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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 128 of 2016
STATE
V
TEVITA RASUAKI
Counsel : Ms. Kimberly Semisi for the State
Ms. Safaira Ratu for the Accused
Dates of Trial : 29-31 May, 1-2 June & 5-6 June 2017
Date Summing Up : 8 June 2017
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “K.R.”
SUMMING UP
Madam Assessor and Gentlemen Assessors,
[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. 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 duty to ensure that the trial is conducted fairly and according to law. As 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 to you on matters of law.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4] Please remember that I will not be reproducing the entire evidence in this summing up. 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 reasoning.
[5] In forming your opinions, 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] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the Accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the Accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I shall place much reliance upon your opinions.
[7] I have already told you that you must reach your opinions 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 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 submissions made by both Counsels 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 the credibility of witnesses, basically the truthfulness and 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 in a Court of law and may find Court environment stressful and 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 a sexual offences 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 alone 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] You heard in this case that the complainant had made a complaint to her mother after the incident. You should consider whether she made that complaint without delay and whether she sufficiently complained of the offences the Accused is charged with.
[16] The complainant need not specifically disclose all of the ingredients of the offences and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that she made a prompt and a proper complaint, then you may consider that her credibility is strengthened in view of that recent complaint.
[17] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his or her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected.
[18] However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency and consider him or her to be reliable as a witness.
[19] You may also have to consider whether the evidence of a particular witness seems 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] Lady and Gentlemen Assessors, 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 and reliability 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 and reliable 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 to the five charges he is charged. 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 offences 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 a very simple 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 example 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 the case. That burden rests entirely 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 offences charged. The fact that the accused has given evidence does not imply any 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 allegations. Then what is the standard of proof or degree 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 offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason.
[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 reasonable doubt, then your duty is to find the Accused guilty.
[33] You should disregard 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 should have 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 opinions.
[34] I must also explain to you as to the reason for the use of screen, when the complainant gave evidence in this case. It was a normal precautionary procedure adopted in Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. Please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.
[35] Let us now look at the charges contained in the information.
[36] There are five charges preferred by DPP, against the Accused:
FIRST COUNT
Statement of offence
SEXUAL ASSAULT –Contrary to Section 210(1) (a) of the Crimes Act No. 44 of 2009.
Particulars of the Offence
TEVITA RASUAKI on the 19th day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by touching her breasts.
SECOND COUNT
Statement of offence
SEXUAL ASSAULT –Contrary to Section 210(1) (a) of the Crimes Act No. 44 of 2009.
Particulars of the Offence
TEVITA RASUAKI on the 22nd day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by touching her breasts.
THIRD COUNT
Statement of offence
SEXUAL ASSAULT –Contrary to Section 210(1) (a) and (2) of the Crimes Act No. 44 of 2009.
Particulars of the Offence
TEVITA RASUAKI on the 22nd day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by licking her vagina.
FOURTH COUNT
Statement of offence
RAPE –Contrary to Section 207(1) and (2) (b) of the Crimes Act No. 44 of 2009.
Particulars of the Offence
TEVITA RASUAKI on the 26th day of March 2016, at Suva in the Central Division, penetrated the vagina of K.R., with his finger, without her consent.
FIFTH COUNT
Statement of offence
SEXUAL ASSAULT –Contrary to Section 210(1) (a) and (2) of the Crimes Act No. 44 of 2009.
Particulars of the Offence
TEVITA RASUAKI on the 26th day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by licking her vagina.
[37] As you would have noted there are four counts of Sexual Assault and one count of Rape.
[38] In order to prove the count of Rape, the prosecution must establish beyond reasonable doubt that;
(i) the Accused;
(ii) on the specified day (in this case the 26th day of March 2016);
(iii) penetrated the complainant’s vagina, with his finger;
(iv) without the consent of the complainant; and
(v) the Accused knew or believed that the complainant was not consenting, or the Accused was reckless as to whether or not she was consenting.
[39] The first element is concerned with the identity of the person who committed the offence. The second element relates to the specific day on which the offence was committed. The third element involves the penetration of the complainant’s vagina, with his finger. It must be noted that the slightest penetration is sufficient to satisfy this element of penetration.
[40] The fourth and fifth elements are based on the issue of consent. To prove the fourth element, the prosecution should prove that the Accused penetrated the complainant’s vagina, with his finger, without her consent.
