State v Loanakadavu - Summing Up [2016] FJHC 266; HAC140.2015 (14 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 140 of 2015

STATE

V

JESE LOANAKADAVU

Counsel: Mr. R. Kumar for State
Ms. M. Tarai for Accused

Dates of Hearing: 11th, 12th, 13th April 2016
Date of Summing Up: 14th April 2016

SUMMING UP

Lady Assessor and Gentlemen 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 the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State 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] The written admitted facts are before you. Those facts are agreed by the parties, and you may accept them as if you have heard them led in evidence from the witness box unchallenged and that they have been proved beyond reasonable doubt.

[10] You have a copy of the information with you. There are two counts in the information. On both counts the accused is charged with rape. You must consider the evidence on each count separately and must not assume that if the accused is guilty of one count, that he must be guilty of the other as well.

[11] 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.

[12] The particulars of the offence in count No. 1 say that the accused penetrated the vagina of the complainant Unaisi Diwati with his finger without her consent. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 1 are;

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

2. without her consent

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

[13] It is an admitted fact that the accused penetrated the vagina of the complainant Unaisi with his finger on 29th March 2015. Therefore the remaining element that the prosecution has to prove in count No. 1 is the element of consent. Whether Unaisi consented to that and that whether the accused knew or believed that she was not consenting or did not care if she was not consenting.

[14] For the accused to be found guilty of Rape in count No. 1 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.

[15] The particulars of the offence given in count No. 2 say that the accused had carnal knowledge of Unaisi Diwati without her consent. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 2 are;

1. The accused had carnal knowledge of the complainant,
   
2. Without her consent,
   
3. He knew or believed that she was not consenting or did not care if she was not consenting.
   

[16] Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration. Also in count No.1 it is not necessary to prove that there was full penetration of the finger into the complainant's vagina. Extent of the penetration is immaterial.

[17] It is an admitted fact that the accused penetrated the vagina of Unaisi with his penis on 29th March 2015. Therefore the remaining element that the prosecution has to prove in count No. 2 is the element of consent. Whether Unaisi consented to that and that whether the accused knew or believed that she was not consenting or did not care if she was not consenting.

[18] Where the consent is obtained through fear or by threat, then that is not consent. Consent must be given freely and voluntarily and the submission without physical resistance by a person to an act of another person shall not alone constitute 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 have sexual intercourse with her anyway.

The Evidence

[19] State called the complainant Unaisi Diwati to give evidence first. She said that she did not know Jese. She had gone to Taricua on 29/03/2015. When returning home she had taken a short cut leading to Mr. Tikoitoga's farm. When she reached the junction to Mr. Tikoitoga's farm, she had seen the accused Jese coming behind. She had not known Jese before. She said that he told her that he was Jese when he did those things to her.
[20] She said that when she saw Jese she tried to run but he grabbed her. When she tried to shout he had blocked her mouth. He had taken her to Mr. Tikoitoga's house and had closed all the doors. He had tried to force his penis on her. Accused had penetrated her vagina with his finger and then with his penis. She said that when he did that she felt very weak.

[21] After doing all those things to her, he had closed the room door and had gone to the kitchen. When she peeped through the window she had seen her brother coming to that house. She had heard him knocking at the door and had heard him opening the door. She had heard her brother asking the accused for her. Accused had told them that Una is not inside the house. 2nd brother had told the accused that if he was telling lies to watch out.

[22] Then they had come inside the house and had opened the room. She had been lying on the bed. They had taken her outside and had started assaulting Jese. Then they had taken her home. She said that blood was flowing from her vagina. Next day she was taken to the police station by mother and she had given a statement. She was medically examined by a doctor on 30/03/2015.

[23] In cross examination she said that she had gone to Tacirua that day to get some money for the timber for the house. Taitusi had been helping in building the house. She denied meeting 2 friends on the way home. She denied playing cards in a tin house with friends Ratina and Diwaqa.

[24] She had not being schooling since class 5 and had been staying home. She denied having a girlfriend and boyfriend relationship with the accused. She said that her mother would be very angry if she gets to know that she had a boyfriend. Her brother Aisake was always protective of her, she said. She said that her brother Aisake would be very angry if he found that she had a boyfriend and that she would not tell anyone at home if she had a boyfriend.

