State v Rokovesa [2015] FJHC 176; HAC32.2014 (12 March 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: 32 OF 2014

STATE

- v -

MATEO ROKOVESA

Counsels : Mr.F. Lacanivalu for the State
Mr. P .Tawake for the accused

Date of Trial : 10 March 2015 to 11 March2015
Date of Summing Up : 12 March 2015
(Name of the complainant is suppressed she is referred to as TA)

SUMMING UP

Madam Assessors and Gentlemen Assessor:

1. We have now reached the final phase of this case. The law requires me – as the Judge who presided over this trail –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 curse 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. The Accused is one MATEO ROKOVESA, 40 years old of Waica Settlement in Taveuni.
    2. The Victim is one TA, 17 years old of Wailoku in Suva.
    3. The Accused's wife is the younger sister of the Victim's mother thus she is his niece.
    4. Sometime in January of 2014, the Victim came to Navivi, Qamea in Taveuni to visit her paternal grandmother.
    5. She stayed there until the 28th of February 2014 before she visited her uncle MATEO ROKOVESA (the accused) and his wife NINA NABALARUA at Waica in Taveuni.
    6. On the 3rd of March 2014, the Victim was at home with her Aunt NINA NABALARUA and Uncle MATEO ROKOVESA.
    7. The Victim was sleeping with her Aunt on a double bed in a bedroom when the latter got up at about 6.30am to get some herbal medicine from the nearby Naniu Village.
    8. When NINA NABALARUA left, the accused was at home with the Victim that morning.
    9. The Accused had carnal knowledge with the Victim be penetrating her vagina with his penis.
    10. The Victim was medically examined on the 24th of March 2014 at the Taveuni Hospital by Dr. Vilisoni Tigarea.
    11. The Accused was interviewed under caution on the 24th March 2014 at the Taveuni Police Station.

12. The Following documents are agreed between the Prosecution and Defendant and may be tendered in as exhibits by consent pursuant to section 135 of the Criminal Procedure Decree 2009.

13. The Medical Report of TERESIA ADI BALE RAIKUNA

14. The Formal Charge Statement of MATEO ROKOVESA.

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:
    

First Count

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Mateo Rokovesa on the 3rd day of March 2014 at Waica Settlement, Taveuni, in the Northern Division, had carnal knowledge of TA 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 extend 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 extend 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 of the vagina of a woman to any extend. 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 3.3.2014 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 extend 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. 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.
    
23. 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.
    
24. 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 issues/s before court on the basis of their learning, skill and experience.
    
25. 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 his 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 his 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.
    
26. 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 crated 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.

27. 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.
    
28. I will now deal with the summery of evidence in this case.
    
29. Prosecution called the aunt of the complainant as the first witness. She is the wife of the accused. According to her the complainant was at her home since 28.2.2014. On 3.3.2014 she left the complainant at the home with the accused around 6.30 a.m. to go to Naniu village. On 4.3.2014 when she was having breakfast the complainant informed her that the accused raped her. The complainant looked scared. After complainant told this she cried. This was reported only on 24.3.2014. After the incident two Catholic priests tried to solve the problem. One afternoon two people who came to their canteen heard them arguing. Those people have told others of what they heard. After that she called the complainant's father as she was worried that they will hear the story. As it was good to hear from her first she called the father of the complainant.
    
30. Under cross examination she stated that she returned in the morning on 3.3.2014 after going to Naniu village. When she left the complainant was still sleeping. When she returned she was awake. She did not tell her anything that day. After that she continued live with them. No one pressured her to report the matter. At the time she called the complainant's father she was told that if the accused comes to reconcile it is not guaranteed that he will return alive. She felt sorry for the husband and she reported the matter. She did not see what happened but only heard from the complainant.
    
31. 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.
    
32. The second witness for the prosecution was Doctor Vilisoni Tigorea. He had examined the complainant on 24.3.2014. He identified and tendered medical report marked P1. She had given a history that when she was alone at home with the uncle, while her aunt was away she was raped by the uncle. She was scared to tell. She was calm at the time of examination.
    
33. The medical findings are a laceration at bottom of the vagina and hymen was mostly broken. His professional opinion was that the injury is relatively old and the laceration is more than one week old.
    
34. Under cross examination he stated that he could not recall whether the victim informed him about the date of the incident. He cannot conclude that the specific medical findings are caused by penetration by penis. In re-examination he stated penile penetration could have caused the injuries.
    
35. The Doctor in an independent witness. He had examined the complainant 21 days later. You have to decide whether that evidence is confirming the evidence of the victim or creating any reasonable doubt in the prosecution case.
    
36. The third witness for the prosecution was DC Pita. He was the charging officer of the accused. He identified and tendered the charge statement marked P2. The accused did not make any complaint before the charge. He was not assaulted or forced to make the charge statement. He read out the content to Court.
    
37. Under cross examination he admitted that the answers to questions were given in i-Taukei language and he translated those to English. He denied that the only admission made by the accused is that he had sexual intercourse with the victim and nothing more than that. He states that he wrote the answers in English as the accused wanted to be charged in English and the accused understood the English language.
    
38. If you believe the charge statement is voluntarily made and it is truthful you could consider whether elements of the charge is established by the charge statement. But if there is doubt on either voluntariness or truthfulness of the charge statement benefit of that doubt should be given to be accused.
    
39. Prosecution called complainant as the fourth witness. She is 17 years old now. In January 2014 she had gone to Navivi to visit her maternal grandmother. She had stayed there till 28.2.2014. Then she had visited her uncle (accused) and aunt. Aunt was her mother's younger sister. On 3.3.2014 around 6.30 a.m. she was sleeping with her aunt in the bed room on a double bed. Aunt got up and went to Naniu village looking for some herbal medicine. The accused came to the bed room and told her to shift in the bed. She thought that he came to put the blanket and the pillow. When she shifted, he started to touch her breast and take off her clothes. Then he sucked her nipples. Then he took off her sulu and grabbed her. He pressed her shoulders. Then he took off his clothes. Then he inserted his penis in to her vagina. She was frightened. She did not shout as he could kill her or hurt her. She tried to push him away. She did not consent to sexual intercourse. She told him that she was not consenting. She knew that the accused is her small father and he could not do that to her. It was for about two minutes.
    
40. After that he told her to go and have a bath and fry bread fruit. He told her not to inform the aunt. The aunt returned home after 7.00 a.m. She told the aunt the following day. She was frightened to tell her earlier. The matter was reported on 24th March. Aunt told her if the accused goes to jail no one to look after the children and family. The matter was reported as the accused and aunt had an argument. She identified the accused in Court.
    
41. Under cross examination she admitted that there are houses nearby to the accused's house. She admitted that she never shouted or yelled. She woke up when the accused came and started touching her. She did not run out. She did not ask the accused 'where is the aunt? before the accused took off her panty. She was frightened and confused. The accused grabbed her and took off her clothes using both hands. She denied telling the accused not to ejaculate in side. Accused had sex while kneeling on the bed. She was frightened the way the accused told her not to tell the aunt. She did not complain to aunt when she returned that morning. Seeing aunt she felt some guilt inside her. She was frightened about the accused when she saw the aunt. Accused kept repeating not to tell the aunt. She pushed the accused at the time he was having sex but the accused grabbed her. She did not yell or ran out of the house. She denied that the reason not to yell or ran out of the house is that she consented to sexual intercourse. After the incident she continued to live in that house. Before and after the incident the accused treated her nicely in the house. But sometime he talked like ordering her.
    
42. In re-examination she said that she did not run out as the accused had grabbed her by shoulders. She felt frightened and confused.
    
43. You watched her giving evidence in court. What was her demeanour 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? Was there any explanation for the delay in informing the aunt? 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.
    
44. After the prosecution case was closed you heard me explaining the accused his rights in defence.
    
45. The accused elected to give evidence. He stated that he is 41 years old and married with three children. The complainant is his niece. On 3.3.2014 around 6.30 a.m. he was alone at home with niece as wife had gone to another village. He had gone to the place where the complainant was sleeping. He told her to shift. Then he lay beside her for few seconds. Then he started to hug her. He felt that she wanted what he was doing to her. Then he touched her breast and took off her top. Then she asked her 'where is the aunt? He had told her that she had gone to get some herbal medicine. Then he got down and took off her panty. When he was about to insert his penis in to her vagina she told him to ejaculate outside. He had sexual intercourse with her for about two minutes. His understanding is that she consented. Then she was asked to go and wash herself and prepare the breakfast. He did not threaten her.
    
46. She did not push him away when he was on top of her. She did not scream. He did not ask for permission before he had sex with her. From the two questions she asked he thought that she was consenting. He treated her as a visitor at the home. In charge statement he was questioned in English and he answered in i-Taukei language. What he told in i-Taukei is that he had sexual intercourse with the complainant. He admitted that he told police what is in the charge statement. But it was in i-Taukei language.
    
47. Under cross examination he stated that the complainant did not say anything about consent. Then he assumed that consent was given. She did not by words consented to him to have sexual intercourse. He did not pin her down but was holding her. She was not able to move as he was holding her. He told the complainant to keep it between him and her. He admitted that he is telling the complainant consented to avoid the guilt.
    
48. In re-examination he stated that he hold her down for two minutes to have sex.
    
49. You watched the accused giving evidence in court. What was his demeanour 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 the complainant consented for the sexual intercourse is different from the position taken in the charge statement. 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 its case beyond reasonable doubt.
    
50. 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.
    
51. 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 minds 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.
      
52. 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 from 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.
    
53. 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 her 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.
    
54. 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.
    
55. 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.
    
56. Your possible opinions are as follows:
    

Charge of Rape Accused Guilty or Not Guilty

57. 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.
    
58. Any re-directions?
    

Sudharshana De Silva
JUDGE

At Labasa
12th March 2015

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