State v Tokalau - Summing Up [2014] FJHC 839; HAC099.2013 (18 November 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 099 of 2013

STATE

V

SAKIUSA TOKALAU

Counsel: Ms A. Vavadakua for the State
Ms N. Nawasaitoga for the Accused

Date of hearing: 17 November 2014
Date of Summing Up: 18 November 2014

SUMMING UP

{The name of the victim has been changed to protect her identity}

1. The time has now come for me to sum up the evidence in this case and to direct you on the law. When I do so, you must accept what I say about the law and apply it to the facts.
   
2. You are the Judges of the facts and whatever you say about the facts is paramount and I must give your opinions the greatest amount of weight when I come to consider the final judgment of the Court. If in the summing up I express an opinion on the facts and I do, then you can reject my opinions unless you agree with me and come to your own opinions. I have no right to usurp your view of the facts. On assessing the evidence of witnesses, you may accept all of what a witness says, you may reject all or you may reject or accept part of the evidence.
   
3. It is for you to tell me what you believe the facts of this case are by applying the law as I direct you and then by telling me if in your opinion the accused is guilty or not guilty of the crime of rape and of the crimes of sexual assault.
   
4. You will judge this case solely on the evidence that has been heard or seen in this Courtroom. Evidence consists of oral evidence from the witness box, agreed facts put before you and documentary evidence such as the record of interview. . All of that is evidence and you must consider it all.
   
5. You will not judge this case on anything that you have heard or seen outside of the Courtroom – that would not be fair to the accused.
   
6. Similarly you will not let any sympathy or prejudice play a part in your deliberations. You cannot judge the case solely on what you might think of the morality of step fathers interfering with their step children: you must look at the evidence dispassionately and with the wisdom of your experience of the community and the Fijian lifestyle.
   
7. I make no apologies for repeating to you what I said at the beginning, because it is important. That is that you can only find the accused guilty if you have been made sure by the State prosecutor that he is guilty – that is you are certain beyond reasonable doubt. Reasonable doubt is not any little niggling doubt – your doubt must be reasonable and if it is, then it is your duty to return an opinion of not guilty. The accused does not have to prove anything. The burden is on the State to make you sure of the guilt of the accused, no matter what he might say in evidence.
   
8. As you are well aware, the main charge against the accused is rape. Rape in our law is penetration of another person's vagina, anus or mouth without that person's consent. It includes the penetration of a woman's vagina with an object or any part of a man's body; finger, penis or tongue. I You must be sure that it was indeed this accused who, when he was in Mere's room that night used something to penetrate her vagina, and at the time she was not consenting to the act and he knew that she was not consenting.
   
9. I am sure that you will have no doubt that we have the right accused. It has never been a question of doubt that the identity of the rapist is in question. Sakiusa admits that he had gone into Mere's room that night when she was asleep and so it really cannot be anybody else apart from him.
   
10. So it is your task to tell me Madame and Gentlemen what your opinion is of the other two elements that you have to make findings on:
    
    • Did Sakiusa do anything or use anything to penetrate Mere's vagina that night? An object? penis? or finger? Mere says that he was dressed and I think she would have known for sure if he was penetrating her with his penis.
      
    • Did Mere agree with whatever Sakiusa was doing to her? And did Sakiusa know that she wasn't agreeing to it?
      
11. On the question of agreement, it is stipulated in our law that apart from a victim being unwilling, consent is in addition not given if it is obtained by the exercise of authority. There is evidence before you that the accused was the father figure in the house and that the children obeyed his authority. For him to come in to her room at night and do what she says he did constituted acts that were inflicted on her by that authority and as such her consent no longer becomes an issue. The exercise of his authority is over-riding her consent as it were.
    
12. On the question of "was it the accused's finger?" you might need to do a little deduction work and in law this is called the use of circumstantial evidence.
    
13. As opposed to direct evidence of a fact, it is often that juries and assessors are asked to come to a finding on facts from other established facts and using those facts to come to an irresistible inference of a result. Care must be taken in this process that the inference arrived at is the only inference that could be found from those facts and also care must be taken not to speculate, that is make up the primary facts to come to your irresistible inference.
    
14. In our case the prosecution is asking you to infer that the accused must have used his finger to invade Mere because she says that it was big and rough, it wasn't an inanimate object, he was dressed and beside her where she was sleeping. Putting these facts together, it is for you to decide whether it is reasonable and irresistible to assume that he used his finger to penetrate her, if you are indeed sure of the truth of her evidence.
    
15. In addition to the rape charge it is for you to return an opinion on the three other charges of sexual assault. He is charged with touching her breasts on the birthday night of the 15th. If you find that he did do so and that Mere didn't want him to do it, then I direct you that in law it is sexual assault and you will return a verdict of guilty on that charge. Bear in mind that the accused told the Police in his interview that he did touch her breasts, neck and stomach that night and he confirms it in his evidence by saying that it was with his mouth that he did so. You might then find that on Mere's evidence and on his admission that the second count is proved and you would find him guilty.
    
16. The third and fourth charges are also charges of sexual assault but on an occasion earlier than the "birthday" incident. Again you will apply to principle of authority as far as consent is concerned because it is only an indecent assault if she is not consenting to it. You will apply the evidence to these charges as well which is the directly conflicting evidence between the accused and Mere.
    
17. This has been a very short case and I am sure that the evidence is still fresh in your mind but it is my duty to remind you of what I think the important evidence is. Again I remind you that it is not for me to say what is important; it is you. If I stress something as important, then you will discard it if you think otherwise; and vice versa, if I fail to mention something which you think is important then you will give it the weight that you think fit.
    
18. The first and only witness for the prosecution was the young lady herself, Mere. She told us that on the 15th February 2012 she was 15years old. She remembers the day because it was the date of her step father's birthday. She identified the accused as her step father. The whole family (Mum, step father, 5 siblings and herself) had gone to the house of a relative to celebrate the accused's birthday'. They went home in the evening leaving the accused there. Mere went to bed that night in the "girls' room".
    
19. Sometime in the night she woke up when she felt somebody touching her. He was touching her breasts and then he pulled down her pants. She could then feel something in her vagina but she couldn't tell what it was. By the light of the porch through her bedroom window she could see that it was Sakiusa, her step father. She moved but it was painful. It was Sakiusa, she said, who was the cause of the thing in her vagina. It was big and rough and she was scared. He was beside the bed with his clothes on. It wasn't an object like a stick. After a while there were noises from Mum's bedroom and he ran out of the room. She stayed up all night and cried. From then on she didn't want to be in the house with him. She didn't tell her mother because she had been recently widowed and now she had found Sakiusa she was happy again and she didn't want to destroy that happiness. Eventually her grandmother found out about the abuse and it was she who raised the alarm.
    
20. There were other incidents she said before that. One night when she was sleeping in the living room he came and was touching her and trying to take off her pants. He was touching her breasts and bit her neck but she pretended nothing happened. She didn't like him doing this. She would spend the day out of the house or have a friend around so that she wouldn't be alone.
    
21. The record of the accused's interview with the Police was produced in evidence with the consent of both parties.
    
22. The answers that the accused gave in that interview are not challenged and you can treat those answers as evidence in the normal way. You will note that he has denied any sexual activity with Mere but he did admit (Q21) that he had kissed and touched her breast stomach and neck. He denies anything else.
    
23. Well Assessors, that was the end of the Prosecution case. You heard me tell Sakiusa what his rights are in defence and having been advised by his Counsel he elected to give sworn evidence.
    
24. I must tell you this. Sakiusa didn't have to give evidence. He could have remained silent and say that the State had not proved the case against him. The fact that he chose to give evidence does not alter that burden on the State. So it doesn't really matter what you make of Sakiusa's evidence. If you find that the State has proved to you so that you are sure that he raped Mere with his finger then his evidence is for you to consider but does not affect your finding. Again if you find that the State has not proved their case beyond reasonable doubt then it doesn't really matter if you believe Sakiusa or not.
    
25. Sakiusa told us that on the 15th February 2012 he went to the birthday party and he later went home, had dinner, then went into Mere's room. He kissed her, she kissed him back. He sucked her breasts and neck. He never touched her. He realized that what he was doing was wrong so he stood up, went to have a shower and lay down. Her reaction to his "visit" was nothing. It was not the first time that there had been such activity between them; it was the second time. On the previous occasion they just kissed, that was it and she was consenting. What Mere said in her evidence was not true.
    
26. In cross examination he admitted that the children all regarded him as an authoritative father figure. He said that Mere consented to whatever he did and he certainly did not use his finger on her.
    
27. Well, that is the end of my review of the evidence. It is now time for you to retire and consider your opinions. It would be best if you could all be agreed but that is not strictly necessary. You will be asked individually for your own opinions when you return.
    
28. Tell one of my staff when you are ready and I will reconvene the Court. You may retire now, but just before you do I am going to ask Counsel if they wish me to add or change anything I have said about the law.
    
29. Counsel?
    

P.K. Madigan
Judge
At Suva
18 November 2014