[25] She said that she wouldn't tell a stranger about why she went to Tacirua. She denied calling Jese and telling him that she was returning from Tacirua. She also denied telling Jese that the people at home were waiting for her because she was bringing money. She said that the distance from junction leading to Mr. Tikoitoga's farm to her house would be the distance from the witness box to Holiday Inn. While the accused was grabbing her he also had closed her mouth. She said that she struggled but accused was strong. Accused had been holding her legs as well. She said that the accused used his legs to bind her legs. While dragging her, he had been holding from her hair. He had grabbed her bag contained the money as well. She said that she could not shout as he was very fast. Jese and she had been in the upstairs of the house. To go to upstairs she had climbed steps. She denied walking herself to Jese's house.

[26] She said that she could have bitten his hand when he was holding her mouth and she could have shouted for help and also she could have escaped. When he kissed her she could have bit his mouth, she said.

[27] She had not seen Taitusi sitting in cassava patch. However, she said that Taitusi came with her brother. She had heard the conversation and she said that at that time she was sitting in the room on the bed. Taitusi had asked for 'Una'. She denied Taitusi coming near the room. She denied being in the sitting room. She denied going to the kitchen and washing utensils.

[28] Aisake had asked her what she was doing there. He was angry, she said. He had shouted at her and punched Jese. She had told Aisake that Jese locked her in the room and hid her shoes. She had got so frightened. She denied crying. She denied that she was dating Jese for 3 weeks. She denied consenting to sex with Jese. She said that her both hands, both legs and mouth were tied up with a piece of cloth. She denied telling Jese to tell Aisake that she was not in the house. She denied lying. She said that she was tied up underneath the bed.

[29] In re-examination she said that she did not bite Jese as she did not know what to do. She said that she was tied up when Jese was kissing her.

[30] The next witness was Dr. Kelerayani Namudu who medically examined the complainant on 30/03/2015. You heard her qualifications and experience as a medical doctor that was unchallenged.

[31] She testified about her specific medical findings upon physical examination of the complainant. On examining the genetalie, she had noticed bleeding from vagina with a laceration noted at 6 o'clock position at posterior forchette. She said that her professional opinion is that there had been evidence of forceful penetration of the vagina. That had been confirmed by examination under anesthesia.

[32] In cross examination she said that in order for vagina to be penetrated some force has to be applied to vagina. When she was asked whether it is likely for a girl of this age to have injuries noted if vagina is penetrated, she said that she cannot confidently answer that question. She said that in her professional opinion, in a situation where a 13 year old girl's vagina is penetrated by a penis, you can have injuries noted or you may not show any injury. She said even when there is consensual penetration into a 13 year old girl's vagina, again the answer is the same, injuries may show, may not show.

[33] She had examined the full body of the complainant, and apart from the said injuries in the vagina, she had not noted any other injuries. She said that it is possible to sustain injuries if somebody is grabbed by the hair and dragged for a distance like from the court room to Holiday Inn.

[34] The last witness for prosecution was Sereana Kanatutu, the mother of the complainant. On 29/03/2015 the complainant was sent to Tacirua, she said. She had returned after lunch between 2 – 4pm. She did not come back on the right time and that she was expected to come by 2 – 3pm, she said. She was crying and was not in a normal condition, she said. Her hair was not tied and she was not tidy, she said. She had taken her to a doctor with the police. She said that the police came to her place before they went to the police station.

That was the evidence for the prosecution.

[35] Lady and Gentlemen 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 at all times. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. He also called two witnesses to give evidence on his behalf. You must give their evidence careful consideration.

[36] The accused giving evidence said that he had a boyfriend and girlfriend relationship with the complainant for 3 weeks before 29/03/2015. They have met before at the farm.

[37] He had not asked her for her age. When she was asked whether she was schooling she had told him that she was schooling at FNU. He said that he believed that she had finished secondary school because he had never seen her in school uniforms. The way she looked at that time he had thought that she had finished secondary school, he said. He said that he did not know that she was below 16 years of age.

[38] On 29/03/2015 when he was walking back after having a bath from the creek, the complainant had been playing cards with 3 of her colleagues in a tin house near the 1st junction. They were Ratina, Diwaqa and Ms. Bula, he said.

[39] After he went passed them to go home he had realized that Unaisi was also coming. He then had talked to her. She had told him that she came from a relative at Tacirua and that she had gone there to get some money for the family.

[40] When he asked her whether she had time to come with him at his house she had agreed. They had straight gone to his house. He said that they had sexual intercourse in the house. Before that he had asked Unaisi if he can have sexual intercourse with her. He said that she did not say anything but her body language, she did not resist, he said. They have kissed each other. She had been touching him. They had been sitting on top of his bed. It's a double story house and the bedroom is in downstairs, he said. There had been 2 steps to the house, one behind the room and one the window side.

[41] After having sexual intercourse Unaisi had been with him in the sitting room. They had lunch together and Unaisi had washed the dishes in the kitchen, he said. Windows and doors had been open. His cousin Asaeli Sema had come, seen them sitting there and had gone back.

[42] After a while they had seen Unaisi's two brothers coming from the junction to the house. One of them was Taitusi, he said. Seeing them coming Unaisi had panicked and had told him that she wanted to hide from the brothers. He had told her to go to the room. They had come and questioned him about Una. He had told them that Una is not in the house. Taitusi then had forcefully entered the house and had straight away gone to the room and had brought Unaisi out of the house. She had been crying. Brother was asking her questions, he said. He said that at that moment he had a scuffle with the brother. After that they had gone home.

[43] Accused denied the allegations. He denied inserting his finger into her vagina without her consent. He said that he did not force her. He said that she did not show any reaction for him to know that she did not like what they were doing. He also denied the allegation that he forced his penis into her vagina without her consent. Again he said that she did not show any reaction to disagree on what they were doing. He denied forcefully grabbing her. He denied tying her. He denied locking the room.

[44] In cross examination he denied following Unaisi and said that she followed him. He denied grabbing her and forcing her. He denied closing her mouth with his hands when she tried to shout. He denied grabbing her by hair. He denied tying her up. He said that they kissed each other and touched each other. He said that he had a girlfriend and boyfriend relationship with her. He said that she told him that she was studying at FNU the first day he met her. He said that they had met each other few times before at the farm site. He did not recall the dates. He said that Unaisi told him why she went to Tacirua.

[45] He said that he had no idea whether her mother was strict on her daughter. He said that Unaisi had the choice to come home and that she made the decision. He said that he lied to Unaisi's brother that she was not in the house because Unaisi asked him to say that. Unaisi had panicked when she saw her brothers. He said that Asaeli came home and saw Unaisi. He said that he did not tell that to the police in his statement.

[46] In re-examination he said that he did not mention to police that his cousin Asaeli came to his house because the police never asked him.

[47] The next witness for the defence was Sekove Ratina Levu. He said that 29/03/2015 was a Sunday and that he went to church. As the church was full he had gone to one house and had been playing cards with his nieces. Then Unaisi had come to drink water and had joined them in playing cards. She had told them that she was coming from Tacirua. While playing cards he had seen Jese on his way back home from the creek. After a while Unaisi had stood up and said that she was going. She had followed Jese. They have followed each other to Mr. Tikoitoga's house where Jese stays. He had not seen anything unusual and they went to Tikoitoga's house, he said.
[48] In cross examination he said, that Unaisi was playing cards with them and that he is telling the truth.

[49] The last witness for the Defence was Taitusi Lualala. Complainant Unaisi is his cousin. On 29/03/2015 he had seen Unaisi in Major Tikoitoga's house. 1st time when he saw her, she had been standing at the door facing the verandah. Then he had seen her going towards the kitchen. He had heard rattling sounds of the utensils in the kitchen. He had seen her again in the sitting room. He had seen these from where he was sitting in the cassava patch, he said. He had seen Jese coming to the verandah to fold the mat.

[50] After a while Unaisi's brother Aisake had come looking for his sister. He had asked him where he was going. He had told him that he was looking for his sister. Then he had asked him what clothes his sister was wearing. He had told Aisake that they would go and look for her in Tikoitoga's house.

[51] When they were going to the house, he said that Unaisi saw them. Windows of the house had been open. Unaisi had gone to the room, he said. He had heard Aisake asking Jese for the sister. Then he had entered the house from the back door and had walked up to the room. Unaisi had been inside the room sitting down holding her bag. He then had told her to go outside. They have taken her home. He said that Unaisi was frightened and was caught by surprise. She did not expect them to come there, he said.

[52] When Aisake questioned her as to why she was there Unaisi had told him that Jese grabbed her and hid her shoes inside. She had been looking for her shoes. They had told her to leave the shoes and come.

[53] In cross examination he said that the distance from where he was sitting in the cassava patch to Tikoitoga's house was about 75 meters. He said that he could clearly see inside the house.

[54] He said that he heard from Unaisi's mother that it was after an hour that she was expected to come home. That is why he went to cassava patch so that he could see her coming on the road, he said.

[55] He said that he could hear rattling sounds from the kitchen because on that day the wind was coming towards cassava patch and that it was quiet in the jungle. He said that Unaisi was in one of the bedrooms upstairs.

[56] He said that Unaisi was not tied up and that she was holding her bag. He said that it was Unaisi that he saw inside the house from the cassava patch and that it was confirmed when he asked Aisake about the clothes she was wearing. He said that when Unaisi was found she was in a state of shock and that she did not appear normal.

