State v Cati - Summing Up [2016] FJHC 702; HAC224.2015 (2 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 224 OF 2015

STATE

V

JOPE CATI

Counsel : Ms. K. Semisi for State
Ms. T. Rigsby for the Accused

Dates of Hearing : 01^st - 02^nd August 2016
Date of Summing Up : 02^nd August 2016
(Name of the complainant is suppressed. Accordingly, the complainant will be referred to as JR)

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
2. Evidence is what the witnesses said from the witness box in this court room. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard such information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. You may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
6. Based on the evidence of witnesses you may decide that certain facts are proved. In addition to those facts you would consider as directly proved, you may also draw reasonable inferences from those proved facts.
   
7. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Obviously, you may have a difficulty in believing someone who is not consistent. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
   
9. The complainant in this case was 08 years old when she gave evidence. The main task before you in this case therefore is to judge whether what this child witness said in her evidence is true and whether the account of the events she gave is reliable. You may have come across children of that age. You will have an idea of the way they think, talk and the way they describe things. With your life experience, you have to decide whether the complainant was a credible witness and whether you can rely on the evidence given by her.
   
10. Children can be confused about what has happened to them; sometimes children blame themselves for what has happened. Sometimes children do not speak out for fear that they themselves will be blamed for what has taken place, or through fear of the consequences should they do so. They may feel that they may not be believed. They may fear they will be punished. They may be embarrassed because they did not appreciate at the time that what they were doing was wrong. They may be embarrassed because they found that some aspects of the attention they were getting from the individual concerned were enjoyable. Some victims of sexual offences, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all.
    
11. I mention these possibilities because experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and reliable account of her experience concerning the offences the accused is charged with.
    
12. As a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The accused is presumed to be innocent until proven guilty. The prosecution should prove the guilt of the accused beyond reasonable doubt, in order for you to find him guilty of a particular offence. You must be sure of the accused person’s guilt.
    
13. If you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in a short while.
    
14. You would find an alternative count in the information. If you find the accused not guilty of the first count, you are then required to consider whether the elements of the alternative count have been proved beyond reasonable doubt.
    
15. You are not required to decide every point which has been raised by lawyers in this case. You should only deal with the offences the accused is charged with and the matters that will enable you to decide whether or not the charges laid against the accused have been proved.
    
16. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary.
    
17. Let us now look at the Information. DPP has charged the accused for the following offences;
    

FIRST COUNT

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(b) & (3) of the Crimes Decree No. 44 of 2009.

Particulars of offence

JOPE CATI between the 1^st day of December 2012 and the 31^st day of January 2013 at Vanuabalavu, Lau in the Southern Division penetrated the vagina of JR, a child under the age of 13 years with his tongue.

ALTERNATIVE COUNT

Statement of offence

Sexual Assault: Contrary to Section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of offence (b)

JOPE CATI between the 1^st day of December 2012 and the 31^st day of January 2013 at Vanuabalavu, Lau in the Southern Division unlawfully and indecently assaulted JR by sucking her vagina.

18. Now let me summarise the evidence led by the prosecution and the defence. Please remember that I will not be reproducing the entire evidence of the case. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
    
19. Complainant said that she is 8 years old and she is now studying in class 2. In 2012, she was staying at Narocivo village with her parents. She said that on one day when she went to the accused’s house, the accused touched her vagina and then stroked her vagina. She told her aunt about what the accused did to her when she was living with the aunt at Mago Island. When she was asked what did she tell the aunt; complainant said that she told her aunt that the accused sucked her vagina. She said the accused did suck her vagina at the accused’s house. She said, “he opened my vagina and sucked it”. She said that the accused sucked inside her vagina and she felt pain. She identified the accused.
    
20. During cross examination, she said this matter was reported to the police when she was staying at Butoni village with her aunt, and she was attending the kindergarten there. When she was asked whether she could remember her aunt saw her and one boy Jiuta behind an empty house pulling up their pants, she said ‘no’. She said ‘yes’ when she was asked whether she told her aunt about the accused when the aunt asked her about Jiuta. She agreed that she told her aunt about the accused 7 months later. When she was asked whether she told her parents about the incident as she had stated in her evidence that it was painful, the complainant said she did not.
    
21. During re-examination, she said the reason for her to tell her aunt 7 months later and also for her not to tell her parents about the incident at all, is because the accused told her not to tell anybody.
    
22. Next witness for the prosecution said that the complainant was staying with her and her husband at Mago Island since February 2013 as the complainant’s parents wanted the complainant to attend the Butoni Kindergarten where she was teaching. Two weeks after the complainant came to stay with her, the complainant complained about a pain in her vagina. When she asked, the complainant told her that complainant’s mother used to put virgin oil when she had this pain. The complainant again complained about a pain in her vagina after two weeks. Then she asked the complainant whether anyone touched her private part and the complainant told her that no one touches her private part. Then she called the complainant’s mother and the mother confirmed applying virgin oil.
    
23. One afternoon thereafter, she went to the company’s office to take some photocopies. The complainant and one boy Jiuta who was also a kindergarten student were also there and she told the duo to wait for her in a nearby timber workshop. She came outside after a few minutes and she did not see the two of them. When she called their names she saw the duo coming out from behind some timber, pulling their pants up. When she asked the complainant whether she did anything bad behind the timber, the complainant said ‘No’. After she kept asking the complainant, complainant told her that “only Tua Cati did those things to me”. Then when she asked what Tua Cati do, the complainant told her that one day the accused took the complainant to his house, took off her dress, told her to lie on the bed and started licking her vagina. She reported the matter to the police when she came to Suva after a few weeks. She said the complainant’s date of birth is 31/01/2008. She also said the accused is the cousin brother of the complainant’s grandfather.
    
24. During cross examination she admitted that she had stated in her police statement that she saw the complainant and Jiuta pulling their pants, when they came out from an empty house and that she was inside a classroom before she saw this. She also admitted that she told the police that the two started blaming each other when she questioned them and that Jiuta told her that the complainant was touching his private part. She said ‘yes’ when it was suggested to her that the complainant told her about the accused when she asked the complainant about this incident with Jiuta.
    
25. That is only a summary of the evidence. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to remain silent. That is his right to do so. You must not draw any adverse inference against him due to his choice to remain silent.
    
26. Defence says that there are inconsistencies in the evidence presented by the prosecution and that the accused did not commit the offences.
27. You heard in this case that the complainant had made a complaint to her aunt, the second prosecution witness. Prosecution is relying on that evidence and says that there was a recent complaint made by the complainant. You should consider whether the complainant made that complaint without delay and whether she sufficiently complained of the offences the accused is charged with. The complainant need not describe every detail of the incidents in her complaint, but the complaint should contain sufficient information with regard to the alleged conduct of the accused.
    
28. You heard the evidence of the complainant and the evidence of the second prosecution witness. Defence says that the complainant informed the second prosecution witness of the alleged conduct of the accused 7 months later and further, the complainant came out with that information when the second prosecution witness questioned the complainant after she saw the complainant and another boy pulling their pants up. Defence counsel also highlighted that the second prosecution witness has given a different version in her police statement with regard to the place she saw the complainant and the other boy pulling up their pants. The complainant said in her evidence that the accused sucked her vagina. The second prosecution witness said in her evidence that the complainant told her that the accused licked the complainant’s vagina.
    
29. Considering all the relevant evidence, you should decide whether there is reliable evidence that the complainant made a prompt complaint to her aunt and whether that complaint contains sufficient information regarding the offences the accused is charged with. If you decide that the complainant had made a complaint which is prompt and sufficient, then you may consider that the complainant’s credibility is strengthened in view of that complaint.
    
30. The defence says that there are any inconsistencies in the evidence led in this case. In dealing with inconsistencies, first you have to be satisfied that in fact there are inconsistencies in the evidence given by a particular witness. If you are satisfied that there are inconsistencies, then you should consider whether those inconsistencies are material and relevant or insignificant and irrelevant. If you find an inconsistency to be material and relevant, then you must consider whether there is any explanation for that inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that the witness who had given the inconsistent evidence is generally not to be relied upon or you may decide to disregard only the part of his/her evidence which you consider unreliable.
31. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider a witness as a reliable witness notwithstanding the inconsistency.
    
32. As a matter of law you should remember that it is not required to look for corroboration of the evidence of a complainant in a case concerning a sexual offence. To look for corroboration is to look for the existence of independent evidence to support the evidence of a particular witness. Therefore, you do not have to look for any other evidence to support the complainant’s evidence in this case.
    
33. Now let us take a look at the Information again. The accused is charged with the offence of rape on the first count. The prosecution must prove the following elements beyond reasonable doubt to prove the offence of rape;
    1. the accused;
    2. penetrated the vagina of the complainant with his tongue;
    100. without the consent of the complainant or,

that the complainant was below the age of 13 years at the time of the incident

34. The first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
    
35. Second element involves penetration. To establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the complainant’s vagina with his tongue. A slightest penetration is sufficient to satisfy this element.
    
36. Law says that ‘a child under the age of thirteen years is incapable of giving consent’. The prosecution says that the complainant was below the age of thirteen years during the time material to this case. You should consider whether the prosecution has proved beyond reasonable doubt that the complainant was below the age of thirteen years when the alleged incident took place.
    
37. If you are satisfied beyond reasonable doubt that the prosecution has proved all the three elements explained above, beyond reasonable doubt, then you should find the accused guilty of the rape count. If you have a reasonable doubt in respect of any element, then you should find the accused not guilty of rape and then consider whether he is guilty of the alternative count of sexual assault.
38. The elements of the offence of sexual assault are;
    1. the accused;
    2. unlawfully and indecently;
    100. assaulted the complainant.
         
39. The first element is again about the identity of the accused.
    
40. The word “unlawfully” simply means without lawful excuse. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent. You should also ask yourself, firstly, whether you consider the force which was used could have been sexual because of its nature; and if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual. Assault is the use of unlawful force.
    
41. Any re-directions?
    
42. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
43. Your possible opinion should be as follows;

First count – guilty or not guilty

If not guilty;

Alternative count – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State: Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused: Rigsby Law, Nausori.