State v Gaunavou [2015] FJHC 214; HAC208.2013S (25 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 208 OF 2013S

STATE

vs

ATUNAISA GAUNAVOU

Counsels : Mr. M. Vosawale and Mr. A. Paka for State
Ms. T. Kean for Accused
Hearings : 23 and 24 March, 2015
Summing Up : 25 March, 2015

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) On count no. 1, did the accused, between 1 September and 31 December 2012, at Nasinu in the Central Division, rape the complainant?
     
   • (ii) On count no. 2, did the accused, between 1 September and 31 December 2012, at Nasinu in the Central Division, unlawfully and indecently assault the complainant?
     
   • (iii) On count no. 3, did the accused, between 1 and 31 January 2013, at Nasinu in the Central Division, rape the complainant?
     
   • (iv) On count no. 4, did the accused, between 1 and 31 January 2013, at Nasinu in the Central Division, unlawfully and indecently assault the complainant?
     

5. THE OFFENCE AND IT'S ELEMENTS
   

9. Count no. 1, and 3 are offences of "rape", contrary to section 207(1) and (2)(a) of the Crimes Decree 2009. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused penetrated the complainant's vagina with his penis (count no. 1 and 3);

(ii) without her consent; and

(iii) he knew the complainant was not consenting to (i) above, at the time.

10. In law, the slightest penetration of the complainant's vagina (count no. 1 and 3) by the accused's penis, is sufficient to satisfy element (i) of paragraph 9 mentioned above. Proving ejaculation is unnecessary.

11. "Consent" is to "agree freely and voluntarily and out of her own free will". If "consent" was obtained by force, threat, intimidation, fear of bodily harm, or by exercise of authority, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent, at all.

12. It must also be established by the prosecution beyond reasonable doubt that, the accused knew the complainant was not consenting to her vagina been penetrated by his penis, at the time. You will have to look at, and carefully consider the parties' conduct at the time, including the surrounding circumstances, to decide this issue.

13. Count no. 2 and 4 are offences of "sexual assault", contrary to section 210(1)(a) of the Crimes Decree 2009. It is an aggravated form of "indecent assault". For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) unlawfully and

(iii) indecently

(iv) assaulted
(v) the complainant.

14. The key word in the offence is the word "assault". The least touching of another in anger is an "assault". It is the unlawful application of force to the person of an another, for example, to hit someone with a stick, or to punch someone in the face. The "act" is unlawful because the application of force was done without the complainant's consent. The "assault" becomes "indecent", when it is done in "circumstances of indecency". A "circumstance of indecency" is what right-minded people would consider "indecent", for example, a 32 year old man kissing and touching a 13 year 10 months old breasts. So, the prosecution must prove beyond reasonable doubt that the assault was not only "unlawful", it was also "indecent".

15. Furthermore, count no. 1 to 4 are called "representative counts". This is because a specified date of the alleged offence is not named. This type of cases often occur with children when they are allegedly raped or sexually assaulted. They often forget the actual dates of the incidents. To overcome the difficulty, the prosecution often present a "representative" count. For example, in count no. 1 and 2, the date used is the period between 1 September and 31 December 2012. The prosecution need prove only one incident of "rape" [count no. 1] and one incident of "sexual assault" [count no. 2] during the 3 months period to succeed on those counts. This is permissible in law.

16. There are four counts concerning the accused. You must consider those four counts separately in the light of the total evidence presented.

F. THE PROSECUTION'S CASE:

17. The prosecution's case were as follows. The alleged offences were said to have occurred between 1 September 2012 and 31 January 2013, a period of 5 months. At the time, the accused was approximately 32 years old, while the female complainant turned 14 years old on 28 November 2012. The accused and the complainant's family were neighbours in Nasinu. They lived next to each other, and were very friendly with each other. In fact, the complainant's family regarded the accused as a family friend and a trusted person, until the alleged incidents came to light in March 2013.

18. According to the prosecution, the accused called the complainant to his house sometimes in September 2012, to fold his clothes. She went to his house and into his bedroom to fold his clothes. She did the same because he was a family friend. According to the prosecution, as she was folding his clothes, the accused closed his bedroom door, and forcefully took off the complainant's clothes. The complainant tried to stop him from what he was doing, but to no avail. He was stronger than her. According to the prosecution, the accused then touched the complainant's breasts. He later kissed her, and touched her vagina. He pushed her to his bed. Then he lay on top of her. She tried to raise the alarm by shouting, but he closed her mouth with his hand. He then forcefully inserted his penis into her vagina, and had sex with her for 5 minutes. Later, he told her to put on her clothes, and not to tell anyone about the incident, or he will do something to her.

19. In January 2013, according to the prosecution, the accused repeated the above episode. The accused called the complainant's mother [PW2] for the complainant to come to his house to get something. PW2 told the complainant to go to the accused's house to attend to the matter. She went to the accused's house, with her younger brother. At the house, the accused called her into his room. She reluctantly went. While in the house, the accused pushed her into his bedroom and locked the door. He turned his radio on and put the volume up. He then forcefully took off the complainant's clothes, pushed her onto his bed, lay on top of her, and inserted his penis into her vagina. While having sex with PW1, he fondled her breasts and kissed her. PW1 struggled against the accused but to no avail. The accused later warned her not to tell anyone about the incident. PW1 said at no time she gave her consent to the accused to do the above acts to her, and he well knew she was not consenting to the above acts, at the time.

