State v Senibiau [2016] FJHC 903; HAC25.2015 (5 October 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 25 OF 2015

STATE

V

JONE SENIBIAU

Counsels : Ms. A. Vavadakua for State
Ms. S. Devi for Accused

Hearings : 3^rd and 4^th October, 2016
Summing Up : 5^th October, 2016

SUMMING UP

Madam and Gentleman Assessors,

[1] We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear more. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the presiding judge, it is my task is to ensure that the trial is conducted fairly and according to law. As a part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give you on matters of law. It is also important to note that, if I give you a caution, you have to take it also into consideration, in coming to your opinion.

[3] It is your duty to decide all questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of fact, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.

[4] During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent view.

[5] In forming your opinion, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.

[6] It is also important to note that, in forming your opinion on the charge against the accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.

[7] I have already told you that you must reach your opinion on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution or defence exhibits and any admissions made by the parties.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and closing addresses made by the State Counsel and closing address of the Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the determination of truthfulness of witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

[14] 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. Some will display obvious signs of distress, others will not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.

[15] 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, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim’s reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. There is, in other words, no classic or typical response by victims of Rape.

[16] A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in this matter before us, the promptness or lateness of the complaint and what weight you attach to it.

[17] Another consideration may be; has the witness said something different at an earlier time or whether he or she is consistent in his or her evidence? In assessing credibility of the testimony of a witness on consistency means to consider whether it differs from what has been said by the same witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.

[18] In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection; or else could there be an intentional falsehood. Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in the light of other evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory or otherwise be mistaken.

[19] Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to an exhibit.

[20] Ladies and gentleman, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[21] Having placed considerations that could be used in assessing credibility of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[22] When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[23] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.

[24] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[25] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[26] In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this morning, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that you will understand the relationship between primary fact and the inferences that could be drawn from them.

[27] It does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.

[28] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove. That burden rests on the prosecution to prove the guilt of the accused.

[29] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. The fact that the accused has not given evidence and called no witness on his behalf should not be held against him as he has no burden upon him to prove his innocence. It is not his task to prove his innocence.

[30] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or level of proof, as expected by law?

[31] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I will explain these elements later.

[32] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences and the other matters of which you must be satisfied, such as identity, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such doubt, then your duty is to find the accused guilty.

[33] You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinion.

[34] Let us now look at the charges contained in the information.

[35] There is only one charge preferred by DPP, against the accused:

FIRST COUNT

Statement of offence

RAPE – Contrary to Section 207 (1) and (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

JONE SENIBIAU on the 19^th day of March 2015, at Togo Village, Qamea, in the Northern Division, penetrated the vagina of SERA KULA, with his finger, without her consent.

[36] I shall first deal with the elements of the offence of Rape. In order to prove a charge of Rape, the prosecution must prove beyond reasonable doubt that the accused penetrated Sera Kula’s or the complainant’s vagina, by his finger. The slightest penetration is sufficient to satisfy this element.

[37] Then we must consider the important issue of consent. It must be proved that the accused either knew that she did not consent or was reckless as to whether she consented. The accused was reckless, if the accused realised there was a risk that she was not consenting but carried on anyway when the circumstances known to him it was unreasonable to do so. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond reasonable doubt.

[38] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was over 13 years of age and therefore, she had the capacity to consent. More directions on the issue of consent will be made as we proceed.

[39] If you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s vagina with his finger then you may find him guilty of Rape.

[40] Apart from the elements of the offence of Rape, the identity of the person who is alleged to have committed the offences must also be proved by the prosecution. What it means is that it was this accused and none other had penetrated the complainant’s vagina on that date and time. There must be positive evidence as to the identification of the accused.

[41] If you find that the prosecution failed to establish any of these elements then you must find the accused not guilty.

[42] In our law, no corroboration is needed to prove an allegation of Sexual Offence and Rape and Sexual Assault, if relevant, are obviously considered as Sexual Offence.

[43] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

Case for the Prosecution

[44] Evidence of the complainant Sera Kula

(i) It is her evidence that she is a widow and was living with her 6 children at Togo in Qamea. The accused is known to the complainant prior to the incident. The accused used to visit her village to visit his mother’s relation, who has married from the village.

(ii) Describing the incident, the complainant said that on 19^th March 2015, she went to sleep with her youngest child who was 2 years old at the time. She was sleeping next to the side of her house which was only covered by netting. At about 2.45 a.m. She felt someone inserting a hand into her female private part. She then clarified that the accused inserted a finger into her vagina. He initially touched on her vagina and then he touched inside of her vagina. She felt his finger inside her vagina. She did not consent to the accused to put his finger inside her vagina.

