State v Qiokata [2015] FJHC 167; HAC141.2010 (6 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 141 OF 2010

STATE

-v-

JOSEVA QIOKATA

Counsels : Mr. Josaia Niudamu for the State
Ms. L. Jiuta for the Accused

Date of Trial : 4 March 2015 to 5 March 2015
Date of Summing Up : 6 March 2014

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me – as the Judge who presided over this trial – to sum up the case to you on law and evidence. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.
   
2. I will direct you on matters of law which you must accept and act upon.
   
3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
   
4. In other words you are the Judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
5. The state counsel and the defence counsel made submissions to you about the facts of this case. That is their duty as the state counsel and the defence counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.
   
7. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the prosecution and never shifts.
   
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.
   
9. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.
   
10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
11. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
    
12. In accessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.
    
13. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is – as you could hear from evidence –this case involved an alleged incident of rape. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
    
14. In this case the prosecution and the defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of court time.
    
15. The agreed facts of this case are:
    

1. It is agreed that the complainant in this matter is one JR.

2. It is agreed that the accused in this matter is one Joseva Qiokata.

3. It is agreed that the complainant, JR, was medically examined on the 9th September 2010 by Dr. Tieri Waqanicakau at the Nadi Hospital.

4. It is agreed that the complainant is married to one Luke Boseiwaqa.

16. The charge against the accused is a charge of Rape under Section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009. The particulars of the offence, as alleged by the prosecution are:
    

COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

JOSEVA QIOKATA, between the 8th day and the 9th day of September 2010, at NADI in the WESTERN DIVISION, inserted his penis into the vagina of JR, without her consent.

17. I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207 (1) of the Decree makes the offence of rape an offence triable before this court. Section 207 (2) states as follows:
    

A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

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

(c) The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

18. Carnal knowledge is to have sexual intercourse with penetration by the penis of a man to the vagina of a woman to any extent. So, that is rape under Section 207 (2) (a) of the Crimes Decree.
    
19. Consent as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent. A child under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The complainant in this case was above 13 years of age on 8.9.2010 and therefore, she had the capacity under the law to consent. So, the prosecution has to prove the absence of consent on the part of the complainant and the accused knew that she was not consenting. Further bear in mind submission without physical resistance by a person to an act of another person shall not alone constitute consent.
    
20. A person's consent to an act is not freely and voluntarily given if it is obtained-
    
    • (i) by force; or
    • (ii) by threat or intimidation; or
    • (iii) by fear of bodily harm; or
    • (iv) by exercise of authority; or
    • (v) by false and fraudulent representations about the nature or the purpose of the act.
      
21. So, the elements of the offence in this case are that the accused penetrated the vagina of victim to some extent with penis, which means that the insertion of a penis fully into vagina is not necessary and the complainant did not consent for that and the accused knew that she was not consenting.
    
22. Evidence that the accused has been identified by a witness as doing something must, when disputed by the accused, be approached with special caution because experience has demonstrated, even honest witnesses have given identification which has been proved to be unreliable. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is involved, that the warning be given.
    
23. In assessing the identification evidence, you must take following matters into account:
    
    • (i) Whether the witness has known the accused earlier?
    • (ii) For how long did the witness have the accused under observation and from what distance?
    • (iii) Did the witness have any special reason to remember?
    • (iv) In what light was the observation made?
    • (v) Whether there was any obstacle to obstruct the view?
      
24. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the complainant was witness who offered direct evidence, if you believe her as to what she saw, heard and felt.
    
25. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, Medical Report is an example, if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the victim.
    
26. Expert evidence is also important to borne in mind. Usually, witnesses are not allowed to express opinions. They are allowed to give evidence on what they have seen, heard or felt by physical senses only, as described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions express on a particular fact to aid court and you to decide the issue/s before court on the basis of their learning, skill and experience.
    
27. The doctor in this case, for example, came before court as an expert witness. The doctor, unlike any other witness, gives evidence and tells us her conclusion or opinion based on examination of the victim. That evidence is not accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if her reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence in the case.
    
28. In assessing evidence of witnesses you need to consider a series of tests. They are for examples:
    

Test of means of opportunity: That is whether the witness had opportunity to see, hear or feel what he/she is talking of in his/her evidence. Or whether the witness is talking of something out of pace mechanically created just out of a case against the other party.

Probability and Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.

Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking of, whether he/she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion.

Consistency: That is whether a witness telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere. If so, what the witness has told court contradicts with his/her earlier version.

Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.

29. You need to consider all those matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to assess the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.
    
