State v Ledua - Summing Up [2020] FJHC 1001; HAC012.2019S (26 November 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 012 OF 2019S

STATE
vs
JIMIONE LEDUA

Counsels : Ms. K. Semisi, Ms. U. Tamanikaiyaroi and Mr. J. Nasa for State
Ms. L. Ratidara and Mr. A. Waqanivavalagi for Accused
Hearings : 23, 24 and 25 November, 2020.
Summing Up : 26 November, 2020.
______________________________________________________________________________

SUMMING UP
______________________________________________________________________________

1. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same to you:

“... [read from the information]....”

4. THE MAIN ISSUES

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   • (i) On count no. 1, did the accused, between 1 January and 11 October 2018, at Namacu Village, Koro Island in the Eastern Division, rape the complainant (PW2)?
   • (ii) On count no. 2, did the accused, between 1 January and 11 October 2018, at Namacu Village, Koro Island in the Eastern Division, rape the complainant (PW3)?
     

5. THE OFFENCES AND THEIR ELEMENTS

9. The accused was charged with two counts of “rape”, contrary to section 207 (1), (2) (a) and (3) of the Crimes Act 2009. It was alleged that between 1 January and 11 October 2018, at Namacu Village, Koro Island in the Eastern Division, the accused allegedly penetrated two child complainants’ (i.e. PW2 and PW3) vulva, at his house. At the time, both complainants were under 13 years old.
   
10. For the accused to be found guilty of rape, the prosecution must prove beyond reasonable doubt, the following elements:
    • (i) the accused;
    • (ii) penetrated the complainants’ vulva with his penis;
    • (iii) without their consent; and
    • (iv) he knew they were not consenting to 10 (ii) above, at the time.
      
11. Crucial to the above offence is the meaning of the verb “penetrate”. In the Oxford Advanced Learner’s Dictionary, 6^th edition, Oxford University Press, 2002, the word “penetrate” means “to go into or through something”. The slightest penetration of the complainants’ vulva by the accused’s penis, is sufficient to satisfy element 10 (ii) above.
    
12. “Consent” is to agree freely and voluntarily and out of her own freewill. If consent was obtained by force, threat, intimidation or by fear of bodily harm to herself or by exercise of authority over her, that “consent” is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. In this case however, we are dealing with female complainants, who were under 13 years old at the time. In law, a person under 13 years old is incapable of giving her consent to her vulva being penetrated by a penis. So, for a child under 13 years old, the prosecution does not need to prove non-consent by the child complainant. It is already a presumption in law.
    
13. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainants were not consenting, at the time. You will have to look at the parties’ conduct at the time, and the surrounding circumstances, to decide this issue. However, for a child complainant who was under 13 years old at the time, an adult accused is presumed to know in law that she is incapable of giving her consent to her vulva being penetrated by the accused’s penis. This policy was put there to protect children.
    
14. If you find the above elements of rape proven by the prosecution beyond reasonable doubt, you must find the accused guilty as charged. If otherwise, you must find him not guilty as charged. It is a matter entirely for you.
    
15. If you find the accused not guilty of rape on either counts, you may consider the lesser offence of “sexual assault”, although he was not formally charged with the same. This is permissible in law.
    
16. For the accused to be found guilty of “sexual assault”, the prosecution need to prove beyond reasonable doubt, the following elements:
    • (i) the accused
    • (ii) unlawfully and indecently
    • (iii) assaults
    • (iv) the female complainants.
      
17. Sexual assault is an aggravated form of indecent assault. The prosecution must prove the above elements against the accused beyond reasonable doubt. “Assault” is really to apply unlawful force to the person of another without his or her consent. The “assault” must be considered “indecent” by right thinking members of society. For a child under 13 years old, the rule of non-consent as applied to rape in paragraph 12 and the rule that an adult is presumed to know such child cannot consent to the indecent assault as applied to rape in paragraph 13 hereof, also applied to “sexual assault”. If you find the above elements proven by the prosecution beyond reasonable doubt against the accused, you may find him guilty of sexual assault or indecent assault. If otherwise, you must find him not guilty of the same. It is a matter entirely for you.
    
18. Count no. 1 and 2 are alleged to have occurred between 1 January and 11 October 2018, a period of 9 months. It is normal for the prosecution to draft the charge in such a way if the child complainant does not remember the exact date and time of the alleged incident. However, if you find and accept that an alleged incident occurred within such time period, that would be enough to support the charge.
    
19. There are two counts in the information. You must consider them separately and come to a considered decision on each of them separately, in the light of the whole evidence presented at the trial.
    

6. THE PROSECUTION’S CASE

20. The prosecution’s case were as follows. At the time of the alleged incident, the first complainant (PW2) was 7 years old, while the second complainant (PW3) was 6 years old. The accused was 47 years old. The complainants and the accused were related. Both complainants saw and treated the accused as their grandfather, and would call him “Tutu Jimi”. The complainants and the accused resided in the same village in Koro Island, and their residence were close to each other. Their houses were approximately 15 to 30 footsteps apart.
    
21. The complainants resided with their family, while the accused resided with his mother. He was single and had no children. According to the prosecution, between 1 January and 11 October 2018, on different occasions, the accused allegedly enticed the complainants to his house, by offering them lollies. His modus operandi was similar for both complainants. The complainants would be playing near his house. He would allegedly call them to his house by offering them lollies.
    
22. Once in his house, he would allegedly close the door. He would then allegedly make them lie on the floor. He would then allegedly take off their clothes. He would then allegedly take off his clothes. He would then allegedly be on top of the complainants. He would then allegedly rub his penis on their vulvas by sliding forward and backward on their naked bodies. It was the prosecution’s case that, when he was allegedly doing the above, he penetrated the two complainants’ vulvas with his penis. It was the prosecution’s case that the accused’s penis allegedly penetrated the two complainants’ vulvas slightly, because they allegedly felt pain in their “mimis”, at the material time.
    
23. The matter was later reported to police. An investigation was carried out. On 14 December 2018, the accused appeared in the Suva Magistrate Court, charged with raping the complainants. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged, on both counts. That was the case for the prosecution.
    

7. THE ACCUSED’S CASE

24. On 23 November 2020, the information was put to the accused, in the presence of his counsels. He pleaded not guilty to the charge. In other words, he denied the two rape allegations against him. When a prima facie case was found, against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he chose to give sworn evidence and called no witness. That was his right.
    
25. The accused’s case was very simple. On oath, he denied raping the two child complainants, at the material time. He said, he did not penetrate their vulva with his penis, as alleged. He appears to say that the two child complainants were lying. As a result of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged, on both counts. That was the case for the defence.
    

H. ANALYSIS OF THE EVIDENCE
(a) Introduction:

26. In analyzing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors and judges of fact, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analyzing the evidence, we will first discuss the Agreed Facts, then the State’s case against the accused. Then, we will discuss the Accused’s case. Then we will consider the need to look at all the evidence.
    

(b) The Agreed Facts:

27. The parties had submitted an “Agreed Facts”, dated 23 November 2020. A copy of the same is with you. Please, read it carefully. There are 11 paragraphs of “Agreed Facts”. Because the parties are not disputing the same, you may treat the same as established facts, and that the prosecution had proven those facts beyond a reasonable doubt.
    

(c) The State’s Case Against the Accused:

28. A crime can be proven on the basis of the sworn evidence of a witness, if you, as assessors and judges of fact, accept the same as credible, and that it satisfied the elements of the offence beyond reasonable doubt. The State’s case against the accused in this case, was based fundamentally on the verbal evidence of the two child complainants (i.e. PW2 and PW3), given in court before you on 23 and 24 November 2020. You had watched their evidence given in court, and had assessed their demeanors while they were responding to the questions thrown at them by the prosecutor and defences’ counsels. At the time of the alleged offence, PW2 was aged 7 years old, while PW3 was aged 6 years old. They were trying to recall what allegedly occurred 2 years ago. I am sure their evidence are still fresh in your minds, and I do not wish to bore you with the details. However, in our discussion, I will concentrate on the salient points in the evidence, and the issue of whether or not the prosecution had made you sure that the elemnts of the offence of rape had been satisfied.
    
29. The first complainant (PW2) said, at the material time, the accused called her into his house. Here, we will refer to Prosecution Exhibit No. 2, Photo No. 12, 13 and 14. PW2 said, the accused offered her some lollies. PW2 said, she went into his house (Photo 13 and 14). PW2 said, the accused closed the door. PW2 said, he later took off her clothes. PW2 said, he made her lie on the floor. PW2 said, the accused took off his clothes. PW2 said, the accused lay on her “mimi”. PW2 said, he began sliding up and down over her “mimi”. PW2 said, when accused was doing the above, he was rubbing his “polo” on her “mimi”. PW2 said, she could feel pain in her mimi. PW2 said, later he stood up, and told her to put on her clothes and go away.
    
30. The second complainant’s (PW3) evidence and story was very similar to what PW2 said above. PW3 said, the incident also happened in the accused’s house, as shown in Photo 13 and 14 of Prosecution Exhibit No. 2. PW3 said, the accused enticed her into his house by offering lollies. PW3 said, as soon as she was in the house, he closed the door. PW3 said, he made her lie on the floor, then took off all her clothes. Then he took off his clothes. PW3 said, he lay on top of her naked and he put his “polo” on her “mimi”. PW3 said, he slid up on her “mimi” and down again, while rubbing his “polo” on her “mimi”. PW3 said, she felt pain on her “mimi”. PW3 said, he later told her to put on her clothes and to go away.
    
31. If you accept the two child complainants’ evidence as described above, and you find the same to be credible, you must find the accused guilty as charged, on both counts. If otherwise, you must find the accused not guilty as charged, on both counts. It is a matter entirely for you.
    

(d) The Accused’s Case:

32. I had summarized the accused’s case to you from paragraphs 24 and 25 hereof. I repeat the same here. If you accept the accused’s version of events, you must find him not guilty as charged, on both counts. However, if you reject the same, you must still assess the strength of the prosecution’s case in general, and decide accordingly. It is a matter entirely for you.
    

(e) The Need To Consider All the Evidence:

33. Four witnesses gave evidence for the prosecution:
    • (i) Corporal 4309 Sakeasi Koroi (PW1);
    • (ii) First child complainant (PW2);
    • (iii) Second child complainant (PW3); and
    • (iv) Doctor Nikhil Kumar (PW4).

Prosecution submitted the following exhibits:

(i) Police Sketch Plan - Prosecution Exhibit No. 1.
(ii) Booklet of Photos - Prosecution Exhibit No. 2.
(iii) PW2’s Medical Report - Prosecution Exhibit No. 3.
(iv) PW3’s Medical Report - Prosecution Exhibit No. 4.

Defence called only one witness:

(i) Accused (DW1).

34. You must consider the above evidence together. Compare and analyze them together. If I hadn’t mentioned a piece of evidence you consider important, please take it on board in your deliberation. If you find a witness credible, you are entitled to accept the whole or some of his/her evidence in your deliberation. If you find a witness not credible, you are entitled to reject the whole or some of his/her evidence in your deliberation. You are the judges of fact.
    

I. SUMMARY

35. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
    
36. Your possible opinions are as follows:

Count No. 1 - Rape: Accused: Guilty or Not Guilty

Alternatively, if not guilty of Rape, Sexual Assault: Guilty or Not Guilty

Count No. 2 - Rape: Accused: Guilty or Not Guilty

Alternatively, if not guilty of Rape, Sexual Assault: Guilty or Not Guilty

37. You may now retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.