State v Nairogorogo - Summing Up [2015] FJHC 675; HAC14.2013 (21 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.HAC 14 OF 2013

STATE

V

MANOA NAIROGOROGO
JOSEFA RAUTO
KAMELI SAUDUADUA
ABARAMA SIRI

Counsel: Ms. K. Semisi for the State
Mr. A. Rayawa for all accused

Dates of trial: 7,8, 11, 14, 16 and 17 September 2015
Date of Summing Up: 21 September 2015

SUMMING UP

Ladies and Sir assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

[2] As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

[3] Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case, They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.

[4] You are to judge this case on the evidence you have heard in this Court room and on nothing else. You are not to speculate what evidence there might have been or should have been. In this regard I must tell you to discard the comments made by Mr Rayawa in his closing speech about Officer Temo. He was very critical of the prosecution for not calling Temo to give evidence and went so far as to say that his absence proved that there had been assaults. The State can call whatever witnesses they wish and Mr Rayawa knows full well that it is nobody else's business why one particular witness was not called or was not available and to say that it meant that the assaults are proved by his absence is illogical and absurd. Please ignore it

[5] You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.

[6] On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused persons. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon any of the accused to prove their innocence. Under our system of criminal justice an accused person is presumed to be innocent until he is proved guilty.

[7] Three of the accused face one charge of rape and the third accused two counts of rape. You must look at the case against each accused separately. Just because you think that one accused might be guilty, it doesn't automatically follow that his co-accused are. In a similar manner you will decide the two charges of rape against the third accused separately. He is accused of one act of vaginal rape and one act of rape of the victim's mouth. Each of these charges are separate and you will look at them separately.

[8] In our law and for the purposes of this trial, rape is committed when a person penetrates the vagina or the mouth of another and where the person doing that does not have the consent of the victim or is reckless to whether she was consenting or not.

[9] The prosecution must prove to you that there was indeed penetration of the vagina or mouth but that penetration need not be full penetration. Penetration in just a small degree is sufficient.

[10] They must also prove that there was lack of consent from the victim and the accused person whose case you are looking at knew that she was not consenting, or was reckless as to whether she was consenting or not.

[11] Ladies and Sir, that is all I wish to say about the law in this case. I know the case was reasonably short and the evidence will still be fresh in your mind, but it is my duty to summarise the evidence for you, so please bear with me. I remind you that you do not have to accept what I say about the evidence. It is for you alone. If I leave out something which you think is important, then you may give them the weight you think fit.

[12] The victim in this case was the lady whose identity I want to protect, so I am going to call her Tessa. Tessa told us that on a Saturday morning she went with two of her Uncles to the Navua Club to drink beer. She remained there until the club closed up that night which was about 1 a.m. She left and went downstairs and was talking to somebody. As she was talking somebody came up from behind and held her. He punched her on the face and she fell to the ground. She tried to kick him and tried to shout but she was slapped and her panties removed. It was then that he put his penis inside her. She said she was shocked and felt terrible and she certainly hadn't agreed for him to do that. When he had finished, she was dragged to the grass area and then she saw a group of faces - more than five. They were stepping on her and trying to open her legs and about 4 of them inserted their penises inside her vagina. One of the men tried to force his penis inside her mouth. She moved her head away but he persisted and managed to get it in about "one quarter", another act she did not consent to. At that stage a Police vehicle came; the men ran away and climbed over the fence. Somebody gave her herclothes to wear and she went to the Police Station to help them enquire into the incident.