30. I will now deal with the summary of evidence in this case.
    
31. Prosecution called complainant as the first witness. She is 28 years old now. In September 2010 she was living with her husband and two children at Votualevu. She was 4 months pregnant at that time. On 8.9.2010 in the evening her husband had come home told her that people who were harvesting cane had asked him to join for a drink. Her husband picked a bag of Grog and told her that Jo is inviting him to have a bowl of Grog at his home. After husband left she had closed the door and went to lie down. Then she heard someone knocking from back door. Then she heard a knock from the front door. She did not open the door. Then the back door was broken opened. She had identified that person as Jo with aid of the light from the kerosene lamp. He pulled her T-shirt and shorts and dragged her out of the house. He also pulled her bra and underwear out. He was holding her hand and she was told that if she did anything he will kill her. She was punched on her left side ribs four times and she was made to lie down. At that time she was really weak as she was pregnant.
    
32. Then he took off his shorts and lied on top of her and inserted his erected penis into her vagina. She tried to run away but he was holding her hands and forced her down. He was having sexual intercourse with her. She stated that there were no houses in close vicinity to her house and her children were sleeping at that time. She knew the accused Jo as he sometimes come with her husband to pick Grog. There was bright light from the Kerosene lamp and she saw the accused from a distance of 12 feet. Then she was with the accused from 11.00 p.m. to 5.00 a.m. In Court she identified the accused as Jo.
    
33. The cane truck passed in a distance around 5.00 a.m. Then the accused released her. She went to her house, wore clothes and went and picked the children from the room. Then she went to cousin's house. At there, she told cousin about what happened and went to call the police to report the matter. When police arrived she reported the matter to police.
    
34. Under cross examination she stated that although she shouted and cried and tried to escape no one heard her. She was weak and pregnant. She did not shout when the cane truck passed as it was far away. She denied that accused had not come to her house earlier. She denied that before this incident there was grievance between her husband and the accused and her husband tried to chase the accused away from his place. She admitted that when she was dragged on the ground and her T-shirt was torn.
    
35. You watched her giving evidence in court. What was her demeanor like? How she react to being cross examined and re-examined? Was she evasive? How she conduct herself generally in Court? What is the relationship between her and the accused? Was there any reason for her to falsely implicate the accused? How she conducted herself after the incident? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of the complainant beyond reasonable doubt then you have to decide whether that evidence is sufficient to establish all elements of the charge.
    
36. The second witness for the prosecution was Ana Roko. She stated that on 9.9.2010 around 5.00 a.m. she was awakened by her husband. When she came out she saw the complainant and her children out side. She was crying. She had told that accused raped her. Then the complainant went with her daughter to report the matter. She identified the accused as Jo.
    
37. Under cross examination she said that she did not see what happened but telling what the complainant had told her. She was not in good terms with the accused. When she was asked 'Do you agree that you and complainant are trying to frame the accused?' she said yes.
    
38. In re-examination she said that the incident really happened and the complainant is like family to her. Although she meets the accused, he is not her friend.
    
39. This witness was called by the prosecution to establish that the complainant made a recent complaint. Such complaint is not evidence of the facts complained of and cannot be regarded as corroboration, but goes to the consistency of the conduct of the complainant with her evidence given at the trial. It is up to you to decide whether evidence of this witness is consistent with the evidence of the complainant or creating a reasonable doubt in the prosecution case.
    
40. The third witness for the prosecution was the husband of the complainant. On 8.9.2010 he had come home after work. On the way in a short cut, he met a group of boys who were harvesting cane drinking spirit. They called him to join them. After some time they proceeded to his porch and finished the bottle there. The accused told him to go and have Grog at accused's house. So he went inside the house, picked a bag of Grog and went to accused's house. The wife of the accused told them not to drink there. Then they told him to join them go to night club to continue drinking. He said it was far and he doesn't have money. But they said that they will pay for everything. After being at the night club for 2 hours, then accused told them to come back home. When they came down stairs the accused got into a car and left. He had remained there till the driver returned as the driver is his best friend. He was told that accused was dropped at Holika. He had started to walk back home. He passed out under one tree near his in-law's house. He was sleeping there till next morning.
    
41. On the way back home at Narain Shop he was informed what happened. He ran home. His wife was not there. The accused and his brother invited him to go to the night club that night. He met the wife in the afternoon at Roko's house. She informed him what happened. He identified the accused as Jo in the Court.
    
42. Under cross examination he denied apologizing to the accused while drinking at the short cut regarding a past incident. There was no incident of stealing vegetables from the accused's farm. The accused has no land and he has a big farm. He was at accused's house for 30 minutes before going to After Dark night club. He denied that they left the night club at dawn. There was no problem with him and the accused before the incident and they cared for each other.
    
43. The next witness for the prosecution was Doctor. She is doctor with 5 years' experience. She had examined the complainant on 9.9.2010. She gave a history that on the day prior to examination while she was sleeping at home in the night Jo broke in to the house and forced her to have sexual intercourse against her will. He punched her four times on both flanks. She was distressed and anxious. The medical findings were tender over both flanks and labia minora slightly inflamed. Her professional opinion is that findings are consistent with the history. She tendered the medical report marked PE1.
    
