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State v Rabutoro - Summing Up [2015] FJHC 994; HAC205.2014S (10 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 205 OF 2014S


STATE


vs


  1. JOVECI RABUTORO
  2. SEREVI DEGEI
  3. LEDUA RARAWA
  4. ETONIA VOSA

Counsels : Mr. M. Vosawale and Ms. Bogitini for State
Ms. P. Lal for Accused No. 1
Mr. S. Waqainabete for Accused No. 2
Ms. P. Chand for Accused No.3
Ms. R. Drau for Accused No. 4


Hearings : 2, 3, 4, 7 and 8 December, 2015
Summing Up : 10 December, 2015


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accuseds. There is no obligation on the accuseds to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accuseds' guilt, before you can express an opinion that they are guilty. If you have any reasonable doubt so that you are not sure about their guilt, then you must express an opinion, that they are not guilty.
  3. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accuseds or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favor or ill will.

C. THE INFORMATION


  1. You have a copy of the information with you, and I will now read the same to you:

"... [read from the information]...."


D. THE MAIN ISSUES


  1. In this case, as assessors and judges of fact, each of you will have to answer the following questions:

E. THE OFFENCE AND IT'S ELEMENTS


9. All the accusseds were charged with raping the complainant on 26 June 2014 at Suva in the Central Division, contrary to Section 207(1) and (2)(a) of the Crimes Decree 2009. For an accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:


(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;
(ii) without her consent; and
(iii) the accused knew she was not consenting to sex, at the time.
  1. The slightest penetration of the complainant's vagina by the accused's penis, is sufficient to satisfy element 9(i) above. Whether or not the accused ejaculated, is totally irrelevant to element 9(i) above.
  2. "Consent" is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.
  3. It must also be established by the prosecution beyond reasonable doubt, that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

13. In this case, there are four accuseds on trial. They are charged separately, and thus four separate counts. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged in the same information, does not mean that they must all be guilty or not guilty. You must also consider the four counts separately, when considering the whole evidence, and come to a separate considered decision on each count.


F. THE PROSECUTION'S CASE


  1. The prosecution's case were as follows. On 26 June 2014, the complainant was 20 years old and a student at the University of the South Pacific. Mr. Joveci Rabutoro (Accounts No. 1) was 32 years old and single. He had worked for the Ritz Nightclub as a bouncer for the previous four years. Mr. Serevi Degei (Accused No. 2) was 36 years old, had a de facto wife with a baby son. He had worked for the Ritz Nightclub as a bouncer for the previous two years. Mr. Ledua Rarawa (Accused No. 3) was 27 years old, married with a young son. He had worked for the Ritz Nightclub as a doorman for the previous four years. Mr. Etonia Vosa (Accused No. 4) was 42 years old, married with three children. He worked as a bouncer for the Ritz Nightclub at the time.
  2. According to the prosecution, on 25 June 2014 (Wednesday) the complainant and five of her friends were having a party at their Mead Road home in Nabua. They consumed among themselves nine cans of rum and cola. Thereafter, they went to the Ritz Nightclub and arrived there at 12.30am on 26 June 2014 (Thursday). At the nightclub, they continued drinking after ordering four jugs of rum and cola. The complainant danced for a while, and then went to the toilet. After using the toilet, she came outside. According to the prosecution, Accused No. 4 was standing there. He confronted the complainant. The lights were bright. According to the prosecution, the complainant was not excessively drunk.
  3. Accused No. 4 repeatedly punched the complainant on the head and other parts of her body for about 5 minutes. The complainant temporarily blacked out. Accused No. 4 lifted the complainant onto his shoulders and carried her to the Karaoke Bar. He dumped her on a settee which could seat three people. According to the prosecution, Accused No. 4 continued to punch her on the settee and kicked her on the chest. She resisted to no avail. It would appear she was weakened. Accused No. 4 forcefully took off her pants and panty, parted her legs, went ontop of her, inserted his penis into her vagina and had sex with her for about 45 minutes. According to the prosecution, the complainant never gave her consent, and Accused No. 4 knew she was not consenting to sex at the time.
  4. According to the prosecution, Accused No. 1 was the next person to have sex with the complainant. As soon as Accused No. 4 finished having sex with the complainant, Accused No. 1 came ontop of her, inserted his penis into her vagina and had sex with her for 30 minutes. Accused No. 4 assisted Accused No. 1 by forcefully parting the complainant's legs for him. The complainant struggled against Accused No. 1, but to no avail. According to the prosecution, the complainant never consented to sex with Accused No. 1, and he well knew she was not consenting to sex with him at the time.
  5. After Accused No. 1, the prosecution said, Accused No. 2 was the next one to force himself on the complainant. According to the prosecution, he came into the Bar, banged the complainant's head on the wooden part of the settee, slapped her repeatedly on the face, and forcefully inserted his penis into her vagina, without her consent, for about 30 minutes. The complainant resisted him to no avail. According to the prosecution, Accused No. 2 well knew she was not consenting to sex with him at the time.
  6. The next person to have sex with the complainant was Accused No. 3. According to the prosecution, after Accused No. 2, Accused No. 3 came to the complainant and forcefully inserted his penis into her vagina. He had sex with the complainant for about 10 minutes without her consent. She resisted him to no avail. According to the prosecution, Accused No. 3 well knew the complainant was not consenting to sex with him at the time.
  7. The matter was later reported to the police. An investigation was carried out. All the accuseds were brought to court charged with raping the complainant on 26 June 2014 at Ritz Nightclub Suva. Because of the above, the prosecution is asking you, as assessors and judges of facts, to find the accuseds guilty as charged. That was the case for the prosecution.

