State v Vunisa - Summing Up [2015] FJHC 977; HAC213.2011 (9 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 213 OF 2011

BETWEEN:

STATE

AND :

WATEKINI VUNISA

Counsel : Ms. S. Kiran for State
Ms. J. Nair for the Accused

Date of Hearing : 8th of December 2015
Date of Closing Submissions : 9th of December 2015
Date of Summing Up : 9th of December 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

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

Burden and Standard of Proof

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

Information

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

"Watekini Naivaukura Vunisa, on the 7th day of November 2011, at Lautoka in the Western Division, rape Emele Yalewavukivuki, in that the said Watekini Naivukula Vunisa used his penis to penetrate the vagina of the said Emele Yalewavukivuki without her consent".

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

Any person who rapes another person commits an indictable offence,

A person rapes another person if-

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

14. Accordingly, the main elements of the offence of rape are that;
    
    1. The Accused,
    2. Inserted his penis into the vagina of the victim,
    3. Without the consent of the victim,
       
15. At this point I must emphasis you that the offences of sexual nature do not require evidence of corroboration.
    
16. I know kindly request you to draw your attention to the agreed facts, which are before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution.
    
17. I now draw your attention to summarise the evidence presented by the prosecution and the defence during the hearing.
    
18. The first witness of the prosecution, who is the victim Emele Yalewavukivuki. She stated in her evidence that she had been staying with her cousin's wife Tania Bola and her three children as her cousin was away playing. She was babysitting for the three children while their mother is at work. Tania Bola went to work in the morning and she took the eldest child to school with her. Emele then took the other two kids for bath. While in the bathroom, she heard someone knocking the door of the bathroom. She came and looked, but found no one. She then went to the first room to get the cloths of the children and then went to another room to get the brush, where she found the accused was standing behind the door. He pulled her and closed the door. He then pulled her to the bed and took off the towel she was wearing. He then wanted to have sexual intercourse with her. He punched on her tights. He inserted into her vagina with his penis which was painful for her. She shouted and scream. She chased him away. The accused then get off from her and went away. Emele stated that the accused is their neighbour.
    
19. During her cross examination she stated that there are three houses which are scattered around her house in the neighbourhood. She denied that she asked the accused to come to her house and stay at the room until she comes. She went further and denied that she has consented to the accused to have sexual intercourse with her. She agreed with the counsel for the defence that there is no mention about that the accused pulled her towel and punched on her tights in the statement given by her to the police.
    
20. At the conclusion of the prosecution case, the accused was explained of his rights in his defence. The accused gave evidence on oath but did not call any other witnesses for the defence.
    
21. The Accused in his evidence stated that he was asked by the complainant to come and see her at around 9 a.m as by that time everyone in the house gone. He went there and knocked the door of the bathroom. The complainant has told him to wait in the room till she comes. When she came they talked for a while and then started to kiss. They then lied down on the bed and started to have sexual intercourse. She consented for it. She has told him that it was painful when he tried to put his penis into her vagina. She told him that she has never had sexual intercourse before. He then stopped it and stood up. They again talked for a while and then he left. The accused further stated that he had a relationship with the complainant and had met her several time prior to this incident.
22. I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.
    
23. In view of the evidence presented by the prosecution and the defence during the course of the hearing it appears that the main contentious issue is the consent of the victim for this alleged sexual intercourse. A person consents only if she agrees by choice, and she at the relevant time, has the freedom and capacity to make that choice.
    
24. The prosecution and the defence presented conflicting versions of events, which took place in private between the complainant and the accused. The complainant stated in her evidence that the accused inserted into her vagina with his penis for that she did not consented. He pulled her towel and punched on her tights. The medical report tendered by the prosecution as an agreed document states that there was a small laceration on the hymen at 3 o'clock position but no bleeding or any discharge. The doctor has not found any bruises on the tights. The doctor in his professional opinion has stated that the injuries to hymen is consisted with some penetration and a penetration has occurred. The complainant was medically examined on the next day, that was 8th of November 2011.
    
25. Meanwhile, the accused stated that when he was putting his penis into her vagina, she told him that she has not had sexual intercourse with anyone before. He then stopped it and stood up. The complainant has not stated that the accused punched her on her tights in her statement made to the police.
    
26. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape or a rapist or a victim of rape. Offences of this nature can take place in any circumstance between any kind of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course the hearing. Any person who has been raped must have undergone trauma. It is impossible to predict how the victim react, either on the days following the incident or when speaking publicly about it either in court or in the police station. Those who have been victims of rape react differently. Some may display obvious signs of distress, others may not. The reason is that every person has his or her own way of coping with such incidents.
    
27. Ladies and Gentlemen, you might recall that the learned counsel for the accused cross examined the complainant about the omissions in her statement made to the police with the evidence given in court. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influence your judgment of the reliability of such witness.
    
28. You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
    
29. You have heard the evidence presented by the accused, where he denied this allegation. If you accepted the version of the accused person that he did not commit this offence, then the case of the prosecution fails. You must then acquit the accused from this charge.
    
30. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.
    
31. Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.
    
32. Upon consideration of all evidence, if you believe that the count of rape is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty.
    
33. Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened.
    
34. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
9th of December 2015

Solicitors : Office of the Director of Public Prosecutions
Ms. Jyotishana Nair