State v Basaga - Summing Up [2015] FJHC 943; HAC336.2013 (27 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 336 OF 2013

BETWEEN:

STATE
PROSECUTION

AND:

SAKEASI BASAGA
ACCUSED PERSON

Counsel: Ms. P. Madanavosa for State
Mr. P. Tawake for Accused

Dates of Hearing: 23rd, 24th and 25th November 2015
Date of Summing Up: 27th November 2015

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as ['S.R.']

Lady and Gentlemen Assessors.

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. 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.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The Counsel for the Defence and the Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

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

[5] On the question of proof, I must direct you as a matter of law that the burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system, accused person is presumed to be innocent until he is proved guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.

[7] Your decisions 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 about this case, through print or electronic media or outside of this courtroom.

[8] Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] There are several counts in the information. The accused is charged with seven counts of rape contrary to section 207 (1) and (2) (a) of the Crimes Decree No 44 of 2009. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty on others.

[10] The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence are;

1. The accused had carnal knowledge of the complainant,
2. Without her consent,
3. He knew or believed that she was not consenting or did not care if she was not consenting.
   

[11] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.

[12] Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[13] Where the consent is obtained through fear or by threat or by exercise of authority, use of force or intimidation then that is not consent. Consent must be given freely and voluntarily and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. In this case the complainant is the stepdaughter of the accused and she was then unemployed. The accused in his evidence said that being the step father he was in a position of authority in the house. However, it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

[14] The written agreed facts are before you. Those facts are agreed by both parties, and you may accept them as if you have heard them led in evidence from the witness box unchallenged. Parties agreed that the complainant was born on 26th December 1992 and that the accused is the step father of the complainant. Parties also agreed that the accused had sexual intercourse with the complainant during the first week of January 2013 and also during the periods relevant to charges 2 to 7 that is in the months of February, March, June, July, August, and on 8th September 2013.

[15] You may also see that counts 1 to 6 in the information are representative counts. And that they cover a length of time. For example, in count No. 1, it is alleged that the accused had carnal knowledge of the complainant 'S.R.' without her consent between 1st day of January 2013 and 31st day of January 2013. The accused is not charged with multiple counts of rape during that period in January 2013. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of exact dates where the alleged offending has taken place. You must ask yourselves whether between the dates specified in each of the counts in the information, there was at least one offence of rape committed on the complainant. And you must be satisfied of that beyond reasonable doubt.

[16] According to the particulars of offence given in count no.1, the accused is alleged to have had carnal knowledge of the complainant in January 2013 without her consent. In the agreed facts, parties admitted that the accused had sexual intercourse with the complainant on the 1st week of January 2013. Therefore, to find the accused guilty of count No. 1, the only remaining element in dispute is the element of consent. Whether the complainant consented to sexual intercourse or not and whether he knew or believed that she was not consenting or did not care if she was not consenting.

[17] It is also admitted by the prosecution and the defence that the accused had sexual intercourse with the complainant during the periods relevant to counts 2 to 7 as well. Therefore the remaining element the prosecution has to prove beyond reasonable doubt to find the accused guilty on counts 2 to 7 is also the absence of consent to sexual intercourse by the complainant as I explained to you.

The Evidence

[18] Complainant 'S.R.' gave evidence first. She said that in year 2013 she had been living with her mother, sister and stepfather in Muslim League settlement. Stepfather is Sakeasi Basaga.

[19] She said, that in January 2013 stepfather had asked her to clean the house when her mother went to work. Only she and her stepfather had been at home. Then stepfather had come to the room and showed her the penis. Then he started touching her breasts and vagina and then put his penis into her vagina, she said. She had felt pain in the vagina and in the stomach. She said that he was the 1st guy who did that to her. She had wanted to move but accused had told her that he would do something to her. She had been scared. He was forcing her, she said. In January the accused had done this to her plenty times when mother leaves in the morning.

