State v Kurivora - Summing Up [2015] FJHC 780; HAC041.2014 (25 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 041 OF 2014

STATE

-v-

TIMOCI KURIVORA

Counsel: Ms. J. Fatiaki for the State
Ms. S. Ratu for the Accused

Dates of Trial: 22nd September 2015 – 24th September, 2015
Date of Summing Up : 25th September, 2015

(Name of the Complainant is suppressed. She is referred to as ET)

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 facts. 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 the Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Counsel. 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 it 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. In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this Court.

14. The agreed facts of this case are:

i. The Accused is one Timoci Kurivora, 26 years old of Nabau Village in Sigatoka.

ii. The child Complainant is one ET, 8 years old of Voua Village in Sigatoka. Her date of birth is 29/01/2007.

iii. The Complainant between the 1st of March, 2014 and the 18th of March, 2014 lived in Laselase Village with her mother, her Aunt Amelia Heritage, her two brothers, one Teresia Marama Kadi and the Accused.

iv. The Complainant's father is one Afroz Nabi who is separated from her mother – Luisa Nabi.

v. Between 2012 and 20th of March, 2014, the Accused was in a de-facto relationship with the Complainant's mother.

vi. The Accused was caution interviewed on the 20th of March, 2014.

vii. The Accused was formally charged on the 21st of March, 2014.

Statement of Offence

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

Particulars of Offence

Timoci Kurivora on the 1st of March 2014 and the 18th of March 2014 at Sigatoka, in the Western Division, penetrated the vagina of ET, a 7 year old girl with his finger.

15. 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.

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

a. the Accused, Timoci Kurivora

b. penetrated vagina of the Complainant, ET, to some extent with his finger.

Insertion of finger fully into the vagina is not necessary.

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

18. Consent as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A person 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 offence 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.

19. 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.

20. 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 she saw, heard or felt.

21. Expert evidence is also important to be borne in mind. Usually, witnesses are not allowed to express opinions. They are allowed to give evidence on what they have seen, heard or felt by physical senses only, as described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid Court and you to decide the issues before court on the basis of their learning, skill and experience.

22. The doctor in this case, for example, came before court as an expert witness. The doctor, unlike any other witness, gives evidence and tells us his or her conclusion or opinion based on examination of the Complainant. The Doctor who gave evidence in this case had not examined the Complainant. His evidence was based upon Doctor Sarania Dasi's report. You decide what weight you should attach to the medical findings of the Doctor. Doctor's evidence is not accepted blindly even though he is an expert in the medical field. You will have to decide the issue of rape before you by yourself and you can make use of Doctor's opinion if the 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 in the case.

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

Case for the Prosecution

24. The first witness called by the prosecution was Dr. Mohammed Amos Zibram. He is the Acting Sub Divisional Officer at Sigatoka Hospital. He gave evidence as a replacement doctor for Doctor Sarania Dasi who had conducted the medical examination on the Complainant.

25. Dr. Zibram said that Dr. Dasi is away in Thailand. He recognised the hand writing and the signature of Dr.Dasi in the Medical Examination Form. He gave evidence perusing Dr. Dasi's report.

26. Doctor said that the medical examination of the Complainant had been conducted on the 19th March 2014 at the Sigatoka Hospital.

27. Referring to the Specific Medical Findings in Part D.12 of the Medical Examination Form, the doctor said that Dr. Dasi had not found any bruises on the patient's body; no vaginal discharge; and her hymen was not intact. Referring to professional opinion in Part D.14, the doctor said that perforation of hymen was suggestive of penetration by a blunt object, consistent with history.

28. Under cross examination the doctor said that hymen can naturally be tearing through physical activities like cycling, horse riding and gymnastic etc. He further said that some girls are born without a hymen. He admitted that in view of lack of specific findings in the report, he cannot rule out tearing of hymen by a natural cause.

29. Next witness for the Prosecution was the victim ET. She was eight years old, class 4 student at the time she gave evidence.

30. She said that she was staying at Laselase village with her mother, Bee, cousin Sia, Aunty Amelia, and her brothers Isaac and Danny.

31. When her mother goes to work, mostly for night shifts at Fijian Resort, Sia, Aunty Amelia, Danny, Isaac and Bee remain at home. She described Bee as her mother's husband. When mother goes to work for night shifts, she goes to bed in Bee's room, after watching movies and having dinner. There is only one bed in the room and she sleeps on the bed while Bee sleeps on the floor.

