State v Draunimasi - Summing Up [2015] FJHC 116; HAC008.2011L (25 February 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 008 OF 2011L

BETWEEN:

STATE

AND:

1. SERESIO DRAUNIMASI
2. TEVITA KORO

Counsel : S. Kiran for State
Mr Kumar for 1st Accused
Mr Nand with Mr Sharma for 2nd Accused

Date of Hearing : 17th, 18th, 19th and 23rd February 2015
Date of Summing Up : 25th of February 2015

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 your 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 should not allow 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 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's 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 first accused person is charged with one count of Rape. The second accused was originally charged with one count of Rape, one count of Indecently Annoying a person and one count of Indecent Assault. However, at the conclusion of the prosecution case, the court found that there is no case to answer for the count of Indecently Annoying a person and count of Indecent Assault. Accordingly, in pursuant of section 231 (1) of the Criminal Procedure Decree those two counts were dismissed and the second accused was acquitted accordingly. The particulars of the remaining two counts as per the amended information are;
    

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

"Seresio Draunimasi, on the 25th day of December 2010, at Lautoka in the Western Division, inserted his penis into the vagina of Senimili Kula, without her consent,

Rape, contrary to section 45 (1) and 207 (1) and (2) (a) of the Crimes Decree 2009,

"Tevita Koro, on the 25th day of December 2010, at Lautoka in the Western Division, aided and abetted the commission of the offence of rape by Seresio Draunimasi against Senimili Kula, in that Tevita Koro prevented Senimili Kula's escape prior to Seresio Draunimasi inserting his penis into the vagina of Senimili Kula without her consent,

11. I now draw your attention to the first count, which is the offence of rape contrary to section 207 (1) and 207 (2) (a) of the Crimes Decree.
    
12. Section 207 (1) and 207 (2) (a) states that;
    

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

A person rapes another person if-

(b)the person has carnal knowledge with or of the other person without the other person's consent,

13. In this case, the first accused is alleged that he inserted his penis into the vagina of Senimili Kula without her consent. Accordingly, the main elements of the offence of rape that the prosecution is required to prove beyond reasonable doubt against the first accused person are that;
    
    1. The accused,
    2. Had carnal knowledge with the complainant,
    3. Without the consent of the complainant, and
    4. The accused knew the complainant was not consenting for him to insert his penis in that manner.
       
14. I now draw your attention to the second count, where the second accused is charged for an offence of rape contrary to section 45(1) and section 207(1) and (2) (a) of the Crimes Decree.
    
15. Section 45 (1) of the Crimes degree states that;
    

"A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly".

16. In order to find a person is guilty for adding and abetting to commit an offence, you must satisfy that the alleged conduct of the person must have actually aided and abetted the commission of an offence by another person and also the offence must have actually been committed by the other person. Moreover, that person who aided and abetted must have intended or reckless of that his conduct would aid or abet the commission of the offence by another person.
    
17. Accordingly, it appears that the main elements of the second count that the prosecution is required to prove beyond reasonable doubt against the second accused person are that;
    
    1. The second accused,
    2. Intentionally, or recklessly,
    3. Aided and abetted the first accused person to commit the offence of rape,
    4. By preventing the complainant from escape prior to this alleged sexual intercourse,
       
18. I now kindly request you to draw your attention to the agreed facts which is before you. I do not wish to reproduce them in my summing up. According to the agreed facts filed by the parties, it appears that the first and the second accused persons have admitted that the complainant came to the second accused Tevita Koro's house on 25th of December 2010 to purchase cigarettes for her grandfather. Both accused persons have admitted that both of them were in the house when she arrived. Moreover, the first accused, Seresio has admitted that he had a sexual intercourse with the complainant at the house of Tevita Koro on 25th of December 2010.
    
19. Accordingly, the issue to be decided in this hearing is that whether the complainant consented to the first accused person, Seresio to have sexual intercourse with her. If you find that she did not give her consent for the sexual intercourse. You then have to decide that whether the second accused person, Tevita Koro aided and abetted the first accused person to commit the offence of rape by preventing the complainant from escaping prior to the sexual intercourse.
    
20. I now draw your attention to the issue of consent. Section 206 (1) of the Crimes Decree states that;
    

"The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent".

21. Accordingly, it is the onus of the prosecution to establish beyond reasonable doubt that this sexual intercourse had taken place without the consent of the complaint. The prosecution is required to establish that the complainant had not freely and voluntarily consented to have sexual intercourse with the first accused person.
    
22. It is important to note that proof can be established only through evidence. Evidence can be presented in the form of:
    
    1. Direct evidence,
    2. Circumstances evidence,
    3. Documentary evidence,
    4. Expert evidence.
       
23. 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/ her own evidence but also with other evidence presented in the case.
    
