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State v Rainima - Summing Up [2018] FJHC 1028; HAC064.2017S (24 October 2018)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 064 OF 2017S


STATE


vs


ISOA RAINIMA


Counsels : Ms. K.Semisi, Ms. S. Lodhia and Mr. J. Andrew for State

Mr. L. Qetaki and Mr. N Chand for Accused

Hearings : 15, 16, 17, 18, 19 and 22 October, 2018

Summing Up : 24 October, 2018


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentleman 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 accused. There is no obligation on the accused to prove his 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 accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt so that you are not sure about his guilt, then you must express an opinion, that he is 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 accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  1. THE INFORMATION
  1. You have a copy of the information with you, I will now read the same to you:

“...[read from the information]...”

  1. 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 OFFENCES AND THEIR ELEMENTS

  1. The accused was charged with eleven counts. Seven counts were “rapes”. One of “assault with intent to commit rape”; one of “sexual assault”; one of “criminal intimidation” and one of “robbery”. Because the offence of “rape” was the most serious of the offences, we will begin our discussion with the same. “Rape”, as an offence, covers various parts of the female body, that is, her vagina, her anus and her mouth.
  2. For the accused to be found guilty of “rape”, the prosecution must prove beyond reasonable doubt, the following elements:
  3. The slightest penetration of the complainant’s vagina, anus or mouth by the accused’s penis, finger or fingers, tongue or stick, is sufficient to satisfy element 10(ii) above; and it is irrelevant whether or not the accused ejaculated.
  4. “Consent” is to “agree freely and voluntarily and out of her own freewill”. If consent was obtained by force, threat, intimidation or by fear of bodily harm to herself or by exercise of authority over her, that “consent” is deemed to be no consent. The consent must be freely and voluntarily given by the complainant.
  5. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to 10(i) and (ii) above, at the time. You will have to look at the parties’ conduct at the time, and the surrounding circumstances, to decide this issue.
  6. The above definition of “rape” applies to counts no. 2, 3, 4, 5, 6, 7 and 8. As for “assault with intent to commit rape” (count no. 1), for the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) assault the complainant
(iii) with intent to rape her


  1. The least touching of another in anger is an “assault”. It is the unlawful application of force to the person of another. For example, if you punch someone on the body, without any legal justification, that would be an assault. The assault on the complainant, must be accompanied with an intention to rape her. In other words, the purpose of the assault, was to subdue her, to enable him to rape her. The definition of “rape” is that defined in paragraphs 10, 11, 12 and 13 hereof.
  2. “Sexual Assault” is an aggravated form of “indecent assault” (count no. 9). For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) unlawfully and indecently

(iii) assaults the complainant


  1. The word “assault” is similar to that described in paragraph 15 hereof. It is the least touching of another in anger. Alternatively, it is the unlawful application of force on the person of another. That application of force must be unlawful, that is, it had no legal justification. In addition, the application of force must be “indecent”, that is, right thinking members of society must consider it indecent. Is it indecent for a male to lick a female’s vagina, without her consent?
  2. Count no. 10 is “criminal intimidation”. For the accused to be found guilty, the prosecution must make you sure that:

(i) the accused

(ii) without lawful excuse

(iii) threatens the complainant with any injury to

(iv) to cause her alarm

(v) as the means of avoiding the execution of such threat.

In simple terms, the offence involved threatening to harm someone, without any legal justification. The offence is self-explanatory.


  1. Count no. 11 is “robbery”. For the accused to be found guilty, the prosecution must make you sure that:

(i) the accused;

(ii) committed theft; and

(iii) before, during or after the theft;

