State v Soro - Summing Up [2016] FJHC 335; HAC47.2011 (28 April 2016)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 47 OF 2011

STATE

-v-

ANANAIASA SORO

Counsel : Mr. S. Babitufor the State

Ms. V. Narara for the Accused

Dates of Trial : 25^th , 26^th April 2016

Date of Summing Up : 28^th April, 2016

(Name of the victim is suppressed. She is referred to as MB)

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
4. 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.
5. The counsel for Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Prosecution Counsel and the Accused. But it is a matter for you to decide which version of the facts to accept, or reject.
6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.
7. On the matter of proof, I must direct you as a matter of law, that the Accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the Prosecution and never shifts.
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the Accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.
9. 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 or read about this case, outside of this Courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.
10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
11. As Assessors you were chosen from the community.You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
12. In assessing the evidence, you are at liberty to accept the whole of the witness’s evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.
13. An incident of Rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offences with which the Accused-person is charged, in a short while.
14. In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this Court.

15. The agreed facts of this case are:

i. It is agreed that Ananaiasa Soro is the accused in this case.

ii. It is agreed that accused is married to one Vaseva Marama.

16. The charge against accused is as follows:

Statement of Offence

RAPE: Contrary to Section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ANANAIASA SORO on the 15^th day of December 2010 at Lautoka in the Western Division had carnal knowledge of MB without her consent.

17. I will now deal with the elements of the offences. A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person’s consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person’s body that is not a penis without other person’s consent; or

(c) The person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

18. Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. So, that is Rape under Section 207 (2) (a) of the Crimes Decree.

19. So, the elements of the offence of Rape in this case are that:

a. the Accused

b. penetrated the vagina of victim to some extent with his penis

c. without her consent

20. Other parts of the offence are irrelevant to the facts of this case.

21. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A woman under age of 13 years is considered by law as a person without necessary mental capacity to give consent.
22. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a Complainant who saw, heard and felt the offence being committed. In this case, for example, the Complainant was a witness who offered direct evidence as to what she saw, heard or felt.

23. I will now deal with the summary of evidence in this case.

CASE FOR THE PROSECUTION

PW 1- Complainant (MB)

24. Prosecution called the Complainant, MB, as the first witness. She was born on 8^th February, 1997. In 2010, she was attending primary school at class 7, and staying in Tomuka, Lautoka with her cousin on holiday.
25. Accused is her cousin from her father’s side. Complainant’s parents are separated. Her father lives with Mereia Marama,her step mother.
26. On 15^th December, 2010, she walked down,in the evening, to accused’s house in Tomuka to watch a movie. Accused lived with his four children and nephew. After watching the movie, she slept in the sitting room with accused’s two children and nephew. All of them were younger to her. Accused slept in his own bedroom with his son.
27. While she was sleeping, accused came and asked her to wake up. Then he closed her mouth with his one hand and asked her not to shout. Then he removed her shorts with the other hand and put his penis into her vagina. He was lying down on top of her. He had sexual intercourse with her for three to four minutes. She was trying to move but could not because his hand was tight. Blood was coming out.She was in pain. Other children were sleeping when it happened. Accused then stood up and went back to his room.
28. Accused did not ask if he could have sexual intercourse with her. She did not consent to him putting his penis into her vagina. He told her that if she tells somebody else, he will commit suicide. After the incident, she could not sleep the whole night. In the morning she went back to her cousin’s placewhen children and accused were still sleeping.Accused’s house was situated in anisolated place.There was no any other house nearby.
29. She did not tell anyone about this because she was scared of her parents. The incident came to light when her step mother, Mereia Marama, questioned her in 2011. When questioning, she was also beaten up. Her step mother MareiaMarama is related to the accused.She is his mother- in- law. She reported the matter to police.
30. Under cross examination she said that one small boy was sleeping beside her and other boys were lying next to them. Accused’s forceful wake- up call did not wake them up. She was struggling and crying but failed to get attention of others.
31. She was wearing a panty.He removed it while covering her mouth with one hand. She felt very week.She saw blood only when she woke up in the morning.The sitting room is about 5 x 6 meters. There was a next door neighbour. They were not there that night.
    
