State v Cuanilawa - Summing Up [2021] FJHC 26; HBC091.2019 (21 January 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. 091 OF 2019

STATE

V

ILIESA CUANILAWA

Counsel: Ms D Rao for the State

Mr J Korotini as duty solicitor for the Accused

Date of Hearing: 18 – 19 January 2021

Date of Summing Up : 21 January 2021

SUMMING UP

[1] Lady 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 reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of the 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.

[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. Those opinions must be based solely upon the evidence, that is, the sworn testimony of the witnesses and the exhibits that were tendered through those witnesses at the trial.

[10] 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 read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[11] This summing up is not evidence either, nor is the State counsel’s opening address. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[12] 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.

[13] 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 witness’s evidence and demeanor. You can accept part of the witness's testimony and reject other parts. The witness may have told 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.

[14] 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.

[15] I turn now to deal with what the prosecution must prove. The Accused is charged with three counts. But you must consider each count separately, when you examine the case in your deliberations. 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.

[16] On count one, the Accused is charged with aggravated robber here, you, you have to be satisfied beyond reasonable doubt of the following elements:

1. That the Accused on the said date ande and place
2. Robbed the complainant
3. At the time of that robbery the Accused had an offensive weapon with him.
   

[17] Robbery is stealing by using force and stealing means the unlawful taking away of someone's property with no intention of returning it. An offensive weapon is any article if used may cause injury to another person.

[18] In the present case, all three elements are in dispute because identification of the Accused is an issue. The prosecution alleges that on 27 February 2019 the Accused entered the house of the complainant armed with a knife and stole cash, jewellery and mobile phones using physical violence on her. If that is what occurred then the Accused would be guilty of aggravating robbery. The defence case is that the Accused was not involved in the robbery and that the complainant is mistaken in her identification of the Accused.

[19] You may approach your task of determining whether each of the elements have been proven by the prosecution as follows. Firstly, consider whether the complainant positively identified the Accused as the perpetrator. If you feel sure that the Accused was involved then go on to consider whether he used force to steal from the complainant, that is, whether he took the complainant’s property with no intention of returning it. If you feel sure that the complainant’s property was taken using force with no intention to return it then go on consider whether the element of aggravation is present, that is, at the time of the robbery the Accused was armed with an offensive weapon.

[20] It is only when you are sure that the complainant positively identified the Accused as the intruder and robber and that she is not mistaken in her identification that you may advise me that he is guilty of the charge of aggravated robbery. But if you are unsure on the identification of the Accused as the intruder and robber then you must find him not guilty of aggravated robbery.

[21] On count two, the Accused is charged with assault with the intent to commit rape. To prove this charge, the prosecution must prove that at the time and place alleged, the Accused assaulted the complainant with the intention to rape her. An assault in law means a striking, touching or application of force or threat of striking, touching or application of force. The alleged act must be intentional (not accidental) and without lawful excuse and without consent of the complainant.

[22] The prosecution case is that that the Accused intentionally applied actual force on the complainant by punching her several times without her consent and without lawful excuse. The defence case is that the complainant is mistaken regarding the Accused’s identification.

[23] If you feel sure that the complainant is not mistaken but has positively identified the Accused as the intruder in her home on 27 February 2019, then go on consider whether the Accused intended to rape the complainant when he assaulted her, that is, he intended to have sexual intercourse with the complainant without her consent. You decide intent by considering what the Accused did or did not do and by what he said or did not say. You should look at his actions before, at the time of and after the alleged offence. All these things may shed light on his intention at the critical time.

[24] It is only when you feel sure that it was the Accused who assaulted the complainant on 27 February 2019 with the intention to have sexual intercourse with her without her consent that you may express opinions of guilty on count two. If you unsure of identification or guilt of the Accused, then you must express an opinion of not guilty.

[25] On count three, the Accused is charged with rape. To prove rape the prosecution must prove three elements.

[26] First, it must be proved beyond reasonable doubt that the Accused had sexual intercourse with the complainant, that is, he penetrated her vagina with his penis. The prosecution does not have to prove that full penetration occurred nor does it have to prove that the Accused ejaculated.

