State v Valekula - Summing Up [2015] FJHC 955; HAC254.2013 (2 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 254 of 2013

STATE

V

INOKE VALEKULA

Counsel : Ms. S. Puamau with Ms. S. Naibe for State
Ms. C. Choy for Accused
Dates of Hearing : 30th November – 01st December 2015
Date of Summing Up : 02nd December 2015

SUMMING UP

Madam and gentleman assessors;

It is now my duty to sum up the case to you.

1. I will now explain to you the legal principals you should apply in this case. You must accept those directions on law and must follow them when you analyze the facts of this case in order to arrive at your opinion.
   
2. During this exercise, I may refer to certain evidence wherever necessary while explaining the legal directions and I will also be providing you a summary of the evidence. Being the judges of fact, you and you alone should decide what weight you give to the evidence. Therefore, if I express my opinion on the facts of this case or if I appear to express my opinion on the facts, you are at liberty to either accept or disregard such opinion. Do not accept my views on the facts of this case unless you agree with them.
   
3. When I say 'evidence' in this case, that includes what the witnesses say from the witness box, and the admitted facts.
   
4. Please remember that this summing up is not evidence. That said, in this summing up, I will not be reproducing the entire evidence led in this case. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you may think fit.
   
5. The arguments, questions and comments by the counsel for the prosecution and counsel for the defence are not evidence. A suggestion made by a counsel during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening address and you heard the closing addresses. Those arguments and comments made by counsel in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence if you wish to do so, but you are not bound to accept them.
   
6. You must not consider anything you have heard or read about this case outside this courtroom before or during the trial. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. Your opinion should only be based on what you heard from the witness in this case who gave evidence from the witness box and the admitted facts. You must approach the evidence with detachment and objectivity and should not be guided by emotion.
   
7. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the complainant giving evidence before this court; her demeanour in the witness box; how she answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what she said in court. Having listened to the evidence and having seen her giving evidence, you may decide that her entire evidence can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject her entire evidence if you decide that the entire evidence she gave is not capable of being believed.
   
8. In this case, the accused has admitted certain facts relating to this case and you have those facts before you. You should consider those admitted facts as proven beyond reasonable doubt.
   
9. You should bear in mind that a witness and especially a child witness, may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
10. In assessing the credibility of a witness, it may be relevant to consider whether there are inconsistencies in the evidence given by the witness. Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that witness is generally not to be relied upon or you may decide to disregard only part of the evidence which you would consider unreliable.
    
11. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with any explanation given, then you may consider the witness as a reliable witness notwithstanding the inconsistency.
    
12. Experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all. A victim's reluctance to complain could also be due to shame coupled with the cultural taboos existing in the society in talking about matters of sexual nature with elders.
    
13. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for you to determine what weight you would give to the fact that the complainant in this case who was 13 years and 3 months old at the time of the incident, not complaining to anyone about the incident until she was questioned.
    
14. Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. Then apply the relevant law as per my directions on law to those facts and inferences, to form your opinion as to whether the accused is guilty or not guilty.
    
15. You are not required to decide every point which has been raised by counsel in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge laid against the accused has been proved.
    
16. When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.
    
17. The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of the accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.
    
18. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty. However, if you find that the prosecution has proved all the elements of the offence beyond reasonable doubt, you should find the accused guilty.
    
19. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my decision.
    
20. Let us now look at the Information. DPP has charged the accused for the following offence;
    

COUNT ONE

Statement of offence

Rape: Contrary to Section 207 (1) and (2)(a) of the Crimes Decree 2009.

Particulars of offence

INOKE VALEKUILA, between the 22nd day of September 2012 and the 30th day of September 2012, at Sector 2, Lomaivuna in NAITASIRI in the CENTRAL DIVISION had carnal knowledge of ALITI KALOKALO in that he penetrated the vagina of ALITI KALOKALO with his penis, without the said ALITI KALOKALO's consent.

21. To prove the offence of Rape, the prosecution must prove the following elements beyond reasonable doubt;
    
    1. the accused
    2. had carnal knowledge of Aliti Kalokalo
    100. without her consent
    4. accused - knew or believed that she was not consenting or

was reckless as to whether or not she was consenting

22. The first element of the offence is concerned with the identity of the person who committed the offence.
    
23. Second element is having 'carnal knowledge' of Aliti Kalokalo or the complainant. Carnal knowledge in the context of this case is, penetrating the vagina by the Penis. It is an admitted fact in this case that 'The accused had inserted his penis into the vagina of the alleged victim on a date between the 22nd day of September 2012 and the 30th day of September 2012; and this act occurred in the house belonging to Aliti Kalokalo and her family at Sector 2, Lomaivuna, Naitasiri'.
    