32. The reason why her step mother questioned her was because she started noticing physical changes in her body. And that is after she started noticing consistent headaches, stomach aches and that she would sleep a lot at home when she return from school. There were changes in her body and her physical routines.
    

33. She was scared because if he commits suicide they will question me.

34. She denied going over to Ananaiasa’s room, when he called her to massage his stomach as he had a stomach-ache that night.She also denied having had sexual intercourse by consent in his room that night.
    
35. After the incident in December 2010, she denied visiting accused’s house, or having had sexual intercourse twice with him.
    
36. Under re-examination, she said that other children were sleeping about 3 meters away from her.The next door neighbour’s, house and Ananaiasa Soro’s house were joined together.
    

PW 2 –Mereia Marama

37. MareiaMarama has been married to Complainant’s father,Meli Tabatabase, for 14 years. She did not have any children by this marriage. Meli had three children by his previous marriage, one of them being the Complainant. She has been looking after the Complainant for about 14 years as her own child.
    
38. In 2010, during school holiday, Complainant was in Tomuka with her husband’s brother’s daughter. Once school started, she returned home but did not tell anything about her school holidays.
    
39. Witness gave a statement to the Police on the 21^st of February 2011. Her husband’s sister called on her husband’s phone and informed about complainant’s involvement with Ananaiasa Soro. Her husband’s sister was teasing her because Complainant is not her real daughter and wanted her to go and report the incident to the Police Station.
    
40. She questioned the Complainant and asked her what happened. The first time she never told anything. Then she whacked her. The second time she told her the story about Ananaiasa Soro. She told her about having sex with Ananaiasa Soro. Then her husband and aunty told her to report the matter to Police Station.
    
41. In her statement to police, she stated that when she questioned the Complainant if she had been with a boy, then she told her that she was raped by Soro who is her first cousin.
    
42. Under Cross-examination, witness said that she did not know that Complainant had gone to watch movies at Ananaiasa’s house on the 15^th day of December, 2010.
    
43. After January 2011, Complainant had gone back to Ananaiasa’s house. However, Complainant never told her that she would go to Ananaiasa’s house, she only told her that she will go to her cousin sister.
    
44. She reported the matter to the Police only because Complainant is her step-daughter and when the thing happened all her aunties were swearing and teasing and forcing her to report the matter. If the aunties had not sworn at her and forced her, she would not have reported the matter to Police because she didn’t know what happened.
    
45. Witness saw Complainant wearing Ananaiasa’s clothes after December 2010. She didn’t know who gave them, when Ananaiasa went to the market, only his son was at home and Complainant went up there and took the clothes from there.
    
46. Mereseini did not say that she was raped. She only said that she was having sex with Ananaiasa.
    

PW 3 –A/CPL 3692 AsenacaTaufa

47. When she was stationed at the Lautoka Police Station She received a report on 21^st of February 2011 from one Mereia Marama and conducted the investigation.
    
48. She recorded the statements of the victim and took the victim to hospital to be medically examined and also to visit the scene of crime in Tomuka. When she visited the scene the accused, his father and the victim were living with them.
    

DEFENCE CASE

49. After the Prosecution case was closed, you heard me explain the Accused’s rights in defenceand how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined.
50. You remember the accused elected to give evidence under oath and subject himself to cross examination although he had nothing to prove in this case. He also called witnesses. You must analyse evidence called on his behalf the same way you analyse Prosecution evidence.
    

DW 1 Accused,AnanaiasaSoro (Accused)

51. He is married to Vaseva Marama. From this marriage they have seven children.

52. On the15^th day of December 2010, he was residing in Tomuka in a rented house where three other families were also renting close to his house.
53. Complainant is her cousin from his mother’s side. She visited his house in Tomuka on the 15^th of December 2010.
    
54. On the 08^th of December 2010, when she came home she asked about his wife.He told her that they were separated. Then she asked whether his wife and the children will come back. He said he didn’t know whether they will come back or not.
    
55. In the same conversation on the 08^th day of December 2010, she promised that she will come on the 15^th of December 2010 for them to stay together and have sexual intercourse.
    
56. As promised, she came on the 15^th of December, 2010. In the afternoon they were watching a movie. He was lying down in his bedroom. About 10.00 p.m. when the movie finished he went and called her to the room. After calling, he went back to his bedroom. She followed him into the bedroom. They had sexual intercourse that night.
    
57. He had sexual intercourse with her that night just once. He did not force her to have sexual intercourse with him. She slept over that night on his bed after having sexual intercourse.
    
58. On the 16^th of December 2010 he met her again. She came home that day because she wanted them to have sexual intercourse. He had sexual intercourse on that day too. He recalled having sexual intercourse with her three times. He did not force her to have sexual intercourse with him on any of those occasions.
    
59. Under cross examination, he said that he knew the Complainant was a primary school student at that time.
    
60. He was arrested in February, 2011. He denied having told police in the interview that he had sex with her only once. He also denied that he had failed to mention to police that he was in a relationship or in conversation with her on the 8^th of December about the plan to have sexual intercourse on the 15^th. He said that he informed the Police everything.
    
61. He said that his sister’s husband Eremasi was also slept that night in the same bed room where he was having sexual intercourse with the Complainant. Eremasi was inside the room when the Complainant came inside to have sexual intercourse with him
    
62. He was sleeping with Complainant on one mattress while Eremasi with one of his sons sleeping together on another mattress in the same room.
    
63. During his interview,he did not inform Police that Eremasi was also home that night.
    
64. He admitted waking Complainant up that night because she had already promised him, on the 8^th of December, that they will have sexual intercourse.
    
65. He admitted removing her panty in the bedroom and having sexual intercourse with her for about ten minutes. If Eremasi was awake he could have seen what they were doing.
    
66. He denied closing her mouth. When she came home that day, she gave him three mobile numbers of his three boy friends and her SIM card and told him, if they call her number, to tell them not to call her number again, because they were in a boyfriend- girlfriend relationship.
    
67. He admitted that his Counsel never asked about this and also about Eremasi when the Complainant giving evidence although he had told his Counsel everything in writing.
    
68. Under re-examination, he referred to question 53 of the cautioned interview and pointed out that he had told police that he had sexual intercourse with the Complainant not once but three times. He did you not say anything to the Police about Eremasi because he could not recall if he stayed with Eremasi on that particular day.
    

DW 2 JonacaniRokomocemoce

69. Jonacani is the eldest son of the Accused. He was staying in Paipai with his dad and his grandmother, MereiaMarama. In December 2010, he was twelve years old and was living in Tomuka with his dad, sister, brother and one Eremasi, his aunt’s husband. Complainant was also staying. She just came after a while and went back.He was attending Uciwai Primary School in 2010 situated in Momi. Eremasi was living with them in Tomuka 2010 only for one week.
    
70. On the 15^th of December 2010 Complainant stayed for the night, and slept over at home. She was sleeping together with him and his younger brother and Ali in the sitting room while his father was sleeping in the bedroom with Eremasi. Eremasi was sleeping on a separate bed.
    
71. He noticed that his dad came and woke Complainant up for her to go and sleep in his room. She went to the father’s room and slept with him. He was watching a movie at that time.
    
72. In the next day morning, Complainant was still home, and woke up from his dad’s bedroom. He met the Complainant againon the same dayaround 12.00 midday. Since 15^th of December 2010, she came home two timesand asked for his dad. He did not see Complainant being forced to go to his father’s room that night.
    
73. Under Cross-examination, he said he clearly remembered the day the incident happened because that was the day Police Officers came home and that’s the reason he remembered that day.
    
74. Having watched the movie all went to sleep, Complainant too was there, sleeping in the sitting room.

75. His mother was not home by that time. She had left his dad in 2010.

76. After the 15^th of December 2010, Complainant came twice the same year on the 16^th day and the 17^th asking for his dad. Dad was not home on those two days, He was at the market.
    
77. When it was put to him that the Police came to his house in February 2011, and not 2010, he admitted that he would have been wrong.
    