[13] Tessa said that although she was at the Club for a long time, she was not drinking all of the time and she was very aware of what was happening. She knew the men concerned and she was able to identify them in Court

[14] You will recall that in cross examination Mr. Rayawa put before her two documents, a declaration and a police statement in which she had said she did not want to proceed against these young men and that they had not committed the offence and she wanted to pardon them. However, when re-examined by Ms. Semisi, she admitted that the boys' mothers had asked her to do this, so although she had really been raped she had agreed to do this. This raises an important factual difference between what Mr Rayawa says and what Ms Semisi says. You heard the evidence and it is an issue for you to resolve. I will not say too much about it at this stage because I do not want to influence you. The laws says that no matter what a witness may have said or written before she comes to give evidence, it is what she says in Court that is the definitive evidence. So the question for you is: although she said in some detail of how she was raped that night, did she in fact say it was one or more of these accused, or did she stand by her declaration and say that it was none of them.

[15] Mr Rayawa was correct in telling you in his closing address that she did not recognize the 4th accused, Abarama, but he certainly cannot be correct when he says that the failure to identify him "rules him out of the rape" altogether. There are many reasons why she may not recognize him and her failure to do so does not necessarily mean that he was not one who raped her. It is another fact for you to decide.

[16] An eye-witness to the events was the young Indo-Fijian man Prashneel.(PW3). He was at the Club in the late evening of the 15th December, having drinks with his friend Ameniasi. After the Club closed they went downstairs where they and other "boys" were drinking and talking. He saw a girl come downstairs and Manoa "pulled her" and talked to her. She wanted to leave and not stay there talking. He saw Manoa hit her from where he was sitting about 7 to 8 metres away.

[17] The girl fell down and Manoa tried to take off her trousers. Prashneel's friend Ameniasi was actually Manoa's brother and he tried to stop Manoa doing this, but Manoa didn't take heed and threw a punch to his brother. Prashneel and Ameniasi decided between them that they would call the Police, which they did. While waiting for the Police, he saw Manoa having sex with the girl and saw Josefa pull down his trousers and "go on top". They then went outside the gate and called the Police again. The Police arrived and he opened the gate. He saw Jo and Marika running. They caught Jo; and Kameli and Abarama were "out" on the concrete. The Police tried to get Abarama to stand up but eventually they carried him into the Police vehicle. Tessa was crying and Prasheel passed her her trousers.

[18] Prashneel said he had known these men for a long time, some for years and one for 1 year. He was able to identify all the men he had named in Court.I will at this stage tell you that a lot of the witnesses mentioned a man called Marika. Marika is not charged with these offences so you are to ignore the evidence given about him.

[19] One of the Policemen who arrived at the scene was PW4. When he got there he saw a group of boys standing around a half naked girl. He apprehended two of the boys (Kameli and Josefa) and took them into the vehicle. He went back for another (Abarama) who was lying on the concrete. He identified these three men in Court. He denied that at the time there were assaults made on the boys by the Police.

[20] A doctor who had examined Tessa on the 17th December at Navua Hospital found that she had a swollen face and a bruise to her eye. There were abrasions to the wall of her vagina and grass over her thighs and genitalia. He told us that these observations were consistent with Tessa's claim that she had been raped by a group of itaukei youth at the Navua Club, earlier that day.

[21] Another Policeman (PW5) went to arrest the first accused Manoa. He found him at his uncle's home. He went with the Police willingly after they arrested him for rape. He denied that he had dragged him out of the house and that he had assaulted the first accused.

[22] We then heard from a series of Police Officers who had conducted interviews under caution with these four accused. You have the transcript of those interviews before you. It is the defence case that the answers to the questions in these interviews were all obtained by assault or oppression and they are not true. It is for you to decide whether the answers were given by each of the accused (and you will look at each one separately) and whether they are true or not. If you think that there were assaults and that because of the assault the answers are not reliable then you must ignore the interviews. If however you think that there were no assaults and/or the answers given are true and correct, then you may use those answers as evidence in the normal way and give them the weight you think fit.

[23] Another direction I must give you about interviews is this: whatever an accused says about himself is evidence against him and him alone, if you think that the answers are true. Whatever one accused says in his interview about another accused, is not evidence against that other accused. So when you look at these records of interview, first decide whether you think that the answers are reliable and truly given by the accused whose interview you are looking at. If you think the answers are reliable then you will see what he says about himself and take that into account. You will ignore what he says about any of his co-accused.

