State v Ulabale - Summing Up [2015] FJHC 622; HAC140.2012 (24 August 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 140 OF 2012

STATE

-v-

PENI ULABALE

Counsel: Ms. W. Elo with Ms.Uce for the State
Ms. S. Nasedra for the Accused

Date of Trial: 20th – 21st August 2015
Date of Summing Up: 24th August 2015

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial, to sum up the case to you. 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 counsel for Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Counsel. You are not bound by those submissions. 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 assessing 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. You must not 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 offences with which the Accused-person is charged, in a short while.

14. The charges against Accused are as follows:

Count 1

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PENI ULABALE on the 3rd day of October, 2012, at Tavua in the Western Division, unlawfully and indecently assaulted Litiana Regu, a 7 year old, by licking the vagina of the said Litiana Regu with his tongue.

Count 2

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PENI ULABALE on the 3rd day of October, 2012, at Tavua in the Western Division, unlawfully and indecently assaulted Litiana Regu, a 7 year old, by kissing the buttocks of the said Litiana Regu.

15. The offence of Sexual Assault is defined in Section 210 (1) (a) of the Crimes Decree, 2009.

Accordingly, Prosecution in this case must prove on the First Count that:

(i) The Accused, Peni Ulabale

(ii) Licked the vagina of Litiana Regu.

16. On Count Two, Prosecution must prove that:

(i) The accused, Peni Ulabale
(ii) Kissed the buttocks of Litiana Regu.

17. A woman under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The girl in this case was 7 years of age at the time of the incident and therefore, she did not have the capacity under the law to consent. So, the prosecution does not have to prove the absence of consent on the part of the girl because law says that she, in any event, cannot consent. This position will apply to all the charges.

18. Prosecution called three witnesses. Litiana Regu, the victim of this case was called by the Prosecution as the first witness. She was only ten years old at the time she gave evidence. She was residing at Tavua Police compound with her mother, brother and father at the time of the incident. Her uncle (cousin of her father) Peni Ulabale (the Accused) had come for a visit and was staying with them in the house.

19. One day, Litiana came home after school in the afternoon. Her mother asked her to change the uniform and have a cup of tea. Then her mother went for training.

20. Litiana went downstairs to change her uniform. She saw her uncle Ulabale in the room. He called her up to the room. She went upstairs and entered the room. Ulabale closed the door and asked her to go top of the bed. He then took off her tights and pantie, kissed her on her cheeks, kissed her on her buttocks turns her over and kissed her on her 'bele' and licked her 'bele' with his tongue. She demonstrated to you her private part as referred to as 'bele'. He pulled out his private part and wanted her to kiss it. She refused. She was afraid. They heard somebody coming upstairs. He asked her to put on her pantie and tights quickly and go down stairs. She came out of the room and was followed by her uncle Ulabale. Then she went to the children's park with her cousin Litiana Seniwala. When her mother returned home after training Litiana Regu related to her mother what her uncle had done to her. She identified the Accused in the Accused's dock.

21. Then her cousin Litiana Seniwala gave evidence. She was 13 years old and a student of Tavua College. She recalled the incident happened in 2012 at Tavua Police compound. She was living with her big uncle and aunt at Tavua Police compound when the incident happened. On the day of the incident, she returned home after school and went upstairs as nobody was there to be seen. She saw Litiana Regu coming out of the room. She looked scared. She brought Litiana downstairs to the sitting room. Ulabale followed them downstairs and went out. Litiana inquired from Litiana as to what had happened upstairs. She informed that Ulabale had told her not to say anything. If she does he would punch her.

22. Litiana Marovia, the mother of Litiana Regu was the last witness for the Prosecution. She recalled the incident happened on 3rd of October 2012. She prepared tea for Litiana who had returned from school. Then she went for training. When she returned home around six o'clock, Litiana related to her what Ulabale had done to her. She wanted Ulabale to come and talk to her about the alleged incident but he had left home for Rakiraki. Then she went to Police and reported the matter two days after the incident. She identified her daughter Litiana's birth certificate and tendered it in evidence.

