State v Koli - Summing Up [2015] FJHC 909; HAC060.2014LAB (20 November 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 060 OF 2014LAB

STATE

V

VUADRITI KOLI

Counsels : Ms. A. Vavadakua for State
Ms. S. Dunn for Accused

Hearings : 18 and 19 November, 2015
Summing Up : 20 November, 2015

Name of the complainant is permanently suppressed and will be referred to as S.N.

SUMMING UP

Madam and Gentleman Assessors,

[1] We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear more. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the presiding judge, it is my task is to ensure that the trial is conducted fairly and according to law. As a part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give you on matters of law. It is also important to note that, if I give you a caution, you have to take it also into consideration, in coming to your opinion.

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.

[4] During my summing up to you, I may comment on the evidence; if I think it will assist you, in 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 evidence. You should ignore any comment I make on the facts unless it coincides with your own independent view.

[5] In forming your opinion, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.

[6] It is also important to note that, in forming your opinion on the charge against the Accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.

[7] I have already told you that you must reach your opinion on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution exhibits and any admissions made by the parties.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony put before you in this Courtroom since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness's cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and final addresses made by the State Counsel and final address of the Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the evaluation of truthfulness 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 correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses' demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

[14] In relation to demeanour, the experience of the Courts is that those who have been victims of rape react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others will not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court is not necessarily a clue to the truth of the witness's account. It all depends on the character and personality of the individual concerned.

[15] It is also the experience of the Courts, that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim's reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. There is, in other words, no classic or typical response by victims of Rape.

[16] Another consideration may be; has the witness said something different at an earlier time or whether he or she is consistent in his or her evidence? In assessing credibility of the testimony of a witness on consistency means to consider whether it differs from what has been said by the same witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.

[17] In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection; or else could there be an intentional falsehood. Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in the light of other evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory or otherwise be mistaken.

[18] Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to an exhibit.

[19] Ladies and gentleman, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[20] Having placed considerations that could be used in assessing credibility of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[21] When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the Accused is guilty or not. I have used the term "question of fact". A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[22] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.

[23] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[24] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[25] In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this morning, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that you will understand the relationship between primary facts and the inferences that could be drawn from them.

[26] It does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.

[27] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove. That burden rests on the prosecution to prove the guilt of the accused.

[28] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.

[29] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or level of proof, as expected by law?

[30] For the prosecution to discharge its burden of proving the guilt of the Accused, it is required to prove it beyond reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I shall explain these elements as we proceed.

[31] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence and the other matters of which you must be satisfied, such as identity, in order to find the Accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the Accused not guilty. If you are not left with any such doubt, then your duty is to find the Accused guilty.

[32] You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the Accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinion.

[33] Let us now look at the charge contained in the information.

[34] There is only one charge preferred by DPP, against the Accused:

Statement of offence

Incest by any relative– contrary to Section 223(1) of the Crimes DecreeNo. 44 of 2009.

Particulars of the Offence

Vuadriti Koli on the 3rdday of September 2011Salialevu Estate, Taveuni, in the Northern Division, had carnal knowledge of S.N. a person Vuadriti Koli knew was his daughter.

[35] I shall now deal with the elements of the offence of Incest by any relative. In order to prove this charge, the prosecution must prove beyond reasonable doubt that the Accused penetrated S.N. or the complainant's vagina, by his penis and at that time he knew S.N. is his daughter. The slightest penetration is sufficient to satisfy this element.

[36] If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his penis and knew that she is his daughter at the time then you may find him guilty as charged.

[37] Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence must also be proved by the prosecution. What it means is that it was this Accused and none other had penetrated the complainant's vagina on that date and time. There must be positive evidence as to the identification of the Accused.

[38] If you find that the prosecution failed to establish either of these elements and or identity then you must find the Accused not guilty.

[39] In our law, no corroboration is needed to prove an allegation of Sexual Offence and Incest by any relative is also considered as a sexual offence.

[40] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

[41] The prosecution called the complainant, her elder sister and another in support of their case.

Case for the Prosecution

[42] Evidence of the complainant, S.N.

(i) It is her evidence that she was living with her mother in Salialevu Estate. She also had a sister elder to her called Ana. Her mother was Salote. Her father's name is "Koli" and he raised her up from her childhood. At the time of the incident she was at her sister Ana's place.

(ii) Describing the incident, the complainant said that the accused had called her out and told to make tea for "Te", her nephew. Then the accused has asked her to go to a room. She refused. He again wanted her to go into the room. She did not. Thereafter he had carried her across to the room. He took off her pants and laid on her. She said he "put his penis in my vagina". After that, having told her not to tell this to anyone, he gave her a lolly and some money.

