IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 056 OF 2013S

STATE

vs

ERONI TAVATAVANAWAI

Counsels : Ms. A. Vavadakua for State
 Mr. J. Savou for Accused
Hearings : 5 and 6 November, 2014
Summing Up : 7 November, 2014

SUMMING UP

A.	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.

B.	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. 

C.	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]…."

D.	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 2012, at Tailevu in the Central Division, rape the complainant?

(ii)	On count no. 2, did the accused, between 1 and 31 October 2012, at Tailevu in the Central Division, rape the complainant?
 
E.	THE OFFENCES AND THEIR ELEMENTS
9. Count No. 1 and 2 involved the offence of "rape". Previously, under the repealed Penal Code, the offences were classified as "indecent assault". Under the Crimes Decree 2009, they are now classified as "rape". For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

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

 (a) tongue (count no. 1), or
 (b) finger (count no. 2);

 (ii) without the complainant's consent; and

(iii)	The accused knew the complainant was not consenting to (i) above, at the time.
 
10. In law, the slightest penetration of the complainant's vagina by the accused's tongue or finger, is sufficient to satisfy element no. (i), as described in paragraph 9(i) above.

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. For a girl under 13 years old, she is incapable, as a matter of law, to give consent to a person penetrating her vagina, with a tongue or finger.

12. It must also be established by the prosecution beyond reasonable doubt, that the accused knew the complainant was not consenting to her vagina been penetrated by his tongue or finger, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

13. Remember, we are dealing here with a child complainant, who was aged 7 years at the time of the alleged offences. Because she was under 13 years old at the time, as a matter of law, she is not capable of giving her consent to someone to penetrate her vagina with his tongue or finger. The prosecution need only prove element No. 1 in paragraph 9(i) hereof to prove their case against the accused. Element No. 2 and 3, as described in paragraphs 9(ii) and 9(iii) hereof, are presumed in law to exist, because a child under 13 is incapable of giving her consent, and an accused is often presumed to know that an under 13 year old child cannot consent to penetration of her vagina, by his tongue or finger. Those are legal presumptions in law.

14. Furthermore, in this case, Element No. 1 of rape, as described in paragraph 9(i) hereof, is hotly disputed by the parties. The prosecution said, there was penetration of the child's vagina by the accused's tongue and finger, at the material time. The defence argued, there was no penetration at all. If there was no penetration, then the charge of rape, on both counts, cannot stand. However, this does not mean that you cannot find the accused guilty of other sexual offences, less serious than rape, and for which he was not formally charged with. For example, if you find that the accused nevertherless, licked and touched the complainant's vagina, at the material time, he could, alternatively, be found guilty of the lesser offence of "sexual assault", although he was not formally charged with the same.

15. "Sexual Assault" is an aggravated form of "indecent assault". The least touching of another in anger is "assault". It is the unlawful application of force to the person of another. The "assault" becomes "indecent", when right-minded people of the community regarded it as "indecent". Obviously, a 47 year old man licking a 7 year old child's vagina, and fiddling the same with his finger, would be considered "indecent". If you find there was no penetration of the complainant's vagina by the accused's tongue and finger, but nevertheless, accepted her story that the accused licked her vagina and touched the same, you could find the accused guilty of "sexually assaulting" the complainant, on either counts.
 
16. There are two charges in the information. You must consider them separately, given all the evidences, presented during the trial.

F.	THE PROSECUTION'S CASE
17. The prosecution's case were as follows. The accused (DW1) was 47 years old, married with three children aged 16, 7 and 5 years old. The elder children are female while the youngest one is a male. He resided in a village in Tailevu, and runs a small canteen selling beans, noodles, chewing gums, tin fish, etc. The accused's elder brother had a grand-daughter, aged 7 years old in October 2012. She also resided in the village, with her parents. She was the complainant (PW1), in this matter.

18. According to the prosecution, the complainant went to the accused's canteen sometime between the 1st and 31st October 2012, to buy bean and chewing gum. She took 50 cents to buy the same. When she arrived at the accused's canteen, she went inside the same. According to the prosecution, the accused allegedly sat her on a chair, put both her legs on his shoulders, pulled her panty aside, and licked her vagina with his tongue (count no. 1), and fiddle the same with his finger (count no. 2). According to the prosecution, the accused's tongue and finger penetrated the complainant's vagina, at the time.

19. The complainant said, the above episode was painful to her. She went home later. The accused told her not to tell anyone about the above. Three week after the event, the complainant's father suspected something was wrong with the complainant, as she never went to the canteen again. He questioned her. She reported the matter to him, and the matter was referred to police. An investigation was carried out. The accused was caution interviewed by police on 11 April 2012, at Nausori Police Station. He denied the allegations against him. On 22 November 2012, the accused appeared in the Nausori 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
20. On 5 November 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 two charges. In other words, he denied the two rape allegations 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, in his defence and called no witness. That was his right.

21. On oath, he admitted that the complainant came to his canteen to buy 2 bags of bean and chewing gums, at the material time. He said, she brought 50 cents with her. He said, the complainant threw his cat out of the canteen, and as a result, he smacked her buttocks, as a disciplinary matter. He denied putting his tongue and finger into the complainant's vagina. In other words, he repeated the denial he gave the police, when caution interviewed on 11 April 2012. 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 defence.

H.	ANALYSIS OF THE EVIDENCE
(a) The Agreed Facts:
22. The parties have submitted an Agreed Facts. A copy is with you. There are four paragraphs of the Agreed Facts. Because the parties are not disputing those facts, you may take it that the prosecution had proven those facts beyond a reasonable doubt.

23. Paragraph 4 of the Agreed Facts is particularly important, when it comes to an alleged rape of a child under 13 years old. As we have discussed in paragraph 13, an under 13 years old child is presumed in law to be incapable of giving her consent to a male putting his tongue and/or finger into her vagina. Likewise, when a male puts his tongue or finger into an under 13 year old child's vagina, he is presumed in law to know that the child is not consenting to the same, at the time.

24. On the alternative charge of "sexual assault", an under 13 year old girl is also incapable in law to give her consent to such assault.

 (b) Complainant's Evidence vs Accused's Evidence:
25. You have heard the evidence of the complainant and the accused. On the two allegations of rape, the contending parties' evidence are not the same. The complainant said, the accused sat her on a chair. He then put her legs on his shoulders. She was wearing a skirt and T-Shirt. She also wore an underwear. The complainant said, he pulled her panty to one side, thereby exposing her vagina to him. She said, he then licked the inside of her vagina. She said, it was painful. She said, he also poked her vagina. He later told her to lick his penis, but she refused to do so. She said, the accused later told her not to tell anyone about the above. She later went home, and never returned to the accused's canteen.

26. The accused, in his evidence, confirmed the complainant came to his canteen, at the material time. He said, the complainant threw his cat out of the canteen, and he smacked her buttocks, as a disciplinary matter. He denied the complainant's allegation of rape against him. He said, he never did the same.

(c) The Doctor's Evidence and the Complainant's Medical Report [Prosecution Exhibit No. 2]:
27. Doctor Talei Tamaka (PW3) medically examined the complainant (PW1) on 20 November 2012 at Nausori Health Centre. This was approximately one month after the alleged incident. She submitted the complainant's medical report, into evidence, as Prosecution Exhibit No. 2. You must read and carefully understand this report, because it is from an independent professional, unrelated to the parties, in this case. In D(10) of the report, she recorded the complainant's history as follows, "…states that sometime ago (recent past), when she went to buy from her grandfather's canteen, she says he touched her buttocks and her perineal area [external female genitalia], afterwards he licked her perineum [external female genitalia]…" She recorded her medical findings in D(12) of the report, as follows, "…perineum [external female genitalia] – no discharge, no bleeding, no infection, hymenal membrane intact…"

28. In D(14) of the report, the doctor said, "…history strongly suggestive of sexual exploitation – child discloses information that cannot be ignored inspite of physical findings above…" In D(16) of the report, the doctor concluded as follows, "…Young girl, minor, with history very suggestive of sexual abuse (no penetration evident)…"

29. Note that the defence cross-examined the complainant on the underwear she wore on the day of the alleged incident. Her mother washed the same. Nothing was raised in evidence about any blood found on her underwear.

 (d) Considering All the Evidence Together:
30. You will have to consider all the evidence together. There was no dispute between the parties that the 7 year old female complainant and the accused were in the canteen together, at the material time. However, they had different version of events on what happened in that canteen, at the material time. The complainant said the accused licked and touched the inside of her vagina, at the material time. The accused denied the same. The doctor had given her report. Who do you think was telling the truth? Who was the more credible witness of the two – the complainant or the accused? Who was the forthright witness, and who was the evasive one? Who, from your point of view, was telling the truth? The answers to the above questions are matters entirely for you.

I. SUMMARY
31. 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.

32. Furthermore, if you find the accused not guilty as charged because the issue of penetration had not been proven beyond reasonable doubt by the prosecution, you are entitled to find the accused guilty on the lesser alternative offence of "sexual assault", if you accept the complainant's evidence that the accused licked and touched her vagina, although he was not formally charged with the same. However, if you do not accept the complainant's evidence on the above alternative charge, then you must find the accused not guilty as charged on that offence.

33. Your possible opinions are as follows:

 (i) Rape [Count No. 1] : Accused : Guilty or Not Guilty
 (ii) Alternative Charge of
 "Sexual Assault" : Accused : Guilty or Not Guilty
 (iii) Rape [Count No. 2] : Accused : Guilty or Not Guilty
(iv)	Alternative Charge of
"Sexual Assault" : Accused : Guilty or Not Guilty

34. 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 : Legal Aid Commission, Suva.