State v Likunitoga - Summing Up [2018] FJHC 1219; HAC04.2013 (13 December 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 04 of 2013

STATE

vs.

LEPANI LIKUNITOGA

Counsel: Ms. J. Fatiaki for the State
Mr. K. N. Chang with Ms. N. Mishra for the Accused

Date of Hearing: 10^th and 11^th December 2018
Date of Summing Up: 13^th December 2018

SUMMING UP

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
2. You are to determine the facts of the case, based on the evidence and then advice the court your opinion. That involves deciding what evidence you accept or refuse. You will then apply the law, as I now explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
3. I may comment on the facts if I think it will assist you when 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 facts. Hence, it is entirely upon you to accept or disregard any comments on facts unless it coincides with your own independent opinion.
   
4. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The opening address by the learned counsel for the prosecution is not evidence. The purpose of the opening address is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
5. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinion from your consideration. You must have regard only to the testimony put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinion when I deliver my judgment.
   
6. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.

Burden and Standard of Proof

7. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence.
   
8. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
   
9. The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
   

Information

10. The accused is charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act and one count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Act. The particulars of the offence are before you. Therefore, I do not wish to reproduce them in the summing up.
    
11. The main elements of the first count of Rape as charged are that:
    
    1. The Accused,
    2. Penetrated into the vagina of the complainant with his penis,
       
    3. The complainant did not consent to the accused to penetrate into her

vagina with his penis,

4. The Accused knew or believed or reckless that the complainant was not

consenting for him to insert his penis in that manner.

12. The main elements of the second count of Rape as charged are that:
    
    1. The accused,
    2. Penetrated into the vagina of the complainant with his tongue,
    3. The complainant did not consent to the accused to penetrate into her vagina

with his tongue,

4. The accused knew or believed or reckless that the complainant was not consenting for him to insert his tongue in that manner.
   

Agreed Facts

13. I now request you to draw your attention to the agreed facts, which are before you. They are the facts that the prosecution and defence have agreed without dispute. Hence, you are allowed to consider them as proven fact by the prosecution beyond reasonable doubt. According to the agreed facts, the accused has not disputed that he had a penile sexual intercourse with the complainant on the 26th of December 2012 at Flea market. Accordingly, the main dispute in respect of the first count is whether the complainant had given her consent to the accused to have sexual intercourse with her.
    
14. The accused did not dispute his presence at the flea market at the time material to these offences. Therefore the identity of the accused is not disputed in respect of the second count.
    

Separate Consideration

15. The accused is charged with two counts of Rape. It is your duty to consider each of these two counts separately. If you find the accused guilty for one count that does not automatically make him guilty for the remaining count for which he is charged with. Likewise, if you find the accused not guilty for one count that does not automatically make him not guilty for the remaining count.
    

Corroboration

16. You must bear in mind that offences of sexual nature do not need the evidence of corroboration. It means that if you are satisfied with the evidence given by the complainant and accepts it as reliable and truthful; you are not required to look for any other evidence to support the account given by the complainant.
    

Penetration

17. Evidence of slightest penetration of the penis and/or the tongue of the accused into the vagina of the Complainant is sufficient to prove the element of penetration. Hence, it is not necessarily required to adduce the evidence of full penetration.
    

Consent

18. Let me now draw your attention to the issue of consent. It is your duty to decide whether the prosecution has proven beyond reasonable doubt that the complainant have not given her consent to the accused to insert his penis and/or the tongue into her vagina.
    
19. Consent is a state of mind which can take many forms from willing enthusiasm to reluctant agreement. In respect of the offence of rape, the complainant consents only, if she had the freedom and capacity to voluntarily make a choice and express that choice freely. A consent obtained through fear, by threat, by exercise of authority, by use of force or by intimidation could not be considered as a consent given freely and voluntarily. A submission without physical resistance by the complainant to an act of another person shall not alone constitute consent.
    
20. The complainant must have the freedom to make the choice. It means that she must not being pressured or forced to make that choice. Moreover, the complainant must have a mental and physical capacity to make that choice freely. The consent can be withdrawn at any time. The consent is an ongoing state of mind and is not irrevocable once given. The consent for sexual intercourse must be comfortable to the person who made such choice. It should not be an optional choice. The consent of a person for sexual intercourse should not be assumed.
    
21. If you are satisfied, that the accused had inserted his tongue and then the penis into the vagina of the complainant and she had not given her consent, you are then required to consider the last element of the offence, that is whether the accused honestly believed or knew or reckless that the complainant was freely consenting for this alleged sexual intercourse. I must advice you that belief in consent is not the same thing as a hope or expectation that the complainant was consenting. You must consider whether the accused knew either that the complainant was not in a condition or a position to make a choice freely and voluntarily, or the complainant had made no choice to agree to sexual intercourse. If you conclude that the accused believed or knew that the complainant was consenting, you must then consider whether such belief of the accused was reasonable under the circumstances that was prevailed at the time of the alleged incident took place.
    
22. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape, a rapist or a victim of rape.
    
23. Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses during the course of the hearing.
    
24. You must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not. Demeanours of the victim in the court while giving evidence is not necessarily a clue to the truth of the victim’s account.
    

Evidence of the Prosecution

25. Let me now remind you briefly the summary of the evidence presented by the prosecution and the defence during the course of the hearing. This is a fairly short hearing and lasted only for two days. Therefore, I trust that you can properly and correctly recall all of the evidence adduced during the hearing.
    
26. The complainant and her male companion had been drinking with some of their family members at Nausori and Rewa on the 25th of December 2012. They had then came to Suva and went to a nightclub. After the nightclub, the complainant and her male partner had gone to the flea market, where the accused had allowed them to come in. They were given a carton by the accused, which they have used to lie down. They then had sexual intercourse. Once they finished it, the male partner had gone, stating that he needs to buy something. He had told the complainant to wait for him. When the male partner left, the accused had come to her and asked her to have a sexual intercourse with him. She had refused the request. The accused had then pushed her down from her chest and came on top of her. She tried to push him away, but failed. He then tried to remove her clothes. Eventually he managed to remove her clothes as well as his own. The accused had then penetrated his tongue into her vagina. She had tried not to spread her legs, but he managed to do it. You may recall that the learned counsel for the defence asked the complainant twice that the accused had only penetrated her vagina with his penis. In reply, the complainant said that he penetrated her vagina with his tongue as well. Having penetrated his tongue into her vagina, the accused had then penetrated her vagina with his penis. He only stopped it when another security officer came and called him. The second security officer asked the complainant whether she liked to have sexual intercourse with the accused, for which she said no. The complainant had then directly went to the police post at the market with the second security officer. They were then directed to go and report the matter at the Totogo Police Station, which she did as she was directed.
    
27. You may recall that the complainant said that she had some loose coins with her, when the learned counsel for the defence cross examined her about her bus fare. She said that she did not consent to have sex with the accused in return of her bus fare. The complainant further said that her male partner had some conversations with the accused but she never agreed to have sex with the accused in return of her bus fare. The complainant said that she stated in her statement that was made to the police that the accused came and undress himself while she was sitting on the floor. The complainant said that the accused did not give her any money after having sexual intercourse. The complainant further said that the accused did not stop penetrating his penis until the second security officer arrived to the scene of the crime.
    
28. The second witness of the prosecution is Viori Tabua. You have seen him giving evidence. He said that he could not recall many of the incidents as he is now sick and bed ridden. However, he said that the lady came and told him that the security guard has done something to her. She had further asked him to accompany her to the police post, which he did and the accused also came with them.
    

Evidence of the Defence

29. At the conclusion of the prosecution’s case, the accused was explained about his rights in defence. The accused opted to give evidence.
    
30. The accused in his evidence denied this allegation and said that he offered them a proposition when he heard that the complainant had no money for her bus fare. The accused had proposed to them that he could give her bus fare if she agrees to have sexual intercourse with him. The male partner and the complainant then agreed for the proposition. The male partner had then asked him to go back to the place where they were before and the complainant would join him to have sexual intercourse. He had gone there and waited for her, but she did not come. The accused had gone back to check them twice, and only the third time the complainant came and sat beside him. The accused was sitting on the floor when the complainant came and sat beside him. He then asked her whether she agrees to have sexual intercourse with him. Once she consented he had sexual intercourse with her. The accused denied that he penetrated his tongue into her vagina.
    
31. This is the summary of the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.
    

Analysis

32. The prosecution and the defence presented conflicting versions of events, which took place in private between the complainant and the accused. The complainant claims that the accused had sexual intercourse with her without her consent by penetrating into her vagina with his tongue and then with his penis. The accused claims that it was a consensual intercourse and he never penetrated her vagina with his tongue. Both the prosecution and the defence did not dispute having a penile sexual intercourse on the 26th of December 2012; however, the accused denied that he penetrated his tongue into the vagina of the complainant.
    
33. The issue of the existence of consent for an alleged sexual intercourse that took place in private between two persons is always involving with believing of the version of a person against another’s. Hence, in order to determine whether the complainant gave the consent, it is important to consider how the complainant and the accused behave before and after the alleged sexual intercourse.
    
34. As I mentioned above, there is no stereotype of circumstances for a rape, a rapist, or a victim of rape. A mere fact that a woman had a sexual intercourse with a person in the presence of another in the near vicinity, does not automatically constitute that she has given her consent to have sexual intercourse with other person who was presence in the vicinity. You are required to consider all the circumstances of this incident. Having considered all the circumstances as a whole, if it leads to an indisputable and inescapable conclusion that she had not given her consent to have sexual intercourse with the accused, you can then conclude that the complainant has not given her consent to the accused to insert his penis and the tongue into her vagina.
    

Evaluation of Evidence

35. In order to determine these issues of facts, you have to consider the reliability and credibility of evidence given by the witnesses. You must be satisfied that you can rely on the evidence as the true, reliable, and credible evidence. In order to do that, you have to be satisfied that evidence is free from mistakes, errors and inaccuracies. If you find the evidence is free from such mistakes, errors and inaccuracies, you can take the evidence into consideration as reliable evidence.
    
36. The assessment of credibility of evidence does not concern with unintended inaccuracy, mistakes or errors. It is focused on the lies or an inaccurate fact that is an intentional and motivated attempts to deceive. The credibility depends on the individual who gives evidence, his motivations, his relationship to and the reaction to the particular situation.
    
37. Evaluation of the reliability and credibility of evidence will assist you to determine what evidence you may accept and what part of the evidence you may refuse. In doing that, 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 is correctly recalling the facts about which he or she has testified.
    
38. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.
    
39. It is your duty to consider the demeanour of the witnesses, how they react to being cross examined and re-examined and were they evasive, in order to decide the credibility of the witness and the evidence.
    
40. Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
    

Inconsistency and omissions

41. You have heard that the learned counsel for the defence cross examined the complainant about the inconsistent nature of her evidence given in the court with the statement she had given to the police during the investigation. In her evidence, the complainant said that the accused came on top of her and then tried to remove her cloths and as well as his owns, which he eventually succeeded. However, in the statement that she has given to the police, states that the accused started to remove his clothes in front of her, while she was seated on the floor.
    
42. I will now explain you the purpose of considering the inconsistent nature of the evidence given by a witness in court with the previously made statement. You are allowed to take into consideration about such inconsistencies when you consider credibility and reliability of the evidence given by the witness. However, the previously made statements are not evidence of the truth of its contents. The evidence is what a witness testified in the court.
    
43. It is 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. Moreover, as I explained above, the victims of rape react differently to the trauma and the experience they have gone through, especially in revealing those incidents to another person. Sometimes they are unable to recall every minute detail soon after the incident due to the traumatic impact or the experience they undergo et cetra. Sometimes, with the passage of time they would be able to resurrect their memory and recall some details of those traumatic experiences.
    
44. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.
    

Evidence of Recent Complaint

45. You have heard that the complainant had told the second security officer, Viori Tabua that she did not like what the accused did to her. She has then gone to the police post at the market with Viori. Mr. Viori Tabua gave evidence, though he is sick and could not recall much of the incident that took place in 2012.
    
46. This form of evidence given by Mr. Viori is known as evidence of recent complaint. It is not an evidence as to what actually happened between the complainant and the accused. Mr. Viori Tabua was not present and witnessed what happened between the complainant and the accused.
    
47. You are entitled to consider the evidence of recent complaint in order to decide whether or not the complainant has told the truth. It is for you to decide whether the evidence of recent complaint helps you to reach a decision, but it is important that you must understand that the evidence of recent complaint is not independent evidence of what happened between the complainant and the victim.
    
48. You may recall that the accused in his evidence said that the complainant came to him while he was seated. However, the learned counsel for the defence did not ask the complainant about this when she gave evidence.
    
49. It is a rule of evidence in criminal trials that if one party is going to present a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given an opportunity to comment on them. The failure to such questions could be used to draw an inference that the accused did not give that account of events to his counsel. That in turn, may have an adverse bearing on whether you accept what the accused said on that particular point or event as true and credible evidence. However, before you draw such an inference you should consider other possible explanations for the failure of counsel to put questions about such different versions.
    

Evidence of the Defence

50. I now take your attention to the evidence adduced by the defence. The accused elected to give evidence on oath .The accused is not obliged to give evidence. He does not have to prove his innocence.
    
51. However, the accused decided to give evidence. Therefore, you have to take into consideration the evidence adduced by the accused when you determine the issues of fact of this case.
    
52. Accordingly, it is for you to decide whether you believe the evidence given by the defence. If you consider that the account given by the accused is or may be true, then you must find the accused not guilty for these two offences.
    
53. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then find the accused not guilty for these two offences as charged.
    
54. Even if you reject the version of the defence, that does not mean that the prosecution has established that the accused guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.
    

Final Directions

55. Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of rape as charged under count one, you can find the accused guilty for the said offence of Rape.
    
56. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under count one, you must find the accused not guilty for the said count of Rape.
    
57. Likewise, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of rape as charged under count two, you can find the accused guilty for the said offence.
    
58. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of rape as charged under count two, you must find the accused not guilty for the said offence.
    
59. Madam and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
    
60. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R.D.R.T. Rajasinghe

Judge

At Suva
13^th December 2018

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Defence.