32. When she is on the bed, Bee used to 'messes' her. He touches her 'lolo' meaning her private part with his hands. You will remember how she demonstrated to us the way he does the touching. She said that it was painful when he was doing that to her. Then, Bee warns her not to tell that to anyone.

33. Under cross examination, Complainant admitted that she had made a statement to a lady Police officer on 19th of March. She also admitted that she was still awake watching TV when Aunty Amelia returned home late night on the day of the incident.

34. ET admitted that when Aunty Amelia was asking her about the allegation against Bee she was crying. She admitted that Aunty Amelia forced her to come up with the bad story about Bee. When it was suggested that the allegation against Bee was cooked up by Amelia to help her father to get custody of her, she admitted.

35. Explaining the reason why she had to cry when she was being questioned by Amelia, ET said, under re-examination, that Aunty Amelia wanted her to tell the allegation about what Bee did, and to tell the truth about Bee.

With ET's evidence, the Prosecution closed its case.

36. 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.

37. You will remember at that point of time the Accused, elected to give evidence and expressed his desire to call a witness, although he had nothing to prove in this case.

38. After the Accused had concluded his evidence, you will remember ladies and gentleman, I allowed the application of the Prosecution to call Amelia Heritage as a witness for the Prosecution. Her name was already included in the list of witnesses for the Prosecution. State had failed to call her earlier because she could not be traced to serve summons on her.

39. Amelia Heritage told that she had come to Laselase to look after children of her cousin, Luisa. Luisa was not living with her husband during that period because of the DVRO issued against her husband, Afroz Nabi. The Accused, whom she referred to as Jim came to stay with them in Laselase and stayed there for about three weeks. Jim was in love with Luisa.

40. On the 8th of March, 2014 she came home after a meeting around 2 a.m. and went straight to bed. She was surprised to find that ET was still awake and chased her to bed. She woke up around 7 a.m. to find that ET was not sleeping where she was supposed to be sleeping. She was sleeping in the room where Jim and Luisa normally sleep. She saw the blanket was covering both Jim and ET. She called ET and questioned her as to why she was lying down in that room. When she was questioning ET, Luisa comes after her night shift. Luisa was angry at her for questioning those things as ET was just a little girl.

41. Amelia was worried about the wellbeing of the children and what is going on in the house. She decides to go to Afroz, father of the children. She meets Afroz and tells everything. Then they complain to a Police officer in Laselase and on the 18th of March, 2014 to the Sigatoka Police Station.

42. Under cross examination, Heritage said that she always preferred Afroz as opposed to Accused as she did not like the way the Accused was treating the children.

43. She admitted making a statement to Police ten days after the incident. She denied the allegation of bringing a boy into her room. She also denied making up a story to frame the Accused so that Afroz can get ET's custody.

Case for the Defence

44. Accused said that he came to live with Luisa because Luisa was afraid of her husband and wanted him to be with her. He said that he was in a love relationship with Luisa and that he treated her children as his own.

45. Accused said that Amelia and Teresia became antagonistic towards him after they were caught red handed bringing a boy to the house. And also, they were not happy about the rule he issued prohibiting them from coming home late after 8 p.m. Accused said that Amelia made up all the allegations against him after that.

46. He denied sleeping with the Complainant at any time although he was like a father figure to her. He also denied inserting his fingers into Complainant's vagina.

47. Defence called mother of the Complainant, Luisa as a witness. She said that she brought the Accused over to her rented house after a DVRO was issued against her husband. Accused treated her children well. Children were reluctant to go with their father when he came with the Police to take them. ET ran crying towards the Accused for protection. She said she had to obey the order and allowed the children to be taken away.

48. She admitted that she cared very deeply for the Accused now and then and trusted him. She admitted Complainant being a good and truthful child. She also admitted that the Accused is also referred to as Bee and Jim.

That was the case for the defence.

49. 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 conclusions.

Analysis

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

51. The case can stand or fall on the testimony of the Complainant depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the Complainant's evidence if you think that it is safe to look for such supporting evidence to test the credibility of the Complainant's story of Rape. You are free to consider in this regard other evidence led in the trial. You must, however, remember that evidence of the Complainant alone is sufficient to bring about a conviction in a rape case if the Court believes her evidence to be truthful.