[20] In February 2013 also the accused had done the same thing to her. She said it was very hurtful and painful. When she tried to get up, he had told her that he would kill her. Then she got scared, she said. In month of February also he had done the same thing plenty times.
[21] She said that in March 2013 also the accused had done the same thing to her. When the accused had sexual intercourse with her, he covered her mouth when she pushed him away, she said. She had tried to pull his hands away.

[22] In June 2013 also he had done the same thing to her. She did not do anything when he had intercourse with her because he held her hands, she said. It was hurtful when he did it, she said. She said she felt hurt as she was going through lot of hardships as her father had passed away and that stepfather was doing this to her. She said that she was scared of the accused.

[23] In July 2013 also the accused had done the same thing to her when her mother leaves in the morning. He had told her to close the doors and lie on top of him. It was painful when he put his penis into her vagina, she said.

[24] In month of August also the accused had done the same thing to her, she said. She said that she did not want what the accused did to her and that she did not know what to do. She had tried to push him. He had told her that he would do something bad to her if she told her mother.

[25] On 8th September 2013 also the accused had sexual intercourse with her, she said. She said that the accused did not like her going out with her friends as if she was his wife. She said that when he had sexual intercourse, she tried to withstand the pain.

[26] On 9th September 2013 when stepfather's mother came home, he had asked her to drop her on the road. She said that she was afraid to come home and that she went to one of her aunt's place. She had stayed there till late evening. Her mother had come looking for her. Accused had told her mother to give her a hiding. Then she had told her mother all what happened, she said. Then they had gone to police and reported. On the 10th she was medically examined at the hospital, she said.

[27] In cross examination she said that she cannot read English and she only reached class 5. In Muslim League settlement houses are close to each other. She said that when the stepfather committed the offences she could not shout or scream for help as he was covering her mouth.

[28] She said that during that period she did not go to places in town. She said some days she went to church but not during that period. She said she visited her grandmother in Nausori. To go to Nausori she has to come to Nabua. She said that she reported the matter to Nabua Police Station before she went to grandmother's house. She said during that period stepfather was not working and he was together with her when her mother goes to work.

[29] When it was suggested to her that she had the opportunity to report the matter to the police, she said she went with her mother and reported to police. She denied that she was a willing partner and said that she did not give her consent. She denied having an affair with the stepfather. She said when the accused told her mother to beat her, her mother hit her hand with a rolling pin and then she told her what happened. She had not told the police that her mother beat her. She said that she was with her aunt Napina. She denied that her mother brought her home from another boy's house. She had not run away from the house during the period January to September.

[30] When she was asked whether she did not tell the police about the accused covering her mouth, she said that she told them what happened and they wrote down in English. She said that she told the police that the accused told her that he would kill her.

[31] She said that she had some relatives in Vanualevu. She did not like what accused did to her but she did not run away from home. None of the relatives at Muslim League settlement had threatened her or stopped her from leaving the house. She said that the accused is the person who closed the doors when it happened in July. She said that the pain she had during intercourse she kept for herself.

[32] She said that she came to court on 3rd February this year. She denied bringing a letter to court and said that a relation of the accused brought a letter. When a letter was shown, she denied that it was her signature. She never signed it, she said.

[33] She had come to court that day with 'Biko' who is a friend of accused. She denied approaching 'Biko' to write the letter. She denied that she instructed 'Biko' to write a letter.

[34] It was suggested to her that before signing the letter, the contents were explained to her in I-taukei language. She denied being explained anything. She denied signing the letter in front of 'Biko', her mother, and a lady named 'Lo'.

[35] Answering further the questions put to her by the defence, witness denied signing the letter and said that she does not know and did not see the letter being given to court. She said that she did not complaint to the judge about the signature. When she was questioned about the contents of the letter, she denied. In that she denied that some relatives led her to state that Basaga forced her to have sex. She denied that she sought forgiveness from court and from Basaga for the false statement.

