State v Petueli - Summing Up [2016] FJHC 251; HAC013.2015 (8 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 013 of 2015

STATE

V

ERNEST PETUELI

Counsel: Mr. Y. Prasad with Ms. S. Serukai for State
Mr. M. Fesaitu for Accused

Dates of Hearing: 4th, 5th, 6th, and 7th April 2016
Date of Summing Up: 8th April 2016

SUMMING UP

Lady Assessors and Gentleman Assessor.

[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 Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence 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, 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] You have a copy of the information with you. The accused is charged with one count of Rape.

[10] Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent or if the person penetrates the vulva or vagina of the woman or girl to any extent with a thing that is not a penis without her consent.

[11] The particulars of the offence say that the accused penetrated the vagina of the complainant Seralyn Nawaciono with his finger, without her consent.

[12] Therefore to find the accused guilty of the offence, prosecution has to prove the following elements beyond reasonable doubt.

1. The accused
   
2. penetrated the vagina of the complainant with his finger
   

3. without her consent

4. He knew or believed that she was not consenting or did not care if she was not consenting.

[13] 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.

[14] It is not necessary to prove that there was full penetration of the finger. Extent of the penetration is immaterial.

[15] Where the consent is obtained through fear or by threat, then that is not consent. 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 penetrate his finger anyway.

The Evidence

[16] Prosecution called the complainant Seralyn Nawaciono to give evidence first. On 19/12/2014 around 2pm she had been in town with her sister Vivita, Mereoni and Earnest. They had been drinking Woodstork behind MH. She said that Earnest was touching and kissing her and she hated that and she had wanted to leave. Then they had gone to Blackzone. She had been there with her sister, and Mereoni had gone with her husband. It had been around 3-4pm. Sister's boyfriend had come and they had gone to Syria Park. They had been drinking there with two other boys.

[17] Then Earnest had come and asked her sister's boyfriend whether he could join them. It had been around 7pm. They were drinking mixed rum and coke, she said.

[18] It had started drizzling and they had gone to a shelter. She had wanted to sleep. Her sister had told her to wait. As she could not take hold of herself, she laid down on the grass, she said.

[19] Then the accused had carried her and threw her to the Rewa river, she said. She had screamed for help. When her sister came to help, accused had pushed her away and had come down to the complainant. When she was screaming for help, the accused had pulled her down and had put his fingers into her vagina. She said that she could feel it. She hated it, she said. It had been painful. She said that she did not consent for the accused to do that. He had doing this for about 15 – 20 minutes. She had pushed him away. Accused had been stronger than her. When she got a chance, she had kicked the accused and had started swimming. Three girls had seen her and had pulled her out of the river. There had been 3 other police officers and her sister.

[20] She had been taken to the police station. They have taken her statement and taken her to the hospital for medical examination the next day. She said there was light in the bus stand and she was aware of the surroundings. There had been no obstruction between her and the accused.

[21] In cross examination she said that she was 19 years old in 2014. She had been wearing a mini dress. Underneath she had been wearing a panty. She said that the distance between MH Park and Syria Park is about 100 meters. Whilst drinking at Syria Park it had rained. They had gone to a 'bure' next to the old Rewa bridge. Near the 'bure' there had been a tree and just near the tree there is a slope going down the river, she said. She denied falling off to sleep in the 'bure'. She denied lying on the table. She said that she laid about 2 meters away on the grass from the 'bure'. At that point in time her sister, sister's boyfriend, two other boys and Earnest had been drinking in the 'bure'.

[22] She said that her sister woke her up and that she walked a few distance. She said that she was not that drunk and she was aware of her surroundings. She denied slipping and falling into the river. She said that it was the accused who threw her into the water. She said that the water was cold and that the river was calm. It was dark in that place, she said. However, she said that the light from the new bridge was there. The place had been close to the old bridge and the distance to the new bridge had been about 2 kilometers. There were no lights in the old bridge, she said. She said that there was light from the bus stand, but she did not know the distance to the bus stand. Showing the distance, she said the distance to the bus stand was the distance to the edge of the government building from the witness box.

