State v Mikaele - Summing Up [2019] FJHC 863; HAC22.2019 (5 September 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 22 OF 2019

STATE

V

LAISENIA MIKAELE

Counsel : Ms S Sharma for the State

Ms T Kean with Ms S Prasad for the Accused

Date of Hearing : 3 - 4 September 2019

Date of Summing Up : 5 September 2019

SUMMING UP

[1] Ladies and Gentleman Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused's guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the prosecution. In our system of justice there is a presumption of innocence in favour of an Accused. The prosecution brings the charge against the Accused. Therefore it is for the prosecution to prove the charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] The Accused has elected to give evidence. He was not obliged to give evidence. He does not have to prove his innocence. He does not have to prove anything. However, he has chosen to give evidence. You must take what he has said into account when considering the issues of fact which you have to determine. It is for you to decide whether you believe the evidence of the Accused or whether it may be true. If the account given by the Accused is or may be true, then the Accused must be found not guilty. But even if you entirely reject the account given by the Accused, that would not relieve the prosecution of its burden of making you sure by evidence of the Accused’s guilt in respect of each charge which you have to consider.

[7] You must decide this case upon the evidence presented to you. If a witness was not called, you must not speculate the reasons why the witness was not called. You must only consider evidence which were led in the trial. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[8] In this case the complainant gave evidence behind a screen. She is a child under the age of 18 years. The giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness to feel more at ease when giving evidence. It is not intended to prejudge the evidence which the witness give. The fact that the evidence had been so given must not in any way be considered by you as prejudicial to the Accused.

[9] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[10] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[11] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box.

[12] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip, are similarly not evidence. Put out of your mind when considering your opinions, anything you may have heard about this case outside the courtroom. Focus solely on the evidence which you have seen, heard, or examined in this court.

[13] This summing up is not evidence either, nor are counsel's opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[14] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness's answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses' evidence and demeanour together with all of the evidence in the case. You can accept part of a witness's testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the Accused has been proved before you, proved with evidence led by the prosecution.

[17] The Accused is charged with three counts. You must consider each count separately, when you examine the case in your deliberations. You are not obliged to find the Accused guilty either on all three counts or not guilty on all three counts. Look at the evidence as it affects each count separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each count and the evidence available on each count.

[18] I turn now to deal with what the prosecution must prove. On count one, the Accused is charged with sexual assault. For the Accused to be guilty of sexual ass the prosecutsecution must prove beyond reasonable that the Accused unlawfully and indecently assaulted the complainant. The word "unlawfully" means without lawful excuse. An act is an indecen if right-minded persons wons would consider the act indecent.

[19] The Accused does not dispute that he made love bites, that is, bruise like marks on the complainant’s breasts. The prosecution case is that those marks were made by the Accused sucking the breasts. The defence case is that the act was consensual. A valid consent to a sexual act is one that is given freely and voluntarily by the complainant. The complainant denies giving consent to the Accused to suck her breasts or to make the love bites.

[20] If you find that the complainant freely and voluntarily agreed to the Accused to make love bites on her breasts, then the charge of sexual assault is not proven and you must find the Accused not guilty of that offence. But if you find that the complainant did not give consent to the act, then you must ask yourselves what right-minded persons would think of the act? Was the act so offensive to current standards of modesty and privacy as to be indecent? If you are satisfied beyond reasonable doubt that the Accused sucked the complainant’s breasts and that the act was done without the consent of the complainant and that the act was such that right-minded persons would consider being indecent, then you may find the Accused guilty of sexual assault. If you are not so satisfied or if you have a reasonable doubt on any of these issues then you must find him not guilty of sexual assault.

[21] On counts two and three, the Accused is charged with rape. Count two alleges digital rape using finger. Count three alleges penile rape. To prove rape as charged on counts two and three, the prosecution must prove the following elements beyond reasonable doubt:

1. That at the time and place alleged, the Accused penetrated the vagina of the complainant with his finger or penis.
   
2. That at the time of that penetration either by finger or penis, the complainant did not consent to it.
   
3. That the Accused knew that the complainant did not consent.
   

[22] I will explain each of these three elements of the rape charges in turn.

[23] Sexual penetration is proved if a person inserts his finger or penis into a woman’s vagina. The slightest degree of penetration is enough, and it is not necessary to prove that ejaculation took place in the case of penile penetration.

[24] The Accused disputes the element of penetration as alleged on count two. He denies inserting his finger into the complainant’s vagina. The complainant says that the Accused inserted his finger into her vagina. On count two, whether there was a penetration of the complainant’s vagina by the Accused with his finger is matter for you to consider.

[25] The Accused admits to having sexual intercourse with the complainant on 5 December 2018 in a vacant house in the village. He admits inserting his penis into the complainant’s vagina. So the element of penetration on count three is not in dispute. The Accused says he had consensual sexual intercourse with the complainant in a vacant house.

