State v Tulevu - Summing Up [2016] FJHC 563; HAC65.2014 (9 June 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 65 of 2014

STATE

V

ILIMO TULEVU

Counsels : Ms. A. Vavadakua for State
Mr. A. Paka for the Accused

Date of Trial : 6, 7, 8 June, 2016
Date of Summing Up : 9 June, 2016

SUMMING UP

(The name of the complainant is suppressed, the complainant will be referred to as “MK”)

Ladies and Gentleman Assessors

[1] It is now my duty to sum up this case to you.

ROLE OF JUDGES AND ASSESSORS

[2] In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact, however, which witness to accept as reliable, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you wish.

[3] So, if I express an opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of facts.

[4] 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 own opinion as to whether the accused is guilty or not.

[5] State and Defence Counsels have made submissions to you about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels in this case.

[6] Their submissions were designed to assist you as judges of facts. However, you are not bound by what they said. As representatives of the community in this trial it is you who must decide what happened in this case and which version of the facts to accept or reject.

[7] You will not be asked to give reasons for your opinions and your opinion need not be unanimous. Your opinions are not binding on me but it will assist me in reaching my judgment.

BURDEN OF PROOF AND STANDARD OF PROOF

[8] As a matter of Law the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he or she is proven guilty.

[9] 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.

[10] Your decision must be based exclusively upon the evidence which you have heard in this court and nothing else. You must disregard anything you might have heard about this case outside of this courtroom.

[11] You must decide the facts without prejudice or sympathy to either the accused or the victim. Your duty is to find the facts based on the evidence without fear, favour or ill will.

[12] Evidence is what the witnesses said from the witness box, documents or other materials tendered as exhibit and the Agreed Facts (I will address you about the Agreed Facts a bit later in my summing up).

INFORMATION

[13] The accused was initially charged with one count of rape. A copy of the information is with you.

[14] After the close of the prosecution case it was decided to proceed with the lesser offence of defilement.

[15] You will remember before the Defence opened its case I informed you about the legal definition of the offence of defilement. I will repeat the same again in a short while.

AGREED FACTS

[16] In this trial the Prosecution and the Defence have agreed to certain facts which have been made available to you. This means you should consider these facts as proven beyond reasonable doubt.

[17] The Agreed Facts are as follows:

“1. THAT in this matter, ILIMO TULEVU, the Accused, was sleeping in the same room as the victim, “MK” on the 18^th day of August 2014, at Wailele Settlement, Nabouwalu, in the Northern Division.

2. THAT on the 18^th day of August 2014, the Accused, ILIMO TULEVU,inserted his penis into the vagina of “MK”, the victim and thereby had sex with her.”
   

[18] From the Agreed Facts you will have no problems in accepting as proven beyond reasonable doubt that it was the accused who was sleeping in the same room as the complainant “MK” on 18^th August, 2014 at Wailele Settlement, Nabouwalu and that it was the accused who had penetrated the vagina of the complainant with his penis.

[19] The legal definition of the offence of defilement is to have sexual intercourse with someone who is over the age of 13 years but under the age of 16 years. It is not a defence to the offence of defilement to say that the complainant consented to the sexual intercourse.

[20] In this case there is no dispute that the complainant was born on 15/02/1999 that is she was 15 years of age at the material time. This means the complainant was between 13 and 16 years of age at that time.

[21] It is also an Agreed Fact that the accused inserted his penis into the vagina of the complainant “MK” and had sexual intercourse with her.

[22] The Law provides a defence to the offence 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.

PROSECUTION CASE

[23] The complainant who was the only witness called by the prosecution informed the court that she was born on 15/02/1999 that is she was 15 years old at the time she had sex with the accused. There is no dispute that the accused and the complainant had sex on 18^th August, 2014 which was a Monday. They had met three times prior to having sex on the 18^th of August.

[24] In 2014 (the year of the alleged offending) the complainant was in Form 3 at Bua Central College. She also informed the court that she had told the accused that she was in Form 3. In cross examination the complainant said that she did not tell the accused her age or that she was going to school.

[25] In re-examination the complainant said that she did not inform the accused of her level of education because the accused might think that she was too young for him.

[26] The complainant had met the accused three times before going to the place where the accused was staying. She first met the accused at the Wairiki bridge where the accused was working as a construction worker. It was the accused who told her to wait for him in the afternoon.

[27] The second time they met was at the bus stop on the same day. It was on this occasion the accused asked her if they could have a relationship to which the complainant agreed. Thereafter on Saturday the same week they met the third time at Bua Central College ground where a sevens rugby tournament was in progress.

[28] After they met on the third occasion the next day was Sunday she went to the place where the accused was staying and stayed there with him. They had consensual sex on Monday 18^th August, 2014.

[29] The complainant also said when she was sitting with the accused at the bus stop she was afraid that her family or her parents would see her sitting with the accused that night. According to her “something might happen” or “something can happen”. On this night she accompanied the accused to where he was living and then she went home. The complainant said that she would not have left the accused had her uncle not come to take her away.

[30] It was her father who had reported to the Police that she was missing from home.

[31] The prosecution closed its case after the complainant gave her evidence.

Ladies and Gentleman Assessors

[32] At the end of the prosecution case you heard me explain to the accused his options. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains with the prosecution at all times. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination.

DEFENCE CASE

[33] The accused in his evidence informed the court that he met the complainant for the first time at the Wairiki bridge. On all the occasions he had met her she did not tell him her age.

[34] When he first met her he thought she was an adult. This he was able to make out from the way she was talking to him. On Sunday 17^th August the complainant went to the camp where the accused was staying. His co-workers called him at Nawaca where he was drinking grog with his friends. He asked that she be brought over and he left with a friend to meet her on the way.

[35] When they met he asked the complainant to come with him to his camp at Wailele. In his room they both had dinner and then slept. The next day Monday they had sexual intercourse.

[36] The only time the accused became aware that the complainant was 15 years of age and a Form 3 student was when the Police told him. He says he was shocked that he could not believe it.

[37] He believed she was an adult from the way she spoke the first time they met and secondly from her physical features. He also said he would not have requested her to have a relationship had he known that she was in Form 3.

[38] In cross examination the accused said he was either 38 or 39 years of age in 2014. The reason why he thought she was an adult was because of how she spoke to him and her physical appearance. The complainant did not tell him her age and therefore he never knew her age. He further said that he did not ask her about her age.

[39] When he had met the complainant on Friday afternoon at 4 o’clock on the first day she was not wearing a school uniform. He thought the complainant was of the age of 22, 23 when he first met her.

Ladies and Gentleman Assessors

[40] It is for you to decide whether on 18^th day of August, 2014 the accused had reasonable cause to believe and he did in fact believe that the complainant “MK” was of or above the age of 16 years.

[41] The burden of proof 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 adduced in court that the accused had reasonable cause to believe, and that in fact he believed that the complainant “MK” was of or above 16 years of age then you must find the accused not guilty of the offence of Defilement. On the other hand, if it appears to you that the accused did not have reasonable cause to believe so, and in fact he did not believe so then you may find the accused guilty of the offence of defilement

[42] As a matter of law I have to direct you that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means if you are satisfied with the evidence given by the complainant and accept it as reliable and truthful you are not required to look for any other evidence to support the account given by the complainant.

ANALYSIS

Ladies and Gentleman Assessors

[43] You have heard the evidence of the two witnesses over the last few days. If I did not mention 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] A witness can give evidence on his or her observations like what they heard, what they saw and what they perceived. There is no doubt in this case that the complainant was 15 years old at the time the accused had sex with her on 18^th August, 2014 at the place where he was camping. It is also not in dispute that there was sexual intercourse between the two on that date. This is a case of defilement and 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 has a reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16. In this case the accused has taken this defence.

[45] He says that he believed the complainant was above 16 years of age at that time. He did not see her in school uniform, he also did not ask her about her age or her level of education and neither did she tell him. The complainant said she never told the accused about her level of education because the accused might think she was too young for him.

[46] It is now for you to decide whether on 18^th August, 2014 the accused has reasonable cause to believe and he did in fact believe that the complainant was of or above the age of 16 years.

Ladies and Gentleman Assessors

[47] 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 who is a reliable witness and who is not. You observed both witnesses giving evidence in court. You decide which witness was forthright and truthful, and which one was not. Which witness was evasive or straight forward? You may use your common sense when deciding on the facts. Assess the evidence of both the witnesses and theirdemeanour in arriving at your opinions. If you do not accept the evidence of the accused that does not mean that he is guilty. You are to look at all the evidence adduced before you to find him guilty for the offence of defilement. Even if you do not believe the accused you still have to see that the prosecution has proved the case beyond reasonable doubt.

[48] You will have to evaluate all the evidence and apply the law as I explained to you when you consider whether the offence of defilement against the accused have been proven beyond reasonable doubt.

[49] Your possible opinions are:

(a) Defilement – Guilty or not Guilty.

Ladies and Gentleman Assessors

[50] This concludes my summing up. You may now retire and deliberate together and once you have reached your individual opinions, please inform a member of my staff so that the court can be reconvened.

[51] Before you go I would like to ask Counsel if there is anything they might wish me to add or alter in my summing up.

Sunil Sharma
Judge

At Labasa
9 June 2016

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