[23] It was suggested to her that when she was struggling to come out of the river, the accused jumped to assist her. Denying that suggestion she said that it was the accused who threw her into the river. She denied holding onto the accused back when he tried to take her out of the river.

[24] She said that in the river the accused pulled her panty down and put his fingers into her vagina. She said that she did not tell the police that the accused pulled her panty down. She had given the statement to police the very next day. She said that she did not tell the police that the accused put her panty down as she was ashamed. She said that the accused poked his fingers into her vagina and that she felt it.

[25] He had spoken to the doctor who examined her. She had not told the doctor what happened but doctor read her statement to the police, she said. She had told the doctor that her vagina was paining.

[26] State called S/C Amato Naitava next. On 19/12/2014 he was attached to Nausori Police Station, he said. Afternoon he had been getting ready for night duty. An officer had come in the barrack looking for a torch. With that officer he had gone to the Rewa new bridge to search for the accused. There had been a fallen tree. When he got on to it, he had accidently fallen into the river. He had told the other officer that he would search in the river. Then he had seen a foot print on the river bank and he had followed it. He had seen the accused lying on the grass hiding. Accused had been wet. He had told the accused to stand up. Accused had pushed him and jumped into the river. He also had jumped and had arrested the accused and handed over to the officer on duty.

[27] In cross examination, he said that he told the police in his statement that a man was lying on the ground sleeping. He said that it was correct when he said that the accused was sleeping. He said that when he looked at the accused, he saw that he was hiding. He denied lying in court. The accused had smelled of liquor. He denied waking him up. He admitted that he said in his statement that he woke him up. He said that the accused pushed him into the river. He denied the accused falling into the river when the accused was arrested.

[28] In re-examination, he said that the accused was hiding and that when he pointed the torch to his face, his eyes opened.

[29] Prosecution called Dr. Salote Daunivalu who medically examined the complainant on 20/12/2014 to give evidence next. You heard her qualifications and experience as a medical doctor that was unchallenged. Medical examination report prepared by her was produced in evidence as Prosecution Exhibit 1.

[30] On examining the complainant, her specific medical findings were:

"No bruising on legs and arms.

Damp cloth noted.

No facial trauma.

Genital area no laceration noted externally.

Vaginal vault looks bruised red, hymen not intact.

Pain to touch."

[31] She explained to you about the vaginal vault. Vaginal Vault is the internal structure that is attached to the vaginal opening, surroundings of the vaginal opening.

[32] She said that in her professional opinion, the bruise in the vagina vault would have caused by penetration. She said that the complainant was having pain when she touched the vaginal wall.

[33] In cross examination, when she was asked if there is forceful finger penetration whether injuries would be more, she answered negative. She said that such bruising cannot be caused by wearing tight undergarment.

That was the evidence for the prosecution.

[34] Ladies and Gentleman assessor,

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 at all times. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. You must give his evidence careful consideration.

[35] Accused giving evidence said that he was drinking with the complainant, her sister and some others behind MH and then at Syria Park beside the river. He said that it was not true when complainant said that he started to kiss her.

[36] 2nd drinking session had been at Syria Park and when it started to rain they had gone to a 'Bure' like shelter. It had been about 5.30pm. He said that the complainant passed out on a table. Her sister Vivita had woke her up and the accused had told her not to wake her up. When he was talking to Vivita, he said that they heard a sound of water splashing. Then they had heard somebody shouting. One of his friends had come and told him to jump into the water as the complainant fell into the water. He had jumped into the water. Complainant had been swimming backwards. When he swam towards her, she had held on to his shoulders. He had struggled to bring her to the shore. He said that he almost drowned as the complainant was pushing him down. He had managed to swim ashore. Then he has passed out for 5 minutes. He had tried to keep his breath back. He had seen complainant falling everywhere on the ground. 2 girls had come to assist her. He then had heard people shouting. He had then gone back into the water as he got panicked. Then he had come to the shore and had passed out again. He had woken up on being kicked on his jaw. He had not seen who assaulted him. He said that he was dragged to a track. Some people had been waiting. They had started to beat him. They were police officers, he said. Two of them had been in uniform. He was taken to the police station, he said.

