State v Baleidreketi - Summing Up [2015] FJHC 453; HAC058.2014LAB (19 June 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 058 OF 2014LAB

STATE

V

SAMUELA BALEIDREKETI

Counsels: Ms. A. Vavadakua for State
Ms. L. Raisua for Accused

Hearings: 17 and 18 June, 2015
Summing Up : 19 June, 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.

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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 ISSUE
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:

(i) Did the accused, between 19 and 20 June 2014, at Seaqaqa in the Northern Division, rape the complainant?

5. THE OFFENCE AND IT'S ELEMENTS
   

9. The accused was charged with the offence of "rape" contrary to section 207(1) and 207(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 had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;

(ii) without the complainant's consent; and

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

10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

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 sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

6. THE PROSECUTION'S CASE
   

13. The prosecution's case were as follows. Between 19 and 20 June 2014, the accused was 51 years old, while the female complainant (PW1) was approximately 13 years 9 months old. The accused was the complainant's uncle, and he was her mother's elder brother. The accused's family lived in Haifa Settlement, which consisted of four houses. One house belonged to the accused, another belonged to PW1's mother and another house belonged to another relative. The fourth house was the family church. All the houses were close to each other, and were approximately 20 footsteps from each other.

14. According to the prosecution, on 19 June 2014 (Thursday), PW1's mother's house was empty, as she had come to town to visit a sister. PW1 then went to her uncle's house to sleep for the night. In her uncle's house were her uncle's two daughters (DW2 and DW3), her uncle's son, his wife and their two children. According to the prosecution, the accused returned to his house at 9.30pm with another person, and they drank grog until midnight. After grog the other person returned to his house.

15. According to the prosecution, PW1 was sleeping with her cousins in a mosquito net. The accused came in, lifted up the mosquito net and told PW1 for them to go outside. PW1 refused. The accused then pulled her hand, and took her outside his house. He then took her to her mother's empty house. At the house, the accused told her to lie on the floor. She did so. The accused then took off PW1's clothes. He laid ontop of her. According to the prosecution, he then inserted his penis into her vagina. She wanted to raise the alarm. However, the accused blocked her mouth with his underwear. Later, the accused warned her not to tell anyone about the incident, or he will do something to her.

16. The matter was later reported to police. An investigation was carried out. The complainant was medically examined at Seaqaqa Health Centre on 23 June 2014 at 2.30pm. The accused was caution interviewed by police on 23 June 2014 at 8.15pm at Seaqaqa Police Station. The accused appeared in the Labasa Magistrate Court on 26 June 2014 charged with raping 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.

7. THE ACCUSED'S CASE
   

17. On 17 June 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 charge. In other words, he denied the rape allegation 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 defece, he choosed to give sworn evidence and called two of his daughters (i.e. DW2 and DW3) as his witnesses. That was his right.

18. The accused's case was very simple. He admitted he came back to his house on 19 June 2014 at about 9.30pm. He came with another person. They drank grog thereafter until 12 midnight. His companion left. He had his dinner. He later had his bath in a nearby river. He then went to sleep at 12.30am. He woke up at 5.30am. He denied ever inserting his penis into PW1's vagina on 20 June 2014. In other words, he denied raping PW1 at the material time.

19. Because of the above, he 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
   

20. The State's case against the accused stands or falls on whether or not you accept the complainant's (PW1) evidence as credible. You have heard her and watched her give evidence in the courtroom. In terms of the elements of rape as described in paragraph 9 (i), 9(ii) and 9 (iii) hereof, she said, on oath that, between 19 and 20 June 2014, the accused penetrated her vagina with his penis, without her consent, and he well knew she was not consenting to sex at the time. She said the accused took her to her mother's house, told her to lie on the floor, took off her clothes, laid ontop of her, then forcefully inserted his penis into her vagina.

21. To show she did not consent, the accused woke her up while she was sleeping in his house, forcefully took her out by pulling her hand despite her protest, and took her to her mother's empty house. It would appear he knew she was not consenting at the time, because he allegedly stopped her from raising the alarm by blocking her mouth with his underwear. On the complainant's own verbal evidence, it would appear that, they were enough, if you accept the same, that they support the three elements of rape, as descried in paragraph 9 (i), 9(ii), and 9 (iii) hereof. In any event, it is a matter entirely for you.

