State v Corivuka - Summing Up [2015] FJHC 725; HAC75.2012 (1 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 075 OF 2012

STATE

V

JONETANI CORIVUKA

Counsel: Mr. L. Latu for the State
Accused in Person

Dates of Trial: 28th September, 2015– 29th September, 2015
Date of Summing up: 1st October, 2015

Name of the Complainant is supressed. He is referred to as KK.

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 made a submission to you about the facts of this case. That is her duty as the Counsel. Accused was not represented. He also addressed you. But 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. 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 opinions 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 or she evasive? How did he or she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

13. The charge against Accused is as follows:

First Count
Statement of Offence

RAPE: Contrary to Sections 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JONETANI CORIVUKA between the 1st day of January 2012 and the 30th day of April 2012 at Ba in the Western Division, penetrated the anus of KK a ten year old, with his penis.

Second Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JONETANI CORIVUKA on the 14th of May 2012 at Ba in the Western Division, penetrated the anus of KK a ten you old, with his penis.

14. I will now deal with the elements of the offence. A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. A person under the age of 13 years is considered by law as a person without necessary mental capacity to give consent. The Complainant in this case was ten years of age at the time of the offence and, therefore, he 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 Complainant because law says that he, in any event, cannot consent.

15. The elements of the offence of Rape in this case therefore are that:

a. the Accused, Mr. Jonetani Corivuka

b. inserted his penis into the anus of the Complainant, KK

16. Other parts of the offence are irrelevant to the facts of this case.

17. Proof can be established only through evidence. Evidence can be direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the Complainant was a witness who offered direct evidence as to what he saw, heard or felt.

18. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the Accused-person that connects him to the offence that he is alleged to have committed.

I will now deal with the summary of evidence in this case.

Case for the Prosecution

19. The first witness called by the prosecution was KK, the Complainant himself. He was 13 years old and a Class 8 student at the time he gave evidence. He said that his date of birth is 14th December 2001.

20. Complainant, KK said that on the 14th of May, 2012 he went with his friends in the neighbourhood, Tomasi, Tamana, Junior and Paula to the river. They were swimming in the river and collecting stones when Suli's father came.

21. Suli's father asked KK to go further upwards the river and swim. Then Suli's father took KK to a sugarcane field, undressed him. He asked KK to pick up a stick and then did the bad thing. KK asked him to stop. Suli's father took out his penis and showed it to him. Then he inserted it into KK's anus. KK saw the white sperm coming out. Then he took out it with hands and left the place.

22. On the next day, he went again with Tomasi and Junior looking for a chicken in a sugarcane field. He went to get some sugarcane. Suli's father held his hand, took him to another sugarcane field. Then he made KK sit on a rock, undressed him and inserted his penis into KK's anus.Before he left, he asked KK not to tell anyone. However he told Junior about this when he came back. Apart from KK, he told Junior's brother Tomasi also.

23. KK said later that Suli's father did this to him on two occasions and the incident in the cane field happened on the 14th May, 2012 and the first incident, after the swim in the river, happened before the 14th. KK said he allowed Suli's father to do this because he was forcing him.

24. KK said that he never told parents about this and they never came to know what had happened to him. He identified the Accused in the Doc as Suli's father.

25. You saw ladies and gentleman, Accused then cross examined the witness. Accused inquired about the first incident and wanted to know the exact date it happened. KK said that it happened on a week day around 3.00 p.m.

26. It was put to the witness that on the date given in the information he was in Nabaitavo, Naitasiri. Witness said, the Accused was there and denied lying to court.

27. KK said that only Junior saw Accused pulling his hand into the sugarcane field.

28. In re- examination, KK said that he did not know the exact date the first incident happened. He was however sure it happened before the 14th of May, 2012.

29. Next witness for the Prosecution was Inoke Junior. He is a nine year old student. He said that on the 14th of May 2014, when they were playing with his brother Tomasi and KK, a chicken flew and they went looking for the chicken. KK went deep inside the sugarcane field and went missing. He called his name thrice and it was for the third call he responded. When they came back to the house and when his brother went inside the house, KK informed him that Jonetani did one bad thing to him. He described the bad thing and said "he put his ball on his back side".

30. Inoke said that he knew Jonetani. He is from the same village. He identified the Accused sitting in the dock. He said under cross examination that he did not see KK being dragged into the cane field by Jonetani.

31. Next witness for the Prosecution was Junior's brother, Tomasi Nacagilaba. He is 16 year old student. He said that on the 14th May, 2014, he was with his younger brother Junior and neighbour KK and went looking for a chicken, crossing over a creek. They saw Jonetani standing on the other side of the creek. They told Jonetani that they were looking for a chicken. Jonetani went inside the sugarcane field to cut sugarcane. Then KK went to him and asked him if he can cut sugarcane for him. He continued to look for the chicken and came home with his brother junior while KK was still in the sugarcane field. After a while KK arrived and informed him what happened. KK informed him that Jonetani always do something to him and that he "put his ball to his backside".

32. He did not tell that to anybody. But he overheard his brother, Junior informing her mother in the afternoon.
Under cross examination, he said he did not see Jonetani dragging KK to the sugarcane field.

33. Next witness for the Prosecution was Doctor Luse Buinimasi of Lautoka hospital. She was graduated in 2005 with Bachelor of Medicine and Bachelor of Surgery from Fiji School of Medicine. She had come to give evidence as a replacement Doctor for Doctor Nath. Dr. Nath who had examined the Complainant had left the country.

34. Doctor Luse identified the handwriting on the Medical Examination Form of Doctor Nath who worked under her at Ba Mission Hospital in 2012. The Medical Examination Form was tendered in evidence and copy of which was given to you.

35. Referring to the Medical Examination Form, Doctor Luse said that the Medical Examination had been conducted on 15thMay 2012. Doctor read out D.10 where history given by the patent is recorded. Since the Doctor who recorded the history did not come and give evidence in this Court, what is recorded under D10 should be regarded as hearsay evidence. Law says that hearsay evidence is inadmissible. Therefore you must not take that part into account when it comes to forming your opinion.

36. Referring to D.11, Doctor said that the patent had been conscious, oriented to time, place and person at the time of the examination. Referring to Specific Medical Findings in D12, Doctor said that examining Doctor had observed only reddening around anal opening and not seen bruises or lacerations. In his conclusions in D16, Doctor Nath had stated that "it is very difficult to prove that anal intercourse did happen or not since the time of presentation to me was late for further examination". He has further stated that reddening around anal opening should be taken note of.

37. Under cross examination, the Doctor said that assuming intercourse was anal, with the young boy and the age of the Accused, there would be extensive bleeding, lesser raisin around the anus because of the very anatomy of the anus. It's very vascular and friable. There is no defensive mechanism there. With the insertion of the penis he would be able to see bruises, bleeding around the anus.

38. Under re-examination, the Doctor said that there could be other causes for redness around anal area like itchiness and hookworm infections etc. If the incident happened the day before the examination, the Doctor should be able to see evidence of injuries around the anus if there was anal intercourse.

39. Last witness for the Prosecution was Kamlesh Kumaran, father of the Complainant. He tendered KK's birth certificate and a copy of which was given to you.

40. Kumaran said that on the 14thMay 2012, around 9 p.m., mother of Tomasi and Junior, Naula called KK and talked to him in Fijian. Then Naula asked him if KK had mentioned anything to him. When he said no, Naula asked him to inquire from KK as to what had happened. On being questioned, KK informed him what Suli's father had done to him. When they were catching the chicken, Suli's father held his hand, took off his cloths and then inserted. That is what he told him. KK also told him that about a similar incident happened earlier where Suli's father approached when they were swimming in the river.