[26] The term consent means consent freely and voluntarily given by the complainant to engage in sexual penetration. Consent can be given verbally, or expressed by actions. On the same note, absence of consent does not have to be in words; it also may be communicated in other ways. Consent obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual penetration is not, by reason only of that fact, to be regarded as consenting. A person who submits to sexual penetration with another person as a result of threats or force or exercise of authority is, by law, not to be regarded as consenting.

[27] The prosecution case is that the Accused used force by gagging the complainant’s mouth with a cloth and dragging her by holding her both hands to a secluded location before penetrating the complainant’s vagina with his finger and then with his penis. If that is what occurred then you may think that the complainant did not consent. However, that is a matter for you to consider in respect of the two rape charges.

[28] On the element of knowledge, you might ask how, in the absence of an admission by the Accused, the prosecution can prove that the Accused was aware that the complainant did not consent. The prosecution asks you to infer from other facts which it has set out to prove, that the Accused must have known and that he did indeed know that the complainant did not consent to sexual penetration either by finger or penis. This is a

subjective, and not an objective test. It is for you to decide whether the Accused knew that the complainant did not consent to sexual penetration of her vagina either with finger or penis. If you believe the account of the complainant then you may think that the Accused knew that the complainant did not consent. However, if you do not believe the account of the complainant on the force used but believe the account of the Accused that the complainant consented to sex, then you may think that the Accused did not know that the complainant did not consent. That is a matter for you to determine in respect to both rape charges.

[29] On count two, all three elements of rape are in dispute. If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant’s vagina by inserting his finger, that the complainant did not consent to that penetration and that the Accused knew that the complainant did not consent, then you may find the Accused guilty on count two. But if you have a reasonable doubt regarding any of these three elements, then you must find the Accused not guilty of that charge.

[30] On count three, only the elements of lack of consent and the knowledge of the Accused are in dispute. The Accused admits to sexual intercourse. If you are satisfied beyond reasonable doubt that the complainant did not consent to the sexual intercourse and that the Accused knew that the complainant did not consent, then you may find the Accused guilty on count three. But if you have a reasonable doubt regarding any of these two elements, then you must find the Accused not guilty on count three.

[31] I turn now to summarize the evidence. In doing this it would be tedious and impractical for me to go through the evidence in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[32] In this case the prosecution and the defence have agreed to certain facts. You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth.

[33] The first witness for the prosecution was the complainant. She is 17 years old. At the time of the alleged incidents, she was 16 years old and was living at Tuatua village on Koro Island with her mother and siblings. She knew the Accused and considered him as an uncle from the mother’s side. The Accused was 21 years old and residing in the same village as the complainant at the time of the alleged incidents.

[34] The complainant told the court that in the early hours of 5 December 2018 she got up and went outside to urinate. She went behind her house. As she was about to relieve herself, the Accused came from behind and gagged her mouth with a cloth (his t-shirt) and dragged her up the hill that was at the back of her house. She said she resisted but he held her both hands. He took her to a secluded location on top of the hill with no houses around and forced her to lie down. He went on top of her and pinned her down using his legs. He pulled her dress up and took out her underwear. He touched her genitals and then he inserted his finger into her vagina. The complainant said that she did not give consent to the Accused to insert his finger into her vagina and that she was crying when that occurred.

[35] The complainant said that on the same occasion the Accused made love bites on her right breasts. He also touched her private parts and then put his tongue into her private parts. She said that she saw him take a bottle that looked like a small coke bottle from his pocket. She said he poured home brew on the cloth that covered her mouth and tied around her head. She said he was intoxicated. She could smell the home brew on him. After that he inserted his penis into her vagina. She felt pain. She lay down and couldn’t do anything as he had embraced her. She said that he told her if she does get pregnant he can look after the child. She said she saw a light and that is when she released her uncle was looking for her. He then took a creeper from a nearby tree and tied both her hands with it. After that he untied the cloth from her head and ran away from the scene. She put

on her underwear and walked towards the location from where the light was coming. She met her aunty Elenoa. She came to know that her two uncles, mother’s brother and Elenoa’s husband were searching for her. She said that she told her aunty everything the Accused had done to her and when her aunty accompanied her to her home, she told the same thing to her mother. She said that she did not go home straight after the incident because she was afraid of the repercussions from her uncle and mother who may have searched for her.

[36] In cross examination the complainant denied that she was having an intimate relationship with the Accused. She denied accompanying the Accused by sneaking out of her home after her mother had gone off to sleep She denied accompanying the Accused to the vacant house of aunty Vanimisi and having consensual sex with the Accused inside that house.

[37] The complainant was cross examined on the inconsistencies in her evidence and her police statement.

[38] As a matter of law, I must direct you that what a witness says on oath are evidence. What a witness says in her police statement out of court is not ncedence. However, previoatement is/b>is often used to challenge a witness's credibility and reliability beca previous inconsistent statement may indicate that a witness has told a different story prey previously and is therefore not reliable. It is for you to judge the extent and importance of any inconsistency. You may consider the age of the complainant, her education background, her personal circumstances and the circumstances under which her police statement was recorded when assessing whether there is a material inconsistency. If you conclude the complainant has been inconsistent on an important matter, you should treat both accounts with considerable care. If, however, you are sure that the evidence of the complainant is true in whole or in part, then it is evidence you are entitled to consider when deciding your opinions.

[39] The next witness was the complainant’s aunty, Elenoa Maria. Ms Maria told the court that in the early hours of 5 December 2018 at about 4am, she took her son outside her home for him to relieve himself when the complainant called out to her. Earlier on that night, her husband had helped the complainant’s uncle to search for the complainant after they found out that she was missing from her home. Ms Maria said the complainant was distressed and crying. She calmed her down and took her inside her house. After some prodding by her husband and her, the complainant told her that the Accused gagged her mouth with a cloth and dragged her to a place after she went outside her home to relieve herself.

[40] The final witness was the complainant’s mother Ms Talemaimoce. Ms Talemaimoce’s evidence was that on 5 December 2018 she was at one Tulia’s house drinking grog when she noticed the Accused standing outside her house and looking through a window into the complainant’s room. She said she shouted at the Accused from Tulia’s house and he ran away. She said the complainant was with her at the time. When she returned home, she slept in the living room while the complainant slept in her room. When she woke up around 3 am she found out that the complainant was missing. She searched for her around the village with her brother and mother but couldn’t find her. She returned to her home and stayed awake. She said the complainant returned home accompanied by Ms Maria and some other family members. She said that the complainant told her that the Accused gagged her mouth with a cloth and took her up, pulled down his pants and tried to do something to her.

[41] There is a further direction that I wish to give you regarding the complaint that the complainant made to her aunty and mother. In a case of sexual offence, recent complaint evidence is led to show consistency on the part of the complainant, which may help you to decide whether or not the complainant has told you the truth. It is important that you should understand that the complaint made these two witnesses is not an independent evidence of what happened between the complainant and the Accused, and it therefore cannot itself prove that the complaint is true. In this case while the complaint was made,

the complaint was not voluntary but prodded out of the complainant by Ms Maria. The complaint is also lacking in details of the alleged sexual acts. While the complaint evidence is before you, very little assistance however can be derived from this particular evidence for the reasons I have given. You must consider these matters if you decide to rely upon the complaint evidence to assess whether the complainant’s evidence is consistent and therefore believable.

[42] That was the prosecution case.

[43] The Accused in his evidence told the court that he was in an intimate relationship with the complainant for the first two months before the incidents of 5 December 2018. He said that they kept their relationship secret and that he had consensual sex with the complainant on several occasions before the incidents of 5 December 2018. He said that on 5 December 2018 the complainant voluntarily accompanied him to a vacant house that belonged to his aunty. He said that he went to her bedroom window and called out to her. She accompanied him after checking her mother was asleep. When they arrived at the vacant house, they sat down and had consensual sexual intercourse. He said that he made the love bites on the complainant’s breasts. He said that he knew she was consenting because she had voluntarily accompanied him to the house and that she used to take off her clothes and tell him what has to be done to her when they had sex on earlier occasions. He denied inserting his finger into the complainant’s vagina as alleged on count two. After having sex, they were lying down when he saw a flash light. When they were on their way to the complainant’s house, they released that there were people who were looking for the complainant. He said that the complainant was afraid and reluctant to return to her home. He said that because he was related to her, he left her there and returned to his home.

[44] In cross examination the Accused denied the version of the complainant that he gagged her mouth with a cloth, dragged her to the hill top behind her house and had forceful sexual intercourse with her. He admitted that he had gone to the complainant’s house earlier that night but he denied he ran away after the complainant’s mother shouted at him.

[45] On count one, the defence says that the Accused made the love bites on the complainant’s breasts in the course of consensual sex with her, arising from an intimate relationship as boyfriend and girlfriend.

[46] On count two, the defence says that the Accused did not penetrate the complainant’s vagina with his finger.

[47] On count three, the defence says that the Accused had consensual sexual intercourse with the complainant in a vacant house after she voluntarily accompanied him to that house and that he believed the complainant was consenting.

[48] The Accused’s account of the incidents that occurred on 5 December 2018 is completely different from the account of the complainant. Which version you accept as true is a matter for you.

[49] The prosecution's case wholly rests on the complainant's evidence. If you believe the complainant is telling you the truth that on 5 December 2018 the Accused without lawful excuse made love bites by sucking the complainant’s breasts without her consent and if you accept that right minded people would consider the act to be indecent then you may express an opinion that the Accused is guilty of sexual assault on count one. Similarly, if you believe the complainant is telling you the truth that on 5 December 2018 the Accused inserted his finger and penis into her vagina without her consent and knowing she did not consent, then you may express an opinion that the Accused is guilty of rape on counts two and three. But if you do not believe the complainant’s account of sexual assault and rape on counts one, two and three or if you have reasonable doubt about the guilt of the Accused, then you must find the Accused not guilty. You must consider each count separately.

[50] On each count your possible opinions are either guilty or not guilty. Please now retire to deliberate on your opinions. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive them.

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

Hon. Mr Justice Daniel Goundar

Solicitors: Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused