State v Tioteba - Summing Up [2014] FJHC 922; HAC69.2013 (15 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No: HAC 69 of 2013

BETWEEN:

THE STATE

AND:

BONTEATU TIOTEBA

Counsel: Mr. F. Lacanaivalu for State
Mr. R. Tagivakatini for Accused

Date of Hearing: 11-12 December 2014
Date of Summing Up: 15 December 2014

SUMMING UP

[1] Madam and Gentleman Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused's guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused. The State brings the charge against the Accused. Therefore it is for the State to prove the charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty of that charge. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] The Accused elected to give evidence. I must remind you that when an Accused gives evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

[7] You must decide this case upon the evidence presented to you. If a witness was not called you must not speculate the reasons why the witness was not called. You must only consider evidence which were led in the trial. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[8] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charges against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[9] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[10] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court.

[11] Neither speculation nor theories of one's own constitute evidence. Media coverage, idle talk, or gossip, are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[12] This summing up is not evidence either, nor are counsel's opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[13] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness's answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[14] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses' evidence and demeanour together with all of the evidence in the case. You can accept part of a witness's testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[15] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the Accused has been proved before you, proved with evidence led by the State.

[16] I turn now to deal with what the prosecution must prove. The Accused is charged with two counts of rape. But you must consider each count separately, when you examine the case in your deliberations. You are not obliged to find the Accused guilty either on both counts or not guilty on both. Look at the evidence as it affects each count separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each count and the evidence available on each count.

[17] On count 1, the prosecution must prove beyond reasonable doubt that:

(i) Firstly, the Accused penetrated the mouth of the complainant with his penis;
(ii) Secondly, the penetration was done without the consent of the complainant; and
(iii) Thirdly, the Accused knew that the complainant had not consented or was reckless as to whether she was not consenting.

[18] On count 2, the prosecution must prove beyond reasonable doubt that:

(i) Firstly, the Accused penetrated the vagina of the complainant with his penis;
(ii) Secondly, the penetration was done without the consent of the complainant; and
(iii) Thirdly, the Accused knew that the complainant had not consented or was reckless as to whether she was not consenting.

[19] On both counts, all three elements of rape are in dispute. The defence case is that the alleged incidents of rape never occurred. It is not in dispute that the complainant is the biological daughter of the Accused. However, she was raised by her adoptive parents, Tamba Raiati and TeaonaTeieka, when her mother passed away shortly after giving birth. The complainant grew up knowing the Accused was her biological father. She occasionally visited and stayed with the Accused who had settled down with another woman by the name Kaee. Kaee was the complainant's maternal aunty, mother's elder sister. The complainant resided in Fatima settlement with her adoptive parents while the Accused resided in a place called Kesukesu on Rabi Island. It takes about 30 minutes to walk from one settlement to the other. The complainant's elder sister Kaboiti resided with the Accused. When the allegations arose in September 2013, the complainant was visiting the Accused at his home in Kesukesu. She was 17 years old at the time.

[20] In relating to the first incident, the complainant said in the afternoon of 13 September 2013, the Accused penetrated her mouth with his penis without her consent. She said the incident happened when she was asleep in the Accused's bedroom. She did not see the Accused enter the room. When she opened her eyes, the Accused had pulled out his penis from her mouth and was pressing her mouth and neck with his hands. The complainant said she is not sure of the exact time of the incident but it could have happened around 2 or 3 pm. She did not complain to anyone because the Accused told her not to tell anyone about the incident.

[21] In relating to the second incident, the complainant said she returned home around 1 am on 15 September 2013 with her elder sister Kaboiti after drinking kava at Nuku. She went to sleep with her sister and her nephew in the living room sharing one mosquito net. Her stepmother Kaee also slept in the living room but under a separate mosquito net. The complainant said while she was asleep, the Accused entered her mosquito net, pulled down her underwear, pressed her mouth and neck with his hands, and penetrated her vagina with his penis without her consent. After penetrating her, the Accused returned to his bedroom. She said she wiped herself with her underwear and threw it beside the creek behind the house. In the morning, the Accused and Kaee left the house for a church service. The complainant remained in the house with her elder sister, Kaboiti and when the Accused returned home he asked the two girls to deliver food to the complainant's adoptive mother who apparently was sick. When the two girls returned home late, the Accused was angry that the girls came home late despite being told to return early. When the complainant saw the Accused slapping Kaboiti, she ran away from there and returned to her adoptive parents' home. When she arrived at her home, she complained to her adoptive father, Tamba Raiati that the Accused raped her.

[22] Evidence was led from Tamba Raiati regarding the complaint the complainant made to him. In a case of sexual offence, recent complaint evidence is led to show consistency on the part of the complainant, which may help you to decide whether or not the complainant has told you the truth. It is for you to decide whether the evidence of this compliant helps you to reach a decision, but it is important that you should understand that the compliant is not independent evidence of what happened between the complainant and the Accused, and it therefore cannot itself prove that the complaint is true. Tamba Raiato in his evidence said that when the complainant returned home on the second occasion in the evening of 15 September 2013, he asked her what made her return home. She started crying and upon questioning she told him that the Accused sexually assaulted her. While the complaint was made, the complaint was not voluntary but prodded out of her by her adoptive father. The defence says that the complainant had ample opportunity to complain to her elder sister Kaboiti, or to her adoptive parents when she went to deliver food to them earlier in the afternoon of 15 September 2013, but she made no complaint. My direction to you is that while the complaint evidence is before you, very little assistance however can be derived from this particular evidence for the reasons I have given.

[23] I turn now to the medical report of the complainant which is not in dispute. The complainant was examined on 16 September 2013 by Dr Temo, that is, one day after the second alleged incident. Medical examination of the complainant's genitalia revealed that her hymen had been completely perforated (not intact) and abrasions consistent with blunt trauma were found on the opening of the vagina and the vaginal wall. Dr Temo said the abrasions were less than 72 hours old and the medical findings were consistent with sexual intercourse, although other causes such as horse riding and manual scratching could not be ruled out. What weight you put to the medical evidence is a matter for you bearing in mind the medical evidence alone does not prove that the Accused committed the alleged sexual acts.

[24] The incidents of the alleged rape are denied by the Accused. On the day of the first alleged incident, the Accused said he returned home from diving around 11 – 12 noon. He remained in the house with his wife. When he returned home from diving, the complainant had gone to the hospital. He said the complainant returned home after 3pm with her sister, Kaboiti. Regarding the second alleged incident, the Accused said he knew when the complainant returned home with Koboiti in the early hours of 15 September 2013. He said one Masi accompanied the girls to his home on that night, but he made sure Masi did not sleep overnight because he was a boy. The Accused admitted admonishing the complainant and Kaboiti for disobeying his directive to return home early after dropping food to the complainant's adoptive parents in the afternoon of 15 September 2013, at which point, the complainant fled from his house. He said he did not rape the complainant as alleged.

[25] The prosecution's case wholly rests on the complainant's evidence. If you believe the complainant is telling you the truth that the Accused penetrated the complainant's mouth and vagina with his penis on the two occasions without her consent and knowing she had not consented or was reckless as to whether she had not consented, then you may express an opinion that the Accused is guilty of the charges. But if you do not believe the complainant's evidence regarding the alleged rape, of if you have a reasonable doubt about the guilt of the Accused, then you must find the Accused not guilty on both counts.

[26] On each count, your opinions would be either guilty or not guilty. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive them. Please now retire to deliberate on your opinions.

Daniel Goundar
JUDGE

At Labasa
15 December 2014

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused