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State v Vakatawabai - Summing Up [2014] FJHC 83; HAC223.2012 (21 February 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO: HAC 223/2012


BETWEEN:


THE STATE


AND:


ABELE VAKATAWABAI


COUNSEL : Mr M Vosawale and Ms M Khan for the State
Ms N Nawasaitoga for the Accused


Dates of Trial: 19-20/02/2014
Date of Summing Up: 21/02/2014


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


SUMMING UP


Madam and Gentlemen Assessors,


  1. 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 opinion. 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.
  2. 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.
  3. Prosecution and defence made their 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.
  4. 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 judgement.
  5. 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.
  6. 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.
  7. 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.
  8. In assessing evidence of witnesses you need to consider certain tests. Examples:
  9. 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. 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 witness box.

Agreed Statement To Tender By Consent:


  1. Accused's caution interview at Navua Police Station.
  2. Complainant's medical report.
  3. 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.
  4. 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.
  5. Now let's look at the charge.

FIRST COUNT


Statement of Offence


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


ABELE VAKATAWABAI from the 25th day of January 2010 to the 30th day of April 2010 at Nasigatoka Village in Namosi, in the Central Division had carnal knowledge of IS, a child under the age of 13 years.


14. In order to prove the offence of Rape the prosecution has to prove following elements beyond reasonable doubt.


1. The accused had carnal knowledge of the complainant,

2. without her consent,

3. He knew or believed that that she was not consenting or didn't care if she was not consenting.


  1. 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.
  2. As far as the element of consent is concerned, in our law, a child under the age of 13 years is incapable of giving consent. In this case, the victim was 08 years old at the time of the offence. Hence consent is immaterial in this case.
  3. 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.
  4. Now let's look at the evidence led by the prosecution in this case.
  5. The first witness was the victim, I.S. According to her in the year 2010 she was residing at Nasigatoka Village, Namosi. When the incident occurred she was in class 02 at Namosi Catholic Primary School. One day in the year 2010 while she was waiting for her Aunt close to a Guava tree, the accused took her to nearby grass land under the guise of plucking Guavas. As a vehicle passed by, the accused hid the victim in the grass. Accused then put her on the grass, removed her panty and inserted his penis into her vagina. Victim in the I-Taukei language said that the accused put his 'Voli' in to her 'Masawe'. According to her 'Voli' is the ball of the accused and Masawe is her vagina. She had felt accused's Voli going into her 'Masawe'. After the act, accused put his clothes and warned the victim not to tell anyone. He had told her if she divulges this to anybody, he would chop off her head. Due to fear she did not tell the incident to anybody. She identified the accused in open court. She was 8 years old at the time of the incident.
  6. In cross examination, the victim said that the accused put his penis into her vagina and threatened her with death.
  7. Maria Koroilaba, mother of the victim gave evidence next. She is married and has 05 children. Victim is her eldest child. Her date of birth is 03/05/2003. In the year 2010 she lived in Nasigatoka, Namosi. One day in the year 2010, when she returned from plantation with her husband, the victim had told her about the incident. First she was scared but after much persuasion she divulged the entire incident to her. The victim had told her that the accused had put his private part into her vagina and threatened her with death if she divulges this to anybody. The victim was first taken to hospital after seeing some discharges from her vagina. The discharge tested positive for sexually transmitted decease. Victim was admitted to hospital and received treatment. Meanwhile a complaint was lodged at the Navua Police Station. She identified the accused in open court.
  8. In cross examination, the witness admitted that nothing was said to the doctor with regard to rape by the victim. Victim told the incident to her after a year.
  9. DC 2966 Jone Makutu was called next. He has been serving in the Fiji Police Force for about 13 years. When he was working in Navua Police Station, on 15/04/2011 he had recorded the caution interview statement of the accused. The interview was recorded in the English language. After conclusion of recording both accused and he, placed their signatures on the interview. The interview record was marked as P1.
  10. Finally Dr Reape Ketenilagi gave evidence on behalf of the prosecution. She has 12 years medical service and currently serving in Labasa Hospital. In the year 2010 she was attached to Colonial War Memorial Hospital. She is a specialized Paediatrician. Victim was brought to hospital by her parents. Victim was first examined in the outpatient unit. Further tests confirmed that the victim has contacted a sexually transmitted disease called "Gonorrhoea". Victim received treatment after being admitted to the hospital. Victim did not tell her about sexual assault. The matter came to light after it was reported to the police. According to the medical findings, no bruises, bleeding or laceration were found in the vagina. Victim's hymen is intact.
  11. In the cross examination, the witness did not rule out sexual intercourse.
  12. In re-examination, the witness said that rubbing or slight penetration is enough to contact sexually transmitted disease.
  13. State counsel marking P1 and P2 closed the case for the prosecution. Copies of all the exhibits are given to you.
  14. When the defence was called and explained rights of the accused he elected to give evidence from witness box.
  15. Accused admitted that he rubbed his penis on the vagina of the victim. He had done this on a grass land. According to the accused he had rubbed five times. He denied that he threatened the victim with death. He denied inserting his penis in to complainant's vagina.
  16. This is the end of defence case.

Analysis of the Evidence


  1. Madam and Gentlemen Assessors, in this case the victim gave evidence first. According to her accused had sexual intercourse with her in the year 2010. She clearly narrated the ordeal she encountered. Victim was 08 years old at the time the incident. She had received death threat from the accused. She also contacted a sexually transmitted disease. As assessors and judges of facts you have to consider her evidence with great caution.
  2. Madam and Gentlemen Assessors, you've heard the evidence of the victim's mother Maria Koroilaba. She had come to know the incident one year after the incident. Victim was admitted to hospital after being diagnosed with sexual transmitted disease. Though the victim said nothing about rape to the doctor but said everything to her mother.
  3. Madam and Gentlemen Assessors, the doctor did not rule out sexual intercourse. According to her, a slight penetration is enough to contact sexually transmitted disease.
  4. The accused admitted that he rubbed his penis on the victim's vagina for about five times and had ejaculated. He had done this after taking the victim to a grass land. His caution interview statement was tendered by consent. As assessors and Judges of facts, you have to consider this evidence very carefully.
  5. Madam and Gentlemen Assessors, as I told you earlier, the caution interview statement of the accused person is in evidence. DC/2966 Jone Makutu had recorded the Caution Interview Statement of the accused. In his caution interview statement accused admitted rubbing victim's vagina with his penis for about five times. He also said that he had ejaculated.
  6. Madam and Gentlemen Assessors, in this case accused opted to give evidence from witness box. That is his right. But he has nothing to prove to you.
  7. In this case, the accused is charged for Rape Contrary to Section 207(1) and 207(2) (a) of the Crimes Decree No: 44 of 2009. I have already explained to you about the charges and its ingredients. Once again I remind you, it is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
  8. Madam and Gentlemen Assessors, 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 their 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.
  9. Madam and Gentlemen Assessors, 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.
  10. Madam and Gentlemen 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.
  11. 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.
  12. 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.
  13. Any re-directions

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


P Kumararatnam
JUDGE


At Suva
21/02/2014

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