20. The matter was later reported to the police. An investigation was carried out. The accused was caution interviewed by police. He was later charged with raping and sexually assaulting the complainant. Because of the above, the prosecution, is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE

21. On 23 March 2015, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to all the counts. In other words, he denied the rape and sexual assault allegations against him. When a prima facie case was found against him at the end of the prosecution's case, wherein he was called upon to make his defence, he choose to give sworn evidence, in his defence. He also called one witness. That was his right.

22. The accused's case was very simple. He denied the complainant's allegations against him. He said, he did not rape nor sexually assault the complainant, as alleged. He said, he never did such things. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

(a) Agreed Facts:

23. The parties have submitted an Agreed Facts. A copy is with you. There are four paragraphs of Agreed Facts. Because the parties are not disputing those facts, you may take it that the prosecution had proven those facts beyond a reasonable doubt. You must treat the agreed facts, as established facts.

(b) Case Against the Accused:

24. The State's case against the accused was based fundamentally on the complainant's [PW1] direct evidence, and her mother's [PW2] evidence. Your acceptance or otherwise of their evidence will determine the case against the accused.

(c) Complainant's [PW1] Evidence:

25. You have heard and watched the complainant give evidence in court. She said, she was born on 28 November 1998. Her birth certificate was tendered as Prosecution Exhibit No. 1. She said, she recalled September 2012, but could not remember the actual date. She said, on a particular day, the accused came and asked her if she could come to his house to fold his clothes. In September 2012, the complainant was 13 years 10 months old, while the accused was 31 years 8 months old. She said, her family was friendly with the accused, and appeared trusted by her family.

26. She went to his house to fold his clothes. She was folding his clothes in his bedroom, when the accused suddenly closed his bedroom door. He told her to take off her clothes. She refused. He forcefully took off her clothes, then touched her breasts and kissed her. She tried to avoid him, but to no avail. He forcefully pushed her to his bed, lay ontop of her, and touched her vagina. She said, he then penetrated her vagina, without her consent, for about 5 minutes. Then he told her to put on her clothes, and warned her not to tell anyone about the incident.

27. In January 2013, she said, the accused repeated the above episode. She said, he used her mother to persuade her to go to his house to collect some clothes. She said, she went there reluctantly. The accused told her to go to his bedroom to get the clothes. While she was in the bedroom, the accused closed the door, and turned on his radio in high volume. He then told her to take off her clothes. She refused. He then forcefully took off her clothes. He pushed her to his bed, laid ontop of her and forcefully inserted his penis into her vagina. While having sex with her, he fondled her breasts and kissed her. She said, she never gave him consent to the above, and he well knew she was not consenting at the time.

(d) Complainant's Mother's [PW2] Evidence:

28. The complainant's mother [PW2] gave evidence. She said, the accused was their neighbor between 2009 to January 2013. She said, the accused was a trusted family friend during the time they knew him, until the alleged rape was revealed. She said, in March 2013, she saw that her daughter [PW1] was not normal. She was 14 years 4 months old at time. She said, she saw changes in her body. She said, her breasts were swelling. She said, she confronted her daughter, at the time, because she knew she was pregnant. She later told her that the accused had sexual intercourse with her in September 2012 and in January 2013. She said, PW1 told her that the accused raped and sexually assaulted her. She said, she confronted her daughter on or about 23 or 24 March 2013. She said, she reported the matter to police on 25 March 2013.

29. PW2 said, her daughter gave birth to a child on 11 May 2013. She submitted the child's birth certificate as Prosecution Exhibit No. 2. PW2 said, PW1 told her the child's father was the accused.

(e) The Accused's Evidence:

30. On oath, the accused denied the complainant's rape and sexual assault allegations. He said, he did not have sexual intercourse with the complainant in September 2012, nor in January 2013. He said, he also did not sexually assault her, at all. He said, he is not the father of the complainant's child.

(f) Considering All the Evidence Together:

31. You will have to consider all the evidence together. The complainant's version of events is different from the accused. The complainant's mother's evidence about PW1's complaint to her, is not to be taken as evidence of the facts complained of, but as evidence of the consistency of her conduct with the story she said in the witness box, and as tending to negative her consent. You have heard and watch the witnesses in the courtroom. Who do you think is the credible witness? Who do you think is the forthright witness? Who do you think is the evasive witness? Who do you think is telling the truth? If you find the complainant a credible witness, you will have to find the accused guilty as charged? If you find the accused a credible witness, you will have to find the accused not guilty as charged. It is a matter entirely for you.

I. SUMMARY
32. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it 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. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. 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 the accused's guilt, you must find him not guilty as charged.

33. Your possible opinions are as follows:
    

(i)	Count No. 1:	Rape:	Guilty or Not Guilty
(ii)	Count No. 2:	Sexual Assault:	Guilty or Not Guilty
(iii)	Count No. 3:	Rape:	Guilty or Not Guilty
(iv)	Count No. 4:	Sexual Assault:	Guilty or Not Guilty

34. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.