44. Under cross examination she stated that injuries in the vaginal area will depend on the force used and the resistance and also previous sexual conduct of the person. She could not recall that the victim told her that she is pregnant. If someone's clothes are torn and dragged on the ground you could expect to see injuries on the body.
    
45. The Doctor is an independent witness. She had examined the complainant the following day. You have to decide whether that evidence is confirming the evidence of the victim or creating any reasonable doubt in the prosecution case.
    
46. The last witness for the prosecution was PC Josua. On instructions received he had accompanied the victim to the scene at Holika, Votualevu. The scene was at the back of the house of the victim outside. The closest house was 100m away. He was not cross examined by the accused.
    
47. After the prosecution case was closed you heard me explaining the accused his rights in defence.
    
48. The accused elected to give evidence. He stated that he was staying in Holika, Votualevu for more than 7 years prior to the incident. He was caretaker of a sugar farm. On 8.9.2010 it was a payday for the cane harvesters. After work around 5.00 p.m. he was taking spirits with other cane harvesters beside one road beside the sugar cane farm. When Luke came across people drinking invited him to join them. They finished drinking around 8.00-9.00 p.m. Luke had a fight with one cane harvester over stealing Jack fruit from an Indian man. He was apologizing to that man and also to him for stealing Dalo leaves. Then Luke told that he has another bottle at home and they all went to Luke's house and had that bottle in the porch. They were there for roughly one hour. There was no light and they were using lights from the phone. That was the first time he sat foot to Luke's house. Then boys told them to go to a night club. They went to his house. Luke went to his wife and asked her whether he could accompany them to night club. Then they all went to Green land night club in Nadi. It was around 11.00 p.m.
    
49. At there, one fight started and they were chased away. Then they went to After Dark night club. They were there till 5.00 a.m. He was with Luke and cousin brother. Others have run away. He understands the allegation and denies it. His position is that he was with Luke in the night club. He had not seen the complainant until he was arrested. He was not in good terms with Luke. They come and steal from his farm. He could not tell anything as the land is owned by their clan. He had no idea why the complainant accused him of rape.
    
50. Under cross examination he stated that he don't know Luke and wife very well. Luke was there for few months. When he came, Luke tried to remove him from where he stayed. There was no fight at the place of drinking. He did not invite Luke to have a bowl of Grog at his house. They went to his house just for him to change. Others invited Luke to go to night club. Luke asked his wife whether he could accompany them to night club. They were not even talking to each other during drinking party. The other cane harvesters were with them till 3.30-4.00 a.m. All of them were spending money that night. But he did not see Luke buying anything. He admitted that he got into motor car and went to Holika from After Dark night club and left behind Luke. But he said it was not 10.30-11.00 p.m. but early morning. When the allegation was put to him he denied the allegation.
    
51. The accused in his defence takes an alibi. He says that he was not at the scene of crime but was at the night club. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a defence.
    
52. Present Criminal Procedure Decree in Section 125 provides that:
    

'On a trial before any court the accused person shall not, without the leave of the court, adduce evidence in support of an alibi unless the accused person has given notice in accordance with this section.

A notice under this Section shall be given-

(a) Within 21 days of an order being made for transfer of the matter to the High Court (if such order is made); or

(b) In writing to the prosecution, complainant and the court at least 21 days before the date set for trial of the matter, in any other case.

53. No notice was given of alibi in this case.
    
54. You watched the accused giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? His position taken up in Court that he was elsewhere was taken for the first time in Court. Some of the position taken up by the accused was not put to the prosecution witnesses in cross examination. In other words his evidence is inconsistent. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his version still the prosecution should prove it's case beyond reasonable doubt.
    
55. I must remind you that when an accused person has given 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.
    
56. You will generally find that an accused gives an innocent explanation and one of the three situations then arises:
    
    • (i) You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.
      
    • (ii) Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your mind and so again your opinion must be Not Guilty.
      
    • (iii) The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be Guilty.
      
57. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.
    
58. Please remember, there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty in a rape case. The case can stand or fall on the testimony of the victim depending on how you are going to look at his evidence. You may, however, consider whether there are items of evidence to support the victim's evidence if you think that it is safe to look for such supporting evidence. Corroboration is, therefore, to have some independent evidence to support the victim's story of rape.
    
59. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and 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.
    
60. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt of the charge you must find him guilty for the charge. 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 accused's guilt, you must find him not guilty for the charge.
    
61. Your possible opinions are as follows:
    

Charge of Rape Accused Guilty or Not Guilty

62. You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
    
63. Any re-directions?
    

Sudharshana De Silva
JUDGE

At Lautoka
5th March 2015

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