State v Tuwai - Summing Up [2018] FJHC 732; HAC319.2015 (13 August 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 319 of 2015

STATE

V

ALIPATE TUWAI

Counsel : Ms. Shyamala Alagendra with Ms. Lavenia Bogitini for the State
Mr. Filimoni Vosarogo for the Accused

Dates of Trial : 6-10 August 2018
Summing Up : 13 August 2018

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “ST”.

SUMMING UP

Madam Assessors and Gentleman Assessor,

[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.

[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.

[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.

[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charge against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charge against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.

[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] In this case, the evidence is what the witnesses said from the witness box, the documents tendered as prosecution exhibits and any admissions made by the parties by way of admitted facts.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission made by the State Counsel and closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.

[14] The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.

[15] According to the evidence you heard in this case, the complainant, ST, was 13 years old at the time of the alleged incident, in September 2015, and was 15 years old when she testified in Court. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offence the accused is charged with.

[16] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.

[17] You heard in this case the evidence of Clare Fong, the class teacher of the complainant. She testified that on 28 September 2015, on inquiring from the complainant, the complainant had told her about the alleged incident. You should consider whether this could be regarded as a complaint made by the complainant of the alleged incident. If so you should also consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with.

[18] The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that the complainant made a prompt and a proper complaint, then you may consider that her credibility is strengthened in view of that recent complaint.

[19] It must be borne in mind that the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.

[20] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his or her evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This is how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.

[21] However, if there is no acceptable explanation for the inconsistency or omission, which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistency or omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency and consider him or her to be reliable as a witness.

[22] Ladies and Gentleman Assessors, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[23] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[24] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not guilty of the charge. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[25] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.

[26] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[27] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[28] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary facts and the inferences that could be drawn from them.

[29] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.

[30] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. It is not his task to prove his innocence.

[31] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or degree of proof, as expected by law?

[32] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offence charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason.

[33] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.

[34] You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainant or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinions.

[35] I must also explain to you as to the reason for the use of screen, when the complainant gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. Please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.

[36] The same applies for permitting a closed court proceedings and also for permitting a support person to sit beside her when the complainant gave evidence in this case.

[37] Let us now look at the charge contained in the Information.

[38] There is one charge preferred by DPP, against the accused:

COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

ALIPATE TUWAI between the 12^th day of September 2015 to the 19^th day of September 2015, at Suva, in the Central Division, had carnal knowledge of ST without her consent.

[39] Section 207(1) of the Crimes Act No. 44 of 2009 (Crimes Act) reads as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

[40] Section 207(2) (a) of the Crimes Act is reproduced below.

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person’s consent;

[41] Therefore, when Section 207(1) is read with Section 207(2) (a) it would read as follows:

207. — (1) Any person who rapes another person commits an indictable offence.

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person’s consent.

[42] In layman’s terms, having carnal knowledge with or of the other person, as stated in Section 207(2)(a), means having penile sexual intercourse with that other person or having sexual intercourse with the use of the penis.

[43] Therefore, in order for the prosecution to prove the count of Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this case between the 12 September 2015 and the 19 September 2015);

(iii) At Suva, in the Central Division;

(iv) Penetrated the vagina of ST with his penis;

(v) Without the consent of the complainant; and

(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.

[44] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond any reasonable doubt that the accused and no one else committed the offence.

[45] The second element relates to the specific time period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.

[46] The fourth element involves the penetration of the complainant’s vagina; with the accused’s penis. The law states, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration or ejaculation. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his penis to any extent.

[47] The fifth and sixth elements are based on the issue of consent. To prove the fifth element, the prosecution should prove that the accused penetrated the complainant’s vagina, with his penis, without her consent.

[48] You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance shall not alone constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances:

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

[49] Apart from proving that the complainant did not consent for the accused to insert his penis, into her vagina, the prosecution must also prove that, either the accused knew or believed that complainant was not consenting or he was reckless as to whether or not she consented. The accused was reckless, if the accused realised there was a risk that she was not consenting, but carried on anyway when the circumstances known to him it was unreasonable to do so. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond any reasonable doubt.

[50] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case had just turned 13 years of age at the time of the incident, and therefore, she had the mental capacity to consent.

[51] It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Rape is obviously considered a Sexual Offence. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.

[52] If you are satisfied beyond any reasonable doubt that the accused, between the 12 September 2015 and the 19 September 2015, at Suva, penetrated the vagina of ST with his penis, without the consent of the complainant and the accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting, then you must find him guilty of the count of Rape.

[53] If you find that the prosecution has failed to establish any of these elements in relation to the count of Rape, then you must find him not guilty of Rape.

[54] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

[55] In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts as “Admitted Facts” without placing necessary evidence to prove them:

1. Alipate Tuwai was a security officer with South Pacific Security (SPS).
2. ST is the complainant in this matter.
3. Alipate Tuwai is married to Makelesi Vakarairairua and resides at Veiquwawa Settlement, Suva.

[56] Since the prosecution and the defence have consented to treat the above facts as “Admitted Facts” without placing necessary evidence to prove them you must therefore, treat the above facts as proved beyond reasonable doubt.

Case for the Prosecution

[57] The prosecution, in support of their case, called the complainant, ST, her primary school teacher, Clare Fong and Doctor Elvira Ongbit. The prosecution also tendered the following documents as prosecution exhibits:

Prosecution Exhibit PE1- Birth Certificate of the complainant.

Prosecution Exhibit PE2- Medical Examination Report of the complainant.

[58] Evidence of the complainant ST

(i) The complainant testified that she is currently residing in Gaji Road with her uncle (Isei Boladau), her aunty (Milika Sukabula), and their children. Her mother and her aunty are sisters. Her uncle is the husband of her aunt.

(ii) The complainant said her parents are living in Lau.

(iii) She said that she was still small when her grandfather, Isikeli Labati (her maternal grandfather) raised her. After her grandfather died, then she continued to stay with her uncle and aunty at Gaji Road in Samabula. She has been residing with her uncle and aunty for about seven years.

(iv) The complainant’s date of birth is 11 September 2002. Therefore, she is currently 15 years of age. The Birth Certificate of the complainant was tendered to Court as Prosecution Exhibit PE1.

(v) The complainant is currently schooling at Tavua District Secondary School and is in Form 3.

(vi) She testified that in the month of September 2015, she was living in Gaji Road with her uncle and aunty. She was 13 years at the time. At that time she was attending Arya Samaj Primary School and was in Class 6. Her Class Teacher was Mrs. Clare Fong.

(vii) The complainant said that in September 2015 she was raped. She said it was a Saturday. Explaining further, she said she was in Wailoku on that Saturday. She had been taken to Wailoku by Makelesi, who is Alipate Tuwai’s wife. Makelesi’s father, mother, brother and her children live in that house in Wailoku.

(viii) The witness said, that during the weekends she usually goes and spends it there at Wailoku.

(ix) Makelesi is her neighbour at Gaji Road. Her family home is in Wailoku. But when she got married to Alipate, she stayed with him at Gaji Road.

(x) The complainant testified that on that particular Saturday, she went to Wailoku (with Makelesi) around 6.00 or 7.00 in the morning. She was in Wailoku for one week and staying in Makelesi’s house.

(xi) When the complainant was asked “what happened in the evening of that particular Saturday?” She answered, “I was at home. Makelesi’s father was preparing the items for yaqona. This was after 5.00 (pm).”

(xii) The witness was asked the following further questions in evidence in chief:

17. What happened after that?
1. We were at home sitting down. After a while, Makelesi and Alipate came back from work to Wailoku.
17. At that time, Alipate was working as a Security Officer?
1. Yes.
17. Where were their children at the time?
1. They were at home at Wailoku.
17. What happened?
1. They came and sat down. They were having a grog session. I was at home in Wailoku.
17. Were you also sitting with them?
1. No. I was inside the room.
17. What happened after that?
1. I was sitting inside the room. Then Makelesi called me to go to the living room. So I went to the living room.
17. What happened after you went to the living room?
1. I went and sat beside Makelesi. She said for me to stay there because my grandfather was sick.
17. Is this the same grandfather you mentioned earlier?
1. Yes (my mother’s father).
17. What happened after Makelesi told you this?
1. I sat beside her until we were to leave for Samabula. To our house in Gaji Road.
17. What happened after that?
1. After that Makelesi said for us to leave the house and waited for the bus. When we were waiting for the bus, Makelesi’s child cried. Then Makelesi told Pate for us to take the lead, she will come later.
17. This is to take the lead to Gaji Road, Samabula?
1. Yes.
17. What happened after that?
1. While we were waiting at the bus stop, after a while the bus came, then we boarded the bus. Myself and Alipate.
17. Earlier, you said Pate. Is Pate and Alipate the same person?
1. Yes.
17. What bus did you board?
1. The Wailoku bus.
17. What happened after that?
1. We boarded the bus and got off at MH in Tamavua.
17. Do you know why did you get off the bus at MH in Tamavua?
1. No.
17. When you were in the bus, were you and Alipate sitting together?
1. No.
17. What was your sitting position like in the bus?
1. We were far apart. He was sitting in front and I was sitting in the back.
17. Who told you to get off the bus at MH in Tamavua?
1. Alipate.
17. Since he was sitting far from you in the bus, how did he tell you to get off at MH in Tamavua?
1. He rang the bell and he signalled to me to get off at MH in Tamavua.
17. What happened when you got off at MH in Tamavua?
1. We went to Tuisowaqa Road. From there we went to the Namadi main road. We came out from Namadi and went down the Nabua Road.
17. Where did you go from there?
1. We came to Nabua and followed the short cut to Bayview. When we reached Bayview we went through the short cut to Raiwasa.
17. What happened then?
1. We were walking. We reached the bridge at Raiwasa. We went past the bridge. Then I looked up and saw the road and I saw the vehicles passing. Then I told Alipate that this is the short cut to our home. He then said there is another short cut in front.
17. Then what happened?
1. He was in front and I was following him. He went right in front and waited for me. When I came near him, then he gave me a $10 (note). When he gave me the $10 then he pushed me on the grass. I tried to stand up. He pointed on my forehead forcefully and I fell down.
17. Can you demonstrate?
1. He pointed and pushed me down. (Witness pointed at her forehead and demonstrated how this happened).
17. Can you tell us what happened when you fell down?
1. He took off his t-shirt and used it to close my mouth. He took off his t-shirt and he held me and used it to close my mouth.
17. What exactly did he do with his t-shirt?
1. Nothing.
17. How did he close your mouth with his t-shirt?
1. He took his t-shirt and tied it on my mouth. (The witness demonstrated how this happened).
17. What did you do when he tied the t-shirt on your mouth?
1. After he tied the t-shirt on my mouth, he held both of my hands. I tried to move around so I can get up. But I could not.
17. And what happened after this?
1. He took off my pants and my panty.