[24] You will have seen in the interviews the information provided by each of the accused about themselves is as follows:

[25] Manoa said that after drinking upstairs at the Club he went down and talked to the "girl". He asked her for sex and started making sexual advances to her. She told him to wait so he punched her mouth. He then took off her trousers and pants and had sex with her. He named the girl with the correct name, so it certainly was our "Tessa" that he was referring to. He said he inserted his penis inside her (which is penetration). He later took the Police and showed them the site of their sexual intercourse.

[26] Josefa, the 2nd accused, said that when he was drinking downstairs he saw the girl having sex with somebody on the grass. The man having sex called him to have sex too so he then "had sex with her". He said he was the second person to have sex with her and she was yelling out as if she were in pain.

[27] Kameli, the third accused said that he saw another having sex with the girl and he went and asked if he could have sex too. He then inserted his penis into her vagina (penetration) and had sexual intercourse with her for about 2 minutes. He says he then made her suck his penis.

[28] Abarama, the 4th accused said he went to the girl who was lying naked on the ground. It was raining so he took her underneath the Club. He made her kneel and he then inserted his penis inside her vagina (penetration) from behind. He said she was crying and her face was swollen. After he had sex with her he was lying down beside the stairs when the Police came and arrested him.

[29] Ladies and Sir, if you think that the answers given by each of the accused were in fact given by them and not fabricated and they are are true and correct then it is evidence that each of the accused raped Tessa. The first, third and fourth accused admit full penetration. The second merely says he had sex with her and it is for you to decide factually what he would have meant by that and whether he would have put his penis inside her. . If you cannot decide or you are not sure then you will return a finding of not guilty in respect of the second accused. Bear in mind the evidence of Tessa herself when deciding that question.

[30] Kameli says in addition that he forced her to suck his penis. She says that he succeeded "by about a quarter". That is enough to prove penetration and if you accept her and his evidence then you will find him guilty of the fourth count of oral rape. Please remember to ignore what each accused says about another accused and please remember that if you think that the answers given in the interview were in fact given by them and were in fact true, then you can use those answers as evidence.

[31] Ladies and Sir, that evidence brought us to the end of the prosecution case. You heard me explain to the accused their rights in defence and their counsel told me that he had given them the relevant advice. In defence an accused person has a choice. He can remain silent and say that the State has not proved the case against him to the required standard. He can give evidence from the witness box. In either event he can call witnesses if he wishes.

[32] The reason for that is that, unlike the State, an accused does not have to prove anything. Whatever he or his witnesses might say is evidence that may or may not create a reasonable doubt in your mind about the strength of the State's case.

[33] All four accused in this case elected to give sworn evidence and the first, third and fourth accused called witnesses. That is all evidence for you to consider.

[34] The first accused is now 29 years old and is a pig farmer. On the 15th and 16th December 2012, he stayed home and never went to the Navua Club. The Police came to his home and arrested him in the morning of the 16th. When shown the document which the Police produced as a record of interview with him, he said he never gave those answers. Officer Temo assaulted him, handcuffed him and punched him on the ribs. He didn't get injuries and didn't seek medical treatment. He was made to squat, then bob up and down. Eventually he signed. He saw his friends being assaulted. One Policeman had a lali stick and was hitting him on the back. He signed the record of interview because he was afraid of what had happened.

[35] The first accused's brother Ameniasi gave evidence for him. He said he was at the Club on the 15th December all day and all evening until the bar closed at 1am. He never saw his brother Manoa there but when he went downstairs he saw that Jo (2ndacc) and Kameli (3rdacc) were knocked out. He was drinking with Prashneel. The Police came, but he didn't call them but when they did Jo (2ndacc) woke up and came to the gate.

