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State v Tiko - Summing Up [2017] FJHC 873; HAC116.2016S (6 November 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 116 OF 2016S


STATE


vs


  1. ILISONI TIKO
  2. ADRIU ROGOMURI
  3. EPINERI SAURARA
  4. MARIKA BINATAGI

. Counsels : Mr. T. Tuenuku and Mr. Y. Prasad for State
Mr. N Tuifagalele for Accused No. 1
Mr. N. Tuifagalele for Accused No. 2
Mr. N. Tuifagalele for Accused No.3
Ms. S. Prakash and Mr. S. Kumar for Accused No. 4
Hearings : 24, 25, 26, 27, 30 and 31 October, 1, 2 and 3 November, 2017
Summing Up : 6th November, 2017
_____________________________________________________________________________________

SUMMING UP

_____________________________________________________________________________________

  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accuseds. There is no obligation on the accuseds to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accuseds’ guilt, before you can express an opinion that they are guilty. If you have any reasonable doubt so that you are not sure about their guilt, then you must express an opinion, that they are not guilty.
  3. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accuseds or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favor or ill will.

C. THE INFORMATION

  1. You have a copy of the information with you, and I will now read the same to you:

“... [read from the information]....”
D. THE MAIN ISSUES

  1. In this case, as assessors and judges of fact, each of you will have to answer the following questions:

E. THE OFFENCE AND IT’S ELEMENTS

  1. All the four accuseds are charged with “raping” the complainant, between 1 November 2015 and 3 March 2016, contrary to section 207 (1), (2)(a) and 3 of the Crime Act 2009. It was alleged in count no. 1 that, Accused No. 1 penetrated the 12 year old male complainant’s anus with his penis between 1 and 31 November 2015, at Nausori. In count no. 2, it was alleged that Accused No. 2 did a similar act to the 12 year old complainant, at Nausori, at the same time period. In count no. 3, it was alleged that Accused No. 3 did a similar act to the complainant at Nausori, between 1 and 19 January 2016. In count no. 4, it was alleged that Accused No. 4 did a similar act to the boy on 3 March 2016, without his consent.
  2. For an accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused’s penis penetrated the complainant’s anus;

(ii) without his consent, and

(iii) the accused knew the complainant was not consenting to 10 (i) above, at the time.


  1. The slightest penetration of the complainant’s anus by the accused’s penis, is sufficient to satisfy element 10 (i) above. Whether or not the accused ejaculated, is totally irrelevant to element 10(i) above.
  2. “Consent” is to “agree freely and voluntarily and out of his own free will”. If consent was obtained by force, threat, intimidation or fear of bodily harm to himself, that “consent” is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.
  3. Note, in count no. 1, 2 and 3, the male complainant was under 13 years old at the time. As a matter of law, an under 13 year old child is incaple of consenting to a male person penetrating his anus with his penis. This law was put there to protect children. So, all the prosecution need to do is prove element 10(i) above. Once that was done, it was presumed in law that the under 13 year old complainant did not consent in law, and element 10(ii) above was satisfied.
  4. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to anal sex, at the time. You will have to look at the parties’ conduct, at the time, and the surrounding circumstances, to decide this issue. In paragraph 13 above, it was established, as a matter of law that, an under 13 year old child cannot consent to anal sex. It follows that, as a matter of law, an adult is deemed to know that an under 13 year old child cannot consent to anal sex. So, for the prosecution to succeed on counts no. 1, 2 and 3, it need only prove element 10 (i) above.
  5. In this case, there are four accuseds on trial. They are charged separately, and thus four separate counts. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged in the same information does not mean that they must all be guilty. You must also consider the four counts separately, when considering the whole evidence, and come to a separate considered decision on each count.

F. THE PROSECUTION’S CASE

  1. The prosecution’s case were as follow. The male child complainant (PW1) was born on 1 March 2003. He resided in a village in Tailevu with his parents and six other siblings. All his siblings are males. During the alleged incidents in counts no. 1, 2 and 3, PW1 was aged below 13 years. In count no. 4, he was aged 13 years 2 days.
  2. During the alleged incident in count no. 1, Accused No. 1 (DW1) was aged 39 years. He resided in the same village as PW1. He stays with his mother and is single. He is a fisherman. PW1 is his nephew. As for Accused No. 2 (DW2), at the time of the alleged incident in count no. 2, he was aged 35 years. He resided in Lami and in the same village as PW1. He is married with a young daughter. He works as a waiter in a Suva nightclub. PW1 is also his nephew.
  3. As for Accused No. 3 (DW3), in count no. 3, he was aged 52 years at the time of the alleged incident. He is married with four children. He resided at a settlement near to PW1’s village. He is a fisherman. PW1 is also his nephew. As for Accused No. 4 (DW5), in count no. 4, he was aged 45 years at the time of the alleged incident. He is married with no children. He resided in the same village as PW1. He is a security officer by profession. PW1 is also his nephew.
  4. According to the prosecution, in count no. 1, Accused No. 1 allegedly called PW1 into their village kitchen between 1 and 31 November 2015. He then showed PW1 his “soresore”, the name PW1 used to describe Accused No. 1”s penis. Accused No. 1 then forced PW1 to suck his penis. Later Accused No. 1 pulled PW1”s trousers down and inserted his penis into PW1”s anus for about 20 minutes. Thereafter, PW1 went home.
  5. In count no. 2, the prosecution alleged, Accused no. 2 was standing beside his pig pen, between the 1st and 31st November 2015. PW1 was on his way to collect coconuts from the bush. According to the prosecution, Accused No. 2 called PW1 to him. PW1 went to him. Accused No. 2 showed PW1 his penis. Later Accused No. 2 forced PW1 to suck his penis. He held his head down. Accused No. 2 later pulled down PW1’s trousers. He inserted his penis into PW1’s anus, and had anal sex with him. Afterward, Accused No. 2 warned PW1 not to tell anyone about the incident. PW1 went home thereafter.
  6. In count no. 3, the prosecution alleged, PW1 was lying in a bed in Bu Tere’s house between 1 and 19 January 2016. According to the prosecution, Accused No. 3 came into the bedroom. Accused No. 3 turned PW1 around, took off his trousers and penetrated PW1’s anus with his penis. He was holding both PW1’s hands. Thereafter, PW1 went home. In count no. 4, the prosecution alleged Accused No. 4 told PW1 to come to his pig pen on 3 March 2016. PW1 went to Accused No.4’s pig pen. Later, Accused No. 4 arrived at the pig pen. He showed PW1 his penis: Later Accused No. 4 forced himself onto PW1 by inserting his penis into his anus, and having anal sex with him for 30 minutes. PW1 said, he did not consent to the same. He later went home thereafter.
  7. The above incidents were later reported to police. An investigation was carried out. All accuseds were later charged for raping PW1. Because of the above, the prosecution is asking you, as assessors and judges of facts, to find the accuseds guilty as charged on all counts. That was the case for the prosecution.
  1. THE ACCUSEDS’ CASES
  1. On 27 October 2017, the information was put to each accused, in the presence of their counsels. Each of them pleaded not guilty to the charge. In other words, each of them denied PW1’s rape allegations against them. At the close of the prosecution’s case, a prima facie case was found against all accuseds. All accuseds choose to give sworn evidence in their defence. Accused No. 1 and 2 did not call any witness. Accused No. 3 called 1 witness (DW4), while Accused No. 4 called 2 witnesses (DW6 and DW7). That was their rights.
  2. The defences’ cases were simple. All accuseds, on oath, denied the allegations against them. They appear to say that PW1 was not telling the truth. Accused No. 1 and 2, when caution interviewed by the police, admitted the allegations against them. However, they ask you to disregard the same. According to them, the police did not explain the questions properly to them and did not give them their right to counsel. They also appear to say that the police pressured them to sign their caution interview statements, and the same were not voluntarily given and not true.
  3. As for Accused No. 3, he denied the allegation against him when caution interviewed by police. He said, he only came to PW1’s village on 1 January 2016, and thus it was impossible for him to commit the offence. As for Accused No. 4, he said he was not at the Crime Scene at the material time. He said on 3 March 2016, between 4.30 pm to 5 pm, when PW1 said the alleged incident happened, he was at home with his wife. He called his wife (DW6) and Vasemaca Radave (PW7) to verify the above. He said, it was impossible for him to commit the offence because he was at home with DW6 and DW7.
  4. Because of the above, the defence are asking you, as assessors and judges of fact, to find all the accuseds not guilty as charged on all counts. That was the case for the defence.
  1. ANALYSIS OF THE EVIDENCE

(a) Introduction:

  1. In analyzing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors and judges of fact, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analyzing the evidence, we will first discuss the Agreed Facts and its significance, then the state’s case against each of the accused; then the accuseds’ cases, and finally, the need to consider all the evidence.