17. At this time how were you positioned?
1. I was lying down facing upwards.
17. How was he able to take off your pants and your panty?
1. His right hand was holding both of my hands. And with his left hand he took off both my pants and panty.
17. Were the pants and panty removed from your body totally?
1. Yes.
17. Was this done separately or together?
1. Was done together.
17. At this time, what were your legs doing?
1. I was moving around, so that he cannot take off my pants and panty.
17. After he took off your pants and panty, what happened then?
1. He then held my legs and put it up. Then he took off his pants.
17. Do you recall how he took off his pants?
1. He took off his pants up to the knee.
17. Was he wearing anything else under his pants?
1. His underwear.
17. What about the underwear he was wearing?
1. He pulled it down.
17. Did he pull down his underwear together with his pants or separately?
1. He pulled it down together.
17. Earlier you said Alipate took off your pants and panty. Do you recall what hand he used to take off his pants and underwear?
1. His left hand.
17. What was he doing with his right hand?
1. He was holding both of my hands.
17. What happened after he removed his pants and underwear?
1. He pulled up my t-shirt and my bra. Both at the same time.
17. At this point in time, how were you and Alipate positioned?
1. I was lying down facing upwards. He was kneeling down.
17. Where was he kneeling down?
1. He took up one of my legs and pushed it up and he tried to separate both my thighs and he knelt between both of them.
17. What happened after that?
1. He sucked my nipple and bit it.
17. What happened after that?
1. Then he took his penis and put it to my vagina.
17. Where did his penis go?
1. It went inside my vagina.
17. What did you feel in your vagina?
1. I felt it was painful, and when his penis went inside, I felt that it was cracked.
17. What did you mean by ‘it was cracked’?
1. I heard, when he put his penis into my vagina – witness made a cracking sound.
17. Was his penis inside your vagina for a long time or short time?
1. Short time.
17. While Alipate was inserting his penis into your vagina, what was he doing with his hands?
1. His right hand was holding my hands and his left hand was touching the grass and he was moving around.
17. Do you know, why he was touching the grass, while he was moving around?
1. So that he can brace himself.
17. You said before that he put his penis into your vagina, he took his penis. What hand did he use?
1. His left hand.
17. What were you doing whilst he was inserting his penis into your vagina?
1. I tried to move around and get up, but I could not.
17. Why couldn’t you get up at that time?
1. Because I was really weak.
17. And you said he inserted his penis into your vagina for a short time. What happened after that?
1. After he pulled out his penis, he wore his pants. Then I got up, I put on my pants and pushed down my bra and t-shirt.
17. Did you and Alipate talk after that?
1. He then told me not to say it to anyone. If I say it to anyone, he will kill me.
17. And how did you react when he said this to you?
1. I was scared.
17. Why were you scared, when told this to you?
1. Because if I go and say it to my mother like that, he will kill me.
17. What then happened after he said this to you?
1. We walked to the road that I said to follow to the main road.
17. When did you suggest to follow that road?
1. After he had raped and we were going back home.
17. Why did you say to follow on that main road?
1. Because that is the short cut to the main road in Samabula.
17. Why did you suggest to go with him, after he had threatened you?
1. Because I felt really weak and I was scared to go by myself.
17. What time did this incident happen?
1. After 8.00 at night.
17. The place Alipate inserted his penis into your vagina – what type of a place was it that you were laid down?
1. Grass.

............

17. And where you and Alipate were at the time, were there any lights at the time?
1. No.
17. What was the weather like that night?
1. It was good weather.
17. What do you mean?
1. The moon was shining.

...........

17. You also mentioned that Alipate’s penis went into your vagina. How do you know that it was Alipate’s penis that went into your vagina?
1. I knew it was his penis because it was big. If it was his finger it will be small.

(xiii) Thereafter, the complainant testified as to how she had returned to her home at Gaji Road. She said that she did not tell anyone at home about the incident because Alipate had threatened her.

(xiv) When the complainant was asked how the incident came to light, she explained that the following Monday she had gone to school. After school, she did not return home. She had gone and stayed at a friend’s house. She said “since we were neighbours with Alipate, I could not stand having to keep seeing him”.

(xv) Her step-father and uncle had come to school and informed her teacher that she had not returned home from school since Monday.

(xvi) Thereafter, she had informed her class teacher, Mrs. Clare Fong about the incident. The complainant testified that this conversation had taken place about 2 weeks after the incident.

(xvii) The witness clearly identified Alipate as the accused in Court.

(xviii) The witness was cross examined at length by counsel for the defence.

(xix) In cross examination, the complainant confirmed that the incident had occurred on a Saturday night. She said that the week after that weekend she went to school on Monday and did not return home. She had stayed with her friend Mary at Tamavua, from Monday to Thursday of that week. However, the complainant admitted that she had not told Mary or Mary’s mother about the incident.

(xx) The witness testified that it was her mother’s brother (Iseli Livikivavalagi) who had come along with her step-father to school on Thursday. She also testified that her mother’s brother also stays at the Gaji Road house.

(xxi) The witness admitted in cross examination that during the conversation which took place in the head teacher’s office - where the head teacher, her class teacher, Clare Fong, her step-father, her mother’s brother and herself were present – she did not state as to what Alipate had done to her.

(xxii) She had informed Clare Fong about the incident only after her step-father and her mother’s brother had left the school.

(xxiii) The complainant also admitted that she had told Clare Fong that the reason she did not want to go home was because her uncle (her mother’s brother) used to hit her at home.

(xxiv) In cross examination, it was also suggested to the complainant that, after the alleged incident, she had no marks around her mouth, did not have any marks on her back or buttocks.

(xxv) The following suggestions were put to the complainant:

17. I suggest to you that this incident which you have told Court that Alipate forced himself on you, did not happen? What have you got to say?
1. It happened.
17. I suggest to you that at no point of time was any $10 note given to you at that time?
1. It was given to me.
17. Where did you throw that $10 note?
1. Besides Alipate’s house.
17. Why did you throw away that $10 note?
1. If I reach home and people at home, they see it they will question me as to who had given the $10.
17. You mentioned in evidence that Alipate had tied his t-shirt around your mouth?
1. Yes.
17. When you woke up on Sunday morning, you said you did not have any pain in this area?
1. Yes.
17. I suggest to you that if in fact it was true, that there was a t-shirt put tightly around your mouth, you would have had pain around the area on Sunday morning?
1. It really happened, but on Sunday when I woke up I did not feel the pain on the place where he tied the t-shirt.
17. Any pain in your back on Sunday?
1. No.
17. Any pain on your wrist area on Sunday?
1. No.
17. You remember when you gave evidence on Monday, you said you had spent one week at Makelesi’s house in Wailoku?
1. Yes.
17. It is your evidence that you went on the first Saturday and you came back to Gaji Road on the next Saturday?
1. Yes.
17. And throughout this week, you stayed in Wailoku in Makelesi’s house?
1. Yes.
17. So your evidence is, that this incident happened after a week after living with Makelesi and her relatives in Wailoku?
1. Yes.

.........

17. I am putting it to you that this entire allegation you made against Alipate is not true?
1. It is true.

Q, I suggest to you the reason why you ran away on Monday was because you had a violent uncle at home named Iseli Livikivavalagi?

A, Yes.

(xxvi) It was suggested to the complainant that in the Police Statement made by her, on 28 September 2015, she had told the Police that she had gone to Wailoku on one Saturday in the evening, and on the way back on that same Saturday the incident had happened. The complainant denied this suggestion and said she went to Wailoku on one Saturday and that the incident occurred on the following Saturday.

[59] Evidence of Clare Fong

(i) She is currently teaching at Arya Samaj Primary School. She has been a teacher at Arya Samaj Primary School since 2012. In total she has been teaching in primary school for 26 years.

(ii) She testified to the events which took place on 28 September 2015. It was sometime during the day that she had noticed two men who had walked past her classroom and gone up to the head teacher’s office. A few minutes later, she was called up by the head teacher to report to her office. There she got to know that it was the complainant’s uncle and another companion who had come to school and she was informed that the complainant had been missing from home a few days before that particular day.

(iii) Later, the complainant had informed her about the incident. She had said that she was invited by her neighbour and the wife to accompany them to visit an aunt. She had left with them. Because it was starting to get dark, the wife of the couple that she went with requested her husband to take the complainant back home.

(iv) The complainant had said that she had been taken to a grassy patch area and was forced to undress and that a cloth/a t-shirt was tied around her mouth and in her words the complainant had said “he did the bad thing to me”. The complainant had said, after he tied the cloth around her mouth, he had raped her, and after that he had left her there. The complainant had then dressed and gone home.

(v) In cross-examination, the witness confirmed that the complainant had told her this information after the two men who came to school had left.

(vi) The witness also admitted, that the complainant had told her that reason why she did not want to go back home was because her uncle used to always hit her at home.

[60] Evidence of Dr. Elvira Ongbit

(i) Currently she is serving as a Medical Officer at Medical Services Pacific (MSP). She has been based at MSP since 2012. She has been practising as a Medical Officer for more than 35 years. She now specialises in Obstetrics and Gynaecology.

(ii) She conducted a medical examination on the complainant, on 28 September 2015 at 16.00 hours. The Medical Examination Report was tendered to Court as Prosecution Exhibit PE2.

(iii) The Doctor testified as to her specific medical findings (column D12) or vaginal examination findings. She said the hymen was fimbriated and elastic. There were healed, incomplete, hymenal lacerations at the 3.00 o’clock, 5.00 o’clock, 7.00 o’clock and 9.00 o’clock positions.

(iv) The Doctor explained in layman’s terms as to what was meant by the above medical findings.

(v) The Doctor also explained that in view of the nature of the lacerations the healing period would be minimum of 7 days to a maximum of 14 days.

(vi) In cross-examination, the following question was put to the witness:

17. If during the course of a sexual intercourse, a breakage sound occurs, does that mean anything in your medical field? A cracking sound? Does that mean anything in your medical field?
1. No. If the hymen breaks, it doesn’t give a sound.

[61] That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could address Court by himself or through his counsel. He could also give sworn evidence from the witness box and/or call witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times. In this case, the accused opted to remain silent. I must emphasize that you must not draw any adverse inference against the accused due to Court calling for his defence or of his choice to remain silent.

Analysis

[62] The above is a brief summary of the evidence led at this trial. The prosecution led the evidence of the complainant, ST, her primary school teacher, Clare Fong and Doctor Elvira Ongbit, to prove its case.

[63] The prosecution relies upon the evidence of the Medical Officer, Dr. Elvira Ongbit. This kind of evidence is given to help you with scientific matters by a witness who has expertise. As you may have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefit, and to express opinions about them, because they are used to doing that within their particular field of expertise.

[64] You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.

[65] As I have informed you earlier, the burden of proving each ingredient of the charge of Rape rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.

[66] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.

[67] In this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved.

[68] The accused is totally denying that the incident ever took place.

[69] The defence also showed an inconsistency in the evidence given by the complainant during her testimony in Court in comparison to her statement made to the Police. I have already directed you on how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected. However, if there is no acceptable explanation for the inconsistency or omission, which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question.

[70] To what extent such inconsistency or omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide.

[71] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the count of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of Rape, beyond any reasonable doubt.

[72] In summary, and before I conclude my summing up let me repeat some important points in following form:

1. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charge of Rape;
   
2. If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charge of Rape has been established beyond any reasonable doubt. If so you must find the accused guilty. If not you must find the accused not guilty.

[73] Any re directions the parties may request?

The Learned Assistant DPP requested me to direct the Assessors on the portion of the complainant’s testimony (in re-examination), where she admitted that although her uncle (her mother’s brother, Iseli Livikivavalagi) was allegedly beating her, she had never run away from home prior to this occasion (where she had run away from home on the Monday following the incident). I directed the Assessors accordingly.

[74] Madam Assessors and Gentleman Assessor, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions on the count of Rape separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.

[75] Your possible opinions should be as follows:

Count One

Rape- Guilty or Not Guilty

[76] I thank you for your patient hearing.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 13^th Day of August 2018

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.