[41] You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance shall not alone constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances:
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
[42] Apart from proving that the complainant did not consent for the Accused to insert his finger into her vagina, the prosecution must also prove that, either the Accused knew or believed that complainant was not consenting or he was reckless as to whether or not 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. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not. 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.
[43] 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 mental capacity to consent.
[44] If you are satisfied beyond reasonable doubt that the Accused, on the 26th day of March 2016, penetrated the complainant’s vagina with his finger, without her consent, then you must find him guilty of the fourth count of Rape.
[45] The Accused would be 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. As such, it is for you as Assessors to consider and decide whether the acts of touching of the complainant’s breasts and licking her vagina by the accused is an indecent act and thereby amounts to Sexual Assault.
[46] If you are satisfied beyond reasonable doubt that the Accused, on the 19th day of March 2016, unlawfully and indecently assaulted K.R., by touching her breasts then you must find him guilty of the first count of Sexual Assault. Similarly, if you are satisfied beyond reasonable doubt that the Accused, on the 22nd day of March 2016, unlawfully and indecently assaulted K.R., by touching her breasts then you must find him guilty of the second count of Sexual Assault. If you are satisfied beyond reasonable doubt that the Accused, on the 22nd day of March 2016, unlawfully and indecently assaulted K.R., by licking her vagina then you must find him guilty of the third count of Sexual Assault. Similarly, if you are satisfied beyond reasonable doubt that the Accused, on the 26th day of March 2016, unlawfully and indecently assaulted K.R., by licking her vagina then you must find him guilty of the fifth count of Sexual Assault.
[47] Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence must also be proved by the prosecution beyond reasonable doubt. What it means is that it was this Accused and none other who had penetrated the complainant’s vagina with his finger on the 26th day of March 2016 and also sexually assaulted her on the 19th, 22nd and 26th March 2016 as aforesaid. There must be positive evidence as to the identification of the Accused.
[48] In our law, no corroboration is needed to prove an allegation of Sexual Offence; Rape and Sexual Assault are obviously considered as Sexual Offences.
[49] If you find that the prosecution failed to establish any of these elements in relation to any of the five counts, then you must find the Accused not guilty to all five charges.
[50] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
[51] The State and the Defence have consented to treat the following facts as “agreed facts” without placing necessary evidence to prove them:
[52] You must therefore, treat those facts as proved. It has come to my attention that the second agreed fact reads that the complainant was staying at Bayview Heights with her mother, step-father and three younger brothers. However, it is clear from the evidence led at the trial that the complainant was staying at Bayview Heights with her mother, step-father and three younger siblings, the youngest being a girl. Both the State and the Defence would agree that this is correct. Therefore, I direct you to treat the following agreed facts as proved.
[53] The prosecution, in support of their case, called the complainant, her mother, a medical officer and two police witnesses.
Case for the Prosecution
[54] Evidence of the complainant K.R.
(i) She is 16 years of age. Her birth certificate was tendered as Prosecution Exhibit PI. As per her birth certificate, her date of birth is 31 August 2000. She is currently studying in Form 5.
(ii) K.R. recalled the incidents that took place in March 2016. She was only 15 years old at the time and studying in Form 4. She was staying at Bayview Heights, with her mother, step father, two younger brothers and younger sister. She referred to them as her step-siblings.
(iii) She testified to what happened on the 19 March 2016. She, her mother and step-siblings were sleeping on one mattress. Her step-father was sleeping on another mattress in the same room. Around 2.00 in the morning, she could feel that someone was touching her breast. When she felt this she says she was shocked and she cried. When she woke up she saw her step-father lying down on both her thighs and touching both her breasts. When she stood up, her step-father moved back to his mattress.
(iv) K.R. testified that at the same time she woke up her mother. Her mother asked her what happened. She had told her mother that someone touched her breast. Her mother had then inquired from her step-father. Her step-father had said he did not do anything and said that he dreamt of an old lady. Her mother had growled at her step-father. Thereafter, her mother had told them to go back to sleep.
(v) Thereafter, the complainant testified to what happened on the 22 March 2016. They were all sleeping in the same manner in the living room. Whilst she was sleeping, she felt someone touched her breast and licked her vagina. She was shocked. She woke up. When she woke up she saw her step-father moving to his mattress. It was around 2.00 in the morning.
(vi) At the same time she woke up her mother. Her mother woke up and asked what happened. She had told that someone touched her breast and licked her vagina. Again she said, that someone was touching her breast and licking her vagina. Her mother had growled at her step-father. Her step-father had said he did not do anything. So her mother had told her to go back to sleep.
(vii) When questioned as to who she was referring to as ‘someone’, the complainant said that she meant her step-father.
(viii) She said she had felt scared that her step-father will repeat the same thing that he did to her.
(ix) The complainant next testified to what happened on the 26 March 2016. While she was sleeping, she felt that someone was licking her vagina and putting his finger into her vagina. When she woke up, she saw her step-father and she pushed the basin that was nearby. She saw her step-father moving to his mattress.
(x) When she pushed the basin her mother woke up and asked what happened. She had said someone touched her private parts and put his finger into my private part. By private part she meant her vagina. Again she said someone touched her vagina, licked her vagina and inserted his finger into her vagina.
(xi) When questioned as to who she was referring to as ‘someone’, again the complainant said that she meant her step-father.
(xii) Her mother had asked her step-father what happened. He said it was a dog. Her mother had been angry with her step-father and had growled at him. Her mother had asked her step-father why did you do this to my daughter. He had replied that he did not do anything.
(xiii) The complainant testified that she had felt scared that her step-father will repeat the same thing again.
(xiv) The next morning she had felt her vagina was aching. After her step-father left for work she had told her mother that her vagina was aching. Her mother had told her to get prepared to go to hospital.
(xv) When they were about to leave her step-father had returned home. He asked where they were going to. Her mother had replied that they were going to the hospital. Her step-father had inquired as to the reason. Her mother had told him that her vagina was aching. Her step-father had told her mother that he did not do it. He had apologized to her and her mother saying he did not do anything to her.
(xv) Her step-father had then asked them to go and stay at Muanivatu, Vatuwaqa, at her mother’s aunt’s place until Monday.
(xvi) On the said Monday, the complainant and her mother had gone to the Nabua Police Station and reported the matter. Thereafter, the police had wanted her to stay at her father’s place in Wailoku.
(xvii) The complainant further testified that she had been taken by the police to the MSP Clinic, where a lady doctor had examined her.
[55] Evidence of Unaisi Leona Kikau
(i) She is 40 years of age and the mother of the complainant. She has eight children in total. The Accused was her husband and is the father of the younger three children.
(ii) She testified to what happened on the 19 March 2016. She, the complainant, her younger three children and the Accused were all sleeping at night. They were sleeping on two mattresses, which were next to each other. When they were so sleeping her daughter K.R. woke her up. She had said someone was touching her breast and her vagina. She had asked what happened. At the same time the accused had said he does not know what was happening and said it was a devil. The witness had said there is no devil. The accused had kept on talking. He had said I don’t know that must have been the devil who touched her.
(iii) The witness said she had just sat down and cried. Her daughter, K.R., was sitting beside her and crying.
(iv) The witness had told the Accused that there is no devil in this house. The Accused had told her to look outside, the devil is standing outside. When she looked she saw an old lady standing outside. Later, the witness clarified that the said lady was the owner of the house below, and she was coming back home after drinking grog.
(v) Thereafter, the witness testified to what happened on the 22 March 2016. They were all sleeping in the same manner (same arrangement). K.R. had woken her up again and said someone was touching her right now. The witness had woken up and sat down. When she saw K.R. she was not wearing any undergarment at the time. The witness testified that then she knew it was Accused as there was no one else at home but only him. Both she and K.R. had cried. She had scolded the Accused and said there was no one else but only you. You are the one who did it. If I reported you who will look after us. The Accused had denied that it was him.
(vi) The witness said that she had warned the Accused that if he was going to do it again, she would report him to the police.
(vii) The witness next testified to what happened on the 26 March 2016. She said that as usual they were sleeping in the night. While they were sleeping, she heard the sound of the basin, where all the dishes were, falling. She woke up and asked what it was. The Accused was sitting down. He had said the dog had kicked the basin. She stood up and said I haven’t seen any dog in here.
(viii) She had also seen the complainant crying. She had no undergarment on. She had seen the Accused putting on his trousers.
(ix) After that she had not gone back to sleep. She stayed awake until morning. She had been waiting for the sun to come up, for her to go and report the matter.
(x) The next morning, after the Accused left for work, K.R. had complained to her that her private part was aching and that she wants to vomit. She had been feeling week. By private part she meant the vagina. K.R. had told her that the Accused used his finger to insert it into her vagina.
(xi) She testified that she had wanted to report the matter to the police. So she and her children had left to Muanivatu, Vatuwaqa, which was her aunt’s place. She had felt that it would be easier to go to the police from there.
(xii) Later, she and the complainant had gone to the Nabua Police Station and reported the matter. The witness testified that she had felt relieved after reporting the matter, as the Accused was degrading her all the time.
[56] Evidence of Dr. Elvira Ongbit
(i) She testified that she had examined the complainant on 29 March 2016. The Medical Examination Form which was completed by the doctor was tendered as Prosecution Exhibit P2.
(ii) The doctor testified that the complainant was emotionally affected and teary eyed and while relating what happened.
(iii) She had carried out a vaginal examination on the complainant. Her specific findings were as follows: hymen is elastic and fimbriated. Superficial abrasions were noted in both inner sides of both labia minora and fossa navicularis. The doctor later elaborated on these medical terms.
(iv) Dr. Ongbit further explained that the injury in the vaginal area could have been caused by rubbing. The most likely cause of this is rubbing very hard. Her opinion was that the said injury could have been caused by the use of fingers or by an erect penis.
(v) When asked about the degree of penetration, the doctor said she wouldn’t say it is mild. Somebody must exert a lot of force to inflict such injuries.
[57] Evidence of OC 4942 Netani Seruwaqa
(i) He testified that he is now a Sergeant, based at the Fiji Police Academy.
(ii) On 30 March 2016, he was based at the Navua Police Station, attached to the Crimes Section.
(iii) His role in this case was that of the caution interviewing officer of the Accused. He testified that he had been instructed by the then Crimes Officer at the Nabua Police Station to caution interview the Accused on 30 March 2016. The witnessing officer was DC Inoke Kuru. At the request of the Accused the caution interview was conducted in i-Taukei language and then translated to English by himself. The caution interview statement made in i-Taukei language was tendered to Court as Prosecution Exhibit P3 and the English translation of same was tendered to Court Prosecution Exhibit P4.
(iv) He further testified that the accused was afforded all his rights in terms of the Constitution and did not have any complaints to make at the time. He was given the opportunity to have a lawyer of his choice, or any family member or any pastor or church member present during the interview. However, the accused had not requested for a lawyer to be present and signed to acknowledge that he did not want to have any legal counsel present during the interview. Similarly, he had not requested for a family member, or any pastor or church member to be present during the interview.
(v) Further the Accused had not requested for his reading glasses at the time of the interview.
(vi) The witness testified that no threats or assaults were made to the Accused to sign and admit to the allegations, before or during the recording of the caution interview statement.
[58] Evidence of DC 4580 Pelasio Wainimace
(i) He testified that he was the Investigating Officer, Arresting Officer and Charging Officer in this case. He explained as to how he proceeded to arrest the accused and bring him to the Nabua Police Station.
(ii) He confirmed that OC 4942 Netani was the caution interviewing officer in this case and DC Inoke Kuru, was the witnessing officer. He was not part of the team who recorded the caution interview statement.
(iii) The witness testified that at no time did he threaten or assault the Accused to sign and admit to the allegations against him.
[59] That was the case for the prosecution. You then heard me explain several options to the Accused. I explained to him that he could give sworn evidence and call witnesses on his behalf. He could also address Court. He could have even remained silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times. However, the Accused opted to offer evidence under oath.
[60] Evidence of the Accused
(i) The Accused testified that he was 59 years old. He was working as a bus driver at Central Transport.
(ii) He testified as to the manner in which he was arrested on 30 March 2016, and brought to the Nabua Police Station.
(iii) A police officer in uniform had called him to go right into the cell block. After two minutes that police officer in uniform had punched him on both sides of his ribs from the back. He said he could not recognize this person. He had then pushed him and told him to go to the charge room. He said he could not breathe. After a minute, he took hold of his breath, and ran to the charge room.
(iv) At the charge room Pelasio was standing at the door. Pelasio had punched him and pushed him to the chair. Pelasio had told him not to say anything and when I say sign you sign. Otherwise, I will do something to you that you have never experienced.
(v) He testified that the police officers did not allow him to read or they did not read back to me. He had told them that he needed his reading glasses and that it was in the bus. They had told him just sign or you get punched. He did not know what he signed.
(vi) He had asked Nethani and Pelasio to have a lawyer, but they had said there is no time to bring you a lawyer.
(vii) He had asked them to take him to hospital as he was having pain in the ribs and for his reading glasses. But they had refused his request.
(viii) Nethani and Pelasio were mocking him saying you are licking two containers of ice cream, one is a big one and one is a small one. They were referring to his wife and to K.R.
(ix) He said he was feeling hurt at the time. He was telling himself that he was not an animal.
(x) They were laughing at him with three other police officers.
(xi) He had given his wife $350 dollars of his income money. She had returned in the afternoon with barbecue.
(xii) He had been taken to Magistrate’s Court the next day by Pelasio. The Magistrate had said he is going to transfer my case to the High Court. He did not get a chance to tell anything to the Magistrate.
(xiii) Thereafter, he was taken to the remand center.
(xiv) He testified that his wife had come to visit him nearly every week at the remand center. He said that the purpose of those visits was to ask money for food, for herself and the children.
(xv) As to the admissions in his caution interview statement he said he did not give any statement. He was forced to sign. He did not read the statement as he did not have his glasses, nor did the police officers read the statement back to him.
(xvi) He denies all the allegations made against him. He said it is not true.
Analysis
[61] The above is a very brief summary of the evidence led at this trial. The prosecution relied on the evidence of the complainant, her mother, a medical witness and two police witnesses to prove its case.
[62] 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 of all five counts, 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 offences of Rape and Sexual Assault and also the identity of the accused, beyond reasonable doubt.
[63] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence of the accused. You must consider his evidence also for its consistency and also the probability of his version. If you find the evidence of the accused is truthful and reliable, then you must find the accused not guilty of all five charges, since the prosecution has failed to prove its case. However, I must caution you that if you reject the evidence of the accused as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you.
[64] In this case the prosecution is also relying on the admissions made by the Accused in his caution interview statement.
[65] Any admission made by an accused in his caution statement is admissible and sufficient evidence to prove his guilt to a charge. However, there are some applicable principles of law in relation to this evidence. The prosecution must prove that the caution interview statement was made by the accused voluntarily. The prosecution must establish this fact beyond a reasonable doubt.
[66] Whether the accused gave his statement voluntarily and whether the statement set out a set of events in relation to the offences of Rape and Sexual Assault on which you can rely and accept, is a matter for you. Of course if you believe that the interview is false, that it was made up either by the police, you may think that you cannot put any weight on it. However, if you believe that the accused gave his statement without force or fabrication, you may think that they set out a version of the evidence which will assist you in deciding on the guilt or otherwise of the Accused. However, the question of what weight you can put on the admissions made in the said statements is a matter of fact for you to decide.
[67] The prosecution says that the caution interview was not obtained under pressure or inducement and that the accused told the police the truth in it. You have heard from the police officers that there were no threats or force or any form of intimidation of any kind by anyone on the accused and his statement was freely and voluntarily given and that they correctly recorded what the accused said. However, the Accused testified that he did not give any statement. He was forced to sign. He did not read the statement as he did not have his glasses, nor did the police officers read the statement back to him. I reiterate that what weight you put on the accused’s statement to the police is entirely a matter for you.
[68] As you already know there is one count of Rape and four counts of Sexual Assault against the accused in the information. 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.
[69] In summary and before I conclude my summing up let me repeat some important points in following form:
[70] If you have any reasonable doubt about the prosecution case as a whole or an element of the offence, including identity of the Accused, then you must find the Accused not guilty of all charges.
[71] Any re directions the parties may request?
[72] Madam and Gentlemen Assessors, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions on the five counts separately against the Accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[73] Your possible opinions should be as follows:
➢ First Count-Sexual Assault- Guilty or Not Guilty
➢ Second Count-Sexual Assault- Guilty or Not Guilty
➢ Third Count-Sexual Assault- Guilty or Not Guilty
➢ Fourth Count-Rape- Guilty or Not Guilty
➢ Fifth Count-Sexual Assault- Guilty or Not Guilty
[74] I thank you for your patient hearing.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 8th Day of June 2017
Solicitor for the State : Office of the Director of Public Prosecutions, Suva.
Solicitor for the Accused : Office of the Legal Aid Commission, Suva.
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