24. Therefore, there is no dispute with regard to the identity of the accused and with regard to the accused having carnal knowledge of the complainant. You should consider that the first and the second elements above are proven beyond reasonable doubt.
    
25. The only dispute therefore is on consent. You should bear in mind that, not only the prosecution should prove that the accused had carnal knowledge of the complainant without her consent, but the prosecution should also prove that the accused knew that she did not consent for him to insert his penis into her vagina or that the accused was reckless as to whether or not she was consenting.
    
26. What is meant by 'reckless as to whether or not she was consenting'? If the accused was aware of the risk that the complainant may not be consenting for him to insert his penis into her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina with his penis, you may find that the accused was reckless as to whether or not she was consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.
    
27. You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. The fact that there was no physical resistance alone shall not constitute consent. A person's consent to an act is not freely and voluntarily given if it is obtained by force, by threat or intimidation, by fear of bodily harm or by exercise of authority.
    
28. If you are satisfied beyond reasonable doubt that the prosecution has proved the elements based on consent as explained above, then you must find the accused guilty of Rape. If you have a reasonable doubt with regard to any of those elements concerning consent, then you should find the accused not guilty.
    
29. Law says that when a person is charged with Rape and the court is of the opinion that he is not guilty of Rape but guilty of a lesser or alternative sexual offence, the court may find him guilty of that lesser or alternative offence. Accordingly, I direct you that, if you find the accused not guilty of the offence of Rape, where you are not sure whether the complainant did not consent or not sure whether the accused knew or believed that she was not consenting or whether he did not care whether she was consenting; you should find the accused guilty of Defilement of a person between the age of 13 and 16 years which is an offence contrary to section 215(1) of the Crimes Decree.
    
30. The accused had admitted that he had carnal knowledge of the complainant between 22nd September 2012 and 30th September 2012 and that she was 13 years and 3 months old at the time of the incident. Consent is not a defence in law to a charge of Defilement and there was no suggestion or indication that the accused had reasonable cause to believe, and did in fact believe that the complainant was of or above the age of 16 years.
    

Case for the Prosecution

31. Prosecution called only the complainant to give evidence. As a matter of law you should remember that it is not required to look for corroboration of the evidence of a complainant in a case concerning a sexual offence. To look for corroboration is to look for the existence of independent evidence to support the evidence of a particular witness. Therefore, in a rape case you do not have to look for any other evidence to support the complainant's evidence.
    
32. The following facts are admitted facts in this case;
    
    1. The Accused in this matter is INOKE VALEKUKLA who was 46 years old at the time of the alleged offending.
       
    2. The alleged victim in this matter is ALITI KALOKALO who was born on 16th June 1999 and was 13 years and 3 months old at the time of the alleged offending.
       
    100. The Accused is the alleged victim's "Ta Levu". He is elder brother to SAMUELA BILIVANUA, the alleged victim's father.
         
    4. From 2007 until April 2013, ALITI KALOKALO resided at Sector 2, Lomaivuna, Naitasiri with her parents SAMUELA BILIVANUA and SALANIETA BIU and her four brothers and her sister.
       
    5. The Accused lived in Sector 2, Lomaivuna, Naitasiri, including during the days of the alleged rape, with his wife, AKESA RANADI; in their own home a few houses away from the victim's family home.
       
    6. From Thursday afternoon to Sunday mornings and certainly between the 22nd of September 2012 and the 30th day of September 2012, the Accused and his wife would act as guardians of the victim and her siblings while her parents travelled to sell items at the Suva Market.
       
    7. The Accused had inserted his penis into the vagina of the alleged victim on a date between the 22nd day of September 2012 and the 30th day of September 2012; and this act occurred in the house belonging to ALITI KALOKALO and her family at Sector 2, Lomaivuna, Naitasiri.
       
33. The complainant in her evidence said that the accused inserted the penis into her vagina in the last week of September 2012. Before he inserted his penis she was sleeping. She woke up as she felt that the accused was massaging her legs and was trying to remove her panty. When she tried to stand up, the accused pushed her down and when she tried to call her sister he kissed her, she said. The accused went out after inserting his penis into her vagina. She said as a result of this incident she got pregnant and she is now having a two year old baby daughter.
    