24. At this point, I must emphasis you that the offences of sexual nature do not require evidence of corroboration.
    
25. I now draw your attention to summarise the evidence presented by the prosecution and the defence respectively.
    
26. As I mentioned above, the counsel for the Prosecution and the defence submitted their agreed facts. A copy of it is with you. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt by the prosecution. I draw your attention particularly on the 6th, 7th, 9th, 10th and 11th agreed facts, where both parties have agreed that the Tevita Koro resides at Nailabula Village, Latuoka, in 2010 and the complainant came to Tevita's house to purchase cigarettes on 25th of December 2010. They have further agreed that Seresio and Tevita were inside the Tevita's house when the complainant came to the house to purchase cigarettes. More importantly, Seresio, the first accused person has admitted that he had a sexual intercourse with the complainant at Tevita's house on 25th of December 2010.
    
27. The first prosecution witness is the complainant Senimili Kula (PW1). In her evidence she stated that she was asked by her grandfather to go and buy some cigarettes from Tevita Koro's house. She stated that she did not know Tevita Koro as well as Seresio at that time. Her grandfather had explained the face of Tevita for her to identify him. She did not know anyone in the Tevita's house. She asked for cigarettes from the outside, and then Tevita asked her to come in to the house. She then saw Tevita was covering his private parts from a pillow and told her "if you need cigarettes, come and buy from here". He then tried to get hold of her, but she managed to run in to the house. Tevita then closed the door and asked her to remove her cloths and lie down on the bed, which she refused. At that point Seresio hold her leg and put her on the bed. He then removed her cloths, while removing his own. He then had a sexual intercourse with the complainant.
    
28. She stated in her evidence that she felt noting when Seresio had sexual intercourse with her. She said that she tried to push him away because she found another person by the name of Sikeli was sleeping on the bed next to them and heard the noise. Apart from that reasons, she said that she was in a hurry to go back as her grandfather was waiting for cigarettes. She then said that she didn't like what Seresio did for her and didn't allow him to do that.
    
29. In her cross examination, she explained the rooms inside the house and said that the bed on which Sikeli was sleeping was very close to the bed where Seresio had sexual intercourse with her. She further stated in her cross examination that she threw a pillow at Seresio to wake him up while he was sleeping in the room because she wanted to wake him up in order to seek help from him as Tevita was trying to do something bad. She stated in her evidence that Seresio then got up, but went out from the room.
    
30. She further stated in her cross examination that Seresio removed her cloths while he was also removing his own. While Seresio was having sexual intercourse with her, Sikeli woke up and asked him who the girl was. Seresio did not tell her name but only said it was a Fijian girl.
    
31. During the crass examination, she further stated that she felt embarrassed when she was confronted by her sister-in-law about the rumours that she had sex with Seresio. That happened two weeks after the alleged incident. She then told her sister-in-law that she was raped. She changed her position in cross examination and admitted that she knew Tevita at that time as he is a cousin of her sister-in-law.
    
32. In her re-examination, she said that she do not know the reason for the delay of two weeks to make the report to the Police.
    
33. The second Prosecution witness is Luisa Eraga, who is the sister-in-law of the complainant. She was the one who made this complaint to the police. She denied that she confronted the complainant about the rumours, but she admitted that she asked the complainant after she noticed that the complainant was going to the washroom often during the night. Having asked the complainant, she then went to see Tevita and confronted him about this allegation made by the complainant.
    
34. Cpl Ana, who is the investigating officer, is the third prosecution witness. She has recorded the statements of the complainant and Ms. Eraga during the investigation. She admitted in her cross examination that the complainant has not stated in her statement to the police, that Tevita closed the door when she ran into the house and covered his private parts from a pillow and told her to buy cigarettes from here.
    
35. She admitted that Sikeli would have been an important material witness, but apologies for her fault of not having his statement recorded. She said that she couldn't locate Sikeli during her investigation.
    
36. The fourth prosecution witness is Dr. Bayani Dragon, who gave evidence regarding the conduct of medical examination of the complainant.
    
37. At the conclusion of the prosecution case, both accused persons were explained of their rights in their defence. The first accused person gave evidence on oaths and called two more witnesses for the defence. The second accused person gave evidence on oaths but did not call any other witnesses.
    
38. The first accused person, Seresio in his evidence stated that he was woken up by the complainant by throwing a pillow at him. He then asked her why did she come, for which she replied that she came to buy cigarettes, but they were finished. Seresio then stated that the complainant did not go back and was waiting at the door. She then told him that she is not married when he asked her whether she is married. He then asked her whether they can have sex, for which she agreed. He denied that he raped the complainant and stated that she willing had sex with him. He confirmed that Sikeli was sleeping on the other bed. Sikeli woke up and asked who the girl was, while he was having sexual intercourse with the complainant.
    
39. The second accused person, Tevita Koro stated in his evidence that he was sleeping when the complainant came and asked for cigarettes. He said that he just set up an earth oven and came back to home for rest. He then told her that cigarette were finished and went back to sleep. He did not know what she did thereafter or whom she met. He further testified that the complainant used to come to his place often to meet the boys.
    