G. THE ACCUSEDS' CASES


  1. On 2 December 2015, on the first day of the trial, the information was put to each accused, in the presence of their counsels. Each of them pleaded not guilty to the charge. In other words, each of the accused denied the rape allegation against them. At the end of the prosecution's case, a prima facie case was found against all accuseds, wherein they were called upon to make a defence. Accused No. 1 and 3 choose to give sworn evidence and called one witness each. Accused No. 2 choose to give sworn evidence and called no witness. Accused No. 4 choose to remain silent and called no witness. That was their rights.
  2. The defence cases were very simple. As for Accused No. 1, in the "Agreed Facts", dated 3 July 2015, he admitted he was working at the Ritz Nightclub, at the material time, as a bouncer. He admitted going into the Karaoke Bar (the alleged crime scene) three times on 26 June 2014. In his sworn evidence, he denied raping the complainant, at the material time. As for Accused No. 2, in the "Agreed Facts", dated 3 July 2015, he admitted he was working at the Ritz Nightclub, at the material time, as a bouncer. On oath, he denied raping the complainant, at the material time.
  3. As for Accused No. 3, in his "Agreed Facts", dated 3 July 2015, he admitted he was on duty at the Ritz Nightclub on 26 June 2014. He admitted he was working as the "doorman" at the time. On oath, he denied raping the complainant at the material time. As for Accused No. 4, he choose to remain silent and called no witness. That was his right, and no adverse inferences must be made against him for exercising his right to remain silent. The burden to prove his guilt is not on him. It is on the prosecution from the start to the end of the trial.
  4. Because of their not guilty pleas to the information, and because of the above denials, the defence are asking you, as assessors and judges of fact, to find them not guilty as charged, and acquit them accordingly. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE


(a) The Agreed Facts:


  1. Accused No. 1, 2, 3 and the State submitted three sets of "Agreed Facts", dated 3 July 2015. In each of the "Agreed Facts", Accused No. 1, 2, 3 and the State acknowledged the alleged victim (PW1) as the complainant in this case. Accused No. 1, 2 and 3 also admitted they were at the crime scene (ie. Ritz Nightclub) at the material time, and they were working there as bouncers and doorman for the Nightclub. In the case of Accused No. 1, he admitted going into the Karaoke Bar three times on 26 June 2014. He admitted he had a stud earing on his nose at the time.
  2. Because the "Agreed Facts" are not disputed by the parties, you may take it that the prosecution had proven those facts beyond a reasonable doubt, and you may treat the same as established facts. The importance of the "Agreed Facts" was that it placed Accused No. 1, 2 and 3 at the crime scene at the material time.

(b) The Complainant's Evidence – The Alleged Rape:


27. Under this heading, we will consider and discuss the offence of rape, as it was considered and discussed in paragraph 9, 10, 11 and 12 hereof. In our discussion under this heading, you must put all four accuseds out of your mind. After our discussion under this head, then we will discuss how the state intends to connect the rape charge to each of the accused. In proving the offence of rape against the complainant, the State had relied primarily on the complainant's sworn evidence.


  1. You have watched and heard the complainant give sworn evidence in the courtroom. On the first element of rape as discussed in paragraph 9(i) hereof, a person's penis must penetrate the complainant's vagina, at the material time. The complainant, in her sworn evidence said, four men had sexual intercourse with her, one after the other, on 26 June 2014, in the Karaoke Bar at the Ritz Nightclub. If you accept the complainant's evidence on this issue, then the first element of rape had been proven by the prosecution beyond a reasonable doubt. If you don't accept the complainant's evidence on this issue, then you must find the accuseds not guilty as charged. It is a matter entirely for you.
  2. If you find that four persons penetrated the complainant's vagina with their penis at the material time, then you will have to consider the next issue: Was it with her consent? Bear in mind the directions I gave you in paragraphs 9(ii) and 11 hereof. In her evidence, the complainant said, the first person who had sex with her punched her repeatedly and kicked her in the chest to force her to have sex with him. She said, she resisted him to no avail. She said, the second person forced himself on her. He did not ask for her consent. She said, she resisted him to no avail. The first person helped the second person by forcefully parting her legs. After the second person, the third person came and had sex with her without her permission. The third person banged her head on the wooden part of the settee and repeatedly slapped her face, before he had sex with her. Then the fourth person forced himself on her without her consent. On her sworn evidence, the complainant said, she never agreed to the four persons having sex with her at the time.
  3. If you accept the complainant's view on the issue of consent, then the prosecution would have proven the second element of rape beyond a reasonable doubt. If you don't accept the complainant's version on the issue of consent, then you will have to find the accuseds not guilty as charged. It is a matter entirely for you.
  4. The last element of rape was that discussed in paragraph 9(iii) and 12 hereof. The question becomes: Did the accused know the complainant was not consenting to sex with him at the time? You have heard the complainant's evidence that the first person who had sex with her repeatedly punched and kicked her before he had sex with her. The second person did not ask for the complainant's consent and immediately had sex with her. The third person banged the complainant's head on the wooden part of the settee and repeatedly slapped her, before he had sex with her. The fourth person did not ask for the complainant's consent and forced himself on her. According to the complainant, they all swore and laughed at her. She said, she resisted the four persons to no avail. According to the prosecution, all four persons knew the complainant was not consenting to sex with them at the time.
  5. If you accept the prosecution's version on the last element of rape, then you must find the accuseds guilty as charged, if the first and second elements of rape were also proven beyond reasonable doubt by the prosecution. If otherwise, you must find the accused not guilty as charged. It is a matter for you.

(c) Connecting the Crime of Rape to the Four Accuseds:


  1. To connect the crime of rape to each of the four accuseds, the State relied on the complainant's identification evidence of each of them, at the material time. It was the State's case that each of the four accuseds penetrated the complainant's vagina with their penis without her consent, at the material time, and each of them knew she was not consenting to sex at the time. If you accept the complainant's identification evidence of the four accuseds, you will have to find them guilty as charged. If otherwise, you will have to find them not guilty as charged. It is a matter for you.
  2. In considering the complainant's identification evidence of the four accuseds, as a matter of law, I must direct you as follows. First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identification of the accused which the defence alleged to be mistaken, I am warning you of the special need for caution before convicting in reliance on the correctness of the identification. This is because, in the past, it had been shown that an honest and convincing witness or witnesses could be mistaken. Secondly, you must examine closely the circumstances in which the identification by each witness was made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness even seen the accused before? How often? Had she any special reason for remembering the accused? Was a police identification parade held? Thirdly, are there any specific weakness in the identification evidence? The answers to the above questions will determine the quality of the identification evidence. If the quality is good, the identification evidence should be accepted. If its otherwise, it should be rejected. It is a matter entirely for you.

