State v Bureta - Summing Up [2015] FJHC 357; HAC022.2014LAB (12 May 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 022 OF 2014 LAB

STATE

V

EPELI BURETA

Counsels: Mr. L. Fotofili for State
Mr. M. Fesaitu and Ms. S. Dunn for Accused

Hearing: 11 May, 2015
Summing Up: 12 May, 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 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, on 8 February, 2014, at Nasaqa Village, Maucata in the Northern Division, rape the complainant?
     
   • (ii) On count no. 2, did the accused, on 8 February, 2014, at Nasaqa Village, Macuata in the Northern Division, sexually assault the complainant?
     

5. THE OFFENCES AND THEIR ELEMENTS
   

9. For count no. 1, for the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused's finger penetrated the complainant's vagina;

(ii) without her consent; and

(iii) the accused knew that she was not consenting to (i) above, at the time.

10. In law, the slightest penetration of the complainant's vagina by the accused's finger, is sufficient to satisfy element no. (i), as described in paragraph 9(i) hereof. For a complainant child under 13 years old, this is the most important element of rape that the prosecution must prove beyond reasonable, to find the accused guilty as charged. The reasons for this will become apparent when we discuss the second and third element of rape below.

11. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, 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. For a child under 13 years old, as a matter of law, she is presumed to be incapable of giving her consent to her vagina being penetrated by the accused's finger. This is a policy of the law. Thus a defence that the under 13 year old child consented to her vagina been penetrated by the accused's finger is not available in law.

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 finger, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue. However, for a complainant child under 13 years old, a person is presumed in law to know that a child is incapable of giving her consent to the above. As discussed in paragraph 10 above, for the prosecution to succeed against the accused, they need only prove element no (i), as discussed in paragraph 9 (i) above.

13. Count no. 2 involved the offence of "sexual assault". "Sexual Assault" is basically an aggravated form of "indecent assault". For the accused to be found guilty of the offence, the prosecution had to prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) indecently and

(iii) unlawfully

(iv) assaulted

(v) the female complainant.

14. An "assault" is basically the unlawful application of force to the person of another. For example, if someone punches you or hits you with a stick, without your consent, that's an "unlawful application of force to your person". It is the least touching of another in anger which amounts to an assault. The assault is unlawful because you did not consent to it.

15. The assault must not only be unlawful, it must also be "indecent". An action is indecent if right – thinking members of society regard it as indecent. For example, a 19 year old, bringing his naked penis into contact with a 10 year old female's vagina, would be regarded as indecent by right-thinking members of society.

16. Remember, there are two counts in the information. You must consider them separately in the light of the total evidence presented.

F. THE PROSECUTION'S CASE

17. The prosecution's case were as follows. On 8 February 2014, the female complainant (PW1) was 10 years old. The accused (DW1) was 19 years old, at the time. There was a nine year gap between the two. The complainant resided with her parents, and five other siblings in a village in Macuata. The accused also resided in the same village. Their houses are about 5 minutes walk from each other. The complainant and the accused, being neighbours, were known to each other. On 8 February 2014, in the early evening, the accused offered pork curry to PW1's mother. Her mother asked PW1's younger brother to go with the accused to get the food, but he declined. Consequently, the complainant accompanied the accused to his home to get the pork curry.

18. The two got the pork curry and came back to PW1's mother. However, on the way, the accused took the complainant to a spot near a pine tree beside the village church. He told the complainant to remove her clothes, and to lie on the ground. He wanted to have sex with the complainant. The complainant lay on the ground. According to the prosecution, the accused took the complainant's skirt and panty off. She was naked. He then took off his ¾ lee trousers. According to the prosecution, he then inserted a finger into the complainant's vagina. The complainant cried as it was painful. He then put his penis on the complainant's vagina, and tried to insert the same into her vagina. He was unsuccessful. The two were disturbed, when they heard PW1's mother calling for her.

19. The accused put on his clothes and ran to PW1's mother. The complainant also dressed up, and later went to the road. A while later, the complainant met her mother. Her mother asked her what happened. She told her mother what Epeli did. The matter was reported to police. An investigation was carried out. The accused was later charged with rape and sexual assault. 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.

7. THE ACCUSED'S CASE
   

20. On 11 May 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 the charges. In other words, he denied the allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, the accused choose to give sworn evidence and call no witness, in his defence. That was his rights.

21. When he gave sworn evidence, the accused confirmed his denial on oath. He admitted, he was with the complainant, at the material time. He admitted, the complainant was a child at the time. Note in paragraph 2 of the Agreed Facts, he admitted the complainant was 10 years old at the time. He admitted he was 19 years old at the time. He admitted, he intended to have sexual intercourse with the complainant that night. He admitted that, at the material time, the complainant child was lying naked on the ground, and his exposed naked penis was in front of her. He denied poking the complainants' vagina, or attempting to have sex with her, at the material time.

22. 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.

8. ANALYSIS OF THE EVIDENCE
   

(a) Agreed Facts:

23. The parties have submitted an "Agreed Facts" dated 10 April 2015. A copy of the same is with you. Please, read the same carefully. There are five paragraphs of "Agreed Facts", and you may treat the same as established facts, because the parties do not dispute the same.

(b) State's Case Against the Accused:

24. The State's case against the Accused is based primarily on two types of evidence. The first, was the complainant's (PW1) sworn evidence. Second, the accused's (DW1) own evidence, in certain respect, supports the State's case against him. We will discuss the above in detail below.

(c) The Complainant's (PW1) Sworn Evidence:

25. When discussing PW1's evidence, please refer to Prosecution Exhibit no. 1 (i.e. Photo 1 to 12 taken by police officer, D/Corporal 3352 Leone (PW3). Also, refer to the Sketch Plans, contained in the Agreed Facts. PW1 admitted she was with the accused, at the material time, at the crime scene. Please, refer to photos No. 5, 6, 7, 8 and 9 of Prosecution Exhibit No. 1. PW1 said, when she and the accused reached the crime scene, the accused told her to lie on the ground. She did the same.

26. PW1 said the accused took off her clothes, including her panty. PW1 said, the accused took his trousers off, and his naked penis was exposed to her. She said, he layed ontop of her naked vagina, and she was facing him. He then penetrated his finger into her vagina, and she cried, as it was painful. He said, he poked her vagina for about 3 seconds. Then he tried to insert his penis into her vagina. She felt his naked penis on her naked vagina. They were disturbed, when they heard PW1's mother (PW2) calling out for her. They dressed up and went separate ways.

(d) The Accused's (DW1) Sworn Evidence:

27. In his sworn evidence, the accused admitted he intended to have sexual intercourse with the complainant that night. He admitted, he was at the crime scene, with the complainant, at the material time. He admitted, the complainant was lying on the ground, naked face up, at the material time. He admitted, he was also naked, at the material time. The accused's above evidence, appear to confirm the complainant's version of events, prior to the offences been allegedly committed by the accused.

(e) Accused's Denial:

28. On count no. 1, the accused denied penetrating the complainant's vagina, at the material time. On count no. 2, the accused also denied attempting to insert his penis into the complainant's vagina, at the material time.

(f) Complainant's Mother's (PW2) Evidence:

29. She admitted, she was not at the crime scene, at the material time, therefore cannot help in whether or not count no. 1, or count no. 2 was ever committed.

(g) Considering All the Evidence Together:

30. You will have to consider all the evidence together. The two most important witnesses in this case were the complainant (PW1) and the accused (DW1). They were the only two present at the crime scene, at the material time, and the only two who knew whether or not count no. 1 and/or count no. 2 were committed. Defence, in their submission, said there was no medical evidence to support PW1's complaint that accused inserted his finger into her vagina, at the material time. This may well be true, but not fatal. When you consider what PW1 said, she cried when the accused poked her vagina at the material time, because it was painful. Penetration does not mean the whole finger should go into her vagina.

31. Even if the tip of his finger went into her vagina, it is sufficient to prove finger penetration. What inference of fact would you draw from her crying, when poked, and when she said, it was painful. You have heard and watched both witnesses. Who was the more forthright to you? Who was credible to you? Who do you think was telling the truth? If you find the complainant to be the credible witness, then you must find the accused guilty as charged. If it's otherwise, you will have to find the accused not guilty as charged.

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 follow:

(i) Count No. 1 : Rape : Guilty or Not Guilty

(ii) Count No. 2 : 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, Labasa
Solicitor for the Accused: Legal Aid Commission, Labasa