IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 20 of 2011

BETWEEN:

STATE
Prosecution

AND:

JOSEVA VAILEBA
The Accused

Dates of Trial: 18-19 July 2011
Date of Summing-Up: 21 July 2011

Mr F Lacanivalu for the State

Accused in person

SENTENCE

•	Name of the victim is suppressed on an application by the State and she will be referred to as BX as and when such reference is necessary.

Madam Assessor and Gentleman Assessors

1.	Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is. 

2.	In my summing-up of the case to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case. 

3.	In as much as I am the judge on law, each one of you is also a judge. Each one of you is a judge on facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly. 

4.	Your duty, therefore, is a noble one as it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.

5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately could be utilized to decide the case before you.

6.	As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard such opinion if that does not match your thinking on the matter. You must instead form your own opinion without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.

7.	Counsel for the State and the accused have made submissions to you as to how you should find the facts of the case. They have done so on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by them.

8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

9.	I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an incident of rape of a woman. An incident of rape would certainly shock the conscience and feelings of your hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.

10.	Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence that the accused-person is guilty of the offence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over. 

11.	The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of rape. The burden of proof of the case, in light of the presumption of innocence, therefore, lies always with the prosecution. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.

12.	In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof whatsoever on the accused-person that he is innocent. You will recall that the accused-person is presumed to be innocent and, therefore, there needs not be any burden on him to prove his innocence. His innocence is presumed by law.

13.	In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial, such as this, is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt. 

14.	Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test in a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of rape as I go on.

15. Lady and gentlemen, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later. 

16.	Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty. 

17.	Let us now look at the charge of rape on the information, as filed, on 28 February 2011, which was read over to the accused-person, upon which this trial proceeded. It is under Section 207 (1) (2) (a) of the Crimes Decree No 44 of 2009. (Section 207 read out.) The particulars of the offence, as alleged by the prosecution, are:

'Joseva Vaileba on the 20th day of January 2011 at Naidovi, Sigatoka had unlawful carnal knowledge of a woman BX without her consent.'

18.	(i) I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this court. Section 207(2) (a) states as follows:

'A person rapes another person if the person has carnal knowledge with or of the other person without the other person's consent.

(ii) Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. Such penetration should not be to the extent of ejaculation or should not go through the full passage of the vagina. Instead, mere insertion of the penis into the vagina is sufficient to constitute penetration.

(iii) Consent means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. You should bear in mind that the submission by a woman without a physical resistance by itself shall not constitute consent. A woman of or over the age of 13 years is considered by law as a person with necessary mental capacity to give consent.

(iv) Consent is considered not to have been given freely and voluntarily if it is obtained by force, by threat or intimidation, or by fear of bodily injury or by false and fraudulent representations or by a mistaken belief induced by the accused person that he was the woman's sexual partner.

19. So, the elements of the offence are that the accused penetrated the vagina of the victim to some extent, which means that the insertion of the penis fully into the vagina is not necessary. Such penetration should have taken place without the consent of the woman.

20. Proof can be established only through evidence. Evidence can be direct that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, the victim is a witness who offered direct evidence, if you believe her, as to what she saw and felt.

21. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, interview and charge statements, which are before you, are documentary evidence. If you believe such a record of interview was made, as the prosecution presented to you, then you can act on such evidence. Medical Report, relied on by the prosecution is also another example of documentary evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time. 

22. Real evidence is the material objects that are used to commit an offence and/or those recovered from the scene of the crime or from an accused or from a victim. In this case, the sulu, the pink top and the black pant are examples for real evidence. They can be used to support the evidence of a witness and to advance one's case. You must consider whether the material objects were, in fact, used or found from the scene or from the person concerned before you accept them as relevant real evidence in the case. In this case, above material objects were not shown to have been worn by the victim and therefore you cannot accept them as evidence to advance the evidence of the victim.

23. You must consider all direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence. You must, in addition, consider circumstantial evidence that is the evidence that you gather after putting some proved facts together. From each circumstance you can infer certain facts as such circumstances would warrant.

24. I will now deal with the evidence in this case briefly.

(i)	BX, the alleged victim, a mother of two children below 2 years, was 27 years of age. She was residing in Naidovi village and had started work at Shangri La Fijian Resort from 04 June 2010.

(ii)	On 20 January 2011, she returned home after dinner at her sister-in-law's place and went to sleep around 10.00 p.m. besides her daughter on a mattress in the sole bedroom in her house.

(iii)	She felt someone moving around outside as she heard footsteps. This was followed by the voice of someone calling from outside, whom she later identified as Joseva, who was also known as 'Nakai', with the help of the light emanated from the neighbours'. She had known Joseva for three months after she started work at Shangri La.

(iv)	She had asked for the reason for Joseva to have come there at that night. But, with no reply to that question, he, instead, asked her to open the door for him to come in. Joseva had come in and sat just 2 meters away from her.

(v)	Joseva had wanted to sleep that night in BX's house as he had to start work at 8.00 a.m. following day. She had said that he could not sleep at hers as there were no boys there to which Joseva had replied 'okay. Set.'; and, went up to the door and closed it.

(vi)	After closing the door, Joseva, without sitting at the place where he was sitting, got closer to BX and sat right opposite to her. BX had noticed that Joseva was drunk.

(vii)	Thereafter, Joseva had pulled BX towards him and started kissing her cheeks and lips. She asked what he was doing; but, Joseva, without replying, had pulled her back and repeated kissing BX. He then started pushing her back so as to make her lie down.

(viii)	When she lied down, Joseva had got hold of her hands with one of his and used his other hand to open up his clothes. He used the same hand to undo her 'sulu' while sitting on her stomach and to open her under-pants. Joseva did not remove the under-pants completely. Instead, he shifted it to one side and inserted his finger into her vagina.

(ix)	BX started crying and pleaded to stop. But, Joseva continued. He then tried and inserted his penis into her vagina. He was putting his penis in and out of the vagina for about three minutes. As she shouted her daughter had got up.

(x)	BX said that she did not consent to the act of sexual intercourse at any time. She said that she had hated the act and she pushed him out as she managed to stand up. She then sat down and started crying. Joseva, whilst standing outside had pleaded for forgiveness. 

(xi)	She then telephoned her father and the matter was reported to the police-post on that night itself. She identified the accused as Joseva who did the alleged act of sexual intercourse without her consent on that night. 

(xii)	She confirmed that she was examined by a medical doctor at Sigatoka Hospital and a medical report was issued to her, which she identified as 'MFI 1'.

(xiii)	Answering cross examination, she said that it was the first time that she had sexual intercourse with him and that she did not have any sex with Joseva at the Resort. The accused asked about an instance where he had had sexual intercourse with her at Feeder Road at Yanuca Junction for the first time. The accused also put to BX that they had sexual intercourse for a second time beside the pavilion and that they were seen by one Animio Slalasala. To both questions, she replied 'no'

25.	(i) Police Constable Atish Chand giving evidence said that he was on duty at the Cuvu Police Community Post. He received a complaint at 11.45 p.m. on 20 January 2011 from BX to the effect that she had been raped by one Joseva Vaileba. She was accompanied by the parents. He stated that BX was crying and that she was in a state of shock. Witness said that matter was referred to Sigatoka Police Station, which sent a lady police officer Meresenei to take her over along with a police medical form.

(ii) Answering cross examination by the accused, witness denied meeting the accused that night and that he had drunk 'kava' together at Nadro Super Market in Cuvu together. The accused suggested to the witness that the complaint was lodged by BX at the instance of the father even though she initially did not want to lodge a complaint. The witness answered the suggestions with 'no'.

26.	(i)) WDC 4217 Mereseini Naqiri said that she was on duty at Sigatoka Police Station on 20 January 2011 from 7 am until the next day. She said that she proceeded to Cuvu Police Post with crime officer Bennie Nasamu. She recorded her statement and took her to the hospital for medical examination.

(ii) She also recorded the statement of the accused Joseva Vaileba under caution in Fijian language which was later translated to English after giving his rights. She produced the English translation of the cautioned statement as 'PE 1' and its Fijian version as 'PE 2'. Having read out to you the contents of the statement, she identified the accused as the person from whom the statement was recorded.

27. DC 3027 Clifford Waqabaca said that he was on duty at Sigatoka Police Station on 20 January 2011 and received instructions to charge the accused. He said that he cautioned the accused and charged him for the offence of rape. He stated that he understood the charge and that he did not complain of anything. He identified the charge statement marked as 'PE 3' and 'PE 4'.

28.	(i). Dr Roy Fabbles giving evidence stated that he was a qualified medical doctor and that he was twenty years of experience in terms of the Fijian standards. He had been at Sigatoka for nine years attending to maternity cases, domestic violence and rape cases.

(ii). On 21 January 2011, he was on 'on call' duty and around 0430 a.m. he received a police emergency call relating to a case of rape. The alleged victim was accompanied by a female police officer and she was examined with her consent inside the labour room.

(iii). He observed linear hematoma around her mandible and on the neck, which could have been caused by fingernails, a bite or an excessive pressure. He also observed healed old lacerations on the hymen at 2 o' clok, 4 o' clock and 7 o' clock positions and saw no bleeding. He observed no signs suggestive of force in and around the vagina. He said that hymen could be torn as results of child-delivery, sexual intercourse or horse-riding etc.

(iv). Answering court, the doctor said that he would have expected some injuries on genitalia or at least some redness if the sexual intercourse was forcefully done; but, in this instance he had seen none. 

29. The prosecution closed its case with the evidence of above witnesses and documents marked as 'PE 1-PE5. 

30. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that the exercise of my power under law as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and that he can exercise options available under law. The accused decided to give evidence. That is his legal right and you must consider that evidence too in the way you consider the evidence of the prosecution.

31.	(i) The accused in his evidence said that they had known each other for some time and that they had sexual intercourse three times before secretly. Even on the day of the alleged incident too it was the same.

(ii) On the date of the incident, he said, that he wanted to surprise BX and went to her house and called her out. She opened the door and they kept on talking. Thereafter, they sat and started kissing each other. The accused was playing around her and he started using his fingers. Though the accused had wanted to insert his penis, BX had said 'no' to it because he was married. The accused then went outside and asked for forgiveness having knocked from outside. She had accepted it and wanted me to leave as her family members were coming. According to the accused, BX got frustrated as he was found to be married.

(iii) Answering cross examination of the learned prosecuting counsel, the accused said that he had known BX after she started working at the resort. He said that on the date of the alleged incident he was only using his finger. He further said that BX got frightened as her family members came. Answering the question that he was too drunk to have known what had happened, the accused said that if that so was and had he raped her, she could have screamed. The accused was also referred to Question Nos 50-59 of the caution interview statement in reply to which he said that he jut his finger into the vagina of BX.

The accused closed his case with his own evidence.

32. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.

33. In summary the prosecution presents mainly two kinds of evidence to establish its case. One is the direct evidence of BX, who allegedly became the victim of the offence; and, the other is the admission alleged to have been made by the accused in the cautioned interview statement.

34. You must note that the evidence of the alleged victim is crucial to this case. In assessing her evidence, you must consider what she told before you, the manner in which she behaved in court and the manner she faced the cross examination of the accused.

35.	(i) You must also consider whether she had conducted herself in a manner expected of a person of her age by not raising cries to receive the attention of the people in her neighbourhood; or whether, she had consented to the alleged act of sexual intercourse in view of the alleged association as suggested by the accused.

(ii) It is also a matter for you to consider whether it was possible for the victim, who was said to be in a frustrated situation as advanced by the accused, to have falsely implicated the accused. If you feel so then the case for the prosecution is not established and you must acquit the accused.

36. Medical evidence is also equally important. The doctor said that he would usually have expected signs of force on genitalia or at least some redness; but such things were not present in this case.

37. The victim was admittedly 27 years of age. Therefore, the element of consent is material as the law recognizes her as a person who has the capacity to consent.

38. Even if you believe that the incident of sexual intercourse took place in the way the victim chose to explain, then you must see whether she had given her consent to it. If you think that the victim had given consent, then the offence of rape is not made out. Or, if you think that there is at least a doubt that she would have consented or submitted herself to the act with her own free will, then again the offence of rape is not made out and you must proceed to acquit the accused.

39. If the evidence of the accused is accepted, on the other hand, that he did everything but not the sexual intercourse, then the prosecution case fails. Or, if you feel that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted.

40. Please remember, even if you reject the version of the accused that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has established its case beyond a reasonable doubt that the accused did put his penis into the vagina of the victim in the way that the victim narrated, independent of the accused's evidence.

41. You can also consider whether the evidence is consistent and corroborative of each other or whether they fall apart. That is, whether the surrounding circumstances also reveal the same line of events as narrated by the victim or whether they do not match each other in coming to your conclusion. Even though the corroboration is not required as a matter of law it is always safe to look for corroboration if you feel that such corroboration is needed given the facts of the case.

42. You must remember that the case for the prosecution can succeed only if it has established beyond a reasonable doubt on the evidence of the victim without being shaken by the denial of the accused, of all the elements of the offence of rape. Then only you can find the accused guilty.

43. In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed by emotion, speculation, your imaginations or wishful thinking. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society. 

44. Madam assessor and Gentleman assessors, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.

45. I thank you for your patient hearing to my summing-up.

You may retire to consider your opinions now.

Priyantha Nawana
Judge
High Court

Lautoka
21 July 2011