[27] Second, the prosecution must prove beyond reasonable doubt that when the Accused penetrated the vagina of the complainant with his penis, he did so without her consent. The term consent means consent freely and voluntarily given by the complainant to engage in the physical act of sexual intercourse. Consent can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways. Consent obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual acts is not, by reason only of that fact, to be regarded as consenting to the sexual acts. A person who submits to sexual acts with another person as a result of threats or violence is, by law, not to be regarded as consenting to the sexual acts.

[28] Third, it must be proved that the Accused knew that the complainant did not consent. This is a subjective, and not an objective test. You might ask how, in the absence of an admission by the Accused, the prosecution can prove that the Accused was aware that the complainant did not consent. The prosecution asks you to infer from other facts which it has set out to prove, that the Accused must have known and that he did indeed know.

[29] If you feel sure that on the alleged time and place, the Accused had sexual intercourse with the complainant without her consent and that he knew she did not consent, then the proper opinion would be guilty on count three. But if you feel unsure of guilt on any of the three elements of rape or if you have a reasonable doubt as to the guilt of the Accused then you must find him not guilty on count three.

[30] The evidence relied upon by the prosecution in this case is both direct and circumstantial evidence. A common example of circumstantial evidence is fingerprint evidence. Suppose a person’s fingerprints are found on an object at the scene of a crime, such as a weapon. It could be inferred that the person has handled the weapon and had been present at that place. The inference could be drawn even though there is no direct evidence that the person was seen there.

[31] On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of those things alone may be sufficient to establish guilt but, taken together, one circumstance building upon the other, they may lead to the conclusion that the Accused is guilty of the crime.

[32] In this case, the prosecution relies upon a number of facts and circumstances such as the possession of stolen property by the Accused shortly after the commission of the alleged offences, the presence of the Accused’s DNA on the complainant’s clothing and the evidence of spending spree by the Accused shortly after the commission of the alleged offences, which the prosecution submits have been proved by the witnesses. You are asked to draw from those facts and circumstances the inference that the Accused is guilty of the charges.

[33] Therefore, you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused having committed the crime. To find the Accused guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

[34] A piece of circumstantial evidence relied upon by the prosecution is the evidence of stolen property (mobile phones and jewellery belonging to the complainant) found in possession of the Accused shortly after the alleged offences on 27 February 2019. Although the evidence of recent possession of stolen property is more relevant to count one, the evidence is also relied upon by the prosecution to prove identification in respect to counts two and three.

[35] With regard to recent posses the law is this that if, recently after the commission of the crime, a person is found in posse of the stolen pren property, that person is called upon to account for the possession, that is,ive an e an explanatioit, which is not unreasonable or improbable. The strength of the inference, which arises fres from such poion, is in proportion e sn e shortness of the interval which has elapsed from the time time of the offence. If the interval is short, the presumption is so strohat it almost amounts to proof because the reasonable inferinference is that the person must have stolen the property and committed the offence. If an explanation is given which may be true, it is for you to decide on the whole of the evidence whether the Accused is guilty or not; that is to say, if you think that the explanation may reasonably be true, the Accused is entitled to an acquittal, because the prosecution has not discharged the burden of proof imposed upon it of satisfying you beyond reasonable doubt.

[36] In this case the Accused through cross-examination of the prosecution witnesses has suggested that the mobile phones were sold to him. He has suggested that the spending spree on alcohol, food, cigarette and transport in the afternoon of 27 February 2019 was his wages that he earned as a driver. It is for you decide whether you accept these suggestions are reasonable and probable. What inferences you draw from the evidence is a matter for you bearing in mind that you can only convict on circumstantial evidence if an inference of guilt is the only rational conclusion available on the combined effect of all the facts proved.

[37] 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 that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision in this case.

[38] In relating to the alleged incidents the complainant said that on 27 February 2019 she was alone at her home with her 3-year old son after her two daughters left for school and her husband left for work at around 8 am. She said she was not feeling well that day. She did the house chores and went to bed to sleep with her child. She said she woke up when she felt someone was inside her house. She saw an intruder standing next to her bed. The intruder was a man. He was wearing blue jeans and had wrapped a piece of cloth around his face. She said the intruder was short and little built and was of light brown skin colour.

[39] The complainant said the intruder showed her a knife and threatened to kill her son. She said her son was awake. She said the knife was arm length with short handle but slightly wide blade. He punched her on the face, nose, head and chest. He tore her blanket and tied her mouth, hands and legs. She sustained injuries and bled from her nose. He asked her for money and jewellery. He spoke in broken Hindi and English. When she disclosed to him where she had kept the money and her jewellery he took them. She saw him putting the money and her jewellery in his pocket. He took $1000.00 cash, two nine karat gold chains, a diamond pendent and four rings. He then picked two phones from her bed and demanded more money by assaulting her. She disclosed to him that there was $50.00 in an envelope on the drawer. He took the $50.00 and kept it with him. He then demanded her to unlock her phone. She disclosed to him the password which he wrote on the envelope with a pencil.

[40] After that he watched her for a few seconds and then came on her bed. He punched her on the face and threatened to kill her son when she told him not to punch her. He then lifted up her skirt. Her legs were still tied. She told him not to do it. He threatened to kill her son and he placed the knife near her son’s neck. He then removed his pants up to his knees. He untied her legs and removed her underwear. He first penetrated her vagina with his finger and then with his penis. He did that for about 2-3 minutes. When she begged him not to do it he banged her head several times on the wooden wall. When he came on the bed he removed the cloth that was wrapped around his face.

[41] The complainant said she saw his face. He was fair, cleaned shaved and bald. He had small eyes. He was an Itaukei man. He looked like in is his 40s. She had not seen the man before. She said after 2-3 minutes he stopped. He tied up her legs again using the same cloth and then left the room saying he will be waiting in the sitting room. She remained on the bed until there was a complete silence. She managed to untie herself and go to her neighbour to seek help and report the incident to police.

[42] The complainant said after she filed a police report she returned to the police station to identify her jewellery and the suspect. She said she can’t recall the exact date when she returned to the police station but it was after her medical examination. She said she identified her pendant (PE1), her two gold chains (PEs 2 & 3) and her phones (PEs 4 and 5). She said that when she was called for the identification parade she was kept in a separate room and then taken to a passage with ten men on a lineup. She said she pointed out to the Accused who was standing last from where she walked from. She identified the Accused in court as the person who entered her house on 27 February 2019.

[43] At this stage I must give you a direction on identification. This trial rial where the case against the Accused depends substantially on the correctness of identtion of him whichwhichAccused alleges to be mistaken. To avoid tsk of a of any injustice in this case, such such as has happened in some cases in the I musrefore warn you of the special need for caution bion before finding the Accused guilty in r in reliance on the evidence of identificaalone to convict vict the Accused. A witness who is convinced in her own mind may, as a result, be a convincing witness, but mayrtheless be mistaken. Mistake cao be mabe made in the recognition of someone known to n to a witness, even of a close friend or relative. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is ied, that the wthe warning be given.

[44] You should therefore examine carefully the circumstances in which the idenation by the complcomplainant wae made. How long did she have the person she says was the Accused under observation? At what distance? In what light? Did anything interfere with the observation?

[45] The complai#8217;s evidence is that shat she identified the Accused in broad daylight without anything obstructing her view. He had sexual intercourse with her for 2-3 minutes on her bed after removing his mask. She was able to describe his built and physical features. Although she had not seen the Accused before she identified the Accused in a subsequent line up identification parade held at a police station. You may take all these matters into account in determining whether the complainant is mistaken or accurn identifying the Athe Accused.

[46] The next witness was Cpl Tamanalevu. He arrested the Accused in the afternoon oFebru019 at Naimasimasi village after he tracked him down by calling on the complainanainantRt’s mobile phone. The officer said that after arrest he recovered a gold chain (PE 2) and $100.00 note (PE 9) from the Accused’s possession. The officer said the other items, namely, two mobile phones (PEs 4 and 5), a gold chain (PE 3) and a pendant (PE 1) were voluntarily handed to him by the Accused’s sister Ana Lotu. The officer said he made entries of the recovered items in the search lists (PEs 8 and 10) and handed them to the investigating officer.

[47] The next witness was the investigating officer, DC Kumar. He said the suspect was identified after he traced the complainant’s mobile phone using GPS google ID. He said the last known location of the phone was Naimasimasi. He said Cpl Tamanalevu arrested the Accused and brought him to the station. He said the recovered items were handed over to him and were kept in the exhibit room.