23. At the end of the Prosecution case you heard me explain to the Accused his rights in Defence. I gave his rights not because he had to prove anything in this case, but I, as the presiding judge, was required in law to do so. You remember the Accused elected to remain silent. He had all the right to do so as he had nothing to prove in this case. The burden of proof is always on the prosecution to prove the charges beyond reasonable doubt. You must not draw any negative inference from his choice and think that the Accused did not give evidence because he was guilty.

24. I have summarized evidence I thought important to you in light of arguments of the Counsels of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all the evidence and form 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. You are the judges of facts. You are free to consider the evidence in its entirety and come to your own conclusion.

25. There is no issue in this case with regard to the identity of the Accused. It was not disputed that the Victim and the Accused are related to each other and the Accused was staying in Tavua during the period of allegation. Witnesses positively identified the Accused in Court.

26. The Prosecution based its case mainly on the evidence of the Victim, Litiana Regu. If you are satisfied that the evidence is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence.

27. 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 to test the consistency and credibility of the victim's story. You can consider in this regard other oral evidence led in the trial.

28. Litiana was only 10 years of age when she gave evidence. You watched her giving evidence and observed her demeanour. She did not encounter much challenge when she was being cross examined. Was she evasive or straight forward? Is what the witness was talking about in her evidence probable in the circumstances of the case? Had she promptly complained about the incident? Was her evidence consistent? Was Litiana's evidence confirmed or contradicted by her mother and cousin. You must bear in mind the age of this witness at the time of the incident. Did she have any reason to make up a case against her uncle and falsely implicate him?

29. You have to consider whether there is delay in making a 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.

30. Litiana had not complained to her cousin promptly after the incident. Was there any reason not to complain to her at that stage? When inquired as to what had happened upstairs, Litiana had informed her cousin that Ulabale had told her not to say anything. If she does he would punch her. Ulabale had also followed them downstairs. Litiana looked scared at that time. You consider if Litiana had reasonable justification not to complain at that time.

31. Litiana, however, had complained when her mother returned home from training around six o'clock in the evening. Litiana had told her everything that Ulabale had done to her that day.

32. You might then wonder why Litiana's mother did not go and complain to the Police if she was promptly informed about the incident, when the Police Station was just meters away from her place.

33. Marovia's explanation was that she wanted Ulabale to come and talk to her first, but he had left for Rakiraki after the incident. He had not returned. Ulabale was not a stranger. He is a cousin of her husband. You consider whether it is reasonable for her first talk to him and wait for two days before going to Police to complain about the incident.

34. The Defence took up the position that Litiana's mother, Marovia made up this story to get rid of unwelcome visitor at her house. That was the first time Ulabale had come and stayed at her place for such a long time. She admitted that she did not like Ulabale's long stay at her place. Ulabale was fully dependent on them for food and everything during his stay. Marovia was also worried about Litiana's security when Ulabale was there. In this context, was there a motive on her part to make up a case against Ulabale?

35. It is up to form your own opinion. In coming to your conclusion, you must not forget the fact that Ulabale had already left her home for Rakiraki when she went and made a complaint to Police. What inference you could draw from Ulabale's behaviour after the incident?

36. Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether Litiana's evidence is reliable, and acceptable. If you accept her evidence beyond reasonable doubt then you have to decide whether that evidence is sufficient to establish elements of the charges. If you are satisfied what Litiana told this Court is the truth and her evidence is believable, then you have no difficulty in finding that the acts of the Accused, namely, licking of Litiana's vagina and kissing her buttocks did constitute elements of Sexual Assault.

37. 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.

38. 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 each charge you must find him guilty for that 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 the accused's guilt, you must find him not guilty for that charge. You have to consider evidence against each charge separately.

39. Your possible opinions are as follows:

(i) First charge of Sexual Assault, is the Accused guilty or not Guilty?
(ii) Second charge of Sexual Assault is the accused guilty or not Guilty?

40. 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.

41. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 24th August 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused