State v Raqio - Summing Up [2015] FJHC 360; HAC068.2014LAB (14 May 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 068 OF 2014 LAB

STATE

V

NEMANI RAQIO

Counsels: Ms. A. Vavadakua for State
Ms. L. Raisua and Ms. S. Dunn for Accused

Hearings: 12 and 13 May, 2015
Summing Up: 14 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, between 1 January and 31 December, 2009, at Vuniwai Village, Saqani, in the Northern Division, rape the first complainant (PW2)?
     
   • (ii) On count no. 2, did the accused, between 1 January and 31 December, 2011, at Vuniwai Village, Saqani, in the Northern Division, attempt to rape the first complainant (PW2)?
     
   • (iii) On count no. 3, did the accused, between 1 and 30 November 2013, at Vuniwai Village, Saqani in the Northern Division, rape the first complainant (PW2)?
     
   • (iv) On count no. 4, did the accused, between 1 November and 31 December 2013, at Vuniwai Village, Saqani, in the Northern Division, rape the first complainant (PW2)?
     
   • (v) On count no. 5, did the accused, between 1 and 31 December 2013, at Vuniwai Village, Saqani, in the Northern Division, indecently assault the second complainant (PW1)?
     

5. THE OFFENCES AND THEIR ELEMENTS

9. Count No. 1, 3 and 4 involved the offence of "rape" under the repealed Penal Code, Chapter 17, and under the new Crimes Decree 2009. For the accused to be found guilty of "rape", the prosecution must proven beyond reasonable doubt, the following elements:

(i) the accused penetrated the complainant's vagina with:

(a) his penis (count no. 1 and 3); or

(b) his finger (count no. 4);

(ii) without her consent; and

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

10. In law, the slightest penetration of the complainant's vagina by the accused's penis (count no. 1 and 3), or his finger (count no. 4), is sufficient to satisfy element (i)(a) or (i)(b), as described in paragraph 9(i)(a) and 9(i)(b) hereof. In the case of penile penetration, whether or not the accused ejaculated, is irrelevant to the issue of penetration. A mere fraction of the accused's penis or finger penetrating the complainant's vagina, is sufficient to satisfy element no. (i) of rape.

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.

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 (count no. 1 and 3), or his finger (count no. 4), at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

13. Count No. 2 involved the offence of "attempted rape" under the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) attempted

(iii) to rape

(iv) the complainant

14. The crucial verb in the offence is the word "attempted". Merely having an intention to have non-consensual sexual intercourse with the complainant at the time, is not a criminal offence. There must simultaneously be some overt act or acts that are more than merely preparatory, done by the accused, that manifest his intentions to have non-consensual sexual intercourse with the complainant, at the time. Whether his actions are merely preparatory is a question of fact.

15. Count No. 5 is the offence of "indecent assault" under the Crimes Decree 2009. 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.

16. 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.

17. The assault must not only be unlawful, it must also be "indecent". An "assault" is indecent if it is committed in circumstances of indecency. An action is "indecent "if right-thinking members of society consider it "indecent". For example, an older man putting his hand under the skirt of a 13 year old female, and wanting to touch her panty.

18. Remember, there are five counts in the information. You must consider the counts separately, in the light of the total evidence given. In addition, the counts are representative counts, that is, the allegation is said to have occurred within a certain period. You only need to accept one incident of the alleged offence within that period to make the accused liable for the count.

F. THE PROSECUTION'S CASE

19. The prosecution's case were as follows. The accused, in 2014, was approximately 69 years old. The first complainant (PW2) was 19 years old. The second complainant (PW1) was 13 years old. They all lived in a village in Cakaudrove, and were related to each other. The accused was the first complainant's uncle, while he was also the second complainant's grandfather. The complainants' families and the accused's family often mingle with each other, as is customary in an "i-taukei" village.

20. In 2009, the accused was 64 years old, while the first complainant (PW2) was 14 years old. According to the prosecution, the complainant (PW2) was sleeping in Nemani's house at the time. She was sleeping with a baby. In the middle of the night, an old man tried to forcefully take off her clothes, while she was sleeping. She woke up to find that it was the accused. He took off her clothes. He was only wearing a singlet, with nothing underneath. He then forcefully inserted his penis into the complainant's vagina. She told him not to do it, but he continued. The baby sleeping nearby woke up and cried. The accused stopped, told her to put on her clothes, and later she went to her home.

21. In 2011, the accused was now 66 year old. The complainant (PW2) was 16 years old. PW2's mother sent PW2 to the accused's house to get some salt. She went to the accused's house. The accused was alone in his house, as his wife had gone to the village shop. PW2 asked the accused for salt. According to the prosecution, he suddenly grabbed her and wanted to have sex with her. He tried to take off PW2's skirt, and the two struggle. He was wearing a T-shirt and pants. As they were struggling, the accused's wife's laughter was overheard by the two, as she was returning from the shop. The accused stopped trying to take off her skirt, gave her $10 and told her not to tell anyone about the incident. PW2 later returned home with the salt.

22. In 2013, the accused was now 68 years old, and the complainant (PW2) was 18 years old. PW2's family and the accused's wife were watching movies at PW2's house. The accused's wife requested PW2 to go to the accused's house to get her jacket. She proceeded to the accused's house. At the house alone was the accused. He was sitting ontop of his bed. When PW2 arrived, the accused grabbed her into his house. He pushed PW2 onto his bed. He forcefully took off her clothes, then he inserted his penis into her vagina. After a while, a child came and told PW2 to hurry up with the jacket. The accused then inserted his finger into her vagina. PW2 pushed the accused away. The accused warned PW2 not to tell anyone about the incident, or he would do something to her. PW2 then left for her house.

23. In December 2013, complainant no. 2 (PW1) wanted to drink tea. She went to the accused's house to get some tea. She met the accused, and asked for some tea. According to the prosecution, the accused called PW1 into his house. He told her to sit next to him, on the floor. The accused then stretched his hand inside PW1's skirt and tried to touch her panty. PW1 tapped his hand away. The accused gave PW1 $2 and told her not to tell anyone about the incident. PW1 later complained to PW3 about the incident.

24. Because of cultural taboo, the matter was not reported to police until September 2014. An investigation was carried out. The accused appeared in the Savusavu Magistrate Court on 26 September 2014 charged with rape and indecent 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
   

25. On 12 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 all the counts. In other words, he denied all the allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to give sworn evidence, in his defence, and called no witness. That was his right.

26. The defence's case was very simple. On oath, he denied ever inserting his penis into the first complainant's (PW2) vagina in 2009 (count no. 1), and in 2013 (count no. 3). He also denied inserting his finger into the first complainant's vagina (count no.4) in 2013. He denied attempting to rape the first complainant in 2011 (count no. 2). He also denied indecently assaulting the second complainant (PW1) in 2013. 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) State's Case Against the Accused:

27. On Counts no. 1, 2, 3 and 4, the State's case against the accused was based primarily and fundamentally on the first complainant's (PW2) sworn evidence. On count no. 5, the State's case against the accused was based primarily on the second complainant's (PW1) sworn evidence. We will discuss them in detail below.

(b) Count No. 1, 3 and 4; Penile and Finger Rape:

28. In 2009, the first complainant (PW2) said, she was in Form 3 at the time and was 14 years old. The accused was 64 years old and was PW2's father's elder brother. He was PW2's uncle. She was sleeping in the accused's house, with a baby at the time. According to PW2, while sleeping, she felt an older person forcefully taking off her clothes. She woke up, and saw it was the accused. The accused was only wearing a singlet, with nothing underneath. He later inserted his penis into the complainant's vagina. She pushed him away to no avail. She told him to stop, but he continued. The baby sleeping nearby cried, and the accused stopped. PW2 said she was afraid, and went to her house.

29. In 2013, the accused was 68 years old, and PW2 was 18 years old. PW2 was sent to the accused's house to get his wife's jacket. PW2 reached the accused's house and asked him for the jacket. He was sitting on his bed, and he asked her to come into the house to get the jacket. In the house, the accused grabbed her and put her on his bed. He forcefully took off her clothes. He tried to insert his penis into her vagina. The two struggled. While struggling the accused managed to slightly penetrate PW2's vagina with his penis. A child called out to PW2 to hurry up with the jacket, which disturbed the two. The accused stopped. He then penetrated PW2's vagina with his finger. PW2 told the accused not to do the above, but to no avail. The accused then warned PW2 not to tell anyone about the incident, or he will do something to her.

(c) Attempted Rape:

30. In 2011, the accused was aged 66 years, while PW2 was aged 16 years old. PW2's mother sent her to the accused's house to get salt. She went there. The accused was alone in his house, as his wife had gone to the shop. The accused wanted to have sex with PW2. He grabbed her into his house. He tried to take off PW2's skirt. He was wearing a T-shirt and pants. The two struggled, he trying to take off her skirt, while she was holding on to the same. They were disturbed when they heard the accused's wife's laughter outside. He gave her the salt and $10, and told PW2 not to tell anyone about the incident.

(d) Count No. 5; Indecent Assault:

31. The accused was 68 years old in 2013. The second complainant (PW1) was 13 years old. PW1 said, she went to the accused's house in December 2013 to ask for some tea. The accused was her grandfather. When she arrived, the accused called her into his house, and to sit near him, on the floor. She did so. Suddenly, the accused stretched his hand under her skirt, and tried to touch her panty. She tapped his hand away. She was shocked. He gave her $2, and told her not to tell anyone about the incident.

(e) Identification of Accused by PW1 and PW2:

32. The accused, in his evidence, denied PW1 and PW2's allegation against him. So presumably, he must be taken to dispute .the validity of PW1 and PW2 identifying him in court, as the person, who offended against them. In other words, the accused must be taken to dispute PW1 and PW2 identifying him, at the material times, when the alleged offences, were said to have been committed.

33. I must therefore, as a matter of law, warn you as follows. First, whenever the case against an accused depends wholly or substantially, on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, because an honest and convincing witness may be mistaken. Second, you must closely examine the circumstances in which the identification was made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? Has she any special reason for remembering the accused's face? Was a police identification parade held? Third, are there any specific weaknesses in the identification evidence? If the quality of the identification evidence is good, you may rely on it. If the quality is bad, you must reject it.

34. At all the times the accused allegedly raped PW2, they were in close proximity. PW2 clearly recognized the accused as the person offending against her. She recognized him as her uncle. There was no need for a police identification parade, because she recognized the accused as her uncle. Furthermore, the accused and PW2 lived next to each other, and almost see each other every day. The same arguments arises with PW1. When she was indecently assaulted she was sitting next to the accused. She knew him as her grandfather. It would appear that the quality of PW1 and PW2 identifying the accused was of a high quality, and you may rely on them. It is a matter entirely for you.

(f) Accused's Evidence:

35. He denied all the allegations against him.

(g) Considering All the Evidence Together:

36. You must consider all the evidence together. You must compare and analyze them together. You have heard and watched the witnesses give evidence in the courtroom. Who do you think was the credible witness? Who was the forthright witness? Who was the evasive witness? Who do you think was telling the truth? If you find PW1 and PW2 credible witnesses, you may find the accused guilty as charged. If it's otherwise, you may find him not guilty as charged. It is a matter entirely for you.

I. SUMMARY

37. 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.

38. Your possible opinions are as follow:

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

(ii) Count No. 2 : Attempted Rape : Guilty or Not Guilty

(iii) Count No. 3 : Rape : Guilty or Not Guilty

(iv) Count No. 4 : Rape : Guilty or Not Guilty

(v) Count No. 5 : Indecent Assault: Guilty or Not Guilty

39. 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.

SalesiTemo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused: Legal Aid Commission, Labasa