78. Before coming to give evidence, his father spoke to him and told him to tell the truth in Court. His father told him to tell the name of Eremasi and also told him to tell the Court that his father came and woke Complainant up to take her to the room. While the case was going on, his father told him what had happened in the year 2010. He could still recall the incident.
    
79. Under Re-examination Jonacani said that he saw Eremasi on that day, and the incidents he described in Court with his own eyes. Whatever he told Court was his answers and not that of his father’s.

DW 3 Vaseva Marama

80. Vaseva is married to Accused for 10 years. They have seven children. She is staying with the accused right now. In 2010, December 2010, she left her husband because of the Complainant. Complainant kept on coming home to Ananaiasa. Every weekend she usually told her mother that she was coming down to her sister in Tomuka, and the sister sent her there to watch movies.
    
81. She left her husband in first week of December, 2010. She reconciled and came back to him during the first week of January 2011. After reunion with her husband on the first week of January 2011, Complainant came home again. She was angry because Complainant was the reason why they separated.
    
82. In 2011, Complainant came to his yaqona plantation also. When she asked him why she had come, he said that only Complainant came after him.
    
83. Under Cross-examination, witness said that when her husband was giving Complainant more attention, she became jealous of her. On the 15^th of December 2010 she was not home and did not know what actually happened. Since she reunited with her husband in 2011 she trusted her husband and believed whatever he said. She only came to know of the 15^th December 2010 incident through his husband when the report was lodged.
    
84. She denied that she was worried that if Ananaiasa Soro goes to prison there will be no one else to look after her children.

.

85. That was the case for the Defence. I have summarized evidence I thought of important to you in light of arguments of the Counsels of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence. You are the judges of facts. You are free to consider the evidence in its entirety and come to your own conclusion.

ANALYSIS

86. There is no issue in this case with regard to the identity of the accused and to the second element of the offence of Rape, penetration. Accused admitted that he had sexual intercourse with the Complainant on 15^th December, 2010 for ten minutes. Only issue is whether sexual intercourse took place with Complainant’s consent. Prosecution says accused had sexual intercourse without Complainant’s consent. Defence says otherwise.

87. The Prosecution based its case substantially on the evidence of the Complainant.

88. First, you have to be satisfied that the evidence Complainant gave is truthful and believable. If you are satisfied that the evidence she gave in court is truthful and trustworthy you can safely act upon her evidence in coming to your conclusion.
89. Please remember, there is no rule for you to look for corroboration of Complainant’s story to bring home an opinion of guilty in a case of sexual nature. The case can stand or fall on the testimony of Complainant alone depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the complainant’s evidence if you think that it is safe to look for such supporting evidence.
90. In evaluating Complainant’s evidence, you consider whether what she was talking about in her evidence is probable in the circumstances of the case.
91. Alleged incident took place on 15^th December, 2010. Complainant did not complain the incident to anybody until her step mother inquired from her on 19^th February, 2011. She gave a statement to police thereafter. Contention of the Defence is that she did not complain because she had nothing to complain and everything happened with her consent. It has also been said on behalf of the accused that the fact that Complainant did not report what have happened to her as soon as possible makes it less likely that the complaint she eventually made was true.
92. Failure on her part to complain soon after the incident is not necessarily consistent with consensual sexual intercourse. It is only a matter of evaluating consistency of her evidence and credibility. You have to see whether she had given an acceptable and legitimate explanation for not complaining at the first available opportunity.
93. Complainant gave two reasons for not complaining. She said she was scared that she will be beaten up by her parents. She was also scared of accused’s threat to commit suicide. She was fourteen years old when the alleged incident occurred. She came from a broken family. His father is married to accused’s mother in law, MereiaMarama. In light of the direction I give with regard to late complaints by rape victims, you consider if her explanation is probable in all the circumstances of this case. It is up to you to form your own opinion on her explanation. Whether that is so in this particular case is a matter for you to consider and resolve.
94. However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others would react with shame, or fear or shock or confusion, do not complain or go to Police or any other authority for some time. It takes a while for self confidence to re-assert itself. There is, in other words no classic or typical response.
95. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complain. It’s a matter for you to determine whether, in the case of this particular Complainant, the lateness of the complaint, such as it is, assist you at all and, if so, what weight you attach to it. You need to consider what the complainant herself said about her experience and her reaction to it.
96. You consider whether Complainant was telling a story on the same lines without variations and contradictions and whether she is shown to have given a different version elsewhere.
97. You also consider if the Complainant had any motive to make up a case against the accused who is his cousin.
98. Carefully consider the evidence of MereiaMarama, Complainant’s step mother’s evidence. She admitted in Court that her complaint to police was about a rape incident. She told us in Court, that Complainant never told that she was raped. She went to police because of the teasing and pressure coming from Complainant’s aunt and father. Her daughter is married to the accused with seven children. You decide what weight you attach to her evidence.
99. I must repeat hear what the law says in respect of ‘consent’. Consent, as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. Submission without physical resistance by a person to an act of another person shall not alone constitute consent. You must evaluate evidence in light of this legal framework. The submission of free choice to repeated demands is not to be confused with consent. For example, submission achieved by psychological coercion so that free choice was overborne will not amount to consent freely given. On the other hand, reluctant but free agreement is not the same thing as submission, and still consent, even if reluctantly given. It is for you to decide whether, in the context of this particular scenario, consent was freely given by Complainant.
100. Complainant did not scream or yell and alerted others in the house or neighbourhood. You might wonder why she did not scream or yell if she was taken forcibly and raped without her consent. She said her mouth was closed. She also said that she was threatened not to shout. The incident had happened close to midnight. You consider whether she had a reasonable cause not to resist, scream or complain.
101. You have to be cautious here. You must not make comparisons and come to your conclusion on the basis of stereotypical behaviour expected of a woman in such a situation. I must emphasize that the assessment is for you to make. However, it is of paramount importance that you do not bring to that assessment any preconceived views or stereotypes as to how a victim in a trial such as this should react to the experience. Any person who has been raped, will have undergone trauma whether the accused were known to her or not. It is impossible to predict how that individual will react, either in the days following, or when speaking publically about it in Court or at the Police Station. The experience of the Courts is that those who have been victims of rape react differently to the task of speaking about it in evidence.
     
102. The offence charged requires proof that the Complainant did not consent. The offence may or may not be accompanied by force or the threat of force, but please note that it is no part of the Prosecution’s obligation to prove that the accused used force or the threat of force.
     
103. You watched Complainant giving evidence in court. What was her demeanour like? How she reacts to being cross examined and re-examined? Was she evasive? How she conducted herself generally in Court? It is up to you to decide whether you could accept her version.
     
104. You should consider the version of the Defence and evaluate the evidence in the same way.
     
105. Accused had never mentioned to police or his Counsel that Eremasi was home that night in his room. He had not told police about the so called relationship and the December 8^th conversation about the prior arrangement to have sexual intercourse on the 15^thwith her.
     
106. Defence called Accused’s son and his wife to prove his case. You consider whether the witnesses called by the Defence had any interest in this case and what weight you should attached to their evidence.
107. You consider whether the version of the Defence is consistent and believable. You watched accused and witnesses called on his behalf giving evidence in court. You can apply the same tests and your common sense to evaluate the evidence of the defence. Were they consistent in their evidence? What was theirdemeanour like? How they react to being cross examined and re-examined? Was he evasive? It is up to you to decide whether you could accept their evidence and version of the Defence is sufficient to establish a reasonable doubt in the prosecution case.
108. If you accept the version of the defenceyou must find the accused not guilty. Even if you reject the version of the Defenceand do not believe a single word accused told in Court,still the Prosecution should prove its case beyond reasonable doubt.
109. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies with the prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.
110. If you accept the Prosecutions’ version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of accused’s guilt you must find him guilty of the charge.
111. You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

112. Any re-directions?

Aruna Aluthge

Judge

AT LAUTOKA

28^thApril, 2016

Solicitors for State: Office of the Director of Public Prosecution for State

Solicitors for Accused: Office of the Legal Aid Commission for Accused