41. After the Prosecution closed its case, you heard me explain the Accused's rights in defence. His rights were explained not because the Accused had to prove anything. I had to do so since I am required, in law, to do so.

42. You will remember at that point of time the Accused elected to give evidence although he had had nothing to prove in this case.

Case for the Defence

43. You, Ladies and Gentleman, heard Accused giving evidence under oath. He said that on 14th May, 2012 he and two other persons, his son and his nephew, were digging scrap metal beside the river. The children came looking for a chicken. They wanted him to cut sugarcane for them. He cut sugarcane and gave it to them.

44. Accused vehemently denied dragging KK to the sugarcane field and raping him. He said that if he did that to KK he could have recalled when it happened and he would have run crying and complained to somebody. He said he was arrested for another matter but questioned regarding this matter.

45. Under cross examination, Accused said that although he gave the names of two persons who were digging scrap metal, Police did not allow them to be called to give statements. He denied the claim of the State Counsel that he had never told the Police about the other people.

That was the case for the defence.

46. I have summarized evidence which I considered 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 conclusions.

Analysis

47. The Prosecution based its case mainly on the evidence of the Complainant, KK. If you are satisfied that the evidence he gave in Court is reliable and trustworthy you can safely act upon his evidence in coming to your conclusion.

48. The case can stand or fall on the testimony of victim depending on how you are going to look at his evidence. 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 of Rape. You can consider in this regard other evidence led in the trial.

49. If you are satisfied that KK had told the truth and his evidence is believable, then you have to consider whether the Prosecution has discharged its burden and proved each element of the Information beyond reasonable doubt.

50. I told you earlier that there must be positive evidence on identification of the accused-person that connects him to the offence that he is alleged to have committed. KK said it was Suli's father who did that to him. He identified the Accused in the doc. Accused was from the same neighbourhood and there are evidence to conclude that the Complainant had known him before.

51. In testing the credibility of the Complainant, you have to see whether he has been consistent in his evidence. Has he given completely a different version elsewhere? Has he contradicted himself in his evidence? Or has he contradicted the versions of other witnesses called by the Prosecution.

52. KK told us that Suli's father inserted his penis into his anus on two occasions. However, He had told Junior and Tomasi that Jonetani "put his ball on his backside". He had told his father Kumaran that Suli's father "undressed his cloths and then he inserted".

53. If you find his two versions are contradictory to each other, then you must consider whether this contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter.

54. If it is shown to you that a witness has made a different statement or given a different version on a particular point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time.

55. You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanour, the way he faced the questions, other evidence led in trial etc. You must bear in mind that the evidence comes from human beings; in this case, mostly from children. They cannot have photographic or video graphic memory. All inherent weaknesses that you and I suffer, insofar as our memory is concerned, the memory of a witness can also be subject to same inherent weaknesses.

56. You will see that, in the First Count, the exact date of the alleged offence is not specified. Complainant, in his evidence, was not in a position to mention the exact date of the alleged first incident. You can't expect a child witness to remember all the exact dates. What is material is not the date. You must be satisfied that the alleged incident he was talking of had actually happened during the period mentioned in the information.

57. Then you have to consider whether there is delay in making a prompt 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.

58. Recent complaints are admissible only to prove the consistency of the witness, not the truthfulness of the statement. In other words, the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with his evidence given at the trial. It goes to support and enhance the credibility of the complainant.

59. KK had not reported the first incident to anybody. However, his silence may have been consistent with his shame at the incident, cultural taboos in relation to discussing sexual matters with elders. Soon after the second incident, KK had informed the incident initially to his two close friends, Junior and Tomasi, and then to their mother, Naula and finally to his father Kumaran. Junior, Tomasi and Kumaran gave evidence and confirmed that KK did report the incident.

60. The complaint need not disclose all of the ingredients of the offence but it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the sexual conduct, provided it is capable of supporting the credibility of the complainant's evidence.

61. Then you consider whether KK or his parents or his neighbours who gave evidence had any reason or motive to fabricate a story against the Accused to put him in trouble. If there is no such motive or reason then the credibility of his evidence should go up.

62. You have to consider whether what the witness was talking about in his evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his evidence is improbable given the circumstances of the case.

63. In dealing with the issue of penetration, you may find helpful the doctor's evidence in coming to your conclusion. Doctor Nath had observed only reddening around anal opening. No lacerations or bruises had been present. Doctor Luse is of the opinion that if it is an anal intercourse, there would be bleeding, lesser raisin around the anus because of the very anatomy of the anus. She described other possible causes leading to reddening in anal opening. She emphasised that if the intercourse took place the day before the examination, the doctor should be able to discover evidence of injuries around the anus. The second incident in the sugarcane field had happened on the 14thMay, 2012. Doctor Nath had examined KK on the 15thMay, 2012.He had examined the Complainant within twenty four hours of the alleged second incident although he had stated in his report that there is a delay for further investigations.

64. The doctor in this case, came before Court as an expert witness. Expert evidence is not accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion, if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence led in the trial. You observed the physique of the Accused and that of the Complainant. It is up to form your own opinion about anal penetration.

65. You watched the accused giving evidence in court. He did not call his son and nephew to give evidence in Court to support his version. He did not give any reason for doing so.In testing his credibility, you have to see whether he was consistent in his evidence and whether he had given a different version elsewhere.

66. How probable is his version? Is his version appealing to you? What was his demeanour like? How did he react to being cross examined? Was he evasive? How he conducted himself generally in Court? It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case.

67. As I told you earlier, any case of sexual nature can stand or fall on the testimony of the Complainant. No corroboration is needed. If you are satisfied that the evidence Complainant gave in Court is reliable and trustworthy, you can safely act upon his evidence in coming to your conclusion.

68. If you accept version of the Accused that means you have a reasonable doubt in the Prosecution case. In that event, you must not find the Accused guilty as charged. Remember, even if you do not believe a single word and completely reject his version, still the Prosecution should prove its case beyond reasonable doubt.

69. 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.

70. The law says when a person is charged with an offence, and facts are proved which reduces it to a minor offence, the person may be convicted for the minor offence although he was not originally charged with it. In light of this legal background, I will now explain to you about the offence of Sexual Assault. For the Accused to be found guilty of Sexual Assault, Prosecution has to prove the following elements beyond reasonable doubt:

1. The Accused

II. unlawfully

III. indecently

IV. assaulted the complainant without her consent.

71. The word unlawfully means 'without lawful excuse'. Indecent assault means 'that the act must have some element of indecency' and that a right minded person would consider the conduct indecent. In this case the Accused is charged with rape.If you find that the Complainant was truthful and the Accused penetrated his penis into Complainant's anus you must find the Accused guilty of rape. However, if you find that the Accused only touched his anus with his penis but his penis did not penetrate the anus or if you have a doubt whether there was penetration, then you may consider the lesser alternative offence of Sexual Assault. Element of consent is immaterial as the victim is below 13 years of age. For you to find the Accused guilty of any of the offences of Rape or Sexual Assault you must decide whether the evidence of the Complainant was truthful.

72. If you accept the Prosecution version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of Accused's guilt of the charges you must find him guilty. 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. If you are satisfied that the elements of the lesser charge of Sexual Assault are made out, you must find him guilty only of Sexual Assault.

73. You may now retire to deliberate on the case, and once you have formed your opinions, you may inform our clerks, so that we could reconvene, to receive the same.

74. Your possible opinions are as follows:

(i) First Count of Rape, Accused guilty or not guilty?

(ii) Second Count of Rape, Accused guilty or not guilty? Or

(ii) Charge of Sexual Assault Accused Guilty or not Guilty?

75. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 1st October 2015

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