34. She said she was 3 months pregnant when she told her aunt and her parents about what happened. She said, "I was afraid to tell my father and mother because he is my Ta Levu, my uncle".
    
35. In cross examination, she agreed with the suggestion that she did not tell her aunt or her grandfather about the incident during or after it happened. She said that her mother and her aunt inquired her about her menstruation sometimes in May 2013 and that was the time she told them about the incident. She agreed with the suggestion that when she was taken for a medical examination, she informed the doctor that she had sexual intercourse with her Ta levu.
    
36. The following questions and answers were also recorded during cross examination;
    

Q: Now Aliti, isn't it true that you, your parents with your other Ta levu and his wife went to Accused's house to discuss about your pregnancy?

A: Yes.

Q: Isn't it true that during that discussion my client agreed that he had sexual intercourse with you?

A: Yes.

Q: And isn't it true that at that time your parents had relayed the message to my client and his wife that you are pregnant?

A: Yes.

Q: Isn't it true that my client sought for forgiveness?

A: Yes.

Q: Isn't it true that you also sought forgiveness in front of your family members?

A: Yes.

Q: This forgiveness would have been because you and your Ta levu had sexual intercourse which was wrong?

A: Yes.

Q: And that both you and your Ta levu were ashamed of what happened?

A: Yes.

Q: Now Aliti, I put to you that you and my client had consented to have sexual intercourse?

A: No.

Q: I put to you Aliti, that you had consented to have sexual intercourse with your Ta levu?

A: No.

37. In re-examination, she said that when she told her mother and the aunt about what happened, she was 8 months pregnant.
    
38. That was the case for the prosecution.
    

Case for the Defence

39. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times and that burden never shifts. The accused chose to remain silent. That is his right. You should not draw any adverse inference from the fact that he decided to remain silent.
    
40. According to the line of cross examination, the accused takes up the position that he had carnal knowledge of the complainant with her consent.
    

Analysis

41. The issue before you is whether;
    
    1. the accused inserted his penis into the complainant's vagina without her consent?
       
    2. the accused -knew or believed that she was not consenting, or

-was reckless as to whether or not she was consenting?

42. According to the complainant just before the incident happened, she was sleeping. She woke up when she felt the accused massaging her legs and trying to remove her panty. When she tried to stand up, the accused pushed her down. When the she tried to call her sister, the accused kissed her. This is what took place before the accused inserted his penis into her vagina according to the complainant.
    
43. Do you believe the complainant? Are you sure that the complainant did not consent? Are you sure that the accused knew or believed that the complainant was not consenting? Or, are you sure that the accused did not care whether the complainant was not consenting.
    
44. In analysing the evidence in this case, you may consider the following if you agree and you would think it is appropriate to do so. The complainant in this case is now 16 years old and as per the admitted facts she was 13 years and 3 months old when this incident took place. The main task before you in this case therefore is to judge whether this child witness has told the truth and whether the account of the events she gave is reliable. You may have come across children of this age. You will have an idea of the way they think, talk and the way they describe things. With your life experience, you have to decide whether the complainant was a credible witness and whether you can rely on the evidence given by her.
    
45. A child who does not have the same life experience an adult would have, will not act or react the same way an adult would in the same situation. Therefore, it may not be proper to judge a child the same way you would judge an adult. You do not have to accept my advice in this regard and if you do not agree, you may reject it. I am only indicating an approach to the evidence, but the evaluation of evidence would be a matter for you.
    
46. In dealing with the issue of consent. You may follow the following steps;
    
    1. First you must ask yourselves whether you are sure that the complainant did not consent for the accused to insert his penis. If the answer is no, you should find the accused not guilty of Rape.
       
    2. If the answer to the above question is yes, then you should consider (i) whether you are sure that the accused knew that she was not consenting or (ii) whether he did not care whether she was consenting or not. If your answer is no to both these questions, you should again find him not guilty of Rape.
       
    100. If you answer is yes to one of the above questions, which means you are either satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting; or you are satisfied beyond reasonable doubt that the accused did not care whether the complainant was consenting or not, then you must find him guilty of Rape.
         
47. First you will be asked whether your opinion is guilty or not guilty for the offence of Rape. If you express an opinion that the accused is guilty of rape, then you will not be asked for your opinion on the lesser or alternative charge of Defilement. If ynd the the accused not guilty of Rape, then you will be asked for your opinion on the lesser or alternative charge of Defilement.
    
48. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
49. Any re-directions?
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Office of the Legal Aid Commission, Suva.