State v Paki - Summing Up [2020] FJHC 725; HAC94.2019 (31 August 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 94 of 2019

STATE

V

SIMIONE PAKI

Counsel: Ms. Sadaf Shameem for the State
Ms. Shantel Hazelman with Ms. Lusiana Naikawakawavesi for the Accused

Dates of Trial: 24-27 August 2020
Summing Up: 31 August 2020

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

SUMMING UP

Madam Assessors and Gentleman Assessor,

[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.

[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.

[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinions. You must take all evidence into consideration, before you proceed to form your opinions. There are no items of evidence which could safely be ignored by you.

[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.

[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] In this case, the evidence is what the witnesses said from the witness box, the document tendered as a prosecution exhibit and the admissions made by the parties by way of Amended Agreed Facts.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony put before you since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submissions made by the State Counsel and the closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, a matter which will be of primary concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.

[14] The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.

[15] According to the evidence you heard in this case, the complainant, MWM, was 10 and a half years old as at 1 July 2018, and was 12 years old when she testified in Court (Her date of birth being 26 September 2007). Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused is charged with.

[16] You heard in this case the evidence of Amerita Ranadi the complainant’s class teacher at Dilkusha Girls School. The witness said that in January 2019 the complainant had approached her and informed her as follows: The complainant had said that she is been sexually abused at home. The witness further said as follows: “She told me her grandfather has been touching her from home. She went on and said that her grandfather had licked her private parts. When she told me that I asked her to stop. Then I immediately went over to the Child Protection Officer and the Assistant Head Teacher and I referred the matter to her – The Assistant Head Teacher. The Head Teacher was not in that day.”

[17] The complainant need not specifically disclose all of the ingredients of the offences and describe every detail of the incidents, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that the complainant made a prompt and a proper complaint, then you may consider that her credibility is strengthened in view of that recent complaint.

[18] It must be borne in mind that the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.

[19] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to perceive (or know) in any other way the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.

[20] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in their evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This could be in relation to the testimony of the witness given in Court or in comparison to any previous statement made by that witness.

[21] A statement made to the Police by a witness can only be used during cross-examination to highlight inconsistencies or omissions. That is, to show that the relevant witness on a previous occasion had said something different to what he or she said in Court (which would be an inconsistency) or to show that what the witness said in Court was not stated previously in the statement made to the Police (which would be an omission). You have to bear in mind that a statement made by a witness out of Court is not evidence. However, if a witness admits that a certain portion in the statement made to the Police is true, then that portion of the statement becomes part of the evidence.

[22] This is how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. 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. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.

[23] However, if there is no acceptable explanation for the inconsistency or omission, 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 inconsistency or omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission 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 his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency and consider the witness to be reliable.

[24] Madam Assessors and Gentleman Assessor, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[25] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[26] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not to the charges. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[27] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged.

[28] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[29] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. This is also referred to as circumstantial evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[30] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench of this Court room. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary facts and the inferences that could be drawn from them.

[31] I must emphasize, it does not matter whether that evidence was called for by the prosecution or by the defense. You must apply the same standards, in evaluating them.

[32] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.

[33] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.

[34] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or degree of proof, as expected by law?

[35] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason. The doubt must only be based on the evidence presented before this Court.

[36] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.

[37] You must not let any external factor influence your judgment. You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainant in this case or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must also not speculate about what evidence there might have been. You must adopt a fair, careful and reasoned approach in forming your opinions.

[38] I must also explain to you as to the reason for the use of screen, when the complainant gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents which she alleged took place. Please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.

[39] The same applies for permitting a closed court proceedings when the complainant gave evidence in this case. I wish to reiterate once again that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.

[40] Let us now look at the charges contained in the Amended Information.

[41] There are four charges preferred by the Director of Public Prosecutions (DPP), against the accused:

COUNT ONE

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

SIMIONE PAKI, between the 1^st day of July 2018 and the 31^st day of July 2018, at Nasinu, in the Central Division, unlawfully and indecently assaulted MWM, a child under the age of 13 years, by sucking the unclothed breast of the said MWM.

COUNT TWO

Statement of Offence

RAPE: Contrary to Section 207 (1) and 2 (b) and (3) of the Crimes Act 2009.

Particulars of Offence

SIMIONE PAKI, between the 1^st day of July 2018 and the 14^th day of January 2019, at Nasinu, in the Central Division, penetrated the vulva of MWM, a child under the age of 13 years, with his tongue.

COUNT THREE

Statement of Offence

RAPE: Contrary to Section 207 (1) and 2 (b) and (3) of the Crimes Act 2009.

Particulars of Offence

SIMIONE PAKI, between the 1^st day of July 2018 and the 14^th day of January 2019, at Nasinu, in the Central Division, penetrated the vagina of MWM, a child under the age of 13 years, with his finger.

COUNT FOUR

Statement of Offence

ATTEMPTED RAPE: Contrary to Section 208 of the Crimes Act 2009.

Particulars of Offence

SIMIONE PAKI, between the 14^th day of January 2019 and the 31^st day of January 2019, at Nasinu, in the Central Division, attempted to have carnal knowledge of MWM, a child under the age of 13 years.

[42] As you would observe the accused has been charged with one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act No. 44 of 2009 (Crimes Act); two counts of Rape, contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act and one count of Attempted Rape, contrary to Section 208 of the Crimes Act.

[43] Let me first explain to you the elements of the charge of Sexual Assault.

[44] The offence of Sexual Assault is defined in Section 210 (1) of the Crimes Act as follows:

(1) A person commits an indictable offence (which is triable summarily) if he or she—

(a) unlawfully and indecently assaults another person; or

(b) .......

[45] Therefore, in order for the prosecution to prove the first count of Sexual Assault, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified period (in this case between 1 July 2018 and 31 July 2018);

(iii) At Nasinu, in the Central Division;

(iv) Unlawfully and indecently assaulted MWM, the complainant.

[46] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.

[47] The second element relates to the specific time period during 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.

[48] The accused would be guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainant. The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As such, it is for you as Assessors to consider and decide whether the sucking of the unclothed breast of the complainant by the accused, is an indecent act and thereby amounts to Sexual Assault.

[49] Let me now explain to you the elements of the two counts of Rape.

[50] Section 207(1) of the Crimes Act reads as follows:

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

[51] Section 207(2) (b) of the Crimes Act is reproduced below.

(2) A person rapes another person if —

(a) ....

(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; or

(c) .....

[52] Therefore, when Section 207(1) is read with Section 207(2) (b) it would read as follows:

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

(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.

[53] Section 207(2) (b) refers to a person penetrating 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.

[54] Now you may wonder as to what is the difference or distinction between the vulva and the vagina? An understanding of this distinction becomes more relevant in this case, since count two makes reference to penetrating of the vulva of the complainant, while count three makes reference to penetrating of the vagina of the complainant.

[55] It is well documented in medical literature that first, one will see the vulva i.e. all the external organs one can see outside a female's body. The vulva includes the mons pubis ('pubic mound' i.e. a ed fleshy protuberance sice situated over the pubic bones that bs coeered with with hair during puberty), labia majora (outer lips), labia minora (innps), ris, and the external openings of the urethra anda and vagi vagina. People often confuse the vulva with the vagina. The vagina, also known as the birth canal, is inside the body. Only the opening of the vagina (vaginal introitus i.> the opening thag that leads to the vaginal canal) can be seen from outside. The hymen is 0;mem&#1ne that surt surrounds or paryially cover exte#160;vaginal op. It forms part of the&#the&#the vulva, or external genitaliatalnd is d is similar in structure to the a. Thre, iclear one hane has to necessarily enter the vulva befo before penetrating the vagina.

[56] onction 207(3) of the s Actides that &#82>“Fo20;For this section, a child under the age of 13 years is incapable of giving consent.”

7] Therefore, in order for the prosecution to prove thee the second count of Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this case between 1 July 2018 and 14 January 2019);

(iii) At Nasinu, in the Central Division;

(iv) Penetrated the complainant’s vulva, with his tongue; and

(v) At the time the complainant was a child under the age of 13 years.

[58] Let me now elaborate on these elements in respect of the second count.

[59] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.

[60] The second element relates to the specific time period during 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.

[61] The fourth element involves the penetration of the complainant’s vulva; with the accused’s tongue. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vulva of the complainant with his tongue to any extent.

[62] The final element is that at the time of the incident the complainant was a child under 13 years of age.

[63] The issue of consent will not arise in this case. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As indicated earlier, the complainant in this case was between 10 and a half and 11 and a half years old at the time of the alleged incident, and therefore, she had no mental capacity to consent.

[64] In order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this case between 1 July 2018 and 14 January 2019);

(iii) At Nasinu, in the Central Division;

(iv) Penetrated the complainant’s vagina, with his finger; and

(v) At the time the complainant was a child under the age of 13 years.

[65] Let me now elaborate on these elements in respect of the third count.

[66] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.

[67] The second element relates to the specific time period during 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.

[68] The fourth element involves the penetration of the complainant’s vagina; with the accused’s finger. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his finger to any extent.

[69] The final element is that at the time of the incident the complainant was a child under 13 years of age.

[70] As I informed you earlier, the issue of consent will not arise in this case. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As indicated earlier, the complainant in this case was between 10 and a half and 11 and a half years old at the time of the alleged incident, and therefore, she had no mental capacity to consent.

[71] Let me now explain to you the elements of the fourth count of Attempted Rape.

[72] Section 208 of the Crimes Act reads as follows: “Any person who attempts to commit a rape commits an indictable offence (which is triable summarily).”

[73] Therefore, in order for the prosecution to prove the fourth count of Attempt to Commit Rape, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) During the specified time period (in this instance between 14 January 2019 and 31 January 2019);

(iii) At Nasinu, in the Central Division;

(iv) Attempted to have carnal knowledge of the complainant;

(v) At the time the complainant was a child under the age of 13 years.

[74] Let me now elaborate on these elements together in respect of the fourth count.

[75] The first element is concerned with the identity of the person who committed the offences. The prosecution should prove beyond any reasonable doubt that the accused and no one else committed the offence.

[76] The second element relates to the specific time period during 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.

[77] The fourth element the prosecution must prove beyond reasonable doubt is that the accused attempted to have carnal knowledge of the complainant. In layman’s terms, having carnal knowledge with or of the other person, means having penile sexual intercourse with that other person or having sexual intercourse with the use of the penis. In this instance the prosecution must prove beyond reasonable doubt that the accused attempted to have carnal knowledge of the complainant.

[78] The final element is that at the time of the incident the complainant was a child under 13 years of age.

[79] As I informed you earlier, the issue of consent will not arise in this case. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was 11 and a half years old at the time of the alleged incident, and therefore, she had no mental capacity to consent.

[80] It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Sexual Assault, Rape and Attempted Rape are obviously considered as a Sexual Offences. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.

[81] If you are satisfied beyond any reasonable doubt that the accused, between 1 July 2018 and 31 July 2018, at Nasinu, unlawfully and indecently assaulted MWM, by sucking her unclothed breast, then you must find him guilty of the first count of Sexual Assault.

[82] If you find that the prosecution has failed to establish any of these elements in relation to the first count, then you must find the accused not guilty of Sexual Assault.

[83] If you are satisfied beyond any reasonable doubt that the accused, between 1 July 2018 and 14 January 2019, at Nasinu, penetrated the vulva of MWM with his tongue, and at the time MWM was a child under the age of 13 years, then you must find him guilty of the second count of Rape.

[84] If you find that the prosecution has failed to establish any of these elements in relation to the second count, then you must find the accused not guilty of Rape.

[85] If you are satisfied beyond any reasonable doubt that the accused, between 1 July 2018 and 14 January 2019, penetrated the vagina of MWM with his finger, and at the time MWM was a child under the age of 13 years, then you must find him guilty of the third count of Rape.

[86] If you find that the prosecution has failed to establish any of these elements in relation to the third count, then you must find the accused not guilty of Rape.

[87] If you are satisfied beyond any reasonable doubt that the accused, between 14 January 2019 and 31 January 2019, at Nasinu, attempted to have carnal knowledge with MWM, and at the time MWM was a child under the age of 13 years, then you must find him guilty of the fourth count of Attempted Rape.

[88] If you find that the prosecution has failed to establish any of these elements in relation to the fourth count, then you must find the accused not guilty of Attempted Rape.

[89] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

[90] In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts as “Amended Agreed Facts” without placing necessary evidence to prove them:

1. The name of the person charged is Simione Paki [“Simione”].

2. The Complainant is MWM [“M”], 12 years old of Calvert Place, Davuilevu. The Complainant was born on the 26^th of September, 2007. The birth certificate is hereby tendered by consent.
   

3. Simione is the brother of M’s grandmother. M refers to Simione as

grandfather.

4. M’s siblings are Vani Morrell, Luke Morrell, Mosese Morrell, Alick Morrell and Josefa Morrell.
   

[91] Since the prosecution and the defence have consented to treat the above facts as “Amended Admitted Facts” without placing necessary evidence to prove them you must, therefore, treat the above facts as proved beyond reasonable doubt.

Case for the Prosecution

[92] The prosecution, in support of their case, called the complainant (MWM) and Amerita Ranadi, her class teacher. The prosecution also tendered the following document as prosecution exhibit:

Prosecution Exhibit PE1- Rough Sketch of the complainant’s residence.

[93] Evidence of the complainant MWM

(i) The complainant testified that she is 12 years old. Her date of birth is 26 September 2007. A copy of her birth certificate has been tendered by consent, and has been attached to the Amended Agreed Facts. She is schooling at Dilkusha Girls High School and is currently in Year 8.
(ii) The witness said that she currently lives at Davuilevu Housing. She testified that she is staying there with her parents and her brothers. Her father’s name is Joseph Morell and her mother’s name is Miliakere. She has 4 brothers and one sister. It is an agreed fact that her siblings are Vani Morrell, Luke Morrell, Mosese Morrell, Alick Morrell and Josefa Morrell. The complainant said that currently Vani is 19 years old, Luke is 18 years old, Mosese is 14 years old, Alick is 10 years old and Josefa is 7 years old.
(iii) The witness testified that in July 2018, she was staying at
Davuilevu Housing together with her parents and her younger brother Alick. Her brother Luke was staying in Wailoku with her cousin, while her sister Vani was staying with her grandparents at Koronivia. Her brothers Mosese and Josefa were also staying with her sister Vani, at her grandparents’ place.
(iv) The accused Simione Paki had come to stay with them in June 2018. It is an agreed fact that Simione is the brother of her grandmother, and that the complainant refers to Simione as grandfather.
(v) The complainant drew a rough sketch of the house that she was staying at – the said sketch was tendered to Court as Prosecution Exhibit PE1.
(vi) The witness testified to an incident which happened in July 2018. She said that she and her brother Alick came back home after school. It was at 3.00 o’clock. When they returned home only Simione was at home. She and Alick had attended to the house work.
(vii) She had then gone to Simione to ask him if she and Alick could go out and play with their neighbour Kirisi (who is also now 12 years old). Simione had only allowed Alick to play with her neighbour Kirisi, but not allowed her to go and play. When asked the reason why Simione had not allowed her to go and play, the witness said “Because I was a girl.”
(viii) The complainant then testified as follows: “After that I was yawning. I lift up my hands. Then Simione started to lick my arm pit. He pulled down my vest and then he sucked my breasts.”
(ix) The complainant said that this incident took place in Simione’s room. She specifically referred to the bench or chair in the room. The witness said that she had gone to Simione’s room to ask for his mobile phone. Simione had told her to sit on the chair and play games on the phone. He then went out to close the curtains and the doors (both the doors of the house). Then he came back to the room. He told her to stand up and he sat on the chair. The witness said: “When I gave back his phone I was yawning and I lift up my hands. Then he started to lick my arm pit. Then he pulled my vest down and sucked my breasts.”
(x) The complainant said that Simione had used his tongue to lick her arm pit, and that he used his mouth to suck her breasts. When asked for how long Simione had sucked her breasts, the witness said “For about seconds.” Simione had sucked her right breast. At the time Simione licked her arm pit, pulled down her vest and sucked her breasts, he was seated on the chair but bending towards the front (bending towards her).
(xi) The complainant said that at the time she had been wearing a top and shorts. She said it was a short top with short sleeves. Later the witness described the top as a vest.
(xii) The complainant said that at the time the accused was doing those things to her, she had told him to stop or else that she will tell her dad. The accused had then stopped. He had told her don’t tell anyone. “He said if you tell anyone he will not allow me to go to Australia.”
(xiii) The witness said that she did not tell her parents or anyone else about the incident, because if she did so the accused would not allow her to go to Australia.
(xiv) The complainant was then asked the following questions and she answered as follows:

17. Did anything else happen?
1. Yes
   
17. When did it happen?
1. It happened some other weeks later.
   
17. Do you recall which day?
1. No.
   
17. At least which month?
1. It was July 2018. It was a week day.
   
17. Tell us what happened?
1. I came back after school with Alick. He went to play with my neighbours. I was washing dishes in the kitchen. Then Simione called me to his room. When he called me he told me to lie on the bed. The bed in his bedroom.
17. How did he tell you to lie on the bed?
1. He just told me to lie on the bed.
   
17. Did you lie on the bed?
1. Yes.
   
17. Do you remember what you were wearing on that day?
1. No.
   
17. Can you describe how did you lie down on the bed?
1. I laid down facing up.
   
17. What happened after that?
1. He came and sat on the bed.
   
17. How far away from you did he sit?
1. He was near me.
   
17. What happened after that?
1. He bended and licked my private part.
   

Prosecution Exhibit PE1 – the rough sketch of the house was shown to the witness.

17. When you laid down on the bed which side was your legs facing?
1. Legs were facing towards the window.
   
17. Where was Simione sitting?
1. The witness shows the place where Simione was sitting on PE1 (He was sitting on her right side)
   
17. Were you wearing clothes when he licked your private part?
1. At that time he told me to go and bath – he told me to wear my towel.
   

..........

17. When you were lying on Simione’s bed (what were you wearing)?
1. I was only wearing a towel.
   
17. When you say Simione bent and licked your private part were you still wearing your towel?
1. Yes.
   
17. When you were wearing your towel was it covering your private part?
1. No.
   
17. Can you describe how you were wearing your towel?
1. The witness demonstrate how she was wearing her towel (towel was wrapped around her from her behind).
   
17. So the towel edges were in front?
1. Yes.
   
17. When you were wearing your towel up to what length was the towel?
1. It was above my knee.
   
17. After you lay on Simione’s bed where was your towel up to?
1. It was on my thigh.
   
17. How was Simone able to lick your private part?
1. He opened the towel. He held the edges of the towel and opened it. Then he licked my private part.
   
17. What did he use to lick your private part?
1. He used his tongue.
   
17. Do you know any other word for your private part?
1. Vagina.
   
17. Do you know what this private part is used for?
1. It is used to pee.
   
17. Can you tell us what part of the vagina he licked?
1. The part that I pee from.

17. Who licked?
1. Simione.
   
17. Can you describe how he licked it?
1. He licked it upwards.
   
17. For how long did Simione do this?
1. A couple of seconds.
   
17. How did you know it is Simione who did this?
1. Because I saw him.
   
17. When you saw him was there anything blocking your view?
1. No.
   
17. When Simione did this, was there anyone else in the room (at the time)?
1. No.
   
17. Was there anyone else in the house (at the time)?
1. No.
   
17. Apart from licking your private part did Simione do anything else?
1. He poked it.
   
17. What did he poke?
1. He used his finger – he poked my private part.
   
17. When you say private part?
1. I am referring to my vagina.
   
17. How do you know he poked your vagina using his finger?
1. Because I could feel what he was doing.
   
17. How did you know he licked your vagina using his tongue?
1. Because I saw him doing it.
   
17. How were you able to see him?
1. Because I was trying to stand up but I couldn’t.
   
17. For how long did he poke your vagina with his finger?
1. Not very long.
   
17. Who are you referring to?
1. Simione.
   
17. How do you know it was Simione?
1. Because I saw his face before he did it.
   
17. During this time was there any conversation between you and Simione?
1. No.
   
17. And what happened after Simione did these things?
1. He also sucked it – my private part – my vagina.
   
17. What did he use to suck your private part?
1. He used his mouth.
   
17. What happened after Simione did all this?
1. I went to bath.
   
17. Why did you go to bath?
1. Because he told me to bath.
   
17. What happened after you went to bath?
1. After – I went to get dressed in my parents’ room. Then Alick came.
   

(xv) The witness said that she did not tell her parents or anyone else about these incidents, because if she did so the accused would not allow her to go to Australia.
(xvi) When asked if after these incidents, did anything else happen, the complainant said yes and testified to an incident which happened in January 2019. She said it was a Tuesday. She was doing her house work. Her brother Alick was out playing with her neighbour. It was 3.00 in the afternoon.
(xvii) The complainant had gone to Simione’s room to ask him for something. Then Simione made her lie down on his bed. At the time, Simione had been sitting on his bed. Simione had grabbed her hand and made her lie down on the bed. Simione had used his right hand and grabbed her from her palm. Thereafter, Simione had licked her vagina with his tongue. He had then sucked her vagina with his mouth. To do this Simione had taken off the pants she was wearing. He had lifted her legs and had taken off her pants. He had also taken off the panty she was wearing.
(xviii) When asked the question “When Simione was sitting on the bed, were his legs on the bed or off?” the witness answered “One of his legs was on the bed – it was his right leg. He folded his right leg and put it on the bed.” (The witness demonstrated how the accused had done this).
(xix) The complainant was then asked the following questions and she answered as follows:

Q. Did Simione do anything else after he sucked and licked your vagina?

A. He tried to put his balls in my vagina but couldn’t because his stomach was

too big.

Q. Were you still lying down at the time?

A. Yes.

Q. What was Simione’s position?

A. He came on the bed and he lay over me.

Q. When you were lying on the bed what side were you facing?

A. I was facing upwards.

Q. Towards which side was Simione facing?

A. He was facing towards me.

Q. What do you mean by balls?

A. His private part.

Q. Do you know any other name for this private part?

A. No.

Q. Do you know what this private part is used for?

A. To pee.

Q. Can you describe the shape or the size of this private part?

A. When he came over me he was still wearing his pants.

Q. How do you know that he was trying to put his balls in your vagina?

A. Because I saw him – I saw what he was doing.

Q. When he tried to put his balls in your vagina was he still wearing pants?

A. Yes.

Q. Then how did he try to put his balls in your vagina?

1. He was lying down on me. His legs and private part were down. His stomach and face were up. (The witness demonstrated with her hands).
   

Q. When you say his leg and private part were down – down where?

A. Towards me.

Q. What part of your body was it close to?

A. My private part and my leg.

Q. What part of your body was his stomach close to?

A. My stomach.

Q. What was his face looking at?

A. At me.

17. How was he able to try and put his balls in your vagina if he was wearing pants?
    

A. He couldn’t because his stomach was big.

Q. Did you see his balls?

A. No.

Q. How did you know that he was trying to put his balls in your vagina?

A. Because I saw him do it.

Q. What exactly did you see?

1. I saw that the part of his private part and leg were closed to my private part. But his stomach was stopping his private part from reaching my private part.
   

Q. For how long did Simione try to do this?

A. Just about a few seconds.

Q. How do you know it was Simione?

A. Because I saw his face.

Q. Was there anything blocking your view from seeing his face?

A. No.

Q. Was there anyone else in the room when he tried to do this?

A. No.

Q. Was there anyone else in the house at the time?

A. No.

(xx) The complainant testified that the next day, which she said was a Wednesday, she went to school. She had been thinking about everything the accused had been doing to her and said that she was planning to tell her teacher. After thinking about it she decided to first tell one of her friends, who was a Deputy Head Girl. The Deputy Head Girl had then informed her school teacher Ms. Ranadi.
(xxi) Thereafter, Ms. Ranadi had asked the complainant as to what happened to her. The witness said: “Then I told her that Simione had licked my private part.” The complainant also said as follows: “She asked what happened to me. And I didn’t tell her the whole story because she told me not to tell it out to her because I was gonna go and tell the police.”
(xxii) Thereafter, the matter had been reported to the Assistant Head Teacher and later to the police. The complainant said that on the same day she informed Ms. Ranadi about the incident, the matter had been reported to the police.
(xxiii) The complainant identified the accused in the dock as Simione Paki.
(xxiv) When the complainant was asked as to what was the reason she finally complained to her teacher about the incident, she answered as follows: “Because I was fed up of telling him to stop but he didn’t want to stop.”
(xxv) The complainant was cross examined at length by the defence. The defence also put several suggestions to the complainant.
(xxvi) It was suggested to the complainant that her complaint to the police had been made on 1 February 2019, which was a Friday. Therefore, it was put to her that it was not possible that she had informed Ms. Ranadi about the incident on Wednesday, as she had testified in Court.
(xxvii) The Defence highlighted certain inconsistencies in the testimony given in Court by the witness vis a vis her statement made to the Police:

1. In her testimony in Court, the witness said that the incidents referred to in counts 2 and 3 took place in July 2018.
   

However, in her statement made to the Police, it is recorded as follows:

“The next time it was in one of the weekend I do not remember the date.”

The witness explained that she had in fact told the police that the incident took place in June or July 2018. However, the police had just written that she does not remember the date.

2. In her testimony in Court, the witness said that at the time the incidents referred to in counts 2 and 3 took place, she was wearing a towel.
   

However, in her statement made to the Police, it is recorded as follows:

“He pulled me and made me lie on the bed and started taking out my pants.”

3. In her testimony in Court, the witness said that after the incidents referred to in counts 2 and 3 took place she went and had a bath.
   

However, in her statement made to the Police, it is recorded as follows:

“I then pushed his hands and wore my pants and went and sat outside the house.”

4. In her testimony in Court, the witness said that she did not tell her brother Alick or her parents about the incident because she was afraid that Simione won’t allow her to go to Australia.

However, in her statement made to the Police, it is recorded as follows:

“That day I did not inform anybody at home about this because I was scared of my dad that he will be angry on me.”

(xxviii) The Defence also highlighted the following omissions in the testimony given in Court by the witness vis a vis her statement made to the Police.

1. In her testimony in Court, the witness testified that she was wearing a towel at the time the incidents referred to in counts 2 and 3 took place in July 2018. However, the complainant had not made any reference to this in her statement made to the Police.
   
2. In her testimony in Court the witness had consistently stated that the reason she did not tell her brother Alick or her parents about the incident was because she was afraid that Simione won’t allow her to go to Australia. However, the complainant had not made any reference to this in her statement made to the Police.
   

(xxix) In re-examination, the State Counsel clarified from the witness certain matters that arose during her cross examination.

[94] Evidence of Amerita Ranadi

(i) She testified that she is the teacher at the Dilkusha Girls School. She is currently teaching class 7. She has been teaching at the Dilkusha Girls School for the past 5 years.

(ii) The witness said that in January 2019 the complainant was a student in her class (Class 7).

(iii) The witness testified to an event which transpired in January 2019. She said that one particular day the complainant came to her with the Deputy Head Girl (One Edwina Mawi), who had informed her that the complainant had something to tell her.

(iv) The witness had then asked the complainant to sit down and asked her what happened. The complainant had said that she is been sexually abused at home. The witness further said as follows: “She told me her grandfather has been touching her from home. She went on and said that her grandfather had licked her private parts. When she told me that I asked her to stop. Then I immediately went over to the Child Protection Officer and the Assistant Head Teacher and I referred the matter to her – The Assistant Head Teacher. The Head Teacher was not in that day.”

(v) The witness said that the complainant had informed her that the name of her grandfather was Simione Paki.

(vi) This matter had then been reported to the police.

(vii) The witness was cross examined at length by the defence. The defence also put several suggestions to the witness.

(viii) The Defence highlighted the following omission in the testimony given in Court by the witness vis a vis her statement made to the Police. In her evidence in Court the witness said that the complainant had told her that her grandfather had licked her private parts. However, the witness had not made any reference to this in her statement made to the Police.

(ix) The Defence highlighted the following inconsistencies in the testimony given in Court by the witness vis a vis her statement made to the Police:

1. In her evidence in Court the witness testified that the complainant had informed her that her grandfather had been sexually abusing her at home. Thereafter, she had referred the matter to the Child Protection Officer in school.

However, in her statement made to the Police, it is recorded as follows:

“So later on when M came back to me and she told me that her grandfather has been sexually abusing her.”

ii. In her evidence in Court the witness testified that the complainant had come

to her with the Deputy Head Girl named Edwina Mawi.

However, in her statement made to the Police, it is recorded that the complainant had come to her with one of her friends named Salote.

[95] That was the case for the prosecution. At the end of the prosecution case, this Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could give sworn evidence from the witness box and/or call witnesses on his behalf. He could also address Court by himself or his counsel. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.

[96] In this case, the accused opted to offer evidence under oath.

Case for the Defence

[97] Evidence of Simione Paki

(i) The accused testified that he is now 53 years of age. He was a taxi driver. He has been driving a taxi for about 30 years. He stopped driving in 2013.

(ii) The accused said that he had been married. He has 2 children – 1 daughter and 1 son. In 2000 he separated and then divorced his wife. The wife had taken his daughter, while his son had remained with him. He had lived with his son in Wailoku on rent.

(iii) After his son had got married, the accused had moved to Berry Road, where he stayed with his niece, Ruby Patel. He had stayed there for 7 years.

(iv) Thereafter, his sister Waqa Morrell and brother-in-law Jim Morrell had wanted him to come and stay with them in Navua. So he had done so. That was in 2015.

(v) From Navua he went back to Berry Road in 2016 and stayed with his niece. From there he moved back to Navua when Jim Morrell had returned from Australia. That was in 2017.

(vi) The witness testified that while staying in Navua he had fallen sick and Jim Morrell had rushed him to the CWM hospital where he had undergone a surgery.

(vii) Thereafter, he had moved to his cousin sister’s place in Tovata where he had stayed for a period of time.

(viii) The witness testified that he had moved to his nephew Joseph Morrell’s house in Davuilevu Housing in January 2018 at the time Joseph’s wife had left him. He had moved to Joseph’s house to help Joseph to take care of his children (since his wife had left him). He had been occupying one room in the house.

(vi) The witness totally denies all the allegations made against him by the complainant.

(vii) The witness said that in July 2018 the complainant and her brother Alick had gone to visit their grandmother in Koronivia. They had returned to their house during the Hibiscus Festival in August 2018. At the time the complainant and her brother Alick had gone to Koronivia, only Joseph and Mosese were residing in the house at Davuilevu Housing with him.

(viii) The witness said that Joseph’s wife had returned home in October 2018.

(ix) The witness further testified that one evening Alick had come to his room and asked him when he will be leaving the house. He had asked Alick whether he wants him to leave the house.

(x) In December 2018, the complainant had gone to Vanualevu to spend Christmas with her grandparents (her maternal grandparents). She had returned home in January 2019.

(xi) The witness was asked the following questions:

17. M has made allegations against you – what can you say about those allegations?

A. It’s a lie. They just wanted me to leave the house.

Q. Are you currently suffering with any other sickness?

A. Yes.

Q. And what is that?

A. Gout.

Q. How is this sickness affecting you?

A. Because of this sickness sometimes I can’t stand, I can’t walk and it’s making me weak.

Analysis

[98] The above is a brief summary of the evidence led at this trial. The prosecution, in support of their case, called the complainant (MWM) and Amerita Ranadi, her class teacher. The prosecution also tendered as prosecution exhibit PE 1-a Rough Sketch of the complainant’s residence. The defence relied on the evidence of the accused himself.

[99] As I have informed you earlier, the burden of proving each ingredient of the four charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.

[100] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.

[101] As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved beyond reasonable doubt.

[102] Based on the said agreed facts, the fact that the complainant’s date of birth is 26 September 2007, and as such, that she was under 13 years of age at the time of the offending, is established beyond reasonable doubt. However, the prosecution must establish beyond reasonable doubt the remaining elements of the respective counts.

[103] I have already explained to you how you should deal with inconsistences and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation given by the witness for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.

[104] However, if there is no acceptable explanation given by the witness for the inconsistency or omission 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 and omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission 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 his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency or omission and consider him or her to be reliable as a witness.

[105] The accused has testified in Court and totally denies the four charges against him. He testified that the allegations made against him are totally false. He states the reason why such false allegations were made against him was due to the fact that the complainant and her family wanted him to leave the house, since it was a small house and the house was crowded.

[106] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the element of the offences, beyond any reasonable doubt.

[107] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence led on behalf of the accused. You must consider the defence evidence also for its consistency and also the probability of its version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case.

[108] If you neither believe the evidence adduced by the defence nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charges.

[109] However, I must caution you that even if you reject the evidence of the defence as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you.

[110] You must consider each count separately and you must not assume that because one count is proved, that the accused must also be guilty of the other count as well.

[111] In summary and before I conclude my summing up let me repeat some important points in following form:

1. If you believe the evidence of the defence, then you must find the accused not guilty of the charges;
2. If you neither believe nor disbelieve the evidence of the defence, then again you must find the accused not guilty of the charges;
3. If you reject the version of the defence, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution;
4. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charges;
5. If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charges of Sexual Assault, Rape and Attempted Rape have been established beyond reasonable doubt. If so you must find the accused guilty. If not you must find the accused not guilty.

[112] Any re directions the parties may request?

[113] Madam Assessors and Gentleman Assessor, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions separately on the four charges against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.

[114] Your possible opinions should be as follows:

Count One

Sexual Assault - Guilty or Not Guilty

Count Two

Rape- Guilty or Not Guilty

Count Three

Rape- Guilty or Not Guilty

Count Four

Attempted Rape- Guilty or Not Guilty

[115] I thank you for your patient hearing.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 31^st Day of August 2020

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.