State v Mario [2014] FJHC 932; HAC70 & 71.2013 (17 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No: HAC 70 & 71 of 2013

BETWEEN:

THE STATE

AND:

JALE MARIO

Counsel: Mr. S. Vodokisolomone for State
Mr. M. Fesaitu for Accused

Date of Hearing: 15-17 December 2014
Date of Summing Up: 17 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. 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 charge 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 four counts of rape one count of indecent assault. Counts 1-3 relates to the complainant Maria. Counts 4-5 relates to the complainant Mere aka as Meresiana. You 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 all counts or not guilty on all counts. 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 had sexual intercourse with Maria, that is, he penetrated her vagina with his penis; and

(ii) Secondly, at the time of the sexual intercourse, Maria was under the age of 13 years.

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

(i) Firstly, the Accused had sexual intercourse with Maria, that is, he penetrated her vagina with his penis; and

(ii) Secondly, at the time of the sexual intercourse, Maria was under the age of 13 years.

[19] On count 3, the prosecution must prove beyond reasonable doubt that:

(i) Firstly, the Accused penetrated Maria's vagina with his tongue; and

(ii) Secondly, at the time of the penetration, Maria was under the age of 13 years.

[20] On count 4, the prosecution must prove beyond reasonable doubt that the Accused unlawfully and indecently assaulted Mere. Unlawful means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. It is alleged that the Accused fondled the breasts of the complainant. The question for you is whether right minded persons would consider this act indecent.

[21] On count 5, the prosecution must prove beyond reasonable doubt that:

(i) Firstly, the Accused had sexual intercourse with Mere, that is, he penetrated her vagina with his penis; and

(ii) Secondly, at the time of the sexual intercourse, Mere was under the age of 13 years.

[22] On each count of rape (count 1-3 and 5), the prosecution is not required to prove lack of consent on behalf of the complainants. The law is that a girl under the age of 13 is not capable of consenting to sexual intercourse or any other form of penetration of her genitalia. In this case, the age of the complainants at the time of the alleged incidents is not in dispute. On counts 1-2, the complainant was 10 years old and on count 2, she was 11 years old. On count 5, the complainant was 12 years old. So on counts 1, 2, 3 and 5, the question for you is whether the Accused sexually penetrated the complainants as alleged by them. Slightest penetration is sufficient. It is not necessary to prove ejaculation.

[23] In relating to the incident alleged on count 1, the complainant (Maria) said the Accused penetrated her vagina with his penis for five minutes inside the toilet passage in his house. She said the incident happened in the first school term holidays in 2012. She said she could not shout because the Accused covered her mouth with his hand. She said she felt pain. She said the Accused threatened to kill her if she complained to anyone. In relating to the incident alleged on count 2, the complainant said the Accused penetrated her vagina with his penis for three minute inside the bedroom of his house. She said she felt pain. She said the Accused threatened to kill her if she complained to anyone. In relating to the incident alleged on count 3, the complainant said the Accused penetrated her vagina with his tongue inside the bedroom of his house. She said the incident happened on 22 September 2013, when she went to return a plate to the Accused. She said she did not report the incident immediately because the Accused threatened to kill her. She said on 28 September 2013, she told her mother about the third incident. On 2 October 2013, the complainant was medically examined. The medical examination revealed that the complainant's hymen (membrane to vaginal opening) had been perforated, that is, the hymen was not intact. According to the doctor, perforation of hymen occurs if there is a penetration of vagina with penis or finger, or by strenuous activities like horse riding.

[24] In relating to the incident alleged on count 4, the complainant (Mere) said the Accused fondled her breasts inside the bedroom of his house. She said the incident happened when she accompanied her younger brother, Metonio to the Accused's house to get newspaper during the second school term of 2012. She said she did not report the incident because the Accused threatened to do something to her if she complained. In relating to the incident alleged on count 5, the complainant said on 16 August 2013, she went to the Accused's house to get bananas. When she arrived in the house, the Accused pulled her inside a bedroom by threatening her with a kitchen knife and penetrated her vagina with his penis. She said she felt pain and when she got up, she saw blood in her vagina. She said the Accused threatened to kill her with the knife he was holding if she complained to anyone. She did not complain to her parents. On 31 October 2013, the complainant was medically examined. The medical examination revealed that her hymen had been perforated and was not intact.

[25] The complainant Mere was cross examined regarding the inconsistency in her police statement. In the police statement, the complainant said the Accused invited her to get the bananas when the incident subject of count 5 arose. In her evidence, the complainant said she went by herself to the Accused's house. The complainant explained that when she went to the Accused's house, he invited her to get the bananas from the house. As a matter of law, I must direct you that what a witness says on oath are evidence. What a witness says in her previous statement out of court is not evidence. However, previous statements are often used to challenge a witness's credibility and reliability because a previous inconsistent statement may indicate that a witness has told a different story previously and are therefore not reliable. It is for you to judge the extent and importance of any inconsistency. If you conclude the complainant has been inconsistent on an important matter, you should treat both accounts with considerable care. If, however, you are sure that the evidence of the complainant is true in whole or in part, then it is evidence you are entitled to consider when deciding your opinions.

[26] The complainants' brother, Metonio gave evidence. His evidence relates to count 4. Metonio said when he accompanied his sister Mere to the Accused's house, the Accused invited them inside his bedroom and asked them to lie down. While they were lying down, Metonio said he saw the Accused's hands on Mere's breasts.

[27] The complainants' mother, Anasimeci gave evidence. She said upon questioning, on 28 September 2013, Maria complained to her that the Accused had used his tongue on her vagina. 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. While the complaint was made, the complaint was neither recent nor voluntary, but prodded out of her by the complainant's mother. 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.

[28] The incidents of the alleged rape and indecent assault are denied by the Accused. His defence is that the allegations were fabricated by the complainants' mother out of jealousy when the ownership of their land was given to him. In relation to the allegation on count 3, the Accused said he was in church on that Sunday. In relation to the allegation on count 5, the Accused said he was on his way to Savusavu town in a bus on that afternoon when the allegation arose. In other words, in relation to counts 3 and 5, the Accused says he was not at the scene of the crime when it was committed. In law, this defence is known as alibi. As the prosecution has to prove guilt, the Accused does not have to prove he was elsewhere at the time. The prosecution must disprove alibi. The law is that if an Accused wants to rely on the defence of alibi, he must give a notice of alibi to the prosecution in advance so that prosecution can verify the alibi. In this case, no such notice was given. Even if you reject the Accused's evidence as not being true, that does not mean he is automatically guilty of the charges. If the prosecution evidence satisfies you beyond reasonable doubt of the Accused's guilt, then the proper opinions would be guilty.

[29] The prosecution case wholly rests on the two complainants' evidence. If you believe Maria is telling you the truth that the Accused had sexual intercourse with her on the two occasions alleged on counts 1 and 2, and that he penetrated her vagina with his tongue on the third occasion alleged on count 3, you may express an opinion that the Accused is guilty on those counts. If you believe Mere is telling you the truth that the Accused fondled her breasts and if you believe Metonio that he saw the Accused's hands on Mere's breasts on the occasion alleged on count 4, and if you believe Mere is telling you the truth that the Accused had sexual intercourse with her on the occasion alleged on count 5, you may express an opinion that the Accused is guilty on those counts. If you disbelieve the complainants are telling the truth regarding the allegations against the Accused, or if you have a reasonable doubt as to the guilt of the Accused, then you must express opinions that the Accused is not guilty. Remember to consider each count separately.

[30] 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
17 December 2014

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