor's (PW2) Evidence and Complainant's Medical Report – Prosecution Exhibit No. 1

26. You have a copy of the medical report and you must read it carefully. The medical report was tendered in evidence as Prosecution Exhibit No. 1. In D(10) of the report, the doctor recorded the complainant's history. In D(12) of the report, the doctor noted the complainant's hymen was not intact. This is not unusual, given that she is the mother of a young girl. In terms of proving rape, the doctor said, the medical findings cannot assist on the issue.

27. However, the second alleged rape occurred on 10 July 2013. She was medically examined on 23 July 2013, 13 days later. In D(10) of the report, she told the doctor what occurred. This evidence is sometimes called evidence of "recent complaint". It is not evidence of the acts complained of, it is evidence of the consistency of complainant's conduct with the evidence she gave at the trial. What she told the doctor was what she said at the trial. If you accept the above, it will tend to increase the complainant's credibility as a witness.

I. SUMMARY

28. 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.

29. Your possible opinions are as follow:
    

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

(ii) Count No. 2 : Rape : Guilty or Not Guilty

30. 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 the same.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva

Solicitor for the Accused : Rigsby Law, Barrister and Solicitor, Nausori.