22. The accused, in his sworn evidence, denied the above, He said, he returned to his house on 19 June 2014 at about 9.30pm. He came with a companion. They drank grog until 12 midnight. His companion left. He had his dinner. Then he had his bath. He went to sleep at 12.30am and woke up the next morning at 5.30am. He denied ever inserting his penis into the complainant's vagina, as alleged by her. He denied the complainant's version of events as to what occurred on the early morning of 20 June 2014 in her mother's house. He said he did not rape the complainant as alleged.

23. You will note that the complainant's version of events and that of the accused's were completely at odds with one another. As a matter of law, you can reach a decision on this case simply on the verbal evidence of the complainant. It does not need to be corroborated and/or supported by independent evidence. If you find her verbal evidence more credible than that of the accused's verbal evidence, you may, as a matter of law, find the accused guilty as charged.

24. However, if you still need to be persuaded, as to be sure of the accused's guilt, you are entitled, in fact you are expected, to look at the evidence in its totality. You will have to consider the complainant's medical report, tendered as Prosecution Exhibit No. 2, as an important piece of evidence. In most cases of alleged rape against children, medical reports are always important, as evidence to prove that the child's vagina had been penetrated by the accused's penis, at the material time. This was because, in most cases, children are often not sexually active.

25. So, in this case, you are expected to read and carefully understand the complainant's medical report. Note section A(4) of the medical report, the purpose for which the medical report was requested, "...It was alleged that she was defiled byher uncle on Thursday 19.06.14..." Doctor Ashneel Prasad (PW2) medically examined the complainant on 23 June 2014 at 2.30pm, approximately 3 or 4 days after the alleged rape. In D(10) of the report, the doctor recorded the patient's history as follows. "...According to the patient, she was sexually assaulted by one mate on last Thursday night ..." In D(12) of the report, the doctor recorded his medical findings as follows, "...Vulva: External: vaginal discharge – thick yellowish, No abrasion, bleeding or clots noted; internal – Hymen not intact, No active bleeding, or laceration or abrasion noted..." In D(14) of the report, the doctor gave his opinion as follows, "... There was some form of penetrative injury to the vagina as the hymen was not intact however the actual time of injury could not be determined or perhaps was more than 72 hours..."

26. In D(16) of the report, the doctor concluded as follows: "... A 13 year old Female with history of sexual Assault. Examination finding is suggestive of perforated hymen due to some form of penetrative injury to vagina..." In his evidence, the doctor said as follows, "...Hymen is a thin membrane that covers the vaginal opening. Normally, it is half-moon shaped. Any kind of penetrative injury to the vagina can damage the hymen, such as penile penetration or even using a finger or sports injuries. In this case, I saw the hymen was not intact. There was some form of penetrative injury to the vagina. Something penetrated the vagina. I can't comment on whether the penetration was by a penis or not a penis ..." When cross-examined, the doctor said, "... A slight penile penetration into the vagina is sufficient to perforate the hymen..." What you make of the medical report is entirely a matter for you. If you think it supports the complainant's version of events, then it would make her version more credible. If you think it doesn't, then you will have to work on the other evidence to find out whether or not the accused is guilty as charged.

27. The accused called two of his daughter's (i.e. DW2 and DW3) as his witnesses. DW2 confirmed that the complainant (PW1) slept at their house on the night of 19 June 2014. DW2 said PW1 told her on the Sunday after the alleged incident that, her dad (the accused) called her outside of his house and for them to go to her house to be together. She said, PW1 later apologized to his father. However, PW1 denied apologizing to her uncle when she was cross-examined by defence.

28. DW3 confirmed that the complainant (PW1) was at their house on 19 June 2014. When cross-examined, she said she wouldn't know anything that happened in PW1's house on 20 June 2014.

29. You will have to consider all the evidence together. The case is really about the complainant (PW1) and the accused's (DW1) version of events. You have watched them in court giving their evidence. Who do you think was the credible witness? Who do you think was forthright? Who do you think was evasive? Who do you think was telling the truth? If you think the complainant (PW1) was the credible witness, then you must find the accused guilty as charged. If its otherwise, then you must find the accused not guilty as charged. It is a matter entirely for you.

I. SUMMARY

30. 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.

31. Your possible opinions are as follows:

(i) Rape : Accused : Guilty or Not Guilty.

32. 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 : Office of the Legal Aid Commission, Labasa