[43] Evidence of Ana Agina

(i) This witness said that she is married and is the mother of two children. She was staying with her husband, their children, her mother and the complainant at that time, in her husband's house.

(ii) Describing the circumstances leading to the incident, she said that the accused called out the complainant to make tea for her son. At that time witness's son stayed with the accused. The complainant had then gone to the house of the accused which was located about 50 meters away from her house.

(iii) Even by 6.00 p.m. the complainant failed to return and was "missing" and it was about 6.45 p.m. the complainant finally did return. Then the witness had asked her sister as to what she did with the father, her reply was "he tried to do something". Upon questioning she told the witness what "exactly is". She told witness that he took off her pants and laid on top. The complainant also had a lolly in her hand and said her father gave it to her.

(iv) Then the witness had alerted her husband of the incident.

[44] Evidence of Gabiriele Josua

(i) This witness is the Manager of the Estate where the complainant, the accused and witness resided. It was his duty to look into welfare of the employees of the Estate and therefore had to personally visit each house. He had knowledge of the employees and of their families.

(ii) Referring to the incident, the witness said he had learnt if from Ana's husband on the same day at about 6.30 p.m. He then visited the accused, and told him that he would take the accused to Police on the coming Monday. He also visited Ana's house and told them to join him to go to police. On the following Monday he had taken all of them in a vehicle to Police.

[45] That was the case for the prosecution. You then heard me explaining several options to the Accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times. But he opted to offer evidence under oath.

Case for the Accused

[46] Evidence of the Accused Vuadriti Koli

(i) He admitted that the complainant is his daughter. He said he had lived with the complainant and a small boy called "Te" in his house given to him by the Estate.

(ii) In describing the day of the incident, the accused said the complainant was playing with some children outside and he told her to prepare tea for "Te". She refused. He became angry and wanted to hit her. He scolded her and she started to cry. Then he took pity as it came to his mind that she is "bit slow mentally". Then he sent her away. He saw her leaving and he stayed back in the house with the small boy. According to him, this incident happened about 11.00 a.m.

(iii) Referring to the specific allegation the complainant made in Court, the accused said it "all a lie".

Analysis of all evidence

[47] The prosecution relied on the evidence of the complainant, and another two lay witnesses to prove its case.

[48] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses is truthful. In addition you should consider the evidence presented by the prosecution, in particular, the complainant is reliable as it is said by the other witnesses that she is "mentally slow". If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty to the charge of Incest by any relative, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the two elements of the offence of Incest by any relative and identity of the accused, beyond reasonable doubt.

[49] At the beginning of this summing up, I described some considerations you might want to apply to the evidence in order satisfy yourselves as to the truthfulness and reliability of the evidence. One such consideration is the consistency of the evidence.

[50] The prosecution primarily relied upon the evidence of the complainant to prove its allegation against the accused. In her examination in chief the complainant said that the accused had called her and wanted her to make tea for "Te". During cross examination she denied when it was suggested to her that the accused did not call her. When suggested that the accused did not call her as already she was in his house, she said yes. She agreed that the accused wanted her to make tea but denied when it was suggested to her that she had gone and played with other children instead of making tea. She then said yes to when she was questioned whether when she failed to make tea, the accused called her and started growling at her. She admitted her father then felt sorry for her and told her to go. She also admitted that thereafter she left his house.

[51] During cross examination of the complainant it was put to her that the accused did not insert his penis into her vagina. She consistently replied that he did. However, when the learned Counsel for the accused suggested that the accused did not do anything after he growled at her and let her go she said yes.

[52] It is for you to decide whether these inconsistencies affects the credibility of the basic version of the complainant's evidence and of the prosecution and thus makes its evidence false and unreliable.

[53] I also mentioned you that the manner of giving evidence is also an applicable consideration in evaluating witnesses for their truthfulness and reliability. You would have observed how the complainant has given evidence. She was slow to answer questions put to her and used only few words in describing the events. She spoke in almost inaudible voice and displayed an appearance of a timid person. None of us are qualified to make an accurate assessment of her personality based on the science of human psychiatry, but you may use what you observed with your common-sense to decide whether she is a truthful and reliable witness or not. You have also observed how her sister gave evidence. These factors are mentioned because they are relevant to consider the evidence of the complainant in the proper light. It was not intended to generate sympathy or feeling of pity towards the complainant and thereby cloud your opinion in favour of the complainant.

