State v Lutunasobasoba - Summing Up [2015] FJHC 884; HAC02.2014 (12 November 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 02 OF 2014

BETWEEN:

STATE

AND:

ELIA LUTUNASOBASOBA

Counsel : Ms. S. Kiran for State
Ms. V. Narara for the Accused

Date of Hearing : 9th and 10th of November 2015
Date of Closing Submissions : 12th of November 2015
Date of Summing Up : 12th of November 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
8. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
   

Burden and Standard of Proof

9. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing.
   
10. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
11. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

Information

12. The accused is being charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree. The particulars of the offence are that;

"Elia Lutunasobasoba on the 12th day of December 2013 at Lautoka in the Western Division penetrated the vagina of Salanieta Tanumi with his penis, without the consent of Salanieta Tanumi"

13. Section 207 (1) and (2) (a) of the Crimes Decree states that;

Any person who rapes another person commits an indictable offence,

A person rapes another person if-

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

14. Accordingly, the main elements of the offence of rape are that;

1. The Accused,
   
2. Inserted his penis into the vagina of the complainant,
   
3. Without the consent of the complainant,
   

15. A person consents only if she agrees by choice, and she at the relevant time, has the freedom and capacity to make that choice. To prove that the complainant did not consent, the prosecution must make sure on all the evidence that the complainant did not give her consent by an exercise of free choice.

16. At this point I must emphasis you that the offences of sexual nature do not require evidence of corroboration.

17. I know kindly request you to draw your attention to the agreed facts, which are before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution.

18. I now draw your attention to summarise the evidence presented by the prosecution and the defence during the hearing.

19. The first witness of the prosecution is Dr. Annette Naiguleve. She was attached to Lautoka Hospital as a medical officer in December 2013. She recalls that she examined Salaniete Tanumi, the victim of this matter on 13th of December 2013. Dr. Naiguleve stated that the victim was initially not settled and was crying, but she later managed to composed herself and participated to the examination.

20. Dr. Naiguleve in her evidence explained the medical findings that she found during the examination. She has found 5 mm laceration and blood clots at the base of the vaginal vault. The hymen has perforated at a 6 'o clock position. She further found a mild erythema around vaginal vault. Dr. Naiguleve formed her opinion based on her findings, where she stated that the injuries she found could have occurred within last 24 hours prior to the examination. The damage of the tissues of the hymen could have occurred with a blunt force trauma, either due to a sexual intercourse or penetration of a blunt object.

21. During her cross examination, she stated that no family member of the victim was present at the examination. She explained that certain instances they allow a family member to be present but in this instant case, she found the presence of a family member was not required. Moreover, Dr. Naiguleve stated that she did not extract any seaman from the vagina of the victim.

22. The second witness of the prosecution is Salanieta Tanumi, who is the victim of this case. She stated in her evidence that she was living with her adopted parents at Natokawaqa in December 2013. Her sister, uncle and aunty were also living with them. The accused was also living with them at the house during that period. The accused was working at the FSC as a security officer.

23. Salanieta recalls that her father went to church and mother went to wharf on the morning of 12th of December 2013. She went to her friend's place to play. After a while, she came back home and found the accused was having his tea. The accused asked her who else at home. She replied that only they were at home. She then went inside the room as she wanted to take the mattress, pillow and blanket to sleep. While she was inside the room, the accused came and told her that he will get paid in the evening, and he can give her $10 if she does bad things with him. She refused that. At that point, the accused pushed her on to the bad and came on top of her. He covered her mouth from one of his hands. He removed her pant and undergarment with his other hand. He then removed his three quarter pant up to his knees and inserted his penis into her vagina. She stated in her evidence that she pushed him and wanted to shout, but could not do so as her mouth was gagged by the accused with his hand. He put his legs around her thighs and prevented her to get away. He kissed her neck and touched her breast. He then got off and she too put her pant and undergarment on. She then went out of the room, where she found her mother was standing at the living room. She wanted to tell her what the accused did to her, but she was told by her mother that wait till her father come home. She then went to have her bath. While she was having her bath, the accused came to her and told that he was going to work.