52. A most important part of your task is to judge whether the child witness has told the truth, and has given a reliable account of the events she were describing. Some of you will have children and grandchildren who are of a similar age to the Complainant who has given evidence. If so, I think you will recognise the sense of the advice I am going to offer you about your judgment of their evidence, but remember that I am speaking of an approach to the evidence and evaluation of the evidence is your responsibility. You do not have to accept my advice and if you do not agree with it you should reject it.

53. Children do not have the same life experience as adults. They do not have the same standards of logic and consistency, and their understanding may be severely limited for a number of reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. You have to be mindful about that.

54. You consider whether the Complainant 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. The Complainant was only eight years old at the time she gave evidence. According to the evidence presented by the defence, Accused cared for and loved the children more than their biological father would do; Complainant in turn was reciprocal and loved him very much. According to Luisa's evidence, Complainant even ran towards the Accused when her father came with the Police to take her. It is up to you to form your own opinion as to whether Complainant had any reason to fabricate a story against the Accused whom she loved so much.

55. Version for the Defence was that Amelia was not on good terms with the Accused after the rule prohibiting her night visits was issued in a family meeting. Amelia did not deny issuance of such a rule. However, she denied meeting ET's father after the family meeting. The Accused said it is he who issued that rule. Luisa said she issued it. Accused conceded that even after the rule was issued Amelia and Teresia did not care about it and they just did whatever they do and, most of the time they were not at home. In such a scenario you consider whether Amelia had any reason to fabricate this story against the Accused.

56. 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. In assessing the identification evidence in this case you only have to consider whether the victim had known the Accused before the incident.

57. If you look at the agreed facts, it was agreed by both the parties that the Complainant, during the period of the offence (from 1st March -18th March 2014), lived in Laselase with the Accused who was in a de-facto relationship with her mother.

58. Complainant identified the person who touched her 'lolo' as Bee and also as the person who was staying in her house in Laselase as her mother's 'husband'. Both the Accused and Luisa admitted that the Complainant used to call the Accused as Bee. You will have no difficulty in coming to the conclusion that the Accused was known to the Complainant before the incident.

59. You watched the Accused and Luisa giving evidence in court. You can expect any person Accused of a crime would generally give an innocent version to escape criminal liability. Luisa was Accused's ex de-factor partner. She came forward to give evidence for the Accused and said that she still trusts him. How probable is their version? Is the version of the Defence appealing to you? What was their demeanour like? How did they react to being cross examined and re-examined? Were they evasive? How they conducted themselves generally in Court? It is up to you to decide whether you could accept the version of the Defence and that version is sufficient to establish a reasonable doubt in the prosecution case.

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

61. It is not necessary to prove full penetration in order to prove the charge of rape. Even a slight penetration is sufficient to prove the element of offence. Having considered all the evidence led in the trial, you decide whether the Accused penetrated her vagina with his fingers.

62. The Complainant said that the Accused touched her 'lolo' with his hands. When the State Counsel asked her how Bee touches her 'lolo', you will remember how she demonstrated to us the way he touches. She also said that it was paining when he did that. The doctor who had examined her had stated in her medical report that the Complainant's hymen was not intact. It is up to you to draw inferences from all the evidence led in the trial in coming to your conclusion.

63. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realise that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it, and about using words they think are naughty, and therefore find it difficult to speak. Bear in mind that they are being asked questions by an adult they see as being in a position of authority– the policeman in the interview, or a Counsel in Court. That can make it difficult for them. Remember how you normally talk to children of this age. How difficult must it be if the form in which a question put is leading or complicated or challenging or conceptual (such as "How did you feel?" or "Why didn't you?"), and you should bear those difficulties in mind when you consider the answers given.

64. All decisions about the evidence are for you to make. I only advise caution against judging children by the same standards as you would an adult.

65. 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

2. unlawfully

3. indecently

4. assaulted the complainant without her consent.

66. 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 Compalinant was truthful and the Accused penetrated his fingers into her vagina you must find the Accused guilty of rape. However, if you find that the Accused only touched her vagina but his fingers did not penetrate the vagina 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 victim was truthful.

67. If you accept the version of the defence 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 the version of the Defence, still the prosecution should prove its case beyond reasonable doubt.

68. 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.

69. 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 charge 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.

70. 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.

71. Your possible opinions are as follows:

(i) Charge of Rape, Accused guilty or not guilty?

or

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

72. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 25th of September, 2015

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