State v Tukana - Summing Up [2016] FJHC 314; HAC033.2013 (19 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 033 of 2013

STATE

v.

JOSEFA TUKANA

Counsel: Ms. M. Khan for State
Ms. L. Raisua for Accused

Dates of Hearing: 18th April 2016
Date of Summing Up: 19th April 2016

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as [S.R.] 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 agreed 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. The accused is charged with one count of rape.

[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.

[12] The particulars of the offence given in count No. 1 say that the accused had carnal knowledge of 'S.R' 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 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.
   

[13] 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. Extent of the penetration is immaterial.

[14] It is an agreed fact that the accused penetrated the vagina of the complainant with his penis on 25th November 2012. Therefore the remaining element that the prosecution has to prove beyond reasonable doubt is the element of consent. Whether 'S.R.' 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.

[15] Where the consent is obtained through fear, by threat or by using authority 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

[16] Prosecution called the complainant 'S.R.' to give evidence first. On 25/11/2012 she had gone to USP at about 5.30pm to meet her boyfriend with her cousin Paulina. Her boyfriend had been a Solomon Island student at USP. His name is Mofett William, she said.

[17] There had been three Security Officers at the USP gate. One of them had asked where they were going. The accused had been one of the Security officers. She had got to know his name after the incident.

[18] They had gone to her boyfriend's dormitory and had gone to his room. After some time Paulina had gone to meet a friend by about 7pm. Around 9pm someone had knocked on the door. Her boyfriend had opened the door. It had been the accused. At that time she had been having sex with her boyfriend.

[19] Accused had told them that the visiting hour was over. She had asked her boyfriend to drop her outside the gate. When they asked the accused if he could drop her he had said 'No'. Accused had told her that he would show her a short cut to the campus if she wanted to come and see her boyfriend. She had been going with the accused on the road. She said that the environment was not familiar to her. She said that they reached a building. At the corner there had been a house where they store some wood and pieces of furniture. She said that the distance to that place from her boyfriend's room was similar to the Mobil station from the court house.

[20] She had gone with him because he said that he would show her a short cut. He had told her to sit, and when she sat he had pulled down her pants and her panty. Accused also had pulled his pants down. When he was doing that, she said that she struggled to get him off. The accused had penetrated his penis into her vagina. She said that she did not consent to the act. After that the accused had put his pants on and had left her and gone.

[21] She had gone to her boyfriend's dorm since her cousin was there with a friend. She said that when the accused penetrated his penis into her vagina she felt frightened because it was different from her boyfriend. She had gone and told everything to her boyfriend. They had gone to Paulina and told her what happened. They had decided to sleep at her boyfriend's room and go in the morning.

[22] In the morning when she came out of the building they had met the accused and the accused had told good morning to Paulina instead of her, she said. They had straight gone home and her boyfriend had reported the matter to police.

[23] In cross examination, she said that she was 16 years old then. She had not been schooling. Her boyfriend had been 24 years old. She had been seeing her boyfriend for almost a year 2 days a week. During semester, she could stay in her boyfriend's room till 11pm, she said. She said that sometimes she leaves her boyfriend at about 8pm and some times in the morning.

[24] On 25/11/2012 she had wanted to spend some time with her boyfriend but was not to spend the night, she said. Outside visitors are not allowed during the semester break. She had carried a mobile phone that day.

[25] She denied Security officers at the gate telling her that no local visitors are allowed during semester break. She said that it was another security officer and not the accused who allowed them in. Accused also had been there.

[26] She said that when Moffet opened the door in the room for the accused, both of them were undressed. Accused had told her to put her dress on and leave the room. She denied Moffet asking forgiveness from accused.

[27] She said that she was not prepared to go home and the accused was the person standing between them. When she was following accused, she said that she begged him to allow her to go back to Moffet. There had been not much people moving around the campus at that time.