(iii) She was surprised, but woke up to see who it was. She saw the face of the accused and he was squatting outside the netting; looking for a place to run away. She identified him with the solar lamp in her house. The complainant was afraid to come out of the house and waited until the accused ran away. She later saw a vertical cut through the netting and also saw a razor blade close to the place where the cut was. She saw the accused put his hand through the cut and thought that it must be the accused, who cut the netting to facilitate his act.

(iv) At that night she wore a black shorts and a white T shirt. She was also wearing her panties. When she woke up with the touch on her vagina, she found her panties pulled down, her trouser unbuttoned and open.

(v) She waited until he ran away and, having woken up her children, she then went to her brother’s house to report the incident.

[45] Evidence of P.C. 4930 Malakai

(i) This witness joined Fiji Police three years ago and for the last two years has served in the Taveuni Police.
(ii) He interviewed the accused on 25^th March 2015, upon an allegation of rape. The interview was conducted in iTaukei. It was then translated into English and typed into the computer. Before the interview, the accused was given all his rights and he understood them. At the conclusion of the caution interview the accused and the witness have placed their signatures on it. He tendered the iTaukei original of the caution interview as P.E. No. 1A and its English translation as P.E. No. 1B.

[46] That was the case for the prosecution. You then heard me explaining several options to the accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times. He opted to remain silent in exercising his legal right. In the closing submissions, the accused relied on the position he had taken up in his caution interview.

Analysis of all evidence

[47] The prosecution relied on the evidence of the complainant and the Police officer who recorded the caution interview statement of the accused to prove its case, while the accused, in exercising his legal right, opted to remain silent. You must not draw any adverse inference on the accused for his exercise of this legal right.

[48] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty to the charge of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of Rape, and identity of the accused beyond a reasonable doubt.

[49] At the beginning of this summing up, I described some considerations you might want to apply to the evidence in order to satisfy yourselves as to the truthfulness and reliability of the evidence. One such consideration is the consistency of the evidence. I shall deal with the two inconsistencies highlighted in the prosecution's case by the accused.

[50] The first inconsistency of the prosecution evidence as highlighted by the accused was in relation to penetration by his finger. The inconsistency is based on the admission by the complainant that she was not orderly in her thoughts as she had just woken up from deep sleep and therefore unable to say for how long the accused touched her vagina. When it was suggested to her, during the cross examination by the accused, that at no point of time the accused inserted his finger into her vagina, the complainant replied that he did insert his finger.

[51] The other inconsistency highlighted by the accused was in relation as to who unbuttoned her pants. In examination in chief, the complainant said that when she woke up she found her panties pulled down, her pants unbuttoned and unzipped. She admitted in cross examination that she told Police, when the incident is still fresh in her mind, that she herself unbuttoned her pants. She further admitted that it is the correct position.

[52] It is for you to decide whether these are inconsistencies and to the extent to which it affects the credibility of the basic version of the complainant and what weight you attached to her evidence. It is also for you to consider whether these inconsistencies make her evidence false and unreliable.

[53] Similarly, you have to consider the version of events as narrated by the accused for its consistency. In his caution interview, made on the 25^th March 2015, he denies inserting his finger into the complainant’s vagina but admits that he only touched it.

[54] I also mentioned you that the manner of giving evidence is also an applicable consideration in evaluating witnesses for their truthfulness and reliability. You would have observed how the complainant and the other witness for the prosecution have given evidence and faced cross examination. She had trouble in describing what she meant by female private part.

[55] In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution is truthful and reliable. That is the relative probability of the versions of event as presented by the parties.

[56] The evidence of the prosecution is that the accused, having cut through the netting inserted his finger into the complainant’s vagina, when she was in her sleep. When the complainant woke up and identified the accused, he ran away. She later found a vertical cut of the netting and also a razor blade nearby. She says that she first felt the touch but then she felt his finger inside of her vagina.

[57] In challenging the prosecution version of events on relative probability on penetration, the accused wants you to consider the fact that he merely touched the complainant’s vagina and denies having inserted his finger into it. The accused relied on the position he took up in the caution interview to base this argument.

[58] In examining the accused's position in his caution interview on the determination of the question of fact, whether there was penetration of finger into the vagina of the complainant, if you find that the claim of the accused raises a reasonable doubt in your minds, then you must find the accused not guilty of the charge of Rape since the prosecution has failed to prove its case. If you reject the claim of the accused that he merely touched her vagina and his denial of the fact that he inserted his finger into it; that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

[59] With this caution in mind, we could proceed to consider the claim of the accused for its probability of the version. The accused denies any penetration. He also denied touching inside of the complainant's vagina with his finger. He claims he only touched it. It is your duty to consider the relative probability of the accused's version of events.

[60] I must caution you over one important matter. When I present the accused’s version, alongside the version of the complainant, you might get an impression that the accused must prove that he only touched her vagina and did not penetrate her vagina. That is wrong. He is under no duty to disprove the case for the prosecution. He is not under a legal duty to offer evidence. He opted to remain silent.

[61] So far I have directed you on the assessment of credibility of the witnesses for the prosecution and the version of events as claimed by the accused in his caution interview. If you reject the claim of the accused, that he merely touched her vagina, and preferred to accept the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offence of Rape, beyond a reasonable doubt.

[62] As already noted the complainant had clearly stated that the accused touched inside of her vagina with his finger. She felt his finger inside her vagina. If you accept it as sufficient proof of digital penetration of the complainant’s vagina, then in addition, the prosecution must prove that it was the accused who had digital penetration and that he had no consent of the complainant or was reckless about it.

[63] I shall direct you on the issue of consent, before proceeding to the issue of identity of the accused. It is our law that consent of the woman must freely and voluntarily be given. She must have the necessary mental capacity to give consent. It is important to note that mere submission to sexual act without physical resistance by the woman cannot be considered as consent. Even if there is consent, if that consent is obtained by force, threat, fear of bodily harm, or exercise of authority then also it cannot be considered as consent acceptable to law.

[64] The prosecution wants you to believe the evidence of the complainant in which clearly said that she did not consent to the act of the accused. She was in her sleep when he first touch her vagina. She felt scared when she saw the accused outside. She waited until he ran away to pick her children up and to go to her brother’s house that night to report him what happened to her. In addition, the accused, in his interview statement, admitted that he ran away when she woke up, in answering to Q 59. The prosecution claims these circumstances clearly establish that she was not consenting. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented for the digital penetration of her vagina by the accused.

[65] In relation to the issue of consent, there is another aspect you must consider. As I have already directed you earlier on my summing up, the prosecution must prove that there was no consent by the complainant or the accused was reckless about it. What that means is whether the accused realised that there was a risk that she was not consenting but carried on with his act anyway when in the circumstances known to him it was unreasonable to do so.

[66] If you are not sure that he would have realised she was not consenting then you must proceed to consider whether the accused might have been reckless as to whether she consented. Then you must consider whether he genuinely believed she was consenting, when you consider these circumstances I have mentioned to you just now. If you think so, then you must find the accused not guilty of Rape. If you do not accept that he thought she was consenting when you consider all the circumstances, then you could convict him of Rape if you find the other elements also have been proved. The accused, on this issue also did not challenge the claim by the prosecution that there was no consent by the complainant.

[67] As I have already directed you in the summing up, the complainant had said, in relation to the count of Rape, that the accused inserted his finger into her vagina. The information alleged that the accused inserted his finger into the complaint’s vagina. The complainant said she first felt the accused touching her vagina. Then she also felt that he inserted his finger into her vagina. The accused claims that he did not insert his finger but merely touched it. If you accept this evidence as sufficient proof of penetration of the complainant’s vagina on that occasion, then you must find the accused guilty of Rape. If you are not satisfied that penetration had occurred, then you must consider the lesser or alternative offence of Sexual Assault, notwithstanding that the accused is not charged with the offence of Sexual Assault.

[68] The accused is guilty of Sexual Assault if he unlawfully and indecently assaulted the complainant. The word "unlawfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. The complainant said in her evidence that she found her pants unzipped and her panties pulled down, when she felt his hand on her vagina. In addition to the complainant’s evidence, the accused also admits that he touched her vagina that night when she was sleeping, after removing her singlet.

[69] You will recall that I have already directed you on this topic by referring to the identity of the accused. It is a vital component of the prosecution case and if it had failed to prove the fact that it was this accused and no other had digital penetration of the complainant’s vagina without her consent, then you must find the accused not guilty of Rape. The prosecution primarily relied upon the evidence of the complainant to prove identity of the accused. However, there is no challenge by the accused to the complainant’s claim that she identified the accused that night.

[70] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements of Rape beyond a reasonable doubt then you may find the accused guilty of Rape. If not, then you must find the accused not guilty of Rape.

[71] If the prosecution has proved all the elements of Rape, except for the element of penetration, then you may find the accused guilty of Sexual Assault. If not, then you must find the accused not guilty of Sexual Assault as well.

[72] If you have any reasonable doubt about the prosecution case as a whole or an element of any of these offences, then you must find the accused not guilty.

[73] Any re directions the parties may request?

[74] Madam and Gentleman assessors, this concludes my summing up of Law and evidence. Now you may retire and deliberate together and may form your individual opinions. When you have reached your separate opinions on the charge or on the alternative count you will come back to Court, and you will be asked to state your opinion.

[75] I thank you for your patient hearing.

ACHALA WENGAPPULI

JUDGE

At Labasa

5 October, 2016

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa