IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 098 OF 2019

BETWEEN		:		STATE
										
AND			:		PENI NAVU
										
Counsel		:		Ms U Tamanikaiyaroi for the State
					Ms S Prakash & Ms E Soata for the Accused

Date of Hearing	:		16 - 18 March 2020
Date of Summing Up	:		18 March 2020

SUMMING UP

[1] 	Madam and Gentlemen 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.

[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] 	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 charges against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[9] 	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.

[10] 	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.

[11] 	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.

[12] 	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.

[13] 	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.

[14] 	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.

[15] 	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.

[16] 	The Accused is charged with two 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 both counts or not guilty on both. 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.

[17] 	I turn now to deal with what the prosecution must prove. For the offence of indecent assault on count one, the prosecution must prove beyond reasonable that the Accused unlawfully and indecently assaulted the complainant. The word "unlawfully" simply means without lawful excuse. There is no suggestion that the Accused had a lawful excuse for the alleged act.

[18]	 An act is an indecent act if right-minded persons would consider the act indecent. As to whether the act of touching the genital area of a female child, you must ask yourselves what right-minded persons would think of this act. Was the act so offensive to current standards of modesty and privacy as to be indecent? In considering these questions you may consider the general nature of the relationship between the Accused and the complainant and the age gap between them to decide whether or not the act was indecent. If you are satisfied beyond reasonable doubt that the Accused without lawful excuse touched the genital area of the complainant and that the act was such that right-minded persons would consider to be indecent, then you may find the Accused guilty on count 1. If you are not so satisfied then you must find him not guilty on count 1.

[19] 	On count 2, the Accused is charged with rape. It is alleged that the Accused digitally penetrated the vulva of the complainant with his fingers. Vulva is the external part of the female genetalia. To prove rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated the complainant's vulva using his fingers. The slightest penetration is sufficient. It is not necessary to prove lack of consent on behalf of the complainant. The law is that a child under the age of 13 years is incapable of giving consent to any form of sexual penetration. If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vulva with his fingers then you may find him guilty of rape. If you are not satisfied that penetration had occurred, you must consider the lesser or alternative offence of sexual assault contrary to the section 210 (1) (a) of the Crimes Act, notwithstanding that the Accused is not charged with sexual assault. Sexual assault has the same elements as the indecent assault. If you accept the Accused without a lawful excuse touched the complainant's genitalia falling short of penetration and that right-minded persons would consider such an act to be indecent, then you may find the Accused not guilty of rape but guilty of sexual assault.

[20]	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.

[21]	You have been given a document that contains agreed facts. You must accept the agreed facts as true. In this case, the identity, age and relationship of the witnesses are not in dispute. It is not in dispute that at the time of the alleged incident the complainant was 9 years old and the Accused was 53 years old. He is related to the complainant through her father and was a frequent visitor to her home at Ucunivanua village, Verata. He lived closed to her home. 

[22]	In relating to the first alleged incident, the complainant said she had returned home from school when the Accused called her to scratch his back. He was at her house and sitting beside a door when the alleged incident occurred. She said the Accused touched her ‘pipi’ pointing out to her genital area between her legs. She said she use her ‘pipi’ to urinate. She said she was wearing a skirt and a singlet and an underwear and that the Accused touched her pipi over her underwear for a short time using his fingers. She said when the alleged incident occurred her mother was at the shed beside their house. She said she did not tell anyone about the incident because the Accused told her not to report. 

[23]	In relating to the second alleged incident, the complainant said the incident occurred at the front porch of her house. The complainant said she was inside her house when the Accused called her to get his shoes from the shed. She said her mother was asleep and her sister was watching TV in the sitting room when the incident occurred. When she brought his shoes to him, he told her to open her mouth and when she kept her mouth closed he kissed her mouth and touched her ‘pipi’ from underneath her underwear.  He was sitting on a chair beside the front door of the sitting room. She said the Accused touched her pipi inside using his fingers for a long time and that she felt pain.  She said when he touched her pipi inside he was moving his hand. She said the Accused took his hand out of her underwear when her sister Mere came out on the porch. She said she went and woke her mother up and told her that the Accused had touched her ‘pipi’. Her mother then confronted the Accused.  

[24]	The second witness for the prosecution was the complainant’s elder sister. She is 12 years old and a class 8 student. She said she was watching television with the complainant in the sitting room when the Accused called the complainant from the front porch to get his flip flops. When she realized the complainant was taking long outside she went to the front entrance door. When she went to the door she saw the Accused’s hand inside the complainant’s dress and that the complainant was crying. She said when the Accused saw her he pulled his hand out from inside the complainant’s dress. She said the complainant went to their mother. 

[25]	The third witness was the complainant’s mother. She told the court that she was watching television with her daughters when she fell asleep on the couch. On this day the Accused was at their home watching TV. She said the Accused went out on the porch before she fell off to sleep. She said the complainant came to her crying and woke her up. She said the complainant told her that the Accused taught her something bad. She said the complainant was distressed, crying and shivering.  She called on the Accused to come inside. He responded “she is lying I only kissed her’’. She confronted the Accused but he maintained that he had only kissed the complainant. She then prodded the complainant in the presence of the Accused. She said the complainant told her that the Accused kissed her and put his fingers insider her underwear.  She confronted the Accused after what the complainant told her. He sought her forgiveness and said he was only playing around. 

[26]	There is a further direction that I wish to give you regarding the complaint made by the complainant to her 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 for you to decide whether the evidence of the complaint made to the mother helps you to reach a decision, but it is important that you should understand that the complaint is not independent evidence of what happened between the complainant and the Accused, and it therefore cannot itself prove that the complaint is true. 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.

[27]	That completes my direction on the prosecution evidence. 

[28]	The Accused elected not to give evidence or call any witness. That is perfectly his right. You must not assume that he is guilty because he has not given evidence. The fact the he has not given evidence proves nothing, one way or the other. You will have to decide whether, on the prosecution’s evidence, you are sure of his guilt. It is for you to decide whether the prosecution evidence is credible and reliable.  

[29] 	The defence case is of denial of the charges and that the allegations are fabricated. The defence case is that the prosecution witnesses are not credible and reliable to convict the Accused. 

[30]	The prosecution's case wholly rests on the credibility of the prosecution witnesses. On count one, the prosecution says that the Accused touched the complainant’s genitals over her underwear with his hand. The prosecution says the act was unlawful and indecent as the complainant was a child and the Accused was an elderly relative. 

[31]	On count two, the prosecution says that the Accused fondled the complainant’s genitals by putting his hand inside her underwear and that she experienced pain and started crying. The prosecution says the incident was witnessed by the complainant’s elder sister. The prosecution says that the complainant immediately reported the incident to her mother, adding the complainant was consistent and therefore a credible witness. The prosecution says that the Accused penetrated the complainant’s vulva with his fingers and is guilty of rape. 

[32]	If you don't believe the complainant’s account of the two alleged incidents, then the Accused is not guilty of any offences. On count 1, if you believe the complainant is telling you the truth that the Accused touched her genital area over her underwear without a lawful excuse and if you are satisfied beyond reasonable doubt that right minded persons would consider the conduct to be indecent, then you may find the Accused guilty of indecent assault. 

[33] 	On count 2, if you believe the complainant is telling you the truth that the Accused fondled her genitals with his fingers, and if you are satisfied beyond reasonable doubt that the Accused penetrated the complainant’s vulva with his fingers, then you may find the Accused guilty of rape. But if you have reasonable doubt as to whether penetration occurred, then you must consider the lesser or alternative offence of sexual assault. If you accept the complainant's evidence that the Accused fondled her genitals with his fingers without a lawful excuse and if you are satisfied beyond a reasonable doubt that right minded persons would consider the conduct to be indecent, then you may find the Accused not guilty of rape but guilty of the lesser or alternative offence of sexual assault.

[34] 	On count 1, your opinions would be either guilty or not guilty. On count 2, you must first consider whether the Accused is either guilty or not guilty of rape. If you find the Accused guilty of rape, then you must not consider the lesser or alternative offence of sexual assault. If you find the Accused not guilty of rape, then you must consider the lesser or alternative offence of sexual assault. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive them. Please now retire to deliberate on your opinions.

……………………………………..
      	Hon. Mr Justice Daniel Goundar

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