State v Bulivakarua [2014] FJHC 925; HAC54.2013 (12 December 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 54 of 2013

BETWEEN:

STATE

AND:

SAKARAIA BULIVAKARUA

Counsel : Mr Fotofili L and Ms M Chaudhary M for the State
Mr J Savou for the Accused

Date of Hearing : 10 December 2014
Date of Summing Up : 12December 2014

SUMMING UP

Madam Assessors and Gentleman Assessor,

1. We have now reached to the concluding stage of this proceeding. It is my duty to sum up the case to you on law and evidence.You must carefully and attentively concentrate your attention to my summing up. During the cause of my summing up, I will direct you on matters of law which you must accept and act upon it. You must apply the law as I directed in your deliberation to form your opinion of the accused person's guilt or not.
   
2. In respect of the facts of this case, it is entirely for you to decide which evidence to accept or refused, which witness is reliable or unreliable, which version of the evidence is to be accepted or refused and what weight to put on certain evidence. Hence, if I expressed any opinion or view on the facts of the case, or if I appeared to do so, it is entirely upon you to accept or disregard it in order to form your opinions.I say so because you are the judges of the facts in this case.
   
3. Please bear in mind that you and you alone are the judges of facts.Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you. No one can influence you in the forming of your opinion. As judges of the facts, you are allowed to talk, discuss and deliberate on facts of this case among yourself only. However, each one of you must reach your own conclusion or form your own opinion. It is important that your opinion must be upon the evidence presented during the cause of the hearing and upon nothing else.In other word, you must disregard anything that you have heard about this case from any form of outside sources and your opinion must only be founded on the evidence given in the court room.
   
4. You will recall that the learned counsel for the prosecution and the defence made their closing submissions and explained how you should find and consider the facts of this case.It is their duty to make these submissions in order to present their version of the case. However, as the judges of the facts, you are not bound or required to accept what the counsel for either side have told you about the facts of this case. It is a matter for you to decide which version of evidence to accept or refuse based on your own common sense and judgment.
   
5. Moreover, I must caution you that you may have heard evidence that might affect the conscience and feelings of your heart and emotions. It is quite natural considering the nature of human feelings. However, you must make sure that you are not allowed yourself to sway away by such emotions or emotive feelings. It is your duty as judges of facts to decide the legal culpability as set down by law and not to emotional or moral culpability of the action.
   
6. You are not required to give reasons for your opinions, but merely your opinions themselves. Your opinions need not be unanimous, though it would be desirable if you could agree on them. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinion when I form and deliver my judgment.
   

Burden and Standard of Proof

7. I now turn to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocent of the accused person is sometimes considered as the golden rule in our criminal justice system. The presumption of innocent is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the cause of this hearing.
   
8. The burden of proof of the charges against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person.In other word, there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
   
9. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person' guilt.If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means, that the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt.If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
   

The information

10. The accused was originally charged with two counts of sexual assault and two counts of rape. However, at the conclusion of the prosecution case, the first and second counts were dismissed and the accused was acquitted accordingly, pursuant to section 231 (1) of the Criminal Procedure Decree. The particulars of the remaining two counts as per the amended information are;
    

Sexual Assault contrary to section 210 (1) (a) of the Crimes Decree 2009,

"Sakaraia Bulivakarua between the 1st to the 31st of May 2012 at Manoca, Nausori in the Eastern Division, unlawfully and indecently assaulted Mereani Perina Koto".

Rape, contrary to section 207 (1) and 207 (2) (b) of the Crimes Decree 2009,

"Sakaraia Bulivakarua between the 1st to the 31st of May 2012 at Manoca, Nausori in the Eastern Division, penetrated the vagina of Mereani Perina Koto with his finger, without her consent. "

11. Section 210 (1) (a) of the Crimes Decree states that;
    

"Any person commits an indictable offence if he or she unlawfully and indecently assaults another person"

12. Accordingly, the main elements of the offence of sexual assault that the prosecution is required to prove beyond reasonable doubt are that;
    
    1. The accused,
    2. Unlawfully and
    3. Indecently,
    4. Assault the victim.
       
13. Sexual assault is an aggravating form of indecent assault. The touching of another in anger considers as "assault". If a person does such an assault without any reasonable explanation, then it would amount to unlawful assault. Such an unlawful assault would become an indecent if a right minded person of the community considers such an unlawful assault as "indecent" and against the moral values of the society.
    
