State v Rara - Summing Up [2020] FJHC 1037; HAC222.2017 (21 October 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 222 OF 2017

BETWEEN

STATE

AND

PITA RARA

Counsel : Mr. T. Tuenuku for the State
Ms. A.Bilivalu for the Accused

Hearing on : 19^th of October 2020
Summing up on : 21^st of October 2020

SUMMING UP

Ladies and gentleman assessors;

1. It is now my duty to sum up the case to you. Your opinion is much important to me and I will be considering your opinion to a great extent in preparation of my judgment. In a short while, I will 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 assessors of facts.
   
2. As the representatives of the society, your duty here is sacred. Your role is to assist this legal system to serve justice. In doing so, you are guided by two equally important principals of prudence. To wit;
   
   1. If a person has committed an offence, he should be meted out with an adequate punishment.

In other words, if you are sure that the accused has committed the alleged offence, then it is your duty to find him guilty. If an offender goes scot-free, he‘ll be ridiculing this legal system. It is your duty to not to let that happen.

ii) An innocent person should never be punished.

There is a saying that it is better to let 10 offenders go free than to punish one innocent person. That is, unless you are very sure that the accused has committed the alleged offence, you should not find him guilty.

If any of the said principles are violated, it would amount to a failure of the system, thus you have failed in your duty to the society. Having reminded you of your duty let me proceed.

3. Evidence in this case is what the witnesses said from the witness box inside this court room and the admissions made. As I have stated to you in my opening address, your opinion should be based only on them. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
4. 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 Counsel for the prosecution or for the defense are not evidence. A suggestion made by a counsel during the examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by counsel in their addresses are not evidence. You may take into account those questions, suggestions, arguments and comments when you evaluate the evidence only to the extent you would consider them appropriate.
   
5. 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 available 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.
   
6. 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 behavior when they testified and how they responded during cross-examination. Applying your day to day life experiences 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 none, a part or all of any witness’ evidence.
   
7. 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 that we all 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/she might honestly forget things or make mistakes regarding what he/she remembers.
   
8. 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 isn’t then you can disregard that inconsistency. 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 should not expect a witness to have a photographic memory or every detail to be the same from one account to the next.
   
9. However, if there is no acceptable explanation for the inconsistency 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 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.
   
10. 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 provide for the inconsistency and consider him/her to be reliable as a witness.
    
11. 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.
    
12. 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 more than one reasonable inference to draw, against the accused, as well in his favor, based on the same set of proved facts, then you should draw the most favorable inference to the accused.
    
13. As a matter of law you should remember that the burden of proof always rests 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 a reasonable doubt, for you to find him guilty. That is, you must be sure of the accused person’s guilt.
    
14. 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 give the benefit of that doubt to the accused and find the accused not guilty. A reasonable doubt is not a mere or an imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in detail in a short while.
    
15. You are not required to decide on every point the Counsels in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the charges are proved against the accused.
    
16. 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 a must.
    
17. Let us look at the Information. The Director of Public Prosecutions has charged the accused of a count of rape.

COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

Pita Rara, between the 2^nd day of December 2017 and 3^rd day of December 2017 at Ba, in the Western Division, penetrated the vagina of Akanisi Suguturaga with his tongue, without the consent of the said Akanisi Suguturaga.

18. Now I will deal with the essential elements of the offence of Rape alleged in the counts. 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 —

(b) 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;

19. Accordingly, in this case, to prove the offence of Rape as for the alleged count the prosecution must prove the following elements beyond a reasonable doubt.

(i) The accused;

(ii) Penetrated the vagina of Akanisi Suguturaga with his tongue; and
(iii) Without the consent of Akanisi Suguturaga (the complainant); and
(iv) Either the accused;

Knew or believed that the complainant was not consenting; or

Was reckless as to whether or not she was consenting.

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. Though there is no doubt that the accused is Pita Rara and he is well known to the complainant, you should consider the evidence and conclude whether the accused is the one who committed the alleged act.

21. The second element is the penetration of Akanisi Suguturaga’s vagina; 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 vagina of Akanisi Suguturaga with his tongue, to any extent.
    
22. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent. You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent and the fact, that there was no physical resistance alone, shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;

i) by force; or

ii) by threat or intimidation; or

iii) by fear of bodily harm; or

iv) by exercise of authority ...etc.

23. Apart from proving that the complainant did not consent for the accused to insert his tongue inside her vagina, the prosecution should also prove that, either the accused knew or believed that the complainant was not consenting; or the accused was reckless as to whether or not the complainant was consenting. This is the fourth element of the offence of rape.

24. It is not difficult to understand what is meant by the words “the accused knew or believed”. But you may wonder as to how you could determine whether the accused was reckless. If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vagina, you may find that the accused was reckless as to whether or not the complainant was consenting. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not.

25. Please remember that no witness can look into an accused’s mind and describe what it was at the time of the alleged incident. Therefore, it is not possible to have direct evidence regarding an accused’s state of mind. Knowledge or intention of an accused can only be inferred based on relevant proven facts and circumstances.

26. If you find a reasonable doubt in respect of any of the elements, in regards to the count of rape, you shall give the benefit of that doubt to the accused and find the accused not guilty of the alleged count of Rape.
    
27. The following admitted facts and additional admitted facts were recorded by the prosecution and the defence by consent.

Admitted Facts:

1. That the complainant in this matter is Akanisi Suguturaga, 26 years, FNU student also of Yalalevu, Ba.
2. that the accused person in this matter is Pita Rara, 36 years, Assistant Court officer (Ba Magistrates’ Court) of Yalalevu, Ba.
3. That the accused is the brother in law of the complainant. The complainant is the younger sister of the accused’s’ wife.
4. That on the 02^nd of December 2017 at about 6.30pm the accused, his wife (Lusiana Dakuroro – hereinafter referred to as “PW2”), 36 years, domestic duties and the complainant of Yalalevu, Ba returned from a picnic. Once they reached home, the complainant and the accused started to drink alcohol. Accused’s friends then later joined the drinking party at the accused’s house. They drank 40oz Bounty Rum and Red Label.

Additional Admitted Facts:

1. The accused Pita Rara on the day of the incident had licked the vagina of the complainant, Akanisi Suguturaga.
   

Summary of Evidence

28. The PW1, Akanisi Suguturaga is the sole witness as to the alleged incidents. The law requires no corroboration. Therefore you can act on the evidence of a sole witness. However, my direction is that if you are to rely on a sole witnesses’ evidence you must be extremely cautious of the credibility and the dependability of such evidence. Her evidence is that;
    
    1. Presently she is 29 years old and employed as a teacher.
    2. In 2017, she was a student at the FNU and used to go to Ba during the weekends to her sisters place. Her sister is Lusiana and sister’s husband is Pita Rara, the accused. It was a one bedroomed house.
    3. On the 02^nd of December 2017, she was invited by Pita to attend a break up party in Rakiraki. She has attended it together with her sister and Pita. After the party they have left Rakiraki around 4.00pm and on the way home Pita has bought a 40 ounce Rum and a Red Label.
    4. They have reached home between 5.00 and 6.00pm and Pita has opened a bottle and she has started drinking with Pita. Later some others too have joined and but her sister, Lusi has not taken any drinks. Around 7.00 - 8.00pm when it was dark, she has had enough and gone into the bedroom.
    5. Then she has gone to the wash room to relieve herself and there she has vomited. She has come back to the room and slept on the bed. Then she has vomited again and her sister has come and cleaned her and sponged her head. Thereafter she has fallen asleep.
    6. While asleep she has felt someone licking her private part and she has pushed his head away. From his bald head and other features she has identified that person to be Pita. Then her sister has called Pita and he has tried to put on her trousers and then gone out to open the door for Lusi. She has heard them arguing and her sister has come to her and told that Pita was harassing her and that he raped her.
    7. She has felt her private part (vagina) paining and asked her sister to take her to the toilet. At the toilet, when she tried to pee, it was painful. Her sister Lusi has taken her out of the house and has called the police. While they were awaiting for the police, Lusi has gone inside the house and then Pita has come and told her that keep the incident to herself. She has kept silent without saying anything. The police has come and taken her and Lusi in one vehicle to the hospital and taken Pita in another vehicle to the police station.
    8. At the hospital doctor has examined her and she was ashamed and frightened. She was ashamed because she has not gone with any man before and Pita has spoiled her life.
    9. She was wearing a ¾ shorts and a t-shirt when the incident happened. Pita has lowered her shorts halfway down when licking her vagina. At that time she was lying face upwards and legs apart. She did not agree for pita to lick her vagina. She has felt his tongue inside her vagina and it has been painful. On that day Pita has not shaved and had a beard.
    10. She has considered Pita to be one of her brothers. At the hospital Lusi called Pita as she wanted them to reconcile and Pita to ask for forgiveness. Then Pita repeatedly asked her to think of his job and their relationship. She has asked him “Pita did you do this to me?” thrice. She identifies the accused as Pita.
        
29. In answering the cross examination posed by the accused, the witness states;
    1. By the 02^nd of December 2017, she was having her menstruation.
    2. She was having menstruation cramps that night.
    3. When suggested that her vagina was painful that night, due to her menstruation cramps, she denies that pain she felt that night, was due to her menstruation.
       
30. The next witness the PW2 called by the prosecution was Dr. Varanaisi Talai, the doctor who examined the PW1, soon after the alleged incident. Her evidence was that;
    1. Having obtained her Bachelor of Medicine and Surgery from the University of Fiji, she has been practicing as a doctor since 2014.
    2. She has examined the patient Akanisi Suguturaga, at the Ba hospital in the early hours on 03^rd of December 2017. She identifies and submits the medical examination form pertaining to the said examination duly filled and signed by her as PE1.
    3. The patient was there with her elder sister. She has examined the vaginal region of the patient and observed a swelling on both sides of the vaginal opening.
    4. There is a possibility that such injuries being caused by someone with a beard performing oral sex on the patient.
    5. The injuries on the patient were consistent with the history informed by the patient.
       
31. In answering the cross examination on behalf of the accused, the witness stated that;
    1. She vaguely remembers the patient informing that she was having periods.
    2. A possible cause for labial swelling is menses. Mere licking of the vagina will not cause a labial swelling. But if a sharp bearded person licked the vagina, it could cause a labial swelling.
    3. If the labial swelling is due to menses, then it has to happen every time she has menstruation. But the witness has not asked the patient whether she gets vaginal pain with menses or not.
    4. The witness states that if the irritation is caused in the labia by a sharp beard, while performing oral sex, it will take days for it to become a swelling. But again she states that vagina is a sensitive area and irritation and swelling could cause at the same time.
    6. She has examined only the mouth of the patients’ vaginal opening. She could not examine it well as the patient was in pain. Having examined the patient, her final opinion was that the patient was sexually assaulted. However the witness states that she was not personally convinced of it. When queried upon, the witness fails to clarify why she wasn’t convinced.
    7. The witness further states that swimming in the salt water too could cause irritation on the labial walls. However, it should be noted that there is nothing to suggest that the PW1 has gone swimming in the sea on the previous day. Further there is nothing to suggest that the PW1 gets vaginal pain when having menses regularly. It should be noted that it is an admitted fact that the accused licked the vagina of the PW1 at the time of the incident. Therefore, you may draw an appropriate inference on that.
       
32. With leading the evidence of PW1 and PW2 and marking and producing PE1, the prosecution closed their case. The Court being satisfied that there is sufficient evidence adduced by the prosecution covering the elements of the alleged offence, decided to call for defense, acting under the virtue of section 231(2), of the Criminal Procedure Act, explaining and giving his due rights to the accused.
    
33. The accused having understood his rights elected to remain silent and to call a witness on his behalf. His witness was his wife Lusi. Her evidence was that;
    
    1. She is married to Pita Rara, the accused. PW1, Akanisi Suguturaga is her younger sister. In December 2017, she was living with her husband in Yalalevu, Ba and Akanisi used to stay with them during the weekends.
    2. On the 02^nd of December 2017, having attended a Christmas Party organized by the Court staff at Sega na Leqa Retreat, herself, her husband Pita and her sister Akanisi has come home around 6.0pm.
    3. When came home Pita, Akanisi and some others have started drinking and she has stayed in the kitchen cooking. Akanisi was sitting next to Pita and they were in a serious discussion. She has not cared about them. Later Akanisi got drunk and she has taken her to the room. Akanisi has started vomiting on the bed and Pita came and assisted to change her T-shirt. Akanisi was wearing a muscle vest and a ¾ shorts with a belt. Then Akanisi has fallen asleep.
    4. When the drinking party was over, two of the persons came were knocked out in the living room and the others went. After a while one of the persons, knocked out in the living room woke up and went to the shop nearby. She was worried of him, went after him and brought him back home.
    5. When she came back the gate was locked. She had the key with her and came in opening it. Front door too was locked and she has gone to the back door calling on her husband, Pita. She has heard the sound of the belt, while knocking. When she was knocking for about 2-3 minutes Pita has come and opened the door.
    6. She has noted that Pita was not wearing his pants properly and felt suspicious. She has punched Pita and went on straight to see Akanisa. She was lying face downwards and though the belt was buckled, her panty has come out from a leg with a pad on it. She has woken Akanisa up and she has gone to the wash room. When she came back from the washroom, she has sat on the bed and complained of pain in the vagina. Then the witness has told her that Pita might have raped her. She has kept on crying and the witness has called the police. Later police came and took two of them to the hospital.
    8. When the Court asked, whether she identified from the sound of the belt, whose belt it was, witness states that it was the Pita’s belt. She further stated that she is sure of it. However, she admits that she told police that it was the sound of her sister’s belt. When confronted, she admits that what she told police is the correct version.
    9. She states from what she saw she thought that Pita must have raped Akanisi. By the time she left the house in search of Raiseu, Akanisi was fast asleep. When she came back, her sister was lying face down and she has called her. There is no possibility of Akanisi consenting Pita to lick her vagina at that time.
    10. Again answering a question by the Court, the witness states that she decided to go in search of Raiseu. However, she admits that she has told the police that Pita forced her to go in search of Raiseu and that was the correct version and what she told before in evidence is wrong.
    11. She admits of knowing Dr. Talai as a Church Member. However, denies meeting her any time up to now subsequent to meeting her at the hospital at the time of examining Akanisi. When confronted, she admits meeting her today, during the lunch break and having talked to her.
    12. When she saw Pita when he opened the door, he was holding on to his shorts and was also without an underwear.
        
34. In answering the cross examination, posed by the prosecution, the witness states that;
    
    1. Since she knew that Pita has done something wrong to Akanisi, she punched him twice, when he opened the door.
    2. She states that she did not see Pita doing anything to Akanisi. But if he admits that he has licked her vagina that night, she agrees that he has done that to her.
    3. She admits giving a second statement to the police, suggesting that Akanisa is lying. She admits giving that to save her husband, who was in remand by then.
    4. She admits that her husband, Pita did something wrong to her sister, Akanisi that night.
       
35. In answering the re-examination by the defence counsel, the witness states that;
    1. She did not see her husband raping Akanisi that night and Akanisi did not tell her that Pita raped her.
    2. She has assumed that something has happened and called the police.
    2. The witness states that Akanisi did not say her anything once she woke up. However, she admits that she has told the police that Akanisi told her that she is feeling the pain and it’s like she is not a virgin anymore. The witness admits that what she told the police is correct and Akanisi told her so.
       
36. That was a 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 appropriate. 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.
    
37. 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 proved and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of the offence has been proved beyond a reasonable doubt. You should take into account my directions where relevant, in deciding whether the prosecution has proved all the elements.
    
38. The accused has elected to remain silent. You should not draw any adverse inference of it. It is his right granted by our constitution and he need not prove his innocence.
    
39. The Accused has indicated his stance and it was that he had consensually licked her vagina and he did not rape her. Evan in case you do not accept the accused’s stance as true, you should not consider it in-order to strengthen the prosecution case. The accused need not prove that he is innocent. A person may lie as sometimes as it is easier than telling the truth. Therefore even you decide to not to accept the accused’s stance, you should not use it to overlook the weaknesses of the prosecution case if any.
    
40. With the submission of the accused’s stance, one of the three situations given below would 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 says could be true'. If that is so, it means that there is a doubt in your mind and if you can reason it out in your mind, and call it a reasonable doubt, 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. Then the situation would then be that you should consider whether the prosecution has proved all the elements beyond a reasonable doubt. If the prosecution has proved all the necessary elements of the offence and also you reject the accused’s stance only, you should find the accused guilty of the alleged count.

41. Any re-directions?

42. Ladies and Gentleman 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. When you have reached your separate opinion, you will come back to court and you will be asked to state your opinion.
    

43. Your opinion should be;

Whether the accused is guilty or not guilty of the alleged count of Rape?

Chamath S. Morais
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions.
Solicitors for the Accused : The Accused appeared in person.