State v Moceisavu - Summing Up [2016] FJHC 963; HAC109.2015 (19 October 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 109 of 2015

STATE

v.

NEMANI MOCEISAVU

Counsel: Ms. S. Serukai for State
Ms. M. Tarai for Accused

Hearing: 17^th and 18^th October 2016
Summing Up: 19^th October 2016

SUMMING UP

[Names of the victim is suppressed. The victim will be referred to as J.R.]

[1] Ladies and Gentleman Assessor,

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 counsel, but their submissions are not evidence. You 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] In the information the accused is charged with one count of rape and five counts of sexual assault. However, you may disregard counts 4, 5 and 6 as the case proceeded against the accused only on counts 1, 2 and 3. 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] 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)........

[11] 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. It is an agreed fact that the complainant was 7 years old at the time of the alleged offence. Therefore, the complainant in this case is incapable of giving consent to the sexual acts.

[12] Particulars of the offence of rape in count No.1 say that the accused penetrated the anus of the complainant with his finger. Therefore, the only element that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 1 is, that the accused penetrated the anus of the complainant with his finger. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration. Slightest penetration is sufficient to prove the element of penetration.

[13] Now I will explain to you the elements of sexual assault. Counts 2 and 3 relate to sexual assault on the complainant. For the accused to be found guilty of sexual assault, the prosecution must prove the following elements beyond reasonable doubt.

1. The accused
2. Unlawfully, and
3. Indecently
4. Assaulted the complainant.
   

[14] 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. As the complainant was below 13 years of age at the time of the alleged offences were committed, the fact that the child may have consented to the indecent assault is no defence to the charge.

[15] 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.

[16] Particulars of the offence of sexual assault in count no. 2 say that the accused unlawfully and indecently assaulted the complainant by kissing her lips. You decide whether the accused kissed her lips, and if he did whether that act was indecent as I mentioned before.

[17] Particulars of the offence in count No. 3 say that the accused unlawfully and indecently assaulted the complainant by kissing her breasts. You decide on the evidence whether the accused kissed her breasts and if he did so whether that act was indecent as I mentioned before. You may consider each count separately.

[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 on different occasions. For example, on one occasion when she was coming back after getting a ‘sasa’ broom and then when she was alone at home. This way of laying charges is sometimes chosen by the prosecution 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 was at least one offence of rape committed on count No. 1 and whether there was at least one offence of sexual assault committed on each of the 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 ‘J.R.’ to give evidence first. Between September and October 2014 she had been in class 2. She said that she went to Joji to ask for a ‘sasa’ broom. She had seen Nemani standing behind a tree. When she left Joji’s place Nemani had pulled her. She said that he threw her into the grass field. Then Nemani had layed her on the grass field and had pulled her dress up and also the panty. He had then kissed her lips and breasts and had penetrated his finger into her arse, she said. She said that she could feel his finger. When he penetrated his finger into her arse, Nemani had turned her upside down. She had felt pain. She had asked him to stop. She had cried, but he had kept on doing it. Then he had told ‘finished’ and had let her go.

[21] She had not told anybody about it as she was afraid, she said. He had done this to her three times. One afternoon she had been at home when her father and siblings went to gather firewood. Nemani had come home, made her lay on the bed and had done the same thing. He had penetrated her anus with his finger, kissed her lips and had kissed her breasts. She had not told anyone about this because Nemani had told her not to tell anyone.

[22] For the 3^rd time it had happened when her mother was sick. Her mother had asked her father to drop her to school. Father had asked Nemani to drop her. On the way to school, Nemani had pushed her on to the grass field, but had not done anything to her. She had gone to school, but had not told anyone as she was scared.

[23] One day her mother had bathed her and had noticed something below her anus. Mother had also told her father what she saw. When her mother asked her what happened, she had told her what happened. Next day they had gone to the police station. She had made a statement to police and she said that she was taken to hospital. She said that there was no one else when she was medically examined by the doctor.

[24] In cross examination she said she had friends in school with whom she talks about everything. Her best friend had been ‘Bulou’. Her class teacher had been Ms. Kalokalo who was good. She said that she could talk to her anything that she wanted to talk.

[25] Answering further questions on the 1^st incident that happened when she went to collect the broom, she said that she was turned upside down when Nemani kissed her lips and kissed her breasts. She said that it was the only time that he kissed her breasts when she was turned upside down. She did not know whether Nemani was related to her. Nemani stayed at Joji’s house, she said.
[26] When she was questioned about the 2^nd incident that happened on the bed in her house, she said that she was not upside down when he kissed her lips and breasts. She said the only reason why she told about what happened to her mother was because she asked her after she checked her. Her mother had asked her whether somebody did something to her. She said that she was scared and that’s why she did not tell her mother. She was scared as Nemani told her not to tell anyone, she said.

[27] She said that she did not tell the police that Nemani inserted his finger into her anus, and she told that only to the mother. She had not told that to police as she was scared of the police, she said. She did not know whether her father was there when her statement was recorded by police. She had gone to police station with her mother and grandmother. She said that she did not use the word ‘vagina’ at the police station. She said that she told her mother that Nemani did something to her vagina when her mother asked her. She said that she did not tell the police that Nemani used his finger inside her vagina.

[28] When she was shown her statement she identified her signature. She did not know whose signature was there below her signature. When it was shown to her that she told the police in her statement that “while he was inserting his finger inside my vagina it was painful to me”, she said that she did not tell that to police.

[29] When she was shown in another line where she had said to police that he inserted his finger into her vagina, she again said that she did not tell the police but only Susana. She said that Susana was a police officer who recorded her statement. Then she admitted telling that to police. She said that she has forgotten what Nemani had done to her. When it was put to her that she had forgotten as Nemani did not do anything to her. She said “I don’t know”. Again she said that Nemani had done it to her.

[30] She said after she went to the police she told the story to the State Counsel. She said no one told her to tell arse or anus. She said before she came to court her mother told her to tell that Nemani put his finger into her anus. She said that what she said was the truth.

[31] The next witness for the prosecution was the mother of the complainant Ilibera Cava. She said that she could recall 02/03/2015. At about 6.30pm when she came home her elder daughter had told her that there is something in ‘J.R.’s panty. J.R. had been ready to have a bath. After she bathed she had checked her vagina. She had observed mucus like off white thing. When she touched her vagina J.R. felt pain. J.R. had told her that she can’t say anything. After a while she had told what happened, she said. She had told her that Nemani poked his finger in her vagina and kissed her breasts. She said that she did not want to hear more than that.

[32] Following day, she had taken J.R. to Nausori hospital after school. On their advice she had gone to the police station. J.R. had told her that this happened to her a lot of times. Once when the witness was sick and when Nemani had taken her to school. She said that she took her to the police station. No one else had been there. Following day J.R. had gone to CWM hospital with her father. She said that only she was there with J.R. when her statement was taken at the police station. Cpl. Susana and her husband had taken J.R. the following day to hospital.

[33] In cross examination she said that in 2014 Nemani was new to Dawakoto Settlement. When she was asked whether J.R. mentioned to her only about the vagina she said in i-taukei that she said that he put the finger in front. J.R. had told some other things to police.

[34] The next witness for the prosecution was Dr. Kelerayani Namudu who medically examined J.R. at CWM hospital on 05/03/2015.

[35] You heard her qualification and experience as a medical doctor. Medical report was submitted in evidence as Exhibit 1. Her medical findings were:

‘Noted vaginal discharge, white with foul smell. No obvious laceration or
bruise around perineum.’

[36] She said that J.R. was 7 years old and it was normal for a 7-year-old to have a vaginal discharge with foul smell. It is not normal for every 7 years old child to get such discharge she said.

[37] She said that in her opinion to find the cause for the discharge you need to get further facts like history, duration of discharge and any signs of injuries.

[38] She has prescribed antibiotics because she may have been exposed to sexual assault and as there is a risk of sexual transmitted disease.

[39] In cross examination she said on her summary and conclusions that she has confirmed that no physical evidence of sexual assault. She said that, that opinion was based on her observations.

That was the evidence for the Prosecution.

Ladies and Gentleman assessor,

[40] 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 give evidence and subject himself for cross examination. Accused also called another witness to give evidence on his behalf. So you must give their evidence careful consideration.
[41] Accused in his evidence said that he started living in Dawakoto Settlement since 2013 Christmas time. He said that he did not know the child J.R. He denied all the allegations against him. About the allegation he said that he did not know anything. He also said that he had never been to J. R’s house. He said that he had never taken J.R. to school.

[42] In cross examination he said that he was living in Joji’s house and Joji’s wife Loraini and her husband also were living there. He denied that he was the only one who was living there without a partner.

[43] He knew Josaia Dereki. He said that he did not know about Josaia’s daughter J.R. He denied that Josaia was a friend of him. He denied pulling J.R. to the grass. He denied pulling up J. R’s skirt and panty. He denied kissing J. R’s lips, breasts and penetrating his finger into her anus. He denied going to J. R’s house and taking J.R to the bedroom. He denied kissing her lips, kissing her breasts and penetrating his finger into J. R’s anus in the bedroom. He denied dropping J.R to school. He denied taking advantage of J. R’s age that she was 7 years old.

[44] The last witness for defence was W/D/Cpl. 2997 Susana. She had been the investigating officer in this case. She also had recorded the statement of the alleged victim. Victim had been to the police station with her mother and grandmother. She said that everything what the victim J.R. told her was recorded in the statement. Statement had been recorded on 05/03/2015.

[45] She said that J.R. never mentioned that her anus being penetrated by Nemani. She said that J.R. was normal, fluent and clear when her statement was recorded. When recording her statement, her father had been present. She had used i-taukei language and J.R. did not look scared, she said. J.R. had signed the statement and father also had signed. She had read her statement to J.R. and her father.

[46] She had not asked J.R. whether she forgot to tell anything. When she asked J.R. whatever in her statement whether it happened J.R. had said that’s the only story that she gave.

[47] In cross examination she said she is familiar with sexual offences being in the unit for 6 years. She said the victim came with her mother and grandmother. She said their conversation was in i-taukei language but she wrote the statement in English. She said that she read the statement back in i-taukei language. She translated it to the i-taukei so that they can understand. She said that J. R’s mother went to work and father came in. J.R. and father both have signed the statement.

[48] She said that it would have been easier if she recorded the statement in i-taukei language and then translated to English. She said that it would have been reasonable if she did so. She said that they would have understood more if she wrote in i-taukei language.

That was the evidence for the defence.
[49] Ladies and Gentleman assessor,

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’s unimportant. You should consider and evaluate all the evidence in coming to your decision.

[50] The written agreed facts are before you. Parties agreed that the complainant was 7 years old at the time of the alleged offence. Parties also agreed that the accused is Nemani Moceisavu and that he was 40 years old at the time of the alleged offence. Parties also agreed that the complainant and the accused are from the same settlement. You may accept those facts as if they had been led from witnesses from the witness box unchallenged and as proved beyond reasonable doubt.

[51] 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.

[52] May I also direct you that a witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example, you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case Dr. Kelerayani Namudu gave evidence on her medical examination of the alleged victim ‘J.R’. Her expertise on the medical field was not challenged by the defence. Therefore, the opinions she gave on her relevant subject are admissible. You may decide what weight you give to that evidence.

Analysis

[53] The prosecution must prove beyond reasonable doubt, all the elements of rape in count 1 and all the elements of sexual assault in counts 2 and 3 as I explained to you. As regards the element of consent, as the defence has agreed that the complainant was 7 years old at that time, consent of the victim for the sexual acts is immaterial.

[54] You may have observed that when the complainant gave evidence, there were some inconsistencies between the evidence before this court and the statement given to the police. In evidence she said that the accused penetrated her anus with his finger. However, she had not mentioned that in her statement to the police. She admitted that she did not mention that in her statement, but only told her mother. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However, you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police, can affect the credibility of the witness.

[55] Although the complainant said that she told her mother that the accused penetrated his finger into her anus, complainant’s mother in her evidence said that the complainant told her that the accused poked his finger into her vagina. Explaining to court what the complainant told her in i-taukei language she said that the complainant said that he put the finger in front. The police officer Susana who recorded the statement of the complainant also said that the complainant did not mention about her anus being penetrated. Complainant said in her evidence that she did not tell the police that Nemani inserted his finger into her vagina. She also said that she did not tell the police that Nemani inserted his finger into her anus.

[56] When evaluate the evidence, you may consider these inconsistencies and the explanations given by those witnesses, when deciding on the credibility. You may also consider the probabilities of the events testified by the witnesses. You may also take into account the age of the complainant.

[57] The complainant testified as to what happened. Accused denied the allegations. It is for you to decide which witnesses and which parts of their evidence you are going to believe.

[58] 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.

[59] 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. You may consider evidence on each count separately.

[60] 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.

[61] Your opinions on the charge of Rape in count no. 1 and charges of sexual assault in counts no. 2 and 3 will be either guilty or not guilty.

[62] Ladies and Gentleman assessor,

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
19^th October 2016

Solicitors
Office of the Director of Prosecution for State
Office of the Legal Aid Commission for Accused