(iv) he used or threatened to use force
(v) on the complainant

(vi) with intent to commit theft.
  1. “Theft” is basically “stealing”. It is the taking away of someone’s property or properties, with an intention to permanently deprive the owner of the ownership thereof. The stealing must be accompanied with the use of force or the threat of the same, to subdue the owner to part with his or her property or properties. At the time, he must have an intention to commit theft.
  2. Count No. 1, 3, 4, 5, 6, 7 and 9 are “representative counts”. This meant that on 30 December 2016, at Suva in the Central Division, the prosecution was alleging that the accused allegedly committed multiple offences of a similar nature in those counts. The prosecution does not need to prove all the alleged offences. If you accept one incident of the offence alleged in those counts, that would be sufficient to prove the charge, as alleged, thus the word “representative count.”
  3. There are 11 counts in the information. You must consider the counts separately and come to a separate considered decision on each of them, in the light of the total evidence presented at the trial.
    1. THE PROSECUTION’S CASE
  4. The prosecution’s case were as follows. On 30 December 2016, the complainant (PW1) was 23 years old. She was studying at the University of the South Pacific. She was residing with her elder sister at Edenville, Toorak. On 30 December 2016, at about 10.05 am, she left her sister’s flat, and walked down Edenville Road towards Holland Street. From Holland Street, she was walking towards Knolly Street, on the left side of the road. She had passed a culvert, buried below Holland Street, which was approximately half way down the road. She came near some metal railings. Suddenly, a i-taukei youth approached her from the back, and allegedly shoulder tackled her. He later allegedly threw her over the metal railings.
  5. PW1 allegedly landed on a slope 2 meters down, the youth jumped over the railings and landed beside her. He then allegedly punched PW1’s face and head repeatedly with both hands (count no. 1). PW1 allegedly shouted and cried for help but to no avail. Her face and head were allegedly bruised and swollen. She received a cut below the left eye. The youth allegedly swore at her repeatedly and warned her not to raise the alarm. The youth allegedly forced PW1 down the slope and they came to the culvert tunnel under Holland Street. The youth allegedly forced PW1 to walk through the tunnel and onto a flat surface, on the other side of the tunnel. The youth allegedly force PW1 onto the ground, lifted up her skirt, took off her panty and licked her vagina (count no. 9). He later allegedly inserted his tongue into PW1’s vagina, without her consent (count no. 5)
  6. Prior to the above, the youth had allegedly taken PW1’s wrist watch, mobile phone and hand bag, which contained the items mentioned in count 11. He allegedly took the above properties, without PW1’s consent (count no. 11). Later, the youth allegedly threatened to break PW1’s ribs if she complained against him. He allegedly swore at her repeatedly and threatened to kill her (count no. 10). He later allegedly took off all of PW1’s clothes, and made her walk down the stream naked. Later, he order PW1 to sit on a surface. Then he forcefully parted her legs and allegedly licked her vagina, without her consent (count no. 9). He later allegedly put his tongue into her vagina, without her consent, for a minute (count no. 5). He later told PW1 to stand up, and again walk her downstream. After a while, he allegedly ordered PW1 to another hard surface, and repeated the above episodes to her (count no. 9 and 5). Later he told her to stand up again and walk down stream. They reached some mangroves trees. He ordered PW1 onto the ground. Later he ordered her to kneel. She did. He later allegedly inserted his finger into PW1’s anus, without her consent (count no. 6). PW1 pleaded with him to stop, but to no avail.
  7. Later, PW1 allegedly felt something rough been pushed into her anus. PW1 said, it was painful. The youth had allegedly inserted a stick into PW1’s anus, without her consent (count no. 7). She suffered laceration to her anus. Later, he forced PW1 to lie on her back. Then he allegedly inserted his fingers into her vagina on three separate occasions (count no. 3). After this, he allegedly inserted his penis into PW1’s mouth and ordered her to suck it. She allegedly did not consent to the same (count no. 8). PW1 said, he did the above episode to her 3 to 5 times. He later allegedly inserted his penis into her vagina, without her consent, 3 to 5 times (count no. 2). Later, he brought a thick stick. He later allegedly inserted the thick stick into her vagina, without her consent, 2 to 3 times (count no. 4). He later allegedly assaulted her head 3 times with the stick. He later left the crime scene. PW1 later blacked out.
  8. The matter was reported to police. An investigation was carried out. In a police identification parade on 13 February 2017, PW1 identified the accused as the person who attacked her on 30 December 2016. He was later charged with the 11 counts in the information. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.
    1. THE ACCUSED’S CASE
  9. On 15 October 2018, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the eleven counts in the information. In other words, he denied the allegations against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to remain silent, but called one witness, in his defence. That was his right.
  10. Remember, the burden of proof stays on the prosecution throughout the trial and it never shifts to the accused, at any stage of the trial. So, when he chose to remain silent, he is calling, by conduct, on the prosecution to prove his guilt beyond reasonable doubt. That was his constitutional right. And as such, nothing negative whatsoever should be imputed to him for choosing to remain silent, because he was merely exercising his right.
  11. However, he called his ex-girlfriend, Ms Inise Liku Paoni (DW1), as his witness. DW1 said, the accused and her were in a relationship from 2015 to 2016. She said, their relationship ended when the accused was arrested in this case. She said, on the day of the alleged incident, that is, 30 December 2016, she was with the accused at Tamavua from 6.30 am to the next morning. She said, they were preparing for the New Year celebration. The defence said that because of DW1’s evidence, the accused was not guilty as charged on all counts. They appear to say that the accused cannot be at Tamavua or Wainibukalou creek, at the same time.
  12. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged, on all counts. That was the case for the defence.
    1. ANALYSIS OF THE EVIDENCE

