State v Nasaqia - Summing Up [2015] FJHC 976; HAC126.2015 (8 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Crim. Case No: HAC 126 of 2015

STATE

v.

LASARO NAGAQIA

Counsel : Ms. S. Kant with Mr. E. Samisoni for State
Ms. L. Ratidara for Accused

Date of Hearing : 4th and 7th December 2015
Date of Summing Up : 8th December 2015

SUMMING UP

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

Ladies and Gentleman 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 accused and the prosecution made submissions to you about the facts of this case. It is their right as the 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 opinions 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 onus of 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 proven 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, 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] The accused is charged with one count of rape. I will now explain to you the elements of rape.

Section 207(2) of the Crimes Decree 2009 defines the offence of rape. A person rapes another person if-

(a) the person has carnal knowledge with or of the other person without the other person's consent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of a person's body that is not a penis without the other person's consent; or

(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other persons consent.

[10] As far as the element of consent is concerned, in our law, a child under the age of 13 years is incapable of giving consent. It is an agreed fact that the complainant 'E.S.B.' was 10 years old at the time of the alleged offence. Therefore the complainant was incapable of giving consent to the alleged sexual act and the prosecution need not prove that the complainant did not consent to the sexual act alleged.

[11] The particulars of the offence says that the accused on 14th day of March 2015, penetrated the vagina of the complainant 'E.S.B.' a girl under the age of 13 years with his finger. The accused denying the allegation, in his evidence said that he was talking to the complainant when her mother came and that he did not do anything else other than talking to her. Therefore to find the accused guilty of the charge, the remaining element the prosecution has to prove beyond reasonable doubt is that the accused penetrated his finger into her vagina. It is not necessary to prove full penetration. Slightest penetration is sufficient to prove the element of penetration

Evidence

[12] Prosecution called the alleged victim 'E.S.B' to give evidence first. She said that she is 10 years old. In their village they have fruit trees. After picking fruits from the trees she had gone to her grandmother's house to get water. Then the accused pulled her hand and had covered her mouth, she said. Then the accused touched her 'kaji'. She demonstrated to you with using a teddy bear where 'kaji' is showing the vagina area between the legs. She said that the accused touched her 'kaji' inside her undergarment and that the accused touched inside 'kaji' with his hand. Then her mother had seen it and mother had pulled Lasaro's shirt. She had told her mother what Lasaro did to her. Thereafter Lasaro had run away. She had gone to the Navua Police Station with her mother and reported the matter. Later she was medically examined by a female doctor at Navua hospital.

[13] She said that her grandmother's house is close to her house. Accused had pulled her hand in grandmother's kitchen. She said that she took guavas to grandmother's house. It had been in the afternoon and a lantern was on at grandmother's house, she said. She had seen Lasaro clearly. She identified the accused as Lasaro who touched her 'kaji'. She said that she felt pain when Lasaro touched inside her 'kaji'.

[14] In cross examination she said that her house is in a mountain area and when they pick fruits, if the tree is short they climb the tree. When she entered grandmother's house, Lasaro had come in. She said Lasaro was sitting on a mat when her mother came. She denied that accused was hugging her when he was seated.

[15] She said that Lasaro came inside the house, pulled her hand and touched her 'kaji'. She said her mother was angry at her and that she told her mother what Lasaro did to her. She denied that she made up a story because her mother was angry at her.

[16] Prosecution called Dr. Repeka Kaurasi to give evidence next. You heard her qualification as an MBBS qualified medical doctor which was not challenged by the defence. She had medically examined 'E.S.B.' on 15/03/2015. 'E.S.B' had been 10 years old. She looked a bit scared, she said.

[17] On examining her genital area she has noticed a bluish bruise on her labia minora area and also a small tear in the region of minora. She said that labia majora is the outer part and you get the labia minora inside. The bruise and the tear were noticed on the labia minora, she said. She said that the bruise and the tear was close to the opening of the vagina and that from what she saw, it would have been caused by some penetration. In her opinion it could have been caused by a finger or a slender object, she said.

[18] In cross examination, she said that by scratching the area also it can cause it. She said that the injuries could not have caused by climbing trees and hiking or going to plantations in the hills. She said it is possible that it can happen by horse riding.

[19] The next witness was 'E.S.B.'s mother Mereani Bale. She said that after picking guavas with 'E.S.B', she had sent her to her grandmother's house to get a plastic. Grandmother's house is 3 meters away from her house. She said that when she came home she saw the accused talking to her daughter in their house. Then 'E.S.B' had gone to grandmother's house. She had told the accused to come out of the house so that she can lock the house to go to grandmother's place.

[20] After Lasaro came out she had then locked the house and gone to grandmother's house. As she entered the house she had seen Lasaro hugging her daughter sitting on the kitchen floor. She had then asked Lasaro "what are you doing to my daughter". Lasaro had tried to run out and had replied 'No, no, no'. Then 'E.S.B' had stood up, came to her crying and had told her that Lasaro hugged her, sat on the floor and started to touch her private part. Then the witness had told Lasaro off and had slapped him, she said. She had held his shirt, but Lasaro had run away. 'E.S.B' had told her that the accused had put his hand through the waist band of the sulu-i-ra she was wearing and touched her 'kaji'.

[21] Lasaro had stayed in their village for 3 months doing his vocational studies. The distance to the house where Lasaro lived from her house had been about 25 – 30 meters. She said it was bit daylight and that they were going to light up the light. There was enough light to see 'E.S.B' and Lasaro, she said. She identified the accused in court as Lasaro.

[22] There had been a policeman who had come to the village for another inquiry and she had told him of the incident. The policeman had called the Police Station and advised her to go and report the next day. She had gone to Police Station next day with 'E.S.B.' and the policeman and had reported the matter. After reporting, police had taken 'E.S.B' to hospital for examination.

[23] In cross examination she said that after Lasaro left, it took a while for her to lock the house and go to grandmother's house as she had to lock 5 doors and louvers. She described the size of her house.

[24] Witness demonstrated to you how Lasaro was hugging her daughter. She said, that was all she saw and that she got to know about touching the 'kaji' when 'E.S.B.' told her.

[25] The last witness for the prosecution was the Interviewing officer for the accused PC 4610 Laisenia Naiwau. He had interviewed the accused under caution on 19/03/2015. Interview was conducted in i-taukei language and was translated to English language by him. Both the original i-taukei language interview statement and the English translation were produced in evidence. Although the suspect was given the opportunity, he did not want to have anybody to be present at the interview, he said. Nobody had been present at the interview except for himself and the accused. There had been other officers at the Police Station. Interview was signed by the accused and countersigned by him, he said. During the interview process, the accused appeared confident and understood the questions, he said. He had not physically or verbally threatened the accused. Accused had made the statement voluntarily. The caution interview statement was read to you in court.

[26] In cross examination he said that nobody accompanied the suspect from the village other than the escorting officers. Suspect is 18 years old, he said. He said that he was made to know that some of the suspect's family members were from Navua town. But he had not recorded it although it was crucial.

[27] Whole interview process took over 2 hours. It has taken 1 hour and 40 minutes to record 27 questions and answers. He said that the suspect took time to give answers. He denied that the suspect perfectly understood 'Baun' dialect. He denied forcing the suspect to admit.

That was the evidence for the prosecution.

[28] Ladies and gentleman assessors.
At the end of the prosecution case you heard me explain 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 all times. The accused chose to give evidence and subject himself for cross examination. So you have to give his evidence careful consideration.
[29] The accused in his evidence said that on 14/03/2015 he was at Wainimakutu with Master Sikeli who is his brother. After coming from church, he had gone to a girl's house since her mother had called him to help picking guavas. After that he had gone to the wooden house owned by that girl's aunt. When he entered the house, the old lady's granddaughter had asked him 'what are you here for?' he had said that he came to smoke 'suki'.

[30] Then 'E.S.B' had come to fetch water. He had been rolling 'suki' in the kitchen. She had come to the kitchen and sat down, he said. Then he also had gone and sat beside her. He had talked to her. He said that he cannot remember what he asked her.