40. The first defence witness is Senijale Bukete, who is the twin brother of Seresio. He stated in his evidence that he knew the complainant as he had talked to her before and asked about her.
    
41. The second defence witness is Sikeli Natukau. He stated in his evidence that he was sleeping inside the room with Seresio on the 25th of December 2010. He found Seresio was having a sexual intercourse with a girl when he woke up. He then asked him who the girl was, and got up and went to see the girl. The girl covered her face from her hand. He stated in his cross examination that he observed that the girl was enjoying the sexual intercourse as he saw that she was hugging Seresio. Sikeli then went out from the room. He was called to the Police and met Cpl Ana and gave his statement. He specifically stated that he did not change his place of residence and has been staying at the same place since 2010. He works in a place which is in a very close proximity to the Latuoka Police Station.
    
42. 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

43. The prosecution presented direct evidence of the complainant, her sister-in-law and the investigation officer. Apart from that they presented evidence of the doctor in the form of expert evidence and tendered a medical report as documentary evidence.
    
44. The main issue in this case as I mentioned above, is that whether the complainant freely and voluntarily gave her consent to Seresio to have a sexual intercourse with her on 25th of December 2010. The prosecution did not call any evidence to establish that the complainant was not possessed the necessary mental capacity to give consent for the sexual intercourse. Hence, the sole question to determine is whether the prosecution on the evidence presented has established beyond reasonable doubt that the complainant had not freely and voluntarily consented to have a sexual intercourse with Seresio.
    
45. It is your duty to carefully assess and evaluate the evidence of the witnesses and form your opinion that whether you could believe them as credible and truthful witnesses. You are allowed not only to consider the evidence of that particular sexual act, but could consider the conduct of the witnesses prior to and after this alleged sexual intercourse.
    
46. At this point, I must emphasise you that there is no rule or legal requirement for a victim of a sexual offence to immediately and promptly report the incident to the police or to another person. There are many reasons that could prevent a victim to report the incident immediately and promptly to any other person. The evidence of recent complaint never capable of corroborating the complainant's account. However, it is relevant to the question of consistency or inconsistency in the conduct of the complainant, which could affect the credibility and reliability of the witness. The delay does not mean the consent to the sexual intercourse. The prosecution could present evidence to explain the reason for such a delay.
    
47. In this instant case, the complainant admitted in her evidence that she did not inform anyone about this incident until she was confronted after two weeks of the incident by her sister-in-law about the rumours that she had sex with Seresio. She told in her evidence that she felt embarrassed when she was confronted. She did not explain or specify the reason why she felt embarrassed when confronted. She told her sister-in-law that she was raped when she was confronted about the rumours. She did not give any reason for the delay of making the complain.
    
48. Moreover, it appears that the complainant changed her position which she took during her evidence in chief, where she stated that she did not know Tevita at that time. However, in her cross examination she admitted that he is a cousin of her sister-in-law and knew him at that time. The complainant stated in her evidence that she tried to push Seresio because Sikeli was sleeping on the next bed and heard the noise. Apart from that she was in a hurry to go back as her grandfather was waiting for cigarettes. However, she later stated that she did not like what Seresio did and did not allow him to do it.
    
49. It is your duty as judges of the facts, to consider the evidence of the complainant and decide whether she is consistence with her own evidence and with the evidence of others, and whether you could consider her as a credible, reliable and truthful witness.
    
50. 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 and the truthfulness 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.
    
51. You have heard the evidence presented by the defence, where they denied the allegations. The first accused admitted that he had a sexual intercourse with the complainant, but with her consent. Sikeli saw the complainant was hugging and enjoying having sexual intercourse with Seresio. The investigation officer admitted that Sikeli would have been an important material witness for the case and expressed her apology for not having his statement recorded. If you accepted the version of the accused persons that they did not commit these offences, then the prosecution case fails. You must then acquit the accused from these charges.
    
52. If you neither believe nor disbelieve the version of the accused persons, it then creates a reasonable doubt in the prosecution case. You must then acquit the accused persons from these charges.
    
53. Even you reject the version of the accused persons that does not mean that the prosecution has established that the accused persons are guilty for these offences. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused persons have committed these offences as charged in the amended information.
    
54. Upon consideration of all evidence, if you believe that the first count of rape is proved beyond reasonable doubt, you can find the first accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the first accused is not guilty.
    
55. In respect of the second count of rape, having considered all evidence, if you believe that charge is proved beyond reasonable doubt, you can find the second accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the second accused is not guilty.
    
56. 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 two accused persons. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could reconvene.
    
57. Learned counsel of the prosecution and the defence, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
25th February 2015

Solicitors : Office of the Director of Public Prosecutions for Respondent
Office of the Legal Aide Commission,
Mr Nand