24. During the cross examination by the learned counsel for the accused, Salanieta stated that the accused was in a blue colour three quarter pant, which he removed only to his knee level. She denied that she first went to the room and called the accused into it. Furthermore, she denied that she started to kiss the accused.

25. The third witness of the prosecution is Luisa Veki. She is the adopted mother of Salanieta. She recalls that she went to the town and her husband went to church leaving Salanieta at home on the morning of 12th of December 2013. When she returned home, Ms. Veki found that the front and back doors of the house were closed. She opened the back door as it was not locked and heard a radio was on. She went to the room, where the radio music was coming. It was the room of Lemaki. She looked into the room through the curtains, and found the accused was laying on top of a girl. The girl was under him and was spreading her legs. She did not recognised the girl at that time and though that could be the wife of the accused or his girl friend. She heard that girl was screaming like hmm hmmm. She was scared and went to call her friend. She got back with her friend in a 2 minutes and asked her friend to see the room and find out who is the girl. That lady too was scared and they waited at the door of the room for about five minutes. Then she saw Salanieta came out of the room. She asked Salanieta what she did inside the room. Salanieta only replied it was only Elia. She did not say anything apart from that. She then told Salanieta wait for her father to come home and she will tell everything to him. She told Salanieta that she saw what they were doing inside the room.

26. Ms. Veki in her cross examination stated that the accused was dressed in a three quarter pant when she saw him lying on top of the girl. From what she observed from the door, it appeared to her that Elia and the girl was having sexual intercourse. The sound that she heard was like that someone was trying to scream while the mouth was gagged. Ms. Veki further stated in her evidence that Salanieta did not respond to her friend when she asked her what did Elia do to her. Salanieta only cried. Ms. Veki has not heard any sounds coming from the room, while she was waiting outside the room for about five minutes. Salanieta did not say anything even after she stops crying. Ms. Veki stated that she was angry with what Salanieta and Elia did inside the room.
27. At the conclusion of the prosecution case, the accused was explained of his rights in his defence. The accused gave evidence on oath but did not call any witnesses for the defence

28. The accused in his evidence denied having any sexual intercourse with the victim. He stated that the victim came and wakes him up while he was sleeping on the morning of 12th of December 2013. He then got up and started to have his breakfast. The victim called him into the room while he was having his breakfast. He then went into the room, where she asked his mobile phone for her to listen music. She then hugged him while he seated on the bed. Then she started kissing him. While they were kissing each other, she pushed him away and said that her mother was standing at the door. The accused denied the allegation and stated that he only kissed her and never had sexual intercourse.

29. I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.

30. The prosecution and the defence presented conflicting versions of events, which took place in private between the victim and the accused. The Doctor in her evidence stated that according to her medical findings there could be a sexual intercourse or penetration of any blunt object into the vagina of the victim within last 24 hours prior to her examination conducted at 3p.m on the 13th of December 2013. She explained that the tissues of the vagina has damaged due to blunt force trauma. The victim in her evidence stated that the accused pushed her on to the bed and forcefully penetrated into her vagina with his penis. She stated that the accused removed his pant up to his knee level. The adopted mother of the victim saw that a girl was lying under the accused, while he was lying on top of her. She has observed that the accused was wearing a three quarter pant. Meanwhile, the accused denied having any sexual intercourse and stated that he only hugged and kissed the victim.

31. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape or a rapist or a victim of rape. Offences of this nature can take place in any circumstance between any kind of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course the hearing. Any person who has been raped must have undergone trauma. It is impossible to predict how the victim react, either on the days following the incident or when speaking publicly about it either in court or in the police station. Those who have been victims of rape react differently. Some may display obvious signs of distress, others may not. The reason is that every person has his or her own way of coping with such incidents.

32. You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.

33. You have heard the evidence presented by the accused, where he denied this allegation. If you accepted the version of the accused person that he did not commit this offence, then the case of the prosecution fails. You must then acquit the accused from this charge.

34. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.

35. Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.

36. Upon consideration of all evidence, if you believe that the prosecution has proved all essential elements of the offence of rape beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that the prosecution has not proved all essential elements of the offence of rape beyond reasonable doubt, then you must find the accused not guilty.

37. Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened.

38. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
12th of November 2015

Solicitors : Office of the Director of Public Prosecutions
Office of the Legal Aid Commission