That was the evidence for defence.

[57] Lady and Gentlemen 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's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[58] 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 when the accused gave evidence he said that when he was with the complainant in the house his cousin Asaeli Sema came and that he saw them sitting there and went back. He said that he did not tell that to the police in his statement. 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. Inconsistencies 'per say' within a witnesses own evidence in court also may affect the credibility of a witness.

[59] 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. Now in this case the medical doctor Kelerayani Namudu 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 Unaisi is admissible. What weight you give to her evidence is a matter for you.

[60] Complainant says that she was dragged to his house by the accused. She says that the accused closed her mouth. She says that she was dragged by the hair and was dragged backwards. While dragging, the accused had used his legs to bind her legs. She says that the accused tied her legs hands and the mouth inside the house with a cloth. She says that she was put under the bed. She says that the accused forcefully inserted his finger and his penis into her vagina without her consent and that she did not consent.

[61] The accused says that they had a girlfriend and boyfriend relationship. He denied forcing her. He says that the complainant never reacted showing that she did not like what they were doing. He says that it was the complainant that followed her. He says that everything happened with consent. He admits having sexual intercourse with her and also inserting his finger into her vagina.

[62] You decide whether Unaisi is a reliable witness or not. If you decide that she is not a reliable witness you must find the accused not guilty of Rape on both counts. If you find that she is a reliable and credible witness, then you need not seek for corroborative evidence and you may find the accused guilty of rape on both counts.

[63] Lady and Gentlemen assessors,

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

[64] Now I will explain to you about the offence of Defilement. A person commits the offence of defilement if he unlawfully and carnally knows of any person being of or above the age of 13 years and under the age of 16 years. It is not a defence for defilement to say that the victim consented to sexual intercourse. In this case it is an admitted fact that Unaisi was born on 10th January 2002. Therefore she was between 13 and 16 years of age on the day of the alleged incident. It is an admitted fact that the accused had carnal knowledge of Unaisi, meaning that he had sexual intercourse with Unaisi. Therefore if you find that she consented to sexual intercourse alleged in count No. 2, as I said before, you must find him not guilty of rape in count No. 2. However, even if she had consented to sexual intercourse he is guilty of the lesser offence of Defilement because Unaisi was between 13 years and 16 years of age.

[65] However, the law says, that it shall be a sufficient defence to a charge of defilement if it is made to appear to the court 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.

[66] In this case the accused has taken that defence. He says that he believed that Unaisi was above 16 years old at that time. In that, he says that he had never seen her going to school wearing a uniform and when he asked her, that she had told him that she was studying at FNU. Unaisi in her evidence said that she did not go to school after class 5. However, she denied telling the accused that she was studying at FNU. You heard the evidence of Unaisi, Jese and also of other witnesses. It is for you to decide whether on 29th day of March 2015 the accused had reasonable cause to believe, and he did in fact believe that Unaisi was of or above the age of 16 years.

[67] The burden is on the prosecution to prove the elements of the offence of defilement beyond reasonable doubt. However, if you find that it had been made to appear to you on the evidence placed in court that the accused had reasonable cause to believe, and that in fact he believed that Unaisi was of or above 16 years of age, then you must find the accused not guilty of Defilement. If it appears to you that the accused did not have reasonable cause to believe so, and in fact he did not believe so, you may find the accused guilty of Defilement.

[68] Therefore after considering all the evidence, you decide whether Unaisi consented or not to penetrate his finger and his penis in counts no. 1 and 2 respectively, and whether the accused knew or believed that she was not consenting or did not care if she was not consenting. If you find that she did not consent and that the accused knew or believed that she was not consenting or did not care whether she was not consenting, you may find the accused guilty of Rape in counts 1 and 2. You must consider counts one and two separately.

[69] If you find that Unaisi consented to penetrate Jese's finger into her vagina as alleged in count No. 1 or that Jese knew or believed that she was consenting, you must find the accused not guilty of count No. 1.

[70] However, if you find that Unaisi consented to have sexual intercourse as alleged in count no. 2 or that Jese knew or believed that she was not consenting, you must find him not guilty of rape in count No. 2 and you then go on to consider the lesser offence of Defilement as I explained to you.

[71] 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.

[72] 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 charges against the accused have been proved beyond reasonable doubt.

[73] Your opinions on each count of Rape will be either guilty or not guilty. If you find the accused not guilty of Rape in count No. 2, you will be asked whether the accused is guilty or not guilty of the lesser offence of Defilement.

[74] Lady Assessor and Gentlemen Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges 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
14th April 2016

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