(a) Introduction:

  1. In analysing 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 analysing the evidence, we will first discuss some of the prosecution’s exhibits, then the State’s case against the accused: then the accused’s case. Finally, we will look at the need to consider all the evidence.

(b) Some of the Prosecution’s Exhibits:

  1. The prosecution tendered six exhibits:

(i) Booklet of Photos - Prosecution Exhibits No. 1;

(ii) Police Fair Sketch Plan - Prosecution Exhibits No. 2;

(iii) Index of Photos (set 1) - Prosecution Exhibits No. 3 (A);

(iv) Index of Photos (set 2) - Prosecution Exhibits No. 3 (B);

(v) Booklet of photos - Prosecution Exhibits No. 4;

(vi) Forensic DNA Report - Prosecution Exhibits No. 5; and

(vii) Complainant’s (PW1)

Medical Report - Prosecution Exhibits No. 6.


  1. Under this heading, we will discuss Prosecution Exhibits 1, 2, 4, 5 and 6. We will discuss Prosecution Exhibit 3(A) and 3(B) later, when we consider the State’s case against the accused. Please, carefully consider the two “Booklet of Photos”, Prosecution Exhibits No. 1 and 4. By observing all the photos, you will get a fair idea of what the complainant (PW1) was going through, when you consider her evidence against the person, who allegedly attacked her on 30 December 2016. The Police Fair Sketch Plan, Prosecution Exhibit No. 2, assist you consider the crime scene, from a sketch plan point of view. The two Booklets of photos and the Police Fair Sketch Plan shows you the environment and the surrounding circumstances, of the scene where the alleged offendings occurred. It was an area where very few members of the public go during the day, and appears to provide the type of privacy ideal to commit such alleged crimes. So, when you consider Prosecution Exhibit 1, 2 and 4, they set the scene of what is to follow.
  2. Prosecution Exhibit No. 5 provides you with scientist Naomi Tuitoga’s (PW6) police statement, and her Forensic DNA Report. DNA matters were considered during the trial. However, the prosecution was unable to provide any DNA evidence to link the accused to the alleged crimes in the information. If anything, the prosecution’s DNA report appears to clear the accused’s presence from the crime scene, at the material time. Of all the items from the crime scene analysed, they could not obtain the accused’s DNA sample from the same. The DNA report was unhelpful to the prosecution’s case. Why they called the same in the trial, somewhat battles me.
  3. Prosecution Exhibit No. 6 is the complainant’s (PW1) medical report. She was medically examined by Doctor Nina Bavou Pio (PW11) on 31 December 2016. This was a day after the alleged incident. In D(12) and Appendix 1 of the report, she recorded her medical findings on PW1. In D(16) of the report, she said there was medical evidence to support the complainant’s allegation. She said, when she examined PW1’s vagina and anus, she found evidence of forced vaginal and anus entry with a foreign object. She found lots of bruising left of PW1’s urethra, more bruising deeper into PW1’s left vaginal upper wall, her left labia was swollen and laceration on her vagina at 6 o’clock. She also found tears to PW1’s anus at 12 and 6 o’clock. Although in sexual cases, there was no need for the complainant’s evidence to be corroborated by independent medical evidence, these findings by Doctor Pio, appear to support PW1’s version of events. In any event, Doctor Pio’s evidence was not contested by the defence. How you treat Doctor Pio’s evidence, is entirely a matter for you.

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

  1. A crime can be proven on the basis of a witness’s verbal evidence, if you as assessors and judges of fact, accept the same as credible. In this case, the state’s case against the accused, was based fundamentally on the complainant’s (PW1) verbal evidence, given in court. You had heard and watched her given evidence in court for 4 days, that is, on 15, 16, 17 and 18 October 2018. You had watched her demeanour, and watched her answer the questions asked by prosecuting and defence counsels. I am sure her evidence are still fresh in your minds, and I will not bore you with the details. In summary form, I will summarize her evidence to you. She was walking down Holland Street on 30 December 2016 after 10.05 am. It was broad day light and a sunny morning. Passing the Holland Street culvert, someone shoulder tackled her and threw her over the metal railings. She landed on the ground 2 meters down. The attacker followed her and repeatedly punched her with both hands. She cried and raised the alarm, but to no avail. Her face swell and she got a cut below her left eye. The attacker repeatedly swore and threatened her. They slid down the slope. The attacker forced her through the Holland Street tunnel. On the other side, facing Wainibukalou creek, the attacker stripped her naked.
  2. The attacker forced her to a flat surface and licked her vagina (count no. 9) and later inserted his tongue into her vagina (count no. 5). She did not consent to the same. Prior to the above, he had already stolen her properties, as mentioned in count no. 11 (count no. 11). Then the attacker forcefully marched her downstream. On the way, the attacker forced her to a number of flat surfaces, and repeatedly raped her, as alleged in counts 2, 3, 4, 5, 6, 7 and 8. At no time, did she consent to the above episodes. The attacker severely dominated, subdued and threatened PW1 into submission. He also sexually assaulted her, as alleged in count no. 9, repeatedly intimidated her as alleged in count no. 10, and stole her properties, as alleged in count no. 11. All the above evidence by the complainant (PW1) was not seriously contested by the defence. As a result of the above, it would be safe for you, to accept what the complainant said about the alleged attacks on her, on 30 December 2016. However, it is entirely a matter for you.
  3. In this case, the sole issue under contention was the identity of the attacker. It was the prosecution’s case that the accused was the person who attacked the complainant as alleged in the information on 30 December 2016. In proving this point, the prosecution relied on the complainant’s identification of the accused, at the material time. The complainant (PW1) said, she had the accused under observation for approximately one hour. This was from the point he shoulder tackled her to when he went away after allegedly attacking her. PW1 said, when the accused was offending against her, he was an arm’s length from her. This would appear to be so when the accused was offending against PW1’s vagina and anus, at the material time. He had to move closer to her. PW1 said, the offending occurred in broad daylight. She said, it was a sunny morning. PW1 said, there was no impediment in the way to block her view. PW1 said, this was the first time she saw the accused. PW1 said, because of what he did to her, this was a special reason for her to remember his face. PW1 positively identified the accused in a properly held police identification parade on 13 February 2017, I month 13 days after the alleged incidents.
  4. However, before you consider the above identification evidence, I must direct you as follows, as a matter of law. Whenever the case against the accused depends wholly or substantially on the correctness of one or more identification of the accused which the defence alleged to be mistaken, I must warn you of the special need for caution, before convicting in reliance on the correctness of the identification. This is because an honest and convincing witness or witnesses could be mistaken. You must carefully examine the circumstances in which the identification by the 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 ever seen the accused before? If so, how often? Had the witness any special reasons for remembering the accused’s face? Did the witness identify the accused in a properly held police identification parade? Are there any specific weaknesses in the witness’s identification evidence? The answers to the above questions will determine the quality of the identification evidence. If the quality is good, you may use it against the accused. If the quality is not good, you must reject it. How you approach the matter is entirely a matter for you.
  5. The complainant observed the accused for approximately one hour. He was not masked. This was not a case of a fleeting glance. So the accused’s face was exposed to the complainant for one hour. It would appear that this was enough time for someone to recognize a person. The observation was done in broad daylight and on a sunny day. Since the accused was controlling the complainant, at the material time, he was always near to her for the whole one hour. He licked the complainant’s vagina on numerous occasions, and this brought him into close physical proximity to the complainant, and this enabled her to observe his face clearly. PW1 said, her observation of the accused’s face was not impeded in any way. This is the first time the complainant had seen the accused. She said, a special reason for remembering his face was because of what he did to her that day. In a properly held police identification parade 1 month 13 days after the alleged incident, the complainant positively identified the accused as the person who attacked her on 30 December 2016. Are there any specific weaknesses in the complainant’s identification evidence of the accused?
  6. On 9 and 10 February 2017, Woman Sergeant 2952, Ms Salote Vuniwaqa (PW2) showed the complainant (PW1) two sets of photos, which were tendered in evidence, as Prosecution Exhibit 3(A) and 3(B). PW2 said, she did the above as part of the police investigation, and at the time, she was the police investigation officer. When shown the sets of photos, PW2 said, PW1 picked out the accused in both sets. PW1, in her evidence, confirmed the above. On 13 February 2017, PW1 later positively identified the accused as the person who attacked her on 30 December 2016, in properly held police identification parade. As a matter of law, the prosecution should not have tendered Prosecution Exhibit No. 3(A) and 3(B) as part of its case, because its prejudicial effect could far outweigh its probative value. However, since Defence counsel, during the trial, demanded its production by the prosecution as part of its case, the prosecution is excused from doing so.
  7. Given the above, it would appear that the complainant’s identification evidence against the accused, at the material time, appears strong and is of a good quality. If you accept the same, you must find the accused guilty as charged on all counts. If otherwise, you must find the accused not guilty as charged on all counts. It is matter entirely for you.

(d) The Accused’s Case:

  1. I had summarized the accused’s case to you from paragraphs 28 to 31 hereof. I repeat the same here. If you accept Ms. Inise Liku Paoni’s (DW1) evidence that, she was with the accused from 6.30 am on 30 December 2016 to early the next morning, then you must find the accused not guilty as charged on all counts. This was because the accused cannot be at the crime scene and at DW1’s place, at the same time.
  2. However, if you reject DW1’s evidence, you must still consider the strength of the prosecution’s case. If, after considering the prosecution’s case, you are sure the accused was guilty as charged, you may then find him guilty as charged on all counts. If otherwise, you must find him not guilty as charged on all counts. It is a matter entirely for you.

(e) The Need To Consider All the Evidence:

  1. The prosecution called eleven witnesses. They tendered six exhibits. The defence called one witness. Altogether, there were 12 witnesses, on whose evidence, you will have to make a decision. You must compare and analyse all the evidence together. If I did not mention a piece of evidence you consider important, please take it on board in your deliberation. If you find a witness credible, you are entitled to accept the whole or some of his/her evidence in your deliberation. If you find a witness not credible, you are entitled to reject the whole or some of his/her evidence in your deliberation. You are the judges of fact.
    1. SUMMARY
  2. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is 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 him guilty as charged on all counts. 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 accused’s guilt, you must find him not guilty as charged on all counts.
  3. Your possible opinions are as follows:

(i) Count no. 1 : Assault with intent to rape - Guilty or Not Guilty

(ii) Count no. 2 : Rape - Guilty or Not Guilty

(iii) Count no. 3 : Rape - Guilty or Not Guilty

(iv) Count no. 4 : Rape - Guilty or Not Guilty

(v) Count no. 5 : Rape - Guilty or Not Guilty

(vi) Count no. 6 : Rape - Guilty or Not Guilty

(viii) Count no. 7 : Rape - Guilty or Not Guilty
(ix) Count no. 8 : Rape - Guilty or Not Guilty
(x) Count no. 9 : Sexual Assault - Guilty or Not Guilty
(xi) Count no. 10 : Criminal Intimidation - Guilty or Not Guilty
(xii) Count no. 11 : Robbery - 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 : Legal Aid Commission, Suva.

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