State v Delailakeba - Summing up [2016] FJHC 482; HAC109.2014 (6 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 109 of 2014

STATE

v.

JIONE VAKATALAI DELAILAKEBA

Counsel : Ms. L. Bogitini for State
Ms. L. Raisua for Accused

Date of Hearing : 02^nd, 03^rd May 2016
Date of Summing Up : 06^th May 2016

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as M.D.]

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 accused and the prosecution made submissions to you about the facts of this case. It is their right as the 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 opinions 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 onus of 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 proven 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 accused is charged with one count of sexual assault and 3 counts of rape. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty on others.

[10] Now I will explain to you the elements of sexual assault. Count No. 1 relates to sexual assault. The particulars of the offence in count No.1 says that the accused unlawfully and indecently assaulted ‘M.D.’, a 9 year old girl, by touching and licking her vagina. For the accused to be found guilty of sexual assault in Count No. 1, the prosecution must prove the following elements beyond reasonable doubt.

1. The accused
2. Unlawfully, and
3. Indecently
4. Assaulted the complainant. (in this case that he touched and licked her vagina)
   

[11] The word unlawfully simply means without lawful excuse. Indecently assault means that the act must have some element of indecency and that right minded persons would consider the conduct indecent. It is an agreed fact that the complainant ‘M.D.’ was born on 30^th July 2002 and therefore she was 9 years of age at the time of the alleged offence. Therefore, the fact that the child may have consented to the indecent assault is no defence to the charge. Whether or not a child victim agreed to an act of indecency is irrelevant to the charge. Even if she consented and you believe that the indecent assault did take place, the accused would still be guilty of the offence of sexual assault. As to whether the acts alleged are indecent, you must ask yourselves what right minded persons would think of these acts. Were the acts were so offensive to contemporary standards of modesty and privacy as to be indecent.

[12] I will now explain to you the elements of rape.

Section 207(2) of the Crimes Decree 2009 defines the offence of rape. A person rapes another person if-

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

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

[13] Carnal knowledge is the penetration of the vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[14] As far as the element of consent is concerned, in our law, a child under the age of 13 years is incapable of giving consent. Therefore whether ‘M.D.’ consented to the sexual acts is immaterial.

[15] According to the particulars of offence given in Count No.2 of the information, between 1^st day of January 2012 and 31^st day of December 2012 the accused is alleged to have penetrated the vagina of the victim ‘M.D.’ with his finger. So to find the accused guilty on Count No. 2, prosecution must prove beyond reasonable doubt that the accused penetrated the vagina of M.D. with his finger. There need not be full penetration. Slight penetration would be sufficient.

[16] According to the particulars of offence given in Count No.3, between 1^st January 2013 and 30^th September 2013 the accused is alleged to have had carnal knowledge of ‘M.D.’. Carnal knowledge is the penetration of the vagina with the penis. So, to find the accused guilty of Count No. 3, prosecution must prove beyond reasonable doubt that the accused penetrated the vagina of ‘M.D.’ with his penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[17] According to the particulars given in Count No. 4, between 1^st October 2013 and 31^st October 2013 the accused is alleged to have penetrated the vagina of M.D with his finger. So for the accused to be found guilty of Count No. 3, the prosecution must prove beyond reasonable doubt that accused penetrated the vagina of the complainant with his finger.

[18] You will also see that counts 1, 2 and 3 are representative counts and that they cover a length of time. You heard the evidence of the complainant. She said that the accused committed multiple sexual acts during those periods. The accused is not charged with multiple counts of sexual assault and rape and those counts 1, 2, and 3 are referred to as representative counts. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of exact dates, where the alleged offending has taken place over a period of time.

[19] As a matter of law you must ask yourselves whether between the dates specified in the information, there were at least one offence of sexual assault committed on count 1 and whether there was at least one offence of rape was committed on counts 2 and 3 by the accused on the complainant. And you must be satisfied of that beyond reasonable doubt.

Evidence

[20] Prosecution called the complainant ‘M.D.’ to give evidence first. In year 2011 she had been in Class 4 and had been living with her father Jione and 2 sisters at Army Barracks, Nabua. There had been 2 bedrooms and she used to sleep in the living room with her dad Jione and the small sister, she said. The other sister used to sleep in one bedroom, she said.

[21] When she went to the living room with her small sister to sleep one afternoon in year 2011, her dad had come and layed down beside her. He had started touching her private part, she said. It had been painful and when she asked him to stop he had kept on doing it. She said that apart from touching her vagina, her dad was poking it with his finger. She said that he kept on doing it although she told him to stop. She had got scared. She said that he started doing it in March 2011 up until he left for Sinai.

[22] In 2012 also she had been staying in Army Barracks with her father and sisters. She said that her father came home drunk when she was watching TV. Then she had gone to sleep. She said that at about 6am her dad carried her upstairs to the room. He had taken her clothes off and taken his ‘sulu vakatoga’ off. Then he had taken his private part out and had layed on her and had put his private part on her vagina and had poked it into her vagina.

[23] Her sister had been sleeping in the other room and the other sister in the living room, she said. In 2012 he had done it a lot of times. Apart from poking his private part into her vagina he had not done anything else.

[24] In year 2013 she had moved to Nadera with the father and sisters. Her aunty and uncle also had been there. There had been 2 rooms in the house. She had usually slept in the sitting room with her younger sister. Aunty and uncle had slept in one bedroom and the elder sister had slept in the other bedroom. Jione also slept in the sitting room, she said.

[25] In 2013 when they had gone to sleep Jione had come and taken off her pants. He was poking his finger into her vagina, she said. This had been in the night and others had been sleeping. She said that she knew it was Jione as she saw him. She had seen his head. There had been a tube light on the ceiling of the bedroom. The bedroom was about 3 meters from the place where she was, she said. She could not remember for how long he did this. When he poked his finger into her vagina it was painful, she said. He had used one finger. She had been crying. Apart from poking his finger he had licked her vagina. She said that she felt her panty wet in the morning.

[26] In 2013 it had happened until October. She said that in October 2013 sometimes he used to lick her vagina and also poke her vagina with his finger. Apart from poking her vagina with his finger and licking her vagina, the accused had not done anything else. It had been painful when he did it. In October 2013 it had happened at Nadera home in the sitting room. Others had been sleeping.

[27] She had not told anybody what was happening because Jione told her not to tell anybody, she said.

[28] Jione had given her a hiding. He had tied her to a post. After that she had run away to a friend’s house. Then the police had brought her to the Nabua Police Station. When they questioned her, she had told them what happened.

[29] She said that Jione beat her because she went to watch a movie at her neighbour’s house. She said that he did not want her to go to watch movies as he thought that she would tell them, she said. She said that she ran away close to end of 2013. She had reported to police in 2014. Police had asked her whether Jione did anything to her. Then she had told the police.

[30] She said that she was examined by a doctor. She had gone to the doctor with her mother and grandmother in a car. Her mother had been present when the doctor checked her. Doctor had asked her for her date of birth. Apart from the date of birth, she had not told anything else to the doctor. Her mother and the police officer had spoken to the doctor.

[31] In cross examination she said that she read her statement to police before coming to court in the morning. Jione had been her guardian and her mother had separated from Jione in 2008. She had been staying in Army Barracks in 2011and had been attending Suva Methodist Primary School.

[32] In Army Barracks 4 houses are connected together. She had friends in the barrack, she said. Sometimes she used to go and play with them. 2011 and 2012 also she had been living there. She had a best friend in school to whom she would tell all her secrets, she said. Her two sisters were sometimes close to her, she said. She used to wet the bed in her sleep only sometimes in 2011 and 2012 and she said that sometimes Jione used to change her panty. Other times she used to change herself. She denied that the only times Jione would go near her private part was to change her panty.

[33] In 2011, she said that she went missing from home during the time she attended school. She said that sometimes she went to her mother and sometimes to her friend. Police would take her back home because Jione reported to police when she went missing, she said. She said that she never told Jione where she went and Jione had not told her not to leave the house without telling him, but whenever she went missing Jione had reported to police.

[34] She said that she did not report to her mother as she was scared because there were too many people at reservoir road. She said that she was close to her mother and grandparents sometimes. She agreed that her mother and grandparents would protect her. She said that the incidents she mentioned happened. She said that in 2011 Jione licked and touched her vagina. She said that in 2012 Jione poked his finger into her vagina.

[35] In 2013 when they shifted to Sagali Place, Nadera, her younger sister had been 1 month old. Then she had 3 sisters, she said. Jione’s sister and her husband Navi also had been there with them. They had 2 bedrooms at Nadera house, she said. Only sometimes she had been close to Sulueti and husband Navi. She said her mother used to visit her in Nadera but she never told her mother anything. She denied wetting her bed in sleep in 2013.

[36] In 2014 she had been schooling at Nabua Primary School. She used to walk to school every day, she said. She denied that there was an army barracks nearby. In 2014 she had been missing from home for 1 week and Jione had found her in the house of another family in Army Barracks.

[37] She said that she was not afraid of Jione to leave the house without informing him. She denied taking small perfume bottles from Jione and selling at 3 miles, Nabua with Fipe. She said Fipe is not a close friend of her. She said that she was taken to the Police Station from a house at Nakula Street, Lami. She had been missing from home for about 2 weeks. She said that she was with her friend Fipe.

[38] She said that Fipe invited her to go with her to her grandmother’s birthday and then she stayed for 2 weeks. Jione had reported to police that she was missing. She said that she was angry with Jione for giving her a hiding.

[39] In re-examination she said that the secrets she used to tell her friend were about their plans like going swimming. She said that in 2011, she would go missing to her mum or a friend because she was scared about what Jione would do to her. She would not tell Jione where she went because he would bring her back, she said. She said that she ran away in 2014 because Jione smacked her. She said that she went to Fipe’s house for both reasons. Those were because Jione smacked her and that Fipe invited her to go to grandmother’s birthday. She did not want to come back home, she said.

[40] The next witness for the prosecution was Dr. Alvina Ongbit who medially examined the complainant on 04/03/2014. You heard her qualifications and experience as a medical doctor that was unchallenged. On medically examining the complainant, her specific medical findings were:

Vaginal Examination: Healed hymental laceration at 8’oclock (possibly fingering)

Ractal Examination: Healed/scar at the posterior part (on supine position – 6 o’clock) of the anal opening.

Vaginal opening – around 4mm in diameter.

[41] She said the laceration she meant was a break in the continuity of the surface of the hymen. She said that the hymen is a partial thin membrane that partially covers the vaginal opening. She said that in this complainant, hymen was located on the posterior part of the vaginal opening. She said that it is possible that the laceration was caused by a finger going through it. She said that the size of the vaginal opening was about 4mm and that was normal for her age.

[42] She said that in the vaginal area, it takes 3 – 4 days to heal a laceration. She also said that the healed scar of a superficial laceration in the ractal area was also possibly caused by fingers.

[43] In cross examination she said that the information given in (D10) of the report was given by the complainant and that her mother was also there. The medical examination form was produced in evidence as PE1.

[44] Referring to the hymental laceration, she said that there was only one laceration. When she was questioned about expected findings on a vaginal examination of a patient who was sexually abused for a long period by poking a finger, she said that it depends on the degree of finger insertion. She said that if the penetration was deeper and with more force she would expect more lacerations.

[45] The last witness for the prosecution was DC 3650 Semi Daunitutu. He had been the Investigating officer as well as the Interviewing officer of the complainant in this case. This case came to light when the mother of the victim came with the victim to report the matter, he said. He had made arrangements with the sexual offence unit, for the complainant to be medically examined.

[46] In cross examination he said that he could not recall whether any missing persons report was lodged for the victim.
That was the evidence for the prosecution.

Ladies and Gentleman assessor,

[47] 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 all times. The accused chose to remain silent and you must not draw any adverse inferences from his choice.
Ladies and Gentleman assessor,

[48] 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 is unimportant. You should consider and evaluate all the evidence in coming to your decision.

[49] The written agreed facts are before you. Among other facts, parties agreed that the accused was the guardian of the complainant and that the complainant was being looked after by the accused after he divorced his wife. Parties also agreed that the complainant lived with the accused during the periods relevant to the charges. (Admitted facts No.5 and 11). You may accept those facts as if they had been led from witnesses from the witness box unchallenged.

[50] You may remember that when the complainant gave evidence she mentioned about how these incidents affected her later. Those are not matters for you to consider at this stage. What you have to consider is whether the accused committed the alleged offences and whether the prosecution has proved the elements of the offences charged beyond reasonable doubt.

[51] Ladies and gentleman assessor, one of the issues you are asked to consider is why the complainant did not report these matters to anybody sooner than she did. It was evident that the complainant did not complain the alleged incidents to anyone until she was taken to the police on a missing report made against her by the accused. She had been at a friend’s place when she was found. She admitted that she did not tell even her mother although she met her mother. She said that she was scared as there were too many people at reservoir road where her mother stayed. You may take into account the complainant’s age and the background when you consider whether the delay in complaining is justified. The experience of the court is that an assessment of a child’s evidence has to be made within the context of the home life that particular child was leading and with an appreciation how the maturity and dependency of the individual child may affect it. These matters are however for you to resolve and not for me. You must reach the decision whether you are sure the child’s evidence was truthful and reliable and its essentials. If you are not sure you should not act upon it. If you find her evidence truthful and reliable then you need not seek for corroboration.

[52] I must also give you a direction on identification. You may remember that complainant in her evidence said that in 2013 when she was sleeping in the night, Jione came, took off her pants and poked his finger into her vagina. It had happened in the sitting room when she was sleeping. She said that she saw his head from the light that was coming from the tube light in the bedroom. She said that she could not remember for how long he did it. It had been painful and she had cried.

[53] The identification of the accused was not in dispute. However, I give you this warning not because I have formed any view of the evidence, but the law requires this warning be given as there had been instances where even honest witnesses have made wrong identification. In assessing the evidence on identification, you must take the following matters into account.

1. Whether the witness had known the accused before?

In this case the accused is the father of the complainant and was living in the same house with her.

2. For how long did the witness have the accused under observation and from what distance?

In this case the complainant said that she cannot remember for how long he did it, but he was poking his finger and that it was painful.

3. Did the witness have any special reason to remember?

In this case she has a reason to remember as the accused allegedly inserted his finger into her vagina.

4. In what light was the observation made?

The complainant says that she saw the accused with the light of the tube light that was in the bedroom.

5. Was there any obstacle obstruct the view?

There is no evidence to say that there was an obstacle and the witness alleges that the accused poked his finger into her vagina.

[54] However, when you consider these questions when assessing the identification, you must also consider the reliability of the complainant.

[55] You may also remember that the complainant said that the doctor who examined her asked for her date of birth and that she checked her. She also said that apart from the date of birth she did not tell anything to the doctor. However, the doctor who testified said that the complainant child related to her what is recorded in section D10 of the report. You decide who is telling the truth and which version you are going to accept on that.

[56] The complainant in her evidence said that the accused touched her vagina, licked her vagina, poked his penis into her vagina and also poked his finger into her vagina on numerous occasions. Complainant said that in 2011 the accused touched her vagina and poked his finger into her vagina. She said that in 2012 the accused put his private part on her vagina and also poked it inside her vagina. She said that in 2013 the accused poked his finger into her vagina. She also said that in 2013 October the accused sometimes licked her vagina and sometimes poked it with his finger. The defence suggested that the accused did not commit those acts and that he used to change the panty of the complainant when she wets the panty. After taking all the evidence into account you decide whether the accused did those acts on the complainant and whether the complainant was only inaccurate about the dates.

[57] If you find that the complainant was not credible and that the accused has not committed those acts, then you must find the accused not guilty. If you find that the accused has committed those acts, then you go on to decide whether those acts were committed on the complainant during the period that is mentioned in the charges. If you decide that those acts were committed during that period, then you may find the accused guilty. Now, what happens if you decide that the accused committed the crimes as alleged and that the prosecution has proved the elements of the offence or the offences beyond reasonable doubt, but the crimes were committed other than during the periods alleged in the charges. Then you have to consider whether the accused was misled as to the allegation he has to answer and whether he was prejudiced in his defence by the fact that a different time period was given in the charges. You may take into account that the parties have agreed in the admitted facts that the complainant was staying with the accused during the periods relevant to the charges, when you consider whether any prejudice caused to the accused by the difference in dates if any.

[58] If you find that any prejudice was caused to the accused in his defence by the fact that a different time period on which the offence was committed was given in the information, then, you must find the accused not guilty. However, if you find that no prejudice was caused to the accused in his defence by that difference of time period, then you may find the accused guilty. You must consider each count separately.

[59] You will have to consider all the evidence led before court when coming to your conclusion. You have to decide which witnesses are credible and which are not. You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[60] It is a matter for you to decide on the facts and to decide whether the accused has committed the offences as charged or not, whether the prosecution has proved the charges against the accused beyond reasonable doubt.

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

[62] Your opinions on the charges of Sexual Assault and Rape will be either guilty or not guilty.

Ladies and Gentleman assessor,

[63] 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. You may peruse any of the exhibits you like to consider. 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
06^th May 2016

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