[28] She said that after Admin office there is a road turning down to the right. If you reach that road security room is about 50 meters away. On to the left when standing on that road there is a row of buildings. There is a road leading up to the buildings. That had been the place where accused had taken her.

[29] She denied accused telling her to keep walking to the main gate when she came to that road. She denied following the accused when he wanted her to go. She said that he told her that there was a short cut. She denied offering sex to the accused so that she can go to her boyfriend. She denied taking her clothes off. She denied telling the accused that she would scream if he did not have sex with her. She denied that the accused only unzipped his pants, and said that he took off his pants. She denied agreeing with him to have sexual intercourse. She said that she did not shout. She said that she struggled when he was on top of her. She denied holding the accused on to her. She said that she could have gone to the security room and reported but she did not.

[30] On her way back in the morning she had not reported the incident to the security room. On her way back home she had not reported to any of the police stations. She said that she knew that Moffet would be in trouble if she reported because he allowed her in and that he would lose his place in the dorm. That night they have not reported to police. She denied agreeing to have sexual intercourse with the accused.

[31] In re-examination she said that she did not shout because no one would have heard because the school was empty. She said that she did not go straight to the security gate to report as she was scared and frightened to go alone. She has not reported to police on the way home because William would be in danger too, she said. She said that she told her cousin Pau what happened. She said that she did not give consent to sexual intercourse.

[32] The next witness for the prosecution was Paulina Cagi. She had accompanied 'S.R.' to USP on 25/11/2012 to visit her boyfriend. She said that at the USP gate three Security Officers had been there and they had asked them where they were going. They had told them that they were going to meet 'S.R.'s boyfriend Moffet William. Then they had gone to room 6D. Room 6D had been William's room. She said that they had dinner and had started to watch movies. Around 8pm she had left them to her friend Brian. Around 10 pm when she was with Brian, 'S.R.' had knocked at the door. She had been crying. When she asked 'why', 'S.R.' had said that one of the Securities had called her to show a short cut for her to not to use the main gate and had taken her to an empty house. She had told her that he had grabbed her and forced himself.

[33] She said that they were scared and had wanted to report. 'S.R.'s boyfriend had told them to sleep over there because Security might do something to them. They had gone to his room and had slept. In the morning when they came to the main gate they had met that man. She said that 'S.R.' told her that he was the man who raped her. He had said good morning to her. 'S.R.' had not spoken to him.

[34] In cross examination she said that when 'S.R.' came to her around 10pm, she looked scared, crying and was breathing heavily. She had told her that Security had come and called her to show her the short cut and had taken her to that empty house and forced him on her. She had told her that he grabbed her, made her lie down and when 'S.R.' tried to scream he covered her mouth and forced himself. She denied the accused asking them in the morning "Are you still here?".

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 for cross examination. You must give his evidence careful consideration.

[36] The accused in his evidence said that he was on duty as a Security officer at USP on 25/11/2012. At about 5.30pm he had been at the main gate. He had met complainant 'S.R.' at the main gate accompanied by another female. They had been talking to the Security. He had heard them asking to go to their friend. Then the accused had told the officer who was manning the gate that outsiders are not allowed in during the Semester break. That Security officer had been Koroibola Vesikula. After that they had gone inside.

[37] At about 8.45pm, the officer who was manning the gate who allowed the complainant to go inside had asked him to go and bring them back. He said that he did not know where the complainant and her friend went. He said that Koroibola sent him to 6B2 male hall. It had been about 9.30pm. He had gone and asked the dorm resident for the girl called 'S.R.'. He had told him, for her to get dressed and to follow him to the main gate. The dorm resident was a Solomon Islander, he said. He said that he was heading to confirm his confirmation check. That had been 15 – 20 meters away from the main gate. He said that he got to the building. 'S.R.' had reached the Administration, he said. When she was up to the DCT Building he was close to Administration block, he said.

[38] He said that he asked 'S.R.' to follow him because it was close to the main gate. 'S.R.' was supposed to go to the main gate he said. He had left for another road and when he reached MQ20, he had seen 'S.R.' coming up to him. She had asked if she could go back to 6B2. He had said 'No'. Then 'S.R.' had told him "let's have sex, if not I will shout", he said. Then 'S.R.' had taken her clothes off. He said that he just pulled his zip down and had told her that he would do what she wanted. She had layed down naked on the table. She had pulled him and hugged him, he said. He did not want to lay on her, he said. He said that it took 2 minutes and she had kept on asking to return back to the dorm. He said that he had sexual intercourse with her for about 2 minutes. He said that she looked like she wanted it but he did not want to.

[39] After that he had left her there and had proceeded to his building checks. She had asked him whether she can go back there, he had not replied. He denied forcing her and said that she hugged him. He said that 'S.R.' lied in Court when she said she did not agree to sexual intercourse.

[40] He said that during Semester break outsiders are not allowed in USP. During school term visiting hours are from morning up until 11pm. He said that if outsiders are found during Semester break, they are given to the police.

[41] In cross examination he said that he had been a Security officer at USP for 7 years. He knew the surrounding of USP. He had been a patrolling officer that day. His responsibility had been to watch or patrol A14, that's the international students building and staff quarters he said. He said that it did not include 6B2 dorm and that he was not supposed to supervise that area. He agreed that he asked 'S.R.' to leave the room and to follow him and that she did as he said. He denied 'S.R.' informing him if she could accompany Paulina. He said that he did not reach a vacant building and they reached the Administration building. He had told 'S.R.' to go to the main gate, he said. He denied that it was the MQ22 building that they had sexual intercourse. He denied removing 'S.R.'s clothes. He denied removing his clothes and said that 'S.R' told him to have sexual intercourse with her. He denied the complainant struggling to free herself. He said that she pulled him and hugged him.

[42] In re-examination he said that he went to 6B2 because the officer at main gate asked him to go.

That was the evidence for defence.

[43] 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.

[44] Complainant said that she went to her cousin Paulina immediately after the incident and informed her of the incident. Paulina also said in evidence that the complainant came to her by 10pm the same day and told her about the incident. Complainant had been crying. Complainant had told her that one of the Security officers had called her to show the short cut for them to not to use the main gate. She had told that he took her to an empty house, grabbed her and forced himself on her. The fact that the complainant made the complaint to Paulina immediately after the incident may enhance the credibility of the complainant. The evidence of Paulina cannot be considered as corroborative evidence that the accused raped the complainant. However, if you find that the complainant was a truthful witness and if you believe her evidence, then you need not seek for corroborative evidence and you may find the accused guilty. However, if you find the complainant not a truthful witness then you must find the accused not guilty.

[45] You may remember the accused in his evidence said that the other security officer Koroibola asked him to go and bring the complainant back before he knocked off. He said that Koroibola sent him to bring them back at 6B2. Although he said that Koroibola told him that, Koroibola did not give evidence. I must tell you as a matter of law, that the mere fact that evidence of a witness includes evidence as to words spoken by another person, who is not called to give evidence, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. In this case the accused told in court what the other security officer asked him to do. To that extent you can consider his evidence in relation to what was told to him by Koroibola. It is for you to decide whether Koroibola told the accused what the accused said in court or not.

[46] Complainant says that the accused asked her to follow him to show her the short cut. She says that she was taken to a vacant building and removed her clothes and forcefully without her consent raped her. The accused says that he wanted her to follow him to go to the main gate. He says that he was heading to confirm his checks when it was 10 to 15 meters away from the main gate. He says that the complainant told him that she would shout if he did not have sex with her. He says that the complainant on her own removed her clothes and she wanted to have sex with him for her to get to her boyfriend. Accused admitted having sexual intercourse with the complainant, but with consent.

[47] Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you to decide. 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.

[48] 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.

[49] Your opinions on the charge of Rape will be either guilty or not guilty.

[50] 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 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
19th April 2016

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