[31] A guy who was catching chicken outside, had spoken to him and he had told that he came to smoke 'suki'. When he was sitting down beside the girl, her mother had come inside. He demonstrated how they were sitting. He said that mother started telling the girl off for being seated together. After that, the mother had gone straight to the girl and smacked her and had started telling her off. He said that he tried to run away because Mereani, her uncle and Vika started punching him. They tore his shirt, he said. He had run outside.

[32] About 'E.S.B's evidence in court that he touched her 'kaji', he said that he doesn't know anything. Apart from talking to 'E.S.B', he did nothing else to her, he said.

[33] He was arrested by police and taken to the station. They had told him that they will drop him back home. He had been asked to sleep in the cell. One Police officer had told him to show his penis. He swore at him, and spoke to him harshly, he said. He said that he answered truthfully.
[34] He said that he gave the answer to question No. 17 in the caution interview statement, as they forced him and that as he got scared. About the charge and the allegation he said, that he was forced.

[35] In cross examination he said that when the police swore at him and was harsh at him, he told the truth. He said that the answers given by him in the caution interview statement were the truth.

That was the evidence for the defence.
[36] Ladies and gentleman 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.

[37] The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box unchallenged.

[38] You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[39] The law says when a person is charged with an offence, and facts are proved which reduces it to a minor offence, the person may be convicted for the minor offence although he was not charged with it.

[40] Now I will explain to you the elements of sexual assault. For the accused to be found guilty of sexual assault, the prosecution must prove the following elements beyond reasonable doubt.

1. The accused
2. Unlawfully, and
3. Indecently
4. Assaulted the complainant.
   

[41] The word unlawfully simply means without lawful excuse. Indecently assault means that the act must have some element of indecency and that right minded persons would consider the conduct indecent.

[42] Now in this case the accused is charged with rape. If you find that the complainant 'E.S.B.' was truthful when she said that the accused touched inside her vagina you may find the accused guilty of rape and you need not consider a lesser alternative offence. However, if you find that the accused touched her vagina but his fingers did not penetrate the vagina or if you have a doubt whether there was penetration, then you may consider the lesser alternative offence of sexual assault. You may also remember it is not necessary to prove that there was full penetration. Slight penetration is sufficient to prove the element of penetration.

[43] The complainant was below 13 years of age and therefore it is immaterial whether she consented or not and the fact that the child may have consented to the indecent assault is no defence to the charge. Whether or not a child victim agreed to an act of indecency is irrelevant to the charge. Even if she consented and you believe that the indecent assault did take place, the accused would still be guilty of the offence of sexual assault. As to whether the acts alleged are indecent, you must ask yourselves what right minded persons would think of these acts. Were the acts were so offensive to contemporary standards of modesty and privacy as to be indecent. For you to find the accused guilty of any of the offences of rape or sexual assault you must decide whether the evidence of the complainant was truthful. If you find that her evidence is truthful, it is not required for you to look for corroboration.

[44] Police officer who caution interviewed the accused said that the accused was not threatened, nor he was forced and that the accused gave the statement voluntarily. However, the accused said that the police officer threatened him, forced him and that he told the truth as he was scared. If you find that the caution interview statement was not made voluntarily, then you may disregard it. However if you find that the statement was made voluntarily, then you may decide whether it is the truth and what weight you give to that statement.

[45] Complainant says that the accused touched inside her vagina. She said that she felt pain when the accused touched inside her 'kaji'. The doctor who examined the complainant the following day said that there were two injuries in the labia minora and in the region of minora and that those injuries could be caused by penetration by a finger or a slender object. The accused says that he only talked to the complainant and that he did not do anything other than talking. He says that he told the truth to the police as he was forced. You will have to consider all the evidence led before court when coming to your conclusion. You have to decide which witnesses are credible and which are not.

[46] It is a matter for you to decide on the facts and to decide whether the accused has committed the offence as charged or not, whether the prosecution has proved the charge against the accused beyond reasonable doubt.

[47] 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 whether the charge against the accused have been proved beyond reasonable doubt.

[48] Your opinions on the charge of Rape and sexual assault will be either guilty or not guilty.

[49] Ladies and gentleman assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge 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 separate opinion.

Priyantha Fernando
Judge
At Suva
08th December 2015

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