[36] You will realize, Ladies and Sir that this testimony of Ameniasi was in direct conflict with the evidence of Prashneel. It is a matter for you to decide where the truth lies.

[37] The second accused told us that he is 22 years old and works as a hairdresser. He went to the Club on the 15th and drank until closing, when he went downstairs. There were others but he doesn't know their names. Nothing happened he says but the Police arrived and they took him to the Police Station. At the station they asked him questions about what he had seen at the Club. Officer Temo took his shirt off and punched him in the mouth. His mouth was bleeding a lot. He couldn't see what was written on his record of interview; he was just told to sign. He told the officers that he didn't know anything but they were writing. His face was punched and his chest was kicked. He went to hospital for examination and produced his medical report.

[38] In cross-examination he admitted that the 1st, 3rd and 4th accused were at the Club.

[39] The third accused told us he is now 22 and unemployed. He was drinking at the Club on the 15th but when he went downstairs he passed out. He was roused by the Police kicking him in the teeth. They pulled him up and put him inside the Police vehicle. When they got to the station, the police assaulted him. They punched his ribs, his mouth: they grabbed his collar and punched his neck. He too went for medical treatment and produced the report (Ex.D4). It was three weeks later and the Doctor saw no sign of injuries. He signed the record of interview because he had been kicked in the back and punched in the ribs. The answers in the interview are not his but were made up by the Police.

[40] The 3rd accused called his mother to give evidence for him. She was worried when Kameli didn't come home on the 15th night, (a Saturday), but then she learned he was at the Police Station. She went to see him. The Police didn't want to let her see him but she insisted. They were interviewing him but they brought him to her after a few minutes. Speaking wasn't allowed but she saw blood on his clothes. She asked the Policewhy the blood was there but they didn't answer and told her to go home. He was released after three days because of a cyclone. He came home and saw injuries on his face and on his tongue and he had a bruise on his left rib. He couldn't eat solid food so he lay down and rested. She later took him to hospital. He had injuries to his tongue and injuries to his face.

[41] You will recall Ladies and Gentleman that the medical report notes that there were no visible injuries seen on Kameli.

[42] Kameli's father gave evidence. He saw slight injuries on Kameli on the "Wednesday afternoon". His T shirt had blood on it; there was a cut on his tongue and there was some damage on his face and scratches on his body. There were no bruises.

[43] The fourth accused told us he is now 22 years old. After drinking in the Club he went downstairs and "blacked out". He was taken to the Police Station, and he can't remember anything else. At the station officer Temo punched him on the ribs and asked him questions about the rape allegation. Abarama told him he knew nothing about it. He kept on punching him on the ribs. He was taken to a cell. There were about 13 other officers in the cell and they all interviewed him and asked him questions. Because of the assault he said what is written in the record. He gave answers but he didn't know what he was writing. He didn't want to sign the record but he was forced to because he had his ribs punched. The answers are not true. What is true is that he didn't know anything. He went to Navua hospital for a medical examination.

[44] In cross-examination he admitted that he was not interviewed by Officer Temo, but by Officer Simione and had been arrested by Officer Metui. When shown that the medical report disclosed only injuries to the chest, he said that the injuries had "moved around".

[45] The 4th accused's father, a ginger cleaner, gave evidence for his son. He saw his son after he had been released from custody when the cyclone came. He was splitting blood and had pain on his ribs. He took him to hospital.

[46] That, Ladies and Sir was the end of all the evidence and of my coverage of it. It is now time for you to retire and consider your opinions. Your available opinions are guilty or not guilty in each case.

[47] Remember if you think that there were assaults and that those assaults created answers in the interview that are not true, then you are to discard the evidence of the interviews.

[48] Just before you retire I am going to ask Counsel if they wish me to add anything or alter any of my legal directions. Any matters of fact are for you alone.

[49] Counsel??

P.K. Madigan
Judge

At Suva
21September, 2015