State v Senikuba - Summing Up [2018] FJHC 826; HAC32.2017 (5 September 2018)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 32 of 2017

STATE

V

IMANUELI SENIKUBA

Counsel: Ms. A. Vavadakua for the State

Ms. S. Devi with Ms. K.Boseiwaqa for the Accused

Hearing on : 03^rd September – 05^th September 2018

Summing up on : 05^th September 2018

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

SUMMING UP

Lady and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the Judges of facts.
2. Evidence in this case is what the witnesses said from the witness box inside this court room and the exhibits tendered. As I have told you in my opening address, your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. Your emotions should not influence your decision.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behaviour when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, a part or none of any witness’ evidence.
   
6. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment. Sometimes a witness may have other concerns when giving evidence. A witness may be worried that the evidence would incriminate him or reveal a safely guarded secret. Or else he might honestly forget things or make mistakes regarding what he remembers.
   
7. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies between the evidence given by different witnesses. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency 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, you may conclude that the underlying reliability of the account is unaffected. 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.
   
8. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question of reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by the witness is a matter for you to decide.
   
9. Therefore, if there is an inconsistency 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 the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.
   
10. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
    
11. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that, that inference is the only reasonable inference to draw from the proved facts. If there are two or more reasonable inferences to draw, one or more against the accused, as well as one or more in his favour, based on the same set of proved facts, then you should not draw the adverse inference. For example, a witnesses’ silence when affronted with a vital question could draw many inferences, some in favour and some against the interests of the accused. Therefore, in a such situation you should be careful enough to not to draw any adverse inference on it against the accused.
    
12. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that an accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of an accused beyond reasonable doubt in order for you to find him guilty. That is, you must be sure of the accused person’s guilt.
    
13. In order to prove that an accused is guilty, the prosecution should prove all the elements of the offence against the accused beyond reasonable doubt. If you have a reasonable doubt on whether the prosecution has proved a particular element of the offence against the accused, then you must find the accused not guilty. For example, the lack of consent is an ingredient which has to be proved by the prosecution. If you have any reasonable doubt, the accused should have the benefit of it and your verdict should be not guilty. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in detail in a short while.
14. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge is proved against the accused.
    
15. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion. But it is not mandatory.
    
16. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offence;
    

Statement of Offence

RAPE: Contrary to section 207(1) and (2) (b) and (3) of the Crimes Act No. 44 of 2009.

Particulars of Offence

Imanueli Senikuba, sometime between 14^th day of August 2015 and the 31^st day of August 2015, at Vitina Village, in Dogotuki in the Northern Division, penetrated the vulva of SL, a child under the age of 13 years, with his tongue.

17. Section 207(1) of the Crimes Act reads as;

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

Section 207(2) (b) of the Crimes Act reads as;

(2) A person rapes another person if —

(a) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent;

(3) For this section, a child under the age of 13 years is incapable of giving consent.

18. To prove the offence of Rape the prosecution must prove the following elements beyond reasonable doubt.

(i) The accused;

(ii) On the specified date (in this case between the 14^th day of August 2015 and 31^st day of August 2015);

(iii) At Vitina Village, Dogotuki, in the Northern Division;

(iv) Penetrated the Vulva of SL with his tongue; and

(v) SL is below the age of 13 years.

19. I will now elaborate upon each of these elements, in respect of the alleged count.
    
20. 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.
    
21. The second element relates to the specific day on 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.
    
22. The fourth element involves the penetration of the SL’s vulva; with the accused’s tongue. 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. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vulva of SL with his tongue to any extent.
    
23. The fifth element is the prosecution has to prove that the SL was below the age of 13 years at the time of the incident.
    

Summary of the evidence

24. At the commencement of the trial, the accused was absent and trial was proceeded in absentia. In his absence, the accused was defended by the Legal aid.
    
25. The first witness called on behalf of the prosecution was the complainant’s Grand Mother, Amelia Kuini. Her evidence was that;

She was married to the village and was living there since 1977. Her son Iowane’s daughter, SL is attending primary school. This witness recognises the birth certificate of SL and produces it marked PE1. In August 2015, she remembers an incident which took place, involving SL. She has come and told that Senikuba, the accused had offered some money to SL to come into the house. Senikuba is related to her as a cousin brother. This witness is said to have asked SL to relate it to Salote, another daughter of the witness, who is also living in the same village.

26. The Second witness for the prosecution was SL. The Court, first having tested her capacity to understand the gravity of the oath and being satisfied that the witness understands the responsibilities associated with such, she was sworn in on the Holy Bible. Her evidence was that in 2015 she has been in class 3 and in August, one day, when she was going to the toilet at Motea’s house, Imanueli Senikuba, the accused, who was living at Motea’s house, waved his hand and showing 50 cents, has called her. She has gone into the Motea’s house and while inside the accused has asked her to remove her panty and sit down. Having done so, the accused has parted her legs with his hands and licked the vagina of the child. Thereafter the Child SL has run away. Inside the accused’s house the witness has not seen anyone else. Thereafter on another day, the accused has called the witness in to his house while she was with her friend Keneta. Without going in, the witness has ran away and told her Grand Mother Amelia.

27. The next witness was the Police officer who arrested and charged the accused, Eparama Delalovi. He has been in the service since 2004 and at the relevant time he was serving in the Nadi Police Station. On the information received he has arrested the accused and charged.

28. With leading of the above evidence prosecution closed their case and the Court was adjourned for lunch. When the Court resumed after the lunch break, the accused was present and defence moved to cross examine the 2^nd witness, the SL. Having listened to the submissions made on behalf of the parties court permitted to recall the 2^nd witness, the SL for the purpose of cross examination.

29. In cross-examination, the witness said that she is familiar with the layout of Motea’s house and the first room as you enter from the front door is occupied by Motea and she runs a canteen there. The second room (out of three rooms) was occupied by the accused and the incident described of took place inside that room. While going to the toilet in Motea’s house, she was called in by the accused. The accused was standing by the door of his room when he called her and that place could be seen from outside the toilet. Further, the witness said that on that day Motea was not at home as her room was closed. The witness also said that the accused offered her 50 cents to buy mango skin (a sweet) and though he offered he did not give.

30. In describing the incident the witness says that when she sat down on the mattress, which was laid on the floor, the accused was also sitting on it and the accused having parted her legs with his hands put his tongue into her vulva and licked it.

31. Thereafter the prosecution has closed their case marking the PE1. The Court being satisfied that the prosecution has adduced evidence to cover every ingredient of the offence, acting under the provisions of section 231(2) of the Criminal Procedure Decree explained the rights of the accused, giving him many options. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times.

32. The accused elected to give evidence on his behalf. In his evidence he stated that;

In 2015 August, he visited one of his daughters, namely Motea, and stayed with her for about 2 weeks. Motea was living in Vitina and he knew SL as she was staying close to Motea’s house and used to come to their house to play with Motea’s children. Describing the layout of Motea’s house the accused said as one enters from the front door, the first room he meets was occupied by the accused and the son of Motea, and the second was the girl’s room and the third was occupied by the couple, Motea and her husband. The accused also confirms that Motea runs a canteen in her room. The accused refuses that he offered money to SL and totally denies any incident with SL. In cross examination the accused states that he has never been alone in Motea’s house, and deny staying in Sailasa’s house, at any time. Sailasa is the husband of Motea, his daughter. Sailasa is his son-in-law. Thereby he clearly contradicts his earlier stance of staying in Motea’s house, even for a few weeks.

33. That is the summary of the evidence given by the witnesses. Please remember that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I did not refer to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit. As I have already explained, which evidence you would accept and which evidence you would not accept is a matter for you and you alone to decide.

34. Remember that you should first decide on the credibility and reliability of the witnesses who gave evidence in this case and accordingly decide what facts are proven and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of the offence have been proven beyond reasonable doubt. You should take into account my directions where relevant, in deciding whether the prosecution has proved all the elements

35. When you consider the evidence on the identification of the accused by the 2^nd witness, SL as the person who raped her, you should closely examine the following general circumstances among others on identification of the accused;

(i) Duration of observation;

(ii) The distance within which the observation was made;

(iii) The lighting condition at the time the observation was made;

(iv) Whether there were any impediments to the observation or was something obstructing the view;

(v) Whether the witness knew the accused and for how long;

(vi) Whether the witness had seen the accused before, how often and special reason to remember; and

(vii) Duration between original observation and identification.

36. I must remind you that an accused absence at the commencement of the trial or the fact that there was a screen covering the accused from the view of witness box is in no event to be considered neither for, nor against the accused at all. Regarding the first he offered an explanation and the court having accepted it, allowing the request made on his behalf, recalled the 2^nd witness. The latter was merely a procedural step which is adopted to prevent any discomfort to the child witness.

37. The Accused has indicated his stance through his evidence and cross-examination done from the SL and one of the three situations given below would then arise;

(i) You may accept his stance and, if so your opinion must be that the accused is ‘not guilty’.

(ii) Without necessarily accepting his stance you may think, 'well what he suggests might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.

(iii) The third possibility is that you reject his stance. But, that itself does not make the accused guilty. The situation would then be that you should still consider whether the prosecution has proved all the elements beyond reasonable doubt.

38. Any re-directions?
    
39. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You have copies of the document tendered as the exhibit “PE 1”. When you have reached your separate opinion, you will come back to court and you will be asked to state your opinion.
    
40. Your opinion should be whether the accused is guilty or not guilty.
    

Chamath S. Morais

JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Labasa

Solicitors for the Accused : Legal Aid Commission, Labasa