[48] The next witness was Inspector Toa. Inspector Toa conducted an ID Parade at the Nausori Crime Office on 1 March 2019. He said a total of ten Itaukei men with similar built and features were placed in a line up. He said the suspect chose to stand between number 1 and number 2. He said the complainant was then brought to identify the suspect. He said the complainant identified the Accused. In cross-examination, the officer denied that the Accused was standing at the end of the line.

[49] The next witness was D/Sgt Davila. He was part of the forensic team who visited the alleged crime scene, uplifted exhibits and took photographs of the scene and the exhibits. The photographs are marked PE 11. The officer said he also uplifted exhibits PE 7 (the complainant’s half-slip) and pieces of cloth (PE 6) from the scene for DNA testing. He said he secured the exhibits in a bag and handed them to their forensic lab for DNA testing. He also went to Nausori Police Station to obtain a DNA swab from the Accused after he gave his consent. He said he took saliva swabs from the Accused mouth, sealed and labelled the swabs in a tube and handed them to their forensic lab for DNA testing.

[50] The next witness was the Scientific Officer, Mr Gusu. His qualifications in the field of DNA testing is not in dispute. Mr Gusu explained that DNA is simply the genetic makeup of a person that is unique to every individual. Mr Gusu has compiled a report of his findings of the DNA analysis in this case, which is PE 13. Mr Gusu said the Accused’s DNA had been found on the complainant’s half-slip (PE 7) and pieces of cloth (PE 6) uplifted from the alleged crime scene.

[51] The next witness was Orisi Raicebe. He said he met the Accused at his neighbour’s house in Naimasimasi on 27 February 2019 at around midday. He said he joined the Accused and his younger sister Ana Lotu at his neighbour’s house while they were drinking alcohol there. He said he had briefly met the Accused the previous day at Naimasimasi. He said he noticed the Accused gave Ana a black phone and a gold chain while he was in their company. He heard the Accused say that the phone was sold to him. Later he accompanied the Accused and Ana to Korovou town. He said the Accused bought alcohol, food and cigarette and they returned to Naimasimasi. He said the Accused also paid for their taxi from Korovou town to Naimasimasi.

[52] The next witness was the medical doctor who examined the complainant on 28 February 2019, Dr Natuva. Dr Natuva found multiple injuries on the complainant. The injuries were swelling, lacerations and bruises. The injuries were on the face, around both eyes, scalp, neck, back, chest, abdominal area, both wrists and feet and at the vaginal opening and the vulva. The doctor said that the injuries were most likely to have been caused by blunt force trauma.

[53] The final witness for the prosecution was the sister of the Accused, Ana Lotu. On 27 February 2019, she was residing at Naimasimasi. Her evidence is that the Accused came for a visit at Naimasimasi a day before his arrest and stayed overnight at her place. The next morning when she work up at around 7 am he had gone from Naimasimasi and returned around midday. She said that she was not aware of the Accused’s whereabouts when he left her home in the morning.

[54] She said that upon his return the Accused gave her two Samsung brand mobile phones (PEs 4 & 5). He also brought some alcohol which they drank at home. After that she accompanied the Accused to Korovou town. While they were in town he bought alcohol and cigarette and after shopping they returned home. The Accused also paid for the transport. She said when she was arrested the police found a gold chain inside her pocket. She said she did not know how the chain got into her pocket.

[55] That is a summary of the prosecution evidence.

[56] The Accused elected not to give evidence. 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.

[57] If you believe the complainant’s account of the incident on 27 February 2019 then you may have little doubt that the alleged offences of aggravated robbery, assault with intent to rape and rape has been committed. The real issue for you to determine is the identification of the perpetrator?

[58] If you feel sure that the complainant’s identification of the Accused is accurate and not mistaken based on the warning I gave you on identification then you may act upon the identification evidence of the complainant to convict the Accused. But if you conclude the identification of the Accused by the complainant is unreliable you must consider the circumstantial evidence. To find the Accused guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

[59] On each count, your opinions would be either guilty or not guilty. 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 as duty solicitor for the Accused