(d) Complainant's Identification Evidence of Accused No. 1:


  1. The complainant said Accused No. 1 was having sex with her for 30 minutes, and she had him under observation for 30 minutes. She said, she was lying on the settee and was facing Accused No. 1. She said, his face was 5 inches away from her face. She said, there was enough light in the Karaoke Bar to see Accused No. 1's face. She referred to the light from the billard table, the lights in the Karaoke Bar, although dim and flashing. She said, there was nothing to impede her observation. She said, she had seen Accused No. 1 before on 31 December 2013, mopping the toilet floor at the Ritz Nightclub. She said, she had seen him then, but does not know him personally. She said, she was not very drunk at the time. She said, a special reason for remembering his face is a piercing ring on his nose. In the "Agreed Facts" (paragraph 9), Accused No. 1 agreed he had an earring on his nose. On the 1 July 2014, 5 days after the alleged rape, the complainant identified Accused No. 1 from a line-up of 10 men in a police identification parade at Totogo Police Station. Police identification parade were designed to test the veracity of the witness's identification evidence. However, a possible weakness in the police identification parade was that the complainant saw Accused No. 1 at the Totogo Police Station on 28 June 2014. In any event, the complainant pointed Accused No. 1 in the dock as the person who raped her at the material time. You must consider the whole evidence in deciding on whether or not the complainant's identification of Accused No. 1 was of a high quality.

(e) Complainant's Identification Evidence of Accused No. 2:


  1. The complainant said Accused No. 2 was having sex with her for 30 minutes. She had him under observation for 30 minutes. She was lying on the settee and facing Accused No. 2 who was ontop of her. His face was 6 inches away from her face. She said, there was enough light in the room to identify Accused No. 2's face. She said, there was no impediment in her observing Accused No. 2's face. She said, this was the first time she saw him. She said, she couldn't forget his face because of what he was doing to her at the time. This was a special reason for remembering his face. She said, she was taken to a police identification parade at Totogo Police Station on 1 July 2014, 5 days after the alleged rape. She said, she identified Accused No. 2. She said, she was not very drunk at the time of the alleged rape. A possible weakness in the police identification parade was that the complainant saw Accused No. 2 with Accused No. 1 on 28 June 2014 at Totogo Police Station, before the police identification parade. In any event, the complainant pointed out Accused No. 2 in the dock as the person who raped her at the material time. You must consider the total evidence given in the trial to decide on whether or not the complainant's identification evidence of Accused No. 2 was of a high quality.

(f) Complainant's Identification Evidence of Accused No. 3:


  1. The complainant said Accused No. 3 had sex with her for about 10 minutes. She was lying on the settee, and Accused No. 3 was ontop of her. His face was 7 inches away from hers. She had him under observation for 10 minutes at a distance of 7 inches. The lighting was enough for her to identify the accused's face. There was the 4 feet tube light that lit the pool table and its surroundings. There was flashing dim lights in the Karaoke Bar. There was no impediment in her observing the accused's face. She said, she had seen Accused No. 3 come to her sister's (DW5) prefect induction ceremony at Dudley High School from 2009 to 2011 or thereabout. She said, a special reason for remembering Accused No. 3's face was because of what he was doing to her at the time. On 1 July 2014, a police identification parade was held at Totogo Police Station in a line-up of 10 men. She pointed Accused No. 3 out in the parade as the person who raped her on 26 June 2014. She also pointed him out in the dock in the courtroom. A possible weakness in the police identification parade was that the complainant saw Accused No. 3 in a police vehicle at Totogo Police Station a few days before the parade. In any event, you must consider the total evidence given at the trial to decide on whether or not the complainant's identification evidence of Accused No. 3 was of a high quality.

