IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 021 OF 2010

BETWEEN:

STATE

AND:

KINIVILIAME RAOVUNA

Counsel: Mr. M. Kaisamy for the State
 Mr. T. Lee (L.A.C) for Accused

Date of Hearing: 7, 8 and 9 February 2011
Date of Ruling: 10 February 2011

SUMMING UP

[1] Lady and gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions in this trial have been and remain quite different. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the two closing speeches you heard this morning but you are not bound to accept them. What counsel said to you is not evidence. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no evidence. You are entitled to draw inferences that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are a liberty to accept the whole of witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable? 

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. 

Onus and burden of proof

[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

[10] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

[11] The accused is charged with one count of rape. The crime of rape is committed when any person has sexual intercourse with another without the other's consent. In law then there are four elements that you must find proved before you can find the accused guilty of this crime. These are;

i) it was this accused

ii) that he had sex with Katarina

iii) that the sex included penetration of Katarina's vagina with his penis

iv) that she did not consent and he knew that she was not consenting

[12] I do not think you will have any trouble in coming to your findings on the first three elements; it is agreed that the accused was the man there having sex with Katarina, and she has told you that there was penetration. It is a matter for you to decide alone whether this act was done with her consent or without her consent.

[13] That, members of the panel, is the central issue to which nearly all of the evidence has been directed. Katarina says she was forced by Kini with him dragging her into the room and blocking her mouth; Kini saying that she had been egging him on for days and finally after a couple of "no"s, succumbed and signaled her consent with silence (or so Kini thought). You must look at all of the evidence and decide where the truth lies. You will examine the evidence of Katarina, you will examine the evidence of Savanaca and of course you will examine the evidence of Kini himself. This has been a short trial and I don't propose to go through the evidence in detail but in fairness to the accused I will remind you of the main points of his evidence.

[14] The accused told you that he had been seeing Katarina for days, meeting, talking, kissing and she seemed very keen to have meetings with him. On the Saturday night (29 May) she arranged, or maybe Kini arranged, to go to Savanaca's house which was empty and there they chatted and kissed until Kini suggested sex. Katarina said "no" "it is my monthly period" and he asked again and again. Eventually there was no response and he took that as consent so he led her into the bedroom where they lay on a mattress. He started to remove her clothes and she completed the process. They had sex but there was no force, threat or blocking of the mouth. It was all very consensual. Afterwards somebody came looking for her and she was scared and tried to hide.

[15] Kini told us how he had been treating Katarina with great respect and dignity in the proceeding days.

[16] At the Police Station, he was locked into a cell and at least 2 police officers came into the cell and threatened him. One with a stick of some sort. He was so scared by these threats it influenced him when his interview was being conducted and some of the answers he gave were not true.

[17] You have seen the cautioned interview and the charge statement, and I want to direct you now how to approach those two pieces of evidence. If you think that there is any truth in the allegations that the accused was threatened or mistreated in the Police Station or if you are not sure, then that means that the interview and the answer to charge are "tainted" and you must discard them from your deliberations. If however, you are really sure that there were no threats or other improprieties occasioned to him, then you can safely rely on those documents and use them as evidence, giving them such weight as you think fit.

[18] If you find the accused not guilty of rape, then you will go on to make a finding on the alternative charge of defilement.

In our Law, having sex with a girl under the age of sixteen is a crime called "defilement". It is a defence to the charge if the boy had reasonable cause to believe and did in fact believe that the person was 16 years old or older. So in our case if you think that Kini really thought that Katarina was 17 as he says then he is not guilty of defilement.

[19] So when the clerk takes your verdict after you have deliberated, he will ask you for your opinion on the rape charge and you individually will say guilty or not guilty. If you find him not guilty of the rape you will be asked for your opinion on defilement, guilty or not guilty.

[20] You may now retire and when you are ready with your opinions, you will advise one of my clerks and I will reconvene the Court.

P.K. Madigan
Judge

At Labasa
10 February 2011