[36] She said she never saw her statement to police before coming to court. She said she always asked accused permission to go to movies but accused let her sister go and asked her to stay home. She denied asking for money from accused for smoking and to drink grog. She denied asking money from accused to use internet. She said she does not know how to use internet. She also denied asking accused for money to go to movies. She denied asking accused to have sex with her in order to get her money. She denied making sexual advances to accused. She said that the accused forced her to have sex. She denied having an affair with the accused. She denied changing her story that she was raped, after being beaten up by the mother.

[37] In re-examination she said that she did not tell anyone about having sexual intercourse with accused, as he told her that he would do something bad to her. She said that she was scared to tell her aunt because accused told her that he would do something bad if she told anyone. She said that her statement to police was taken down in English language and that she told the police in I-Taukei language.

[38] Prosecution called Dr. Saiasi Caginidaveta who examined the complainant to give evidence next. You heard his qualifications and experience as a medical doctor that was not challenged by defence. He had medically examined the complainant on 10/09/2013 at CWM hospital. His special medical findings were:

(a) Right nasal skin darkening
(b) Keloid scar – anterior chest wall
(c) Hymen remnants noted, nil active bruising or bleeding noted.

[39] He said that Keloid scars could be caused during the healing of a sharp injury to the skin. Hymen remnants mean that the hymen is disrupted, he said. He also said that the nasal skin darkening he cannot specifically say. His professional opinion, he said, that sexual abuse cannot be ruled out.

[40] In cross examination, he said that according to the medical findings he can say that the victim had been sexually active.

That was the evidence for the prosecution.

[41] Lady and Gentlemen Assessors,

At the end of the prosecution case you heard me explained several options to the accused. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution at all times. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. He also called one witness to give evidence on his behalf. You must give their evidence careful consideration.

[42] Accused giving evidence said that he was employed in China Railway in 2013. Denying the allegations, he said that he had sexual intercourse with the complainant stepdaughter. He said that whenever he does not give her money, she will want him to have sexual intercourse with her. She asks for money for internet and to play billiards, he said. He said that both of them gave each other consent to have sexual intercourse.

[43] In September 2013, he said that he did not inform complainant's mother to beat her. When they have sex, complainant herself removes her clothes off, he said. He said that they were together up and until she reported to the police.

[44] In cross examination he said that he told the police that he was employed. When his caution interview statement was shown he admitted that it was written there that he was unemployed.

[45] He said that being the stepfather he was in a position of authority in the house and also he had control over everybody in the house. When he was asked whether he had control over 'S.R.' he said that sometimes she does not listen to what he says and she just goes.

[46] He denied forcing 'S.R.' to have intercourse with him. He denied threatening her while forcing her to have sex. He denied that she was scared of him. He said that he did not force her to have sex, but both agreed to have sex. He said that there was no one else at home when they had sex. He denied taking advantage of being the stepfather and forcing 'S.R.'.

[47] He said that after having sex he would leave her at home and go to do farming beside the house. He said that it was normal for them to have sexual intercourses with each other.

[48] On 9th September 2013 'S.R.' had taken his mother to the bus stop, and had never come home. When her mother gave her a hiding, all of these things came out, he said. He had been sleeping when her mother hit 'S.R.'. He denied telling his wife to beat 'S.R.'.

[49] In re-examination he said that being the father of the house he had control. He said that he controlled where his wife goes and where she worked and even where his households sleep. He said that he does not stop 'S.R.' going where ever she wanted. He said that he told the police in his caution interview statement that he was working. He also had informed the police that he was working at China Railway Station for 2 years and that he worked from 7am to 5pm. But when it rains, he stopped work or if the machines broke down he had to wait until parts are brought from China. He also told the police that he was slacked from January 2013 and started again last month. His caution interview statement was recorded on 14/09/2013.

[50] The next witness for defence was his wife, Eta Lebeka. 'S.R.' is her daughter. On 9th September 2013 when she came after work 'S.R.' had been missing. She had gone to look for her and had found her at one neighbour's house. She said that it was after 7pm. When she told 'S.R.' that "You can't stay home" 'S.R.' had told her that she was scared of Talevu meaning Sakeasi, as sometimes he does things to her.

[51] Before she said that, she had smacked her thrice. 'S.R.' had told her, that Sakeasi's actions were inappropriate. Then they had gone to the police station and reported the matter.

[52] In January 2015 she had wanted to see one 'Biko' so that she could write a letter of forgiveness for 'S.R.'. She had gone to 'Biko's house with 'S.R.'. 'Biko' had written the letter. 'S.R.' and the witness had agreed to go and ask 'Biko' to write the letter. She said that the letter was written both in Fijian language and English language. 'S.R.' signed the letter, she said.

[53] In cross examination, she said that it was her idea to write the letter. She said that 'S.R.' signed it. She said all agreed to write the letter. On a Sunday when she was ill and was lying down for a long time, 'S.R.' had come and told her "Mommy we should write a letter for Sakeasi Basaga to come back" she said. She said she was very sick and there was no one to help at home and that she had asked for Basaga. Then 'S.R.' had told her that they would write the letter of forgiveness, and had gone to 'Biko'. 'Biko' had written the letter in Fijian language showed it to 'S.R.' and then wrote down in English, she said.

[54] In re-examination she said that 'Biko' explained the letter before 'S.R.' signed.

That was the evidence for defence.

[55] Lady and Gentlemen Assessors,

You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision.

[56] You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness. Inconsistencies per say within the evidence in court also may affect the credibility of a witness.

[57] May I also direct you that a witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case Dr. Saiasi Caginidaveta gave evidence on his medical examination of the alleged victim 'S.R.'. His expertise on the medical field was not challenged by the defence. Therefore the opinions he gave on his relevant subject are admissible.

[58] You may remember that when the complainant gave evidence, a letter was marked for identification by the defence and some of the contents of that letter were led in evidence. However, defence did not produce that letter in evidence. Therefore as a matter of law I must tell you, that you must disregard whatever the evidence led on the contents of that letter, as the letter was not produced in evidence in court.

[59] Complainant denied signing the letter. She said that she came to court, saw the letter, but did not read it or did not know what was written there. She said that the letter was brought to court by the relative of the accused. Mother of the complainant who is the wife of the accused who testified on behalf of the accused said that complainant signed a letter. You decide who is telling the truth and what parts of their evidence is true. You consider under what circumstances, for what purpose, and on whose instructions a letter was prepared.

[60] The defence questioned the complainant as to why she failed to report the matter to the police immediately, why she did not complain to her aunt and the mother before and why she did not run away from home. The alleged victim 'S.R.' said that she was scared of the accused who was her stepfather and that the accused told her that he would do something bad to her if she told her mother. The accused in his evidence said that he had control over everybody in the house and even on where his wife works. Complainant had told her mother when her mother hit her with a rolling pin on the instructions of the accused, when she got late to come home. Accused denied any involvement in mother beating the complainant. You may consider all the circumstances including the social background and complainant's relationship with the accused as the stepfather and also her age at that time when you decide whether the delay in complaining is justified. If you find the complainant's evidence truthful, it is not required for you to look for corroboration.

[61] The complainant says that the accused forcefully had sexual intercourse with her during the periods relevant to counts 1 to 7. She says that she was scared of the accused and also the accused threatened her not to tell about it. While admitting having sexual intercourse with the complainant during the periods relevant to counts 1 to 7, the accused says that it happened with consent. You decide whether the sexual intercourse happened with consent or whether it was by using force on the complainant or whether consent was obtained by using threat, intimidation or by exercise of authority.

[62] I have told you the elements of the offence of rape you have to consider. Which version you are going to accept whether it is the prosecution version or the accused version is a matter for you. You must decide which witnesses are reliable and which are not. You may use your common sense when deciding on the facts. Assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[63] I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you, when you consider the charges against the accused have been proved beyond reasonable doubt.

[64] Your opinions on the charges will be either guilty or not guilty.

[65] Lady and Gentlemen Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

At Suva
27th November 2015

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