(b) The Agreed Facts:

  1. All the accuseds had submitted an “Agreed Facts” with the prosecution. In Accused No. 1’s case, they submitted 10 paragraphs of “Agreed Facts”, while in Accused No. 2 and 3’s cases, they submitted 11 paragraphs of “Agreed Facts.” These “Agreed Facts” are significant in that, all parties, that is, Accused No. 1, 2, 3 and the prosecution, agree that the complainant (PW1) was under 13 years old at the time of the alleged incidents in count no. 1, 2 and 3. This meant that the prosecution does not need to prove beyond reasonable doubt the second and third elements of “rape”, as discussed in paragraphs 10(ii) and 10(iii). Also, because of the above, take on board the directions I gave you in paragraphs 13 and 14 hereof. All the prosecution need to prove to succeed against Accused No. 1, 2 and 3, was that each accused was found to have penetrated PW1’s anus with their penis, at the material time. PW1’s non-consent, and the accuseds knowledge of the same, are presumed in law. As for Accused No. 4, the prosecution needs to prove all elements of rape as discussed in paragraph 10 hereof.
  2. Also, it must be borne in mind that count 1, 2 and 3 are “representative counts”. This meant that the prosecution need only prove one incident of anal rape within the period mentioned to succeed on the count. It does not need to prove multiple incidents of anal rape.

(c) The State’s Case Against the Accuseds:

  1. The State’s case against each of the accuseds, was based fundamentally on the complainant’s (PW1) verbal evidence. As a matter of law, his evidence does not need to be corroborated by independent evidence, although the State will be relying, in the case of Accused No. 1 and 2, of their alleged confessions to the police, to further strengthen their case against them. In addition to the above, the State will also be relying on Doctor Rayneel Sign’s (PW4) evidence, when he medically examined PW1 on 9 March 2016, at Nausori Health Centre. If you accept PW1’s complaint against each accused as credible, that in itself is sufficient to ground a possible conviction against each of them. Accepting accused No. 1 and 2’s alleged confessions to the police and Doctor Singh’s finding of PW1’s anal injury, merely strengthen the credibility of PW1”s verbal evidence. In any event, it is a matter entirely for you.
  2. You have heard and watched the complainant give evidence in the courtroom on 26, 27, 30 and 31 October 2017. Obviously, his evidence will still be fresh in your minds and I will not bore you with the details. You also had the opportunity to watch his demeanor. On count no. 1, PW1 said, sometime in November 2015, he was passing Accused No. 1”s house. PW1 said, Accused No. 1 waved him into his kitchen. PW1 said, he went there. PW1 said, Accused No. 1 showed him his penis, although he used the term “soresore” to describe the same. PW1 said, Accused No. 1 forced him to suck his penis: then pulled down his trousers. PW1 said, Accused No. 1 then penetrated his anus with his penis for about 20 minutes. PW1 said, it was painful. Later, Accused No. 1 told PW1 not to tell anyone about the incident.
  3. On count no. 2, PW1 said, in November 2015, Accused No. 2 did a similar thing to him near his pig pen. PW1 said, he was on his way to gather coconuts from the bush. PW1 said Accused No. 2 waved to him. He went to him. PW1 said, Accused No. 2 showed him his penis, although using the term “soresore”. PW1 said, Accused No. 2 later forced him to suck his penis. He later pulled down his trousers. He then penetrated his anus with his penis for about 5 seconds. PW1 said, it was painful. Later, PW1 said, Accused No. 2 told him not to tell anyone about the incident. He later went home.
  4. On count no. 3, PW1 said, in January 2016, he was lying in a bed in “Bu Tere’s” house in a bedroom. PW1 said, Accused No, 3 came into the bedroom. PW1 said, Accused No. 3 turn him around, and inserted his penis into his anus. PW1 said, it was painful. After the incident, PW1 returned home. On count no. 4, PW1 said, on 3 March 2016, between 4.30 pm to 5 pm, Accused No. 4 called PW1. He went to him because he thought he would give him money. PW1 said, Accused No. 4 showed him his penis. PW1 said, Accused No. 4 told him to suck his penis. PW1 said, he later twisted him around and inserted his penis into his anus. PW1 said, Accused No. 4 had anal sex with him for about 30 minutes. PW1 said, he did not consent to the same. Later, PW1 said, he went home.
  5. PW1’s evidence against the four accuseds was really one of identification evidence. In considering the complainant’s identification evidence of the four accuseds, as a matter of law, I must direct you as follows; first, whenever the case against an accused depends wholly or substantially on the correctness of one or more identification of the accused which the defence alleged to be mistaken, I am warning you of the special need for caution before convicting in reliance on the correctness of the identification. This is because, in the past, it had been shown that an honest and convicting witness or witnesses could be mistaken. Secondly, you must examine closely the circumstances in which the identification by each witness was made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness even seen the accused before? How often? Had she any special reason for remembering the accused? Was a police identification parade held? Thirdly, are there any specific weakness in the identification evidence? The answers to the above questions will determine the quality of the identification evidence. If the quality is good, the identification evidence should be accepted. If its otherwise, it should be rejected. It is a matter entirely for you.
  6. On count no. 1, in Accused No. 1”s case, PW1 said, he had the accused under observation for about 20 minutes. When cross-examined, he said, it was 5 minutes. PW1 said, Accused No. 1 forced him to suck his penis, and he penetrated his anus with his penis. The two must therefore be closed to each other. PW1 said, he went into Accused No. 1’s kitchen at about 4 pm. Thus, it was still daylight. PW1’s observation was not impeded, as the two were positioned close together. PW1 knew Accused No. 1 well because he was his uncle. A special reason for remembering the accused’s face was what he was doing to him. This is a case of recognition, so a police identification parade would be prejudicial.
  7. On count no. 2, in Accused No. 2’s case, PW1 said, he had the accused under observation for 25 minutes. PW1 said, Accused No. 2 forced him to suck his penis, and he penetrated his anus with his penis. So, the two were close together. PW1 said, the incident occurred after school, so it would appear there was still daylight. PW1’s observation was not impeded as the two were close together. PW1 knew Accused No. 2 well as he was his uncle. A special reason for remembering his face was what he was doing to him, at the time. This is a case of recognition, so a police identification parade would be prejudicial.
  8. On count no. 3, in Accused No. 3s case, and on count No. 4, in Accused No. 4’s case, the observations made in Accused No. 1 and 2’s cases, also applied. If you find the complainant’s identification of each accused was of a high quality and his complaint against each of them credible, you are entitled to find each accused guilty as charged. If otherwise, you may find each accused not guilty as charged. It is a matter entirely for you.
  9. On count no. 1 and 2, the prosecution also relied on Accused No. 1 and 2’s alleged confessions to the police. Accused No. 1 was caution interviewed by police at Nausori Police Station on 10 March 2016. The interview notes were tendered in evidence as Prosecution Exhibit No. 2(A), hand written version, and 2(B), typed English version. From Questions and Answers 22 to 29 and 40, Accused no. 1 admitted penetrating PW1’s anus with his penis, at the material time. Accused No. 2 was caution interviewed by police at Nausori Police Station, on 9 and 10 March 2016. The interview notes were tendered in evidence as Prosecution Exhibit No. 3(A), hand written version, and 3(B) typed English version. From Questions and Answers 20 to 27 and 35 to 41, Accused No. 2 admitted penetrating PW1’s anus with his penis, at the material time.
  10. In approaching the above alleged confession, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of facts-in this case, you as assessors and judges of facts is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements as alleged by the police above. If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
  11. You have heard the parties’ arguments on how the above confessions were allegedly taken. The police said, they never forced or threatened the accuseds to give their statements, and the same were given voluntarily and were the truth. Both Accused No. 1 and 2 said the police never gave them their right to counsel and other rights. They said, the police never explained the questions properly to them and pressured them to sign their interview statements. It appeared they are saying their interview statements were not given voluntarily and they were not the truth.
  12. If you accept Accuseds No. 1 and 2 alleged confessions, they are further evidence to find them guilty as charged. If otherwise you have to work on the complainant’s evidence and other evidence to decide on the guilt or otherwise of the accuseds. It is a matter entirely for you.
  13. Lastly, the prosecution relied on Doctor Rayneel Singh’s (PW4) evidence. On 9 March 2016, Doctor Singh medically examined PW1 at the Nausori Health Centre. He recorded his findings in PW1’s medical report, which he tendered in evidence, as Prosecution Exhibit No. 1. In D(10) of the report, he recorded the history of the case. In D(12) of the report, he recorded his medical findings. He noted that there was a “small laceration noted on anal mucosa at 6 o’clock position”. In D(14) of the report, PW4 said the above injury was consistent with the history of anal sext reported by PW1. In the history of the incident, PW1 said Ilisoni, Adriu and Epi performed anal sex on him. How you treat this medical evidence in entirely a matter for you. If you accept it, it supports PW1’s version of events against Accused No. 1, 2 and 3. If otherwise, you will have to work on the other evidence to decide on the guilt or otherwise of the accuseds.

(d) The Accuseds’ Cases:

  1. You have heard all the four accuseds give evidence in the courtroom. You have observed their demeanours. All of them, on oath, denied PW1’s rape allegations against them. As for Accused No. 3, he said he was only in PW1’s village on 1 January 2016 and on no other dates in January 2016. However, his diary, Defence Exhibit No. 1, said he was in PW1’s village on 28 January 2016. His witness, DW4 said, Accused No. 3 was not in PW1’s village on 1 January 2016. What you make of Accused No. 3’s evidence is entirely a matter for you.
  2. Accused No. 4, in his evidence said, he was not at the crime scene, at the material time. PW1 said that Accused No. 4 raped him on 3 March 2016 between 4.30 pm to 5 pm. Accused No. 4 said, at that time, he was with his wife at home weaving i-taukei fans. He called his wife (DW6) and Vasemaca Radave (DW7) to verify the above. If you accept Accused No. 4’s position on the matter, you will have to find him not guilty as charged, because he can’t be at two different places at the same time. If you do not accept his position on the matter, you will still have to consider the prosecution’s case in it’s totality, to decide on whether or not Accused No. 4 was guilty as charged. It is a matter entirely for you.
  3. If you accept the four accuseds’ position on the case, you must find them not guilty as charged. If otherwise, you will still have to consider the State’s case in its totality, to decide on whether or not they are guilty as charged. It is a matter entirely for you.

(e) The Need to Consider All the Evidence

  1. The prosecution called 9 witnesses; the complainant, 4 civilian witnesses and 4 police officers. Each of the Accused gave sworn evidence. Accused No. 3 called 1 witness, while Accused No. 4 called 2 witnesses. Altogether, there were 16 witnesses, on whose evidence, the court will have to make a decision. The prosecution tendered five exhibits, while Accused No. 3 tendered his diary as Defence Exhibit No. 1
  2. You will have to consider all the evidence together, and compare and analyze them together. If I have not mentioned any fact that you consider important, please take it on board. If you find any witness’s evidence credible, you may accept the whole or some of it in your deliberation. If you find a witness’s evidence not credible, you may reject the whole or some of it in your deliberation. You are the judges of facts.
  1. SUMMARY
  1. Remember, the burden to prove the acccuseds’ guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence, or prove anything at all. In fact, they are presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s’ guilt, you must find them guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accuseds’ guilt, you must find them not guilty as charged.
  2. Your possible opinions are as follows:

(i) Count No. 1: Rape : Accused No. 1 : Guilty or Not Guilty

Count No. 2: Rape : Accused No. 2 : Guilty or Not Guilty

Count No. 3: Rape : Accused No. 3 : Guilty or Not Guilty

Count No. 4: Rape : Accused No. 4 : Guilty or Not Guilty


  1. You may now retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.

Salesi Temo

JUDGE

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

Solicitor for Accused No. 1 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 2 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 3 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 4 : Legal Aid Commission, Suva.

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