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State v Dakai [2011] FJHC 603; HAC70.2011 (14 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 70 OF 2011

BETWEEN:

THE STATE

AND:

FABIANO DAKAI

Counsel: Ms. S. Hamza for the State
Mr. H. Rabuku for the Accused

Date of Summing Up: 14th September 2011

SUMMING UP

1. Madam and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Counsel for the Accused person. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel and Counsel for the Accused person made their submissions. That is their duty. The prosecutor to submit how she proved the case and Defence Counsel to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused person is guilty or not guilty to offences he is charged.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give him the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. 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.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court are the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
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/she evasive? How did he/she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. The Accused is charged with one Count of Sexual assault and one Count of Rape.

11. Sexual assault is defined under section 210 (1) (a) of the Crimes Decree.

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

(a) unlawfully and indecently assaults another person; or

(b) procures another person, without the person's consent—

(i) to commit an act of gross indecency; or

(ii) to witness an act of gross indecency by the person or any

other person.

12. As per the above section the elements of the offences are:

(i) The Accused

(ii) indecently assault

(iii) the victim

13. Rape is defined under section 207 of the Crimes Decree.

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person's consent; or

(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) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

(3) for this section, a child under the age of 13 years is incapable of giving consent.

As per the above section the elements of the offence are:

(i) Accused

(ii) Carnal knowledge

As per section 206 (5) includes Sodomy also.

(iii) victim

(iv) If the victim is less than 13 years consent is immaterial.

14. Briefly in this case the Prosecution should prove that the Accused penetrated the anus of the victim by his penis or finger.

15. In this case the Prosecution led the evidence of 4 witnesses.

16. The mother of the victim is Akeneta Rodan. She said that she was living at No. 24 Solomoni Street, Lami since her birth. This house belongs to her grandmother. Her mother, husband and two children were living in this house together with her grandmother.

She has two children Adriu and Isack who were 5 years and 2 years respectively. The Accused Fabiano Dakai is her cousin that means her mother's brother's son.

She said on a Monday afternoon she had given dry bath to her both sons, then she asked her son Adriu whether anybody touched his private parts. He had told Fabi did so. When asked further he had told her that Fabi pulled his testis it was sore. Further he had told that Fabi put the finger into anus. She had suspected of something.

On the next day, it was a Tuesday morning. She was preparing their breakfast while Adriu playing with his toy car had demonstrated a sexual behavior. Witness showed the posture in Court. It was like an animation of a sexual intercourse.

She told Court that the child had told her "O koya qai mi" meaning he peed. Then she suspected that the Accused had ejaculated.

While giving evidence in the cross examination she said her mother is not married and she is the only child. When suggested the day of the alleged incident was on 1st March 2011. She was not sure of it, she admitted she doesn't have good memory.

She had bathed her children at around 5pm. She said she had spoken to Prosecuting lawyer before the trial.

When the Counsel suggested that she made her son to lie, she denied. She had not seen any incident. She had only heard from the virtual complainant.

She had not taken to any doctors because the health centres were closed. On the following day she had gone to the Police Station. From there she had taken to the hospital.

She said Fabiano's room is situated at outside of the main house and it didn't have windows but shutters.

She said Fabiano is not one of the favourite grandchild of their grandmother. The defence suggested that, because of the jealously she made up the story against the Accused.

17. The next witness called was the virtual complainant Adriu Rodan. The Court was satisfied that the child is capable to stand as a witness in Court, therefore the Prosecution was allowed to lead the evidence of the child in Court.

Adriu gave evidence, you heard and saw the demeanour of the child witness. Initially the child cried gradually he unfolded what happened to him.

He said Fabi bit his Polo. The Court interpreter translated it as balls but considering the dialect it appears that the word polo means penis. Witness showed his penis and identified it as polo.

He said Fabi removed his pants and bit his penis (polo) he put it into his bum, peed and it was paining. You heard the child was repeating the same words again and again.

When asked he demonstrated by an animated act of sexual intercourse. He further said it was done in a seated position. He said he knows Fabi he calls him as brother.

During the cross examination he said Fabi and him were playing in the room. When questioned he repeated that the Accused put his penis into his bum.

18. You have to consider the evidence of the witness very carefully. You should be mindful he is a very small child who was only 4 years at the time of the incident and 5 years now. Is he capable of relating the entire story as an adult or can speak only the things he knows. In total the defence suggests that the witness is a coached witness and he was repeating what the mother taught him. It is up to you to decide whether the child is telling the truth or a doctored version. Further you may ask to yourself will a mother can go up to this extent to coach a child who was 4 years old.

19. The next witness was the Police Officer WDC Maria Qolea. She had received the complaint and conducted investigation to a certain extent. She had recovered a bed sheet from the scene of crime and it was sent for forensic test. But no report was obtained. In this case the police investigation is not much useful to us.

It was revealed by the witness that the victim was taken to CWM hospital for medical examination. This witness said she didn't take the child to a psychologist because the child is very co-operative.

20. The next witness was Dr. Rakei Kaarira. He was attached to the Paediatric unit of CWM Hospital. On the 02/03/2011 at about 11am he had examined the child Adriu Rodan. Date of birth was 27/04/2006.

He has noted the history as "Alleged to have been sexually abused by an uncle Fabiano Nadua on 01/03/2011 at 3pm at home by putting fingers inside his anus, pull child's penis and testis and even tried to penetrate his penis into child's anus" Originally the history was told to the doctor by the child and subsequently by the mother of the child.

The doctor had observed the child was emotional and frightened. You heard the doctor saying that the child had animated the act sexual intercourse movements.

21. The doctor subjected the child to a clinical examination. There he had observed a slight erythema (redness) on the prepuce (fore skin of the uncircumcised child) he had not found any other significant findings on the child.

The doctor also made additional information as "child was emotional and in tears when tried to relate the sequence of events upon asking". Further he noted that the child experience the pain at anus upon passing tools and even seated."

He had followed standard procedures in treating the child. At the conclusion he had found as follows "History highly suggestive of an abuse despite no obvious injuries apart from slight erythema to the prepuce" He submitted to this Court that he was of the view that this child was sexually abused.

In the cross examination he said apart from the above injuries the child didn't have any other injuries. When asked whether the medical findings support the history given he said there is only one evidence as examined on the penis i.e. erythema on the penis. When the Counsel asked whether the child was telling the truth or a told story the doctored said the child was relating a true story.

22. With this the State Counsel closed the case for Prosecution and defence called from the Accused, he opted to give evidence.

23. The Accused Fabiano Dakai gave evidence. He was comfortable and gave evidence in good English. He said the mother of the victim is his father's sister's daughter.

He lives at Napuka in Vanualevu and came to Suva on that day. He had taken sugar to his grandmother at 24 Solomoni Street, Lami. He said he was staying at 35 Nasevou Street with his parents.

He gave detail account of what happened on that day. He was busy with his work and he had spent two to 3 minutes with his nephews.(the virtual complainant is his brother)

He said Adriu had told him "Fabi, au bo tiko ike" meaning Fabi I have a boil here and put his pants down and showed it. He had told him that it may be due to sitting in dirty places.

The Accused said that he didn't have any sexual contact with the virtual complainant child. Further he said he knew them from the birth and he wouldn't have done that.

When they played see-saw the child knocked on the knee of the accused and cried of pain. That would have caused the injury on the penis and testis of the child. He had assisted his grandmother in washing and drying the clothes and went off.

He said he had some differences with the mother of the