[37] He denied pulling complainant's panty down whilst in the river. He said he cannot do two things at the time. He denied poking his finger into complainant's vagina. He said that he was drunk. He said that he was not hiding when police officers came.

[38] In cross examination he denied trying to kiss the complainant at the back of MH. He said that he went to join them at Syria Park again because he wanted to drink. He denied touching complainant at Syria Park. He said that the complainant did not like what he was saying to her. He said that he swore at them when he told them to buy the drinks, and complainant had said that she had no money. She had told him to buy drinks so that she can go with him, he said.

[39] He said that all of them left and that he was by himself. He denied lifting and throwing complainant to the water. He said that he jumped to the river because he panicked. He denied inserting his finger into complainant's vagina.

[40] He said that he panicked when some people were shouting because he thought that they wanted to do something to him for saving the complainant. He said he was struggling to save himself from the complainant. He said that he was drunk. When it was put to him that he pulled her panty down and inserted his finger into her vagina, he said that they were in a deep place in the river. He denied complainant swimming ahead of him. He denied hiding from the police and said that he did not know if they were police officers. He denied resisting arrest.

[41] In re-examination he said that he was trying to save himself in the river as both he and the complainant were drunk and that he thought that she could swim. She kept on holding on to his back, he said.

That was the evidence for the defence.

[42] Ladies and Gentleman assessor,

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's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[43] The written agreed facts are before you. Those facts are agreed by the parties, and you may accept them as if you have heard them lead in evidence from the witness box unchallenged

[44] 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. For example in her evidence the complainant said that the accused pulled her panty down in the river and inserted his finger into her vagina. In her statement to the police she has not said that her panty was pulled down. She said that she was ashamed to tell that. When the arresting officer S/C Amato Naitavu gave evidence he said that the accused was lying on the grass hiding. However, in his statement to the police he had said that the accused was lying on the ground sleeping and that he woke him up. He also said in evidence that when he pointed the torch at him his eyes opened. 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.

[45] 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. In this case the medical doctor Salome Daunivalu gave evidence. You heard her evidence on her qualifications and experience in the medical field. Her expertise on the relevant field was not challenged by the defence. Therefore the opinions she gave on her examination of the complainant is admissible.

[46] In this case the complainant has made the complaint on the very next day. It may enhance the credibility of the complainant. However, the fact that the complaint was recent cannot be taken as corroborative evidence. You decide whether the complainant is a reliable witness or not. If you decide that she is a reliable and credible witness, then you need not seek for corroborative evidence.

[47] Complainant says that when they were drinking the accused tried to kiss her and touch her. She says that the accused threw her into the water. In the water, she says that the accused pulled her panty down and inserted his finger into her vagina. She said that it was painful and that she did not consent to it and that she hated it. She has managed to kick the accused and escape.

[48] The accused says that he jumped to the river to save the complainant. He says that he struggled to save himself from the complainant as she held on to him. He denies poking his finger into the complainant's vagina. He says that when he heard some people shouting, he again went into water because he panicked thinking that they wanted to do something to him for saving the complainant.

[49] The doctor who examined the complainant at 11.30 am the following day says that there was a bruise in the vaginal vault of the complainant and that it was painful when touched. Doctor said that penetration would have caused the bruise.

[50] Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you. You must decide which witnesses are reliable and which are not. You observed all the witnesses giving evidence in Court. You decide which witnesses were forthright and truthful, and which were not. Which witnesses were evasive or straight forward? You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanor in arriving at your opinions.

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

[52] Your opinion on the charge will be either guilty or not guilty.

[53] Lady Assessors and Gentleman Assessor,

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. 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 April 2016

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

Re-direction

Ladies and gentleman assessors.

You may remember when the police officer who arrested the accused gave evidence he said about the accused resisting arrest. The accused is not charged for the offence of resisting arrest. Therefore you may disregard that piece of evidence and should not take any adverse inference on the accused on that piece of evidence.

Priyantha Fernando
Judge

08 April 2016