(g) Complainant's Identification Evidence of Accused No. 4:


  1. The complainant said Accused No. 4 was having sex with her for 45 minutes. She was lying on the settee, while Accused No. 4 was ontop of her. His face was just 5 inches opposite her. She had him under observation for 45 minutes while having sex, and a total of 2 hours while he was near her. She said, the lighting in the Karaoke Bar and the club was enough for her to see his face. She pointed him out in the courtroom as the person who raped her on 26 June 2014. She said, there was no impediment in her observing the accused's face. A special reason for remembering his face was what he was doing to her at the time. It appeared there was no police identification parade done for Accused No. 4. He was identified to the police by the complainant on the evening of 26 June 2014. In any event, in considering the quality of the complainant's identification evidence against Accused No. 4, you will have to take into account all the evidence given at the trial.

(h) The Accuseds' Sworn Evidence and the Evidence of Their Witnesses:


  1. You will also have to take into account the accuseds' sworn evidence, and the evidence of the witnesses they called. Accused No. 1, 2 and 3 denied the complainant's rape allegation against them. If you accept Accused No. 1, 2 and 3's sworn denials, then you will find them not guilty as charged. It is a matter for you.
  2. An important issue in this trial was the condition of the lights in the Karaoke Bar. Accused No. 1 said there were 4 lights in the passage in the Karaoke Bar and one 4 feet tube light hanging over the billard table. He said, the 4 lights in the passage were like diwali lights, going on and off. In cross-examination, Accused No. 1 said the 4 feet tube light over the billard table shown on the table and its surroundings. The settee on which the alleged rape occurred was four footsteps away. Jona Junior Bacau (DW2), the Ritz Nightclub DJ said, the lights in the Karaoke Bar were dim, but when two people are close to each other, they could recognize each other. The complainant's face were 5 to 7 inches from the accuseds, when they were having sex with her. Accused No. 3 said, he went to the Karaoke Bar on 26 June 2014. He saw Accused No. 1 and one Wati in the same. He said, although the light was dim, he managed to identify Accused No. 1 and Wati. You will have to take the above on board when considering the strength of the lights in the Karaoke Bar at the material time.

(i) No Need for Corroborative Evidence in Rape Cases:


41. As a matter of law, the complainant's sworn evidence on her rape allegations against the four accuseds does not need to be corroborated by independent evidence coming from independent sources. If you accept her sworn evidence on her rape allegations, and you judge the same to be credible, that is sufficient to ground a conviction against the accuseds.


(j) Considering All the Evidence Together:


  1. You will have to consider all the evidence together. You have heard all the witnesses giving evidence in the courtroom. You had observed their demeanours. You had seen how they answered the questions. Who do you think was the forthright witness? Who do you think was the evasive witness? Who do you think was the credible witness? Who do you think, from your point of view, was telling the truth? If you think the complainant was the credible witness, and her version of events were credible, you may find all the accuseds guilty as charged. If its otherwise, you may find all the accuseds not guilty as charged. It is a matter entirely for you.

I. SUMMARY


  1. Remember, the burden to prove the accuseds' guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence, or prove anything at all. In fact, they are presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accuseds' guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accuseds' guilt, you must find them not guilty as charged.

44. Your possible opinions are as follows:


(i) Count No. 1: Rape : Accused No. 1 : Guilty or Not Guilty

Count No. 2: Rape : Accused No. 2 : Guilty or Not Guilty

Count No. 3: Rape : Accused No. 3 : Guilty or Not Guilty

Count No. 4: Rape : Accused No. 4 : Guilty or Not Guilty


45. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.


Salesi Temo

JUDGE


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

Solicitor for Accused No.1 : Office of the Legal Aid Commission, Suva.

Solicitor for Accused No. 2 : Office of the Legal Aid Commission, Suva.

Solicitor for Accused No. 3 : Office of the Legal Aid Commission, Suva.

Solicitor for Accused No. 4 : Ms. R. Drau, Barrister and Solicitor, Suva.


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