14. I now draw your attention to the fourth count, which is the offence of rape contrary to section 207 (1) and 207 (2) (b) of the Crimes Decree.
    
15. Section 207 (1) and 207 (2) (b) states that;
    

"Any person who rapes another person commits an indictable offence.

A person rapes another person if-

(b) the person penetrates the vulva, vagina, or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent."

16. In this case, the accused is alleged that he penetrated the vagina of the victim with his finger, without her consent. Accordingly, the main elements of the offence of rape that the prosecution is required to prove beyond reasonable doubt are that;
    
    1. The accused,
    2. Penetrated the complainant's vagina with his finger,
    3. Without the consent of the complainant, and
    4. The accused knew the complainant was not consenting for him to penetrate in that manner.
       
17. It appears that slightest penetration tothe vagina of the victim by the accused with his finger is sufficient to satisfy the second element of the offence of rape.In other word, it is not required a full penetration into the complainant's vagina by the accused with his finger.
    
18. In respect of the 3rd and 4th elements of the offence, that is the consent of the complainant, I must direct you that the victim of this case is 8 years old child. In law a girl under the age of 13 years is incapable of giving consent to a person to penetrate her vagina with a finger. Therefore, in this case, the prosecution is not required to prove the absence of consent of the victim as the law presumed that the victim is incapable of giving consent.
    
19. It is important to note that proof can be established only through evidence. Evidence can be presented in the forms of:
    
    1. Direct evidence,
    2. Circumstances evidence,
    3. Documentary evidence,
    4. Expert evidence.
       
20. The direct evidence is the evidence of a person who saw, heard and/or felt the offence being committed.
    
21. Circumstances evidence is that evidence of a person who did not actually see, hear or feel the offence being committed, but gives evidence of relevant circumstances and the events, from which you are able to make certain conclusion of the commission of the offence. You are allowed to consider two or more circumstances or the events that are established by evidence and draw inference. Those inferences should certainly and only find the accused is guilty of the offence. If the circumstances or the event established by evidence suggest you some other probable circumstances which show the innocence of the accused or creates a doubts as to his guilt or innocence, you are not entitled to draw any inference of guilt of the accused person.
    
22. The evidence presented in the form of document is considered as documentary evidence. In this case, the prosecution presented the record of the caution interview of the accused person and the medical report of the victim in the form of documentary evidence. In respect of the record of caution interview of the accused person, you are allowed to take into account the contents of the caution interview if you believe and satisfy that the accused person has given his statement voluntarily and on his own free will. In respect of the medical report, if you are satisfied that the recordings were made simultaneously at the relevant time on the document by the doctor upon the examination of the victim, you can then consider the contents of the medical report in your deliberation in order to from your opinion in this case.
    
23. It is the general rule that witnesses are normally not allowed to give opinion and only allow to give evidence on what they have seen, heard, or felt by their physical sense. However, the exception is that the evidence of expert witnesses. Expert witnesses are those who are learned and experts in a particular subject or field with relevant experience. Such witnesses are allowed to give evidence of their opinion. In this case, the Doctor who conducted the medical examination of the victim is an expert witness.The opinion she has expressed could be taken into consideration in your deliberation of evidence, if you believe and accept her evidence.
    
24. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You then should consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness not only with his own evidence but also with other evidence presented in the case.
    
25. At this point, I must highlight you that the offences of sexual nature do not require evidence of corroboration.
    
26. I will now draw your attention to summarise the evidence presented by the prosecution and the defence respectively.
    
27. At the beginning of the hearing, the counsel for the plaintiff and the defence submitted their agreed facts.A copy of it is with you.There are three agreed facts, which you may consider as proven facts beyond reasonable doubt by the prosecution. I draw your attention particularly on the first agreed fact, where both parties agreed that the victim is under the age of 13 years old. It is important, because as I have already stated in paragraph 18 above, a girl under the age of 13 years is presumed in law to be incapable of giving her consent to a male to penetrate her vagina with his finger.
    
28. The first prosecution witness is Joeli Vula ( PW1) who is the father of the victim and one of the elder brothers of the accused in this case. In his evidence Mr. Vula stated that he moved to Manoca from Vunivivi with his family and his parent.The accused was not living with them at the time they moved into the new place. However, sometimes in February 2012, the accused moved back with Mr.Vula at his house in Manoca. It was a two bedroom house.One room was occupied by Mr. Vula and his family. One day, he woke up in the middle of night and found that the lights were turned off.His two daughters, including the victim were sleeping on the bed and he was sleeping with his wife on the floor beside the bed. At that moment, the victim jumped out of the bed and started to cry. She told that the accused turned off the light and came to the bed and started to touch her breast and body. When she got up, the accused left the room. Mr. Vula then went and switched on the light and saw the accused was sleeping in the other room. He noticed that the eye lids of the accused were moving, though he tried to pretend that he was sleeping.
    
29. During the cross examination, the Defence tried to suggest that this allegation against the accused was brought up as a result of the complaint made by the accused against Mr. Vula that he had assaulted his elder daughter. Mr. Vula refused and denied it and stated that it was the school teacher of the victim who made this complaint and not him. Moreover, he stated that the room in the house has no door, neither any curtain. The room had space for someone to walk to the bed without going over the people who were sleeping on the floor.
    
30. According to the evidence given by Mr. Vula, it appears that he did not see the accused committed these offences. He only heard it from the victim on that particular night. He then went and asked the accused who turned off the light. He noticed that the accused was not actually sleeping though he pretended to be sleeping soon after the victim informed him about this alleged incident. In his cross examination he explained why he did not take any steps to formally report this incident. He wanted to take this issue slowly as he was just released from prison.
    
31. The second prosecution witness is Mereani Perina Koto, the victim of this case. In her evidence she stated that the accused came to her while she was sleeping on the bed with her sister. Her parents were sleeping on the floor beside the bed. The accused lowered the light and came to her bed. He then touched her breast, stomach, bum and private parts from his hand. He put his hand inside her clothes. She didn't like what he did to her. She further stated that she doesn't know which part of the hand of the accused used to touch her body. She did not specify which part of her body he touched putting his hand inside her clothes. She told this incident to her school teacher when she was asked by her why she was having a stomach problem continuously.
    
32. The victim denied the defence's suggestion that she was coached by her father to make up this allegation against the accused person during her cross examination.
    
33. In view of the evidence given by the victim, it appears that she did not specifically state that the accused penetrated her vagina with his fingers. She only stated that he touched her breast, stomach, bum and private part by his hand. She further stated that she clearly identified the accused when he came to her bed in the night.
    
34. The third prosecution witness is Kula Dilulu. She is a school teacher who teaches the victim. She stated in her evidence, that in October 2012, she found that the victim was complaining of a stomach pain. She then contacted the father of the child and inquired of her stomach pain. The father has told her that she had consumed raw cow milk and that might be the cause of this pain. However, the victim kept on complaining of her pain, which made Mrs. Dilulu to further inquire from her.Upon such inquiry, the victim told her that her uncle came to herbed in the night and touched her breast, body and private parts. She then reported the matter to her superior teachers and lodged a complaint in the police subsequently.
    
35. The fourth prosecution witness is D/C/ 2625 Etuate Tabua of Nausori Police Station (PW4), who is the interviewing officer of the caution interview of the accused. He has been in the police force for 18 years and currently serving in the CID branch of Nausori Police Station. He identified the accused person as the person he interviewed on 27th of October 2012. He specifically informed in his evidence that the accused was given all the rights he was entitled during the cause of the recording of caution interview. The interview was witnessed by D/C Avinesh.
    
36. In his cross examination D/C Etuate denied intimidating the accused person during the recording of caution interview. He further stated that the father of the victim was not allowed to go to the cell block and meet the accused person. He denied the allegation of any form of assault, force and threat to the accused during the recording of the caution interview.
    
37. D.C. Avinesh is the fifth prosecution witness (PW5) who is the witnessing officer of the caution interview of the accused. D/C Avinesh gave evidence in agreement with D/C/ Etuate where he also denied the allegation of intimidation, force or assault during the recording of caution interview. He further refused the claim that the father of the victim was allowed to visit the accused while he was in the cell of the Police Station. He stated that the accused gave his statement in the caution interview voluntarily without any force or threat. Moreover, he stated that he is unaware of whereabouts of the cell book diaries, which are relevant to the period of accused person's detention.
    
38. The next prosecution witness is W.CPL Susana, who is the sixth prosecution witness. She stated in her evidence that she is the investigating officer and the charging officer in this case. You must have heard that she explained the role of the investigating officer and the charging officer during the cause of her evidence. She stated that she was present during the recording of the caution interview of the accused and concurs with the PW4 and 5 by denying the use of any form of force, intimidation or assault on the accused. During her cross examination, she stated that according to her knowledge, the father of the victim was not allowed to visit the accused while he was in the police cell block. She has done a search to find the cell book diaries which are relevant to the period of accused person's detention, however, it was unsuccessful.
    
39. The seventh and last prosecution witness is Dr. Evelyn Tuivaga who works at the Paediatric Department of the CWM Hospital. She is having nearly 10 years of experience in the fields of research and forensic cases in respect of child health issues. She explained the details of the medical report and methodology she applied in conducting the medical examination of the victim. She then explained how she made her observation and formed heropinion during this medical examination, which is stated in D 14 of the medical report.
    
40. At the conclusion of the prosecution case, the accused person was explained of his rights in his defence. The learned counsel for the accused informed the court that the accused will give evidence on oaths.
    
41. The accused person in his evidence denied all allegations made against him by the prosecution. He admitted that he was at the victim home on that particular night in May 2012, which is the date that the prosecution alleged that he entered into the room of the victim while she was sleeping and touched her body including her private parts. However, he denied that he entered into the room of the victim and committed this alleged crime. He said that he was sleeping in the main room, when the PW1 came and asked him whether he turned off the light. He said that he did not know who entered into the room. According to the evidence given by the accused, a sibling of the wife of PW1 was also at the house on that particular night.
    
42. In respect of the caution interview of the accused, he stated that the PW1 visited him at the Police Station and told him to admit the allegation. He said that he had to admit the allegation as he was threatened by the interviewing officer and also the PW1.
    
43. The accused admitted in his cross examination that he admitted to his brother that he did this because of a bad thing inside his body in that particular night. He further explained that he had to admit in such a way because his father had told him to admit anything if someone made an allegation against him. He admitted that he was aware of this allegation before he left the victim house in Manoca, though he denied it was the reason for him to leave the house. The accused maintained his position that he had to admit the allegations in his caution interview because ofthe threat made by his brother; the father of the victim and the police officer who interviewed him.
    
44. I have summarised the evidence present during the cause of the trial. However, I might have missed some. It is not because that they are not important. You have heard every items of evidence and reminded yourself of all of them. What I did only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.
    

Conclusion

45. The prosecution presented direct evidence of the victim and also the evidence of her father and teacher of what she told to them about these offences. Furthermore, the Prosecution presented documentary evidence in the forms of caution interview of the accused person and medical report of the victim. There are evidence that the accused person came to the victim while she was sleeping on the bed and touched her breast, stomach, bum and private part by his hand. Then the opinion and findings of the doctor in her medical report says that vaginal orifice of the victim is open and it is consistence with penetration of vaginal orifice with a blunt object.
    
46. In respect of the element of penetration, indeed the findings and the opinion in the medical report is helpful. You must consider the element of penetration with the findings and opinion given by the Doctor in her medical report. However, it is your duty as judges of facts to consider whether there are evidence of penetration the vagina of the victim by the accused with his finger in the form of either direct or circumstantial evidence. If you do not find such evidence, the prosecution has not satisfied the element of penetration the vagina of the victim by the accused with his finger.
    
47. You watched that all the witnesses gave evidence in court.It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re- examined, were they evasive, in order to decide the credibility of the evidence and the witnesses. It will assist you in forming your decision to accept or refuse the evidence or part of the evidence of witnesses.
    
48. If you accepted the version of the accused that he did not commit any of these offences and this allegation was made by the complainant on the instigation of her father, then the prosecution case fails. You must then acquit the accused from these charges.
    
49. If you neither believe nor disbelieve the version of the accused, it then creates a reasonable doubt in the prosecution case. You must then acquit the accused from these charges.
    
50. Even you reject the version of the accused that does not mean that the prosecution has established that the accused is guilty for these offences. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed the offence of sexual assault and rape as he is being charged with.
    
51. Upon consideration of all evidence, if you believe that the charge of sexual assault is proved beyond reasonable doubt, you can find the accused guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused is not guilty.
    
52. In respect of the charge of rape, having considered all evidence, if you believe that charge is proved beyond reasonable doubt, you can find the accused guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused is not guilty.
    
53. Madam and gentleman assessors, I now conclude my summing up. It is the time for you to retire and deliberate in order to form your individual opinions on the charges against the accused. You will be asked individually for your opinion and will not require to give reasons for your opinion. Once you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
    
54. Learned counsel of the prosecution and the defence, do you have any redirections?
    

T Rajasinghe
Judge

At Suva
Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused