State v Manuca - Summing Up [2018] FJHC 687; HAC30.2017 (1 August 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No HAC 30 of 2017

STATE

V

TAITUSI MANUCA
1^st Accused

JONE COLATA
2^nd Accused

Counsels: Ms. A. Vavadakua for the State
Mr. J. Korotini for the 1^st Accused
Ms. K. Boseiwaqa for the 2^nd Accused

Dates of Hearing: 30, 31 July 2018
Date of Summing Up: 01 August 2018

SUMMING UP

1. Madam and Gentlemen assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

2. As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

3. Counsel for the prosecution and the defence have just made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community in this trial and it is for you to decide which version of the evidence to accept or reject.

4. You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.

5. On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until he or she is proved guilty.

6. The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

7. Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else.

8. Each accused faces one charge of rape. In our law and for the purposes of this trial, rape is committed when a person penetrates the vagina of another and where the person doing that does not have the consent of the victim or is reckless to whether she was consenting or not.

9. I direct you to note that penetration by finger is rape as well as penetration by the penis.

10. The first accused is charged with one count of penile rape and one count of sexual assault.

11. The second accused is charged with one count of digital rape (i.e. rape with finger) and one count of penile rape.

12. Before I direct you on the law of these offences, I direct you to look at each accused separately and each offence separately. That is that if you find that Taitusi sexually assaulted Mrs. Briscoe it does not necessarily mean that he raped her. In the case of Jone, you must look at the evidence of rape by finger and rape by penis separately.

13. Again if you think that Taitusi is guilty it doesn’t follow that Jone is equally guilty. The evidence in respect of each accused is different and you will look at each accused differently.

14. So to prove a charge of rape, the Prosecution must prove to you so that you are sure that

• It was indeed the accused whose case you are considering, who
• Penetrated the vagina of Mrs. Briscoe either with his penis or his finger, and
• When he did this act Mrs. Briscoe was not consenting and he knew that she was not consenting, or that he was reckless in penetrating her without knowing if she were consenting or not.
  

15. An accused is reckless if he did not believe that she was consenting and could not have cared less whether she was consenting or not but pressed on regardless.

16. To prove a charge of sexual assault, the State must prove to you that it was indeed the particular accused who is charged and that he assaulted the victim in a sexual manner without her consent. If you accept the evidence that Taitusi did in fact massage Mrs. Briscoe by way of masturbation then I direct you that this is sexual assault in law.

17. I know that you heard the evidence only in the last few days and that it will be fresh in your mind. However it is my duty to remind you what I think are the important pieces of evidence for you to consider. I remind you that as masters of the facts, you do not have to accept what I think is important unless you agree with me. It is for you to place weight on whatever evidence you may think appropriate.

18. Mrs. Briscoe is the complainant and the alleged victim of this case. She told us that she is a New Zealander who moved to Tavenui with her husband in May 2017, to set up a business. She gave evidence screened from the two accused. The witness was very nervous and distressed as you saw, and I allowed a screen to be used to alleviate any additional pressure she may have felt describing these assaults while looking at her alleged assailants. Please do not judge the evidence either for the accused or against the accused because of this. The screen does not give the witness any special status, nor should it be regarded as a slight against the accused. Please don’t use the use of a screen as a factor in your deliberations.

19. On the 7^th July 2017 Mrs. Briscoe and her husband decided to go to the beach in the evening to relax and drink some beer. They were joined by the second accused and his girlfriend and then later by the first accused and his girlfriend. Beer was shared, with a trip to the liquor store to get more. At midnight they all went to town where they bought a bottle of rum and went to a drinking spot that the two accused recommended. They spent an hour there then the two girls were delivered home.

20. At about 3am, it was decided after discussion that they would have a final drink at Korean Wharf another local popular venue. It was at this place that Mrs. Briscoe alleges the offences took place. Both she and her husband went for a short swim then returned to the vehicle. Her husband and the two accused were drinking the rum at the back of the vehicle and she drank some as well. At this stage Mrs. Briscoe said she had had enough and she went to sit in the front passenger seat with the door open. Music was being played from a facility on her phone. She had been wearing long trousers covered with a long top earlier but she had removed the trousers to swim. When resting in the front seat she was wearing only the long top over her underwear.

21. She fell asleep and woke to feel a man’s body on top of her. Her pantie had been pulled to one side and he was penetrating her while kissing her neck and mouth. She immediately realized that it was not her husband and she was confused because she did not know where her husband was. She was frightened, did nothing and said nothing. She knew that the man on top of her was Taitusi, the first accused. The second accused whom she referred to as Jo was standing outside the vehicle talking to the first accused. She said that she knew it was Tai because they had different body types and after spending the night with them she was familiar with their voices. In addition she said that the second accused had a distinctive bad body odour and she knew it was Taitusi and not Jo. The first accused apart from penetrating her, masturbated her with his hand and tongue. He massaged her breasts and thighs. He ejaculated on to her.

22. Taitusi then stepped aside and Jo took his place. Jo put his mouth on her and penetrated her as had Taitusi done. She knew it was Jo because she heard them talking. They were not violent or nasty; they were almost gentle. She said she was drifting in and out of consciousness.

23. She could recall that she was penetrated by each of the men’s fingers.

24. After Jo had finished she heard her husband’s voice outside the vehicle; he was obviously unaware of what had taken place. When the two accused heard the husband come back, they immediately adjusted Mrs. Briscoe’s clothes and put her into a sitting position in the front seat. Her husband said it was time to go home and the two accused got into the back seat. Mrs. Briscoe pretended to be asleep but whispered to her husband to “get them out of the car”. Mr. Briscoe was disorientated and she wasn’t sure that he heard her. They drove to the main street and the boys got out of the car. It was then that the witness told her husband that she had been raped. She saw that her husband had a bruise or mark on the top of his head. She thought it looked like the mark of assault. They immediately went and alerted family who arranged for them to go to the Police and from there to the Hospital. At that time it was dawn. In cross-examination she said that there were no other people around at Korean Wharf.

25. The second prosecution witness was the husband, Mr. Kent Briscoe. He told us of the well-known early stages of drinking at Denny’s Park and Matei until they got to Korean Wharf. It was about 3 to 4 am. At the wharf they opened up the doors, folded the back of the truck down and played music. They went for a swim. He got out dressed and they were talking and laughing. That is all he can remember. There was no one else around at Korean wharf. They dropped the 2 boys off and it was then that his wife told him that she had been raped. He said that she was shaking, crying and completely distraught. She told him about it as soon as the boys got out of the car. Mr. Briscoe said he had a swollen lump on his head and he was bruised. He doesn’t remember being hit. He was unaware that he had been unconscious and thought perhaps he had concussion.

26. He had spent several hours with the boys and identified them in Court. He noted the significant difference in their body size. He remembers that his wife went for a swim while he and the two others were standing around the back of the car. After swim she drank one more rum and then went to sit in the car to rest. He doesn’t remember anything after that. He went to the Police, to the hospital where he was examined, and then back to the Police Station to make a statement.

27. In cross-examination he denied that a third boy came to ask him for cigarettes as well as denying that Jone helped Taitusi to help him back to the vehicle before driving off.

28. A medical officer gave evidence about her examination of both Mr. and Mrs. Briscoe on the 8^th July 2017 at the Taveuni Divisional Hospital. Her examination of Mrs. Briscoe revealed a swollen lower lip, an injury that appeared to be 2 to 3 hours old. There was an obvious laceration/bruise noted on a vaginal examination. The patient was smelling of alcohol but not disorientated.

29. She said that the examination of Mr. Briscoe revealed a wound on his scalp with fresh blood noted. That wound and its resultant bruise would have been inflicted within the previous 12 hours. He was distraught, smelling of alcohol, crying while pacing up and down. He was in a state of shock and his injuries were not consistent with having fallen over.

30. Well Ladies and Sir, that was the end of the prosecution case. You heard me tell the accused what his rights are in defence. He could remain silent and say that the prosecution case could not prove the charges beyond reasonable doubt or he could give evidence before the Court. In either case he could call witnesses.

31. As you know, both accused chose to give evidence to the Court. I must direct you that an accused person does not have to prove anything to you. Even if you don’t believe a word he says, that doesn’t make him guilty if the state have not proved to you so that you are sure, that he committed these offences. The burden of proof is always on the Prosecution even throughout the defence case.

32. The first accused whom I will call Taitusi told us about being at Denny’s Park drinking with the European couple. I will now skip to his evidence about Korean Wharf because that is the relevant location for the purposes of the charges against him. There were about 8 other groups drinking there. Mr. Briscoe went for a swim but his wife didn’t. They all stood around the car drinking rum. Taitusi lay on the vehicle tray to have a rest. He didn’t talk to anybody else and he was awake all the time. Somebody came and pressed his pocket but by the time he looked up that person was walking away and he didn’t know who it was. Taitusi says he was not drunk. He saw Mr. Brisco sitting on the wharf naked. Jo was still in the back seat and Mrs. Brisco in the front seat. He told Mr. Briscoe that it was time to go because there were a lot of people about and morning was dawning. However Mr. Briscoe could not stand - Tai couldn’t lift him so he went and asked Jone to help. They carried him and put him in the driver’s seat. He said he was quite capable to drive. They left Korean wharf and they were dropped off in town, Jone first at MH and then Tai at Naqare. On the way to town, the couple asked then to go for a lovo picnic the next day but the next day they were arrested.

33. In cross-examination he denied having taken advantage of Mrs. Briscoe and raping her and said he was not admitting to anything

34. Taitusi’s witness was Mr. Tui who said that at Korean wharf he was in a different drinking group. At the time he saw the first accused with two Europeans and the second accused. He went over to get cigarettes and spoke to the European man who gave him cigarettes for free. Half an hour later he went back, saw the European man falling off to sleep beside the van. Taitusi was at the back of the car. He touched Tai on the pocket looking for cigarettes, No one woke up so he returned to his group. There were a lot of drinking parties there at the time and he saw Tai’s group all leave together.

35. Ladies and Sir, it is up to you what you make of Tui’s evidence and whether it is useful or not to the first accused.

36. That was the case for the first accused in defence.

37. The second accused gave evidence and told us that the group went to Korean wharf on Mr. Briscoe’s request because it was nearer town. There were a lot of drinking parties there at the time. On arrival everybody got out of the car and drank one round of rum. Jo vomited and went to lie down on the back seat. Mr. B. told him to lie there. He slept for about 2 hours until Tai woke him up to help carry Mr. B. back to the car. They did that and Mr. B. said he would drop them in town. Jo got off at MH. On the way to town they asked him to help make picnic lovo the next day.

38. He certainly didn’t commit the offences he has been charged with. He was asleep all the time and only woke up when they were about to leave.

39. Jone called Savanaia as his witness. Savanaia said that he went to Korean wharf to drink at about 10pm. He was drinking in a group of six until about 8 the next morning. There were a lot of groups and a vehicle came and parked. He didn’t see Jone that night.

40. Well you might think that Savanaia’s evidence was of little help to us or to the second accused, but it is again a matter for you.

41. That Ladies and Sir was all the evidence in this trial and you are to judge the case on this evidence and nothing else. Please don’t judge it on what might be your disapproval of people drinking to excess over a long period. And I am sure I need not remind you that white people are not to be treated differently to iTaukei people in their behaviour or evidence.

41. Both accused say that it was not them who committed rape or sexual assault and therefore the issues for you to decide are these:

• Was Mrs. Briscoe raped and sexually assaulted?
• Was this done without her consent
• Was it the first accused who raped her and assaulted her?
• Was it the second accused who also raped her once with his finger and once with his penis?
• If they did that did they know she wasn’t consenting or were they reckless in proceeding not knowing about that consent?
  

42. If your answers to these questions is yes then you can find each accused guilty of the offences.
43. The alternative opinion you might come to is not guilty if you think that the State has not made you sure that either of these accused committed the offences.

44. I will dismiss you now and let you deliberate on your opinions. Let my staff know when you are ready and I will reconvene the Court.

45. However I ask counsel if they wish me to add or to amend any of the legal directions I have given you.

46. Counsel?

P. K. Madigan
Judge

At Labasa
01 August 2018