[54] Another relevant consideration in this regard would be the recent complaint evidence. It is clear that the complainant did complain of the alleged act of sexual intercourse by the accused to her sister that evening itself. Ana says initially the complainant said that the accused attempted do something. Her claim that he inserted his penis into her vagina, was revealed to Ana only after some persuasion by her sister for details. However, you must not consider Ana's evidence regarding what the complainant said to her of the alleged act as supporting evidence of the allegation of penile penetration. It merely shows the consistency of the allegation of the complainant.

[55] In addition to above mentioned considerations on evaluation of evidence; there is another factor which is useful in considering whether the evidence of the prosecution is truthful and reliable. That is the relative probability of the versions of events as presented by the parties.

[56] The evidence of the complainant indicates that the accused, in the pretext of preparing tea for the small boy, got her down to his house. He then led her to a room where the alleged act took place. She said the accused gave her a lolly and some money and told not to tell anyone. Ana says there was a delay in the return of her sister. When she did finally come home she had a lolly in her hand. Whether this is supportive item of evidence of the complainant or not you have to decide. You may consider the version of events as narrated by the complainant and her sister and decide for yourselves whether it is probable.

[57] The accused on the other hand placed evidence before you that the allegation is a lie. He said he growled at his daughter for not making tea and then took pity when he realised her mental condition and let her go. According to him the accusation is work of the devil, through Ana.

[58] Similarly you must employ the same considerations on the evidence of the accused. You must consider his evidence for its consistency and probability of his version. If you find the evidence of the accused is truthful and reliable, then you must find the accused not guilty of incest since the prosecution has failed to prove its case. If you reject the evidence of the accused as not truthful and also unreliable, that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

[59] With this caution in mind, we could proceed to consider the evidence of the accused for its truthfulness and reliability. The accused said that when the complainant failed to make tea he scolded her and had then let her go. Although not said in specific terms, it could be taken as the complainant did not make tea at all. However, in cross examination when it was put to him at that time she was making tea, his answer was "tea has already been prepared". Whether this position is in conflict with what he already told in evidence and if so what effect it should have on the truthfulness and reliability of his evidence is a matter for you to consider and decide.

[60] I must caution you over one important matter. When I present the Accused's version, alongside the version of the complainant, you might get an impression that the Accused must prove that he did not put his penis into the complainant's vagina and that is why he has given this evidence. That is wrong. He is under no duty to disprove the case for the prosecution. He is not under a legal duty to offer evidence. He could have remained silent. When he does give evidence, then, as already directed, it must first be evaluated for its credibility and reliability.

[61] I must explain to you as to the reason for the use of screen when the complainant gave evidence. It was a normal precautionary procedure adopted in Courts, in the interests of a vulnerable witness. It is believed that when such a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. You must not infer that such a protection to the witness was warranted due to the accused's behaviour and therefore should not draw any adverse inference against him on that account.

[62] So far I have directed you on the assessment of credibility of the witnesses for the prosecution and of the accused. If you reject the evidence of the accused and accepts the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the two elements of the offence beyond reasonable doubt.

[63] The prosecution must prove that there was penile penetration of the complainant's vagina. The complainant said in her evidence that the accused put his penis into her vagina. If you accept it as sufficient proof of penile penetration of the complainant's vagina, then in addition, the prosecution must prove that at that time the accused knew she is his daughter. There was no dispute of that fact. The accused himself admitted the relationship between them.

[64] The prosecution must also prove that it was this accused and no other did penetrate the vagina of the complainant.

[65] The evidence of the complainant before us is that the alleged incident took place in a day time. The accused is a known person. She had seen him in close proximity. Whether there was sufficient light to properly identify the person and whether the complainant had clear mental comprehension to make the identity and whether there is a mistake in identifying the person are questions of fact you have to consider and decide.

[66] In summary and before I conclude my summing up let me repeat some important points. If it is your considered opinion that the prosecution has established the two elements of the offence of incest by any relative and that it was this accused and no other then you must find the accused guilty. If you find, after consideration, that the prosecution has failed to establish beyond reasonable doubt, its case as a whole or one or both the elements of the offence; then you must find the accused not guilty. If you find the prosecution has established the two elements; but failed to establish the fact that it was this accused who penetrated her vagina, then too you must find him not guilty.

[67] Any re directions the parties may request?

[68] Madam and Gentleman assessors, this concludes my summing up of Law and evidence. Now you may retire and deliberate together and may form your individual opinions on the single count of incest against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to Court, and you will be asked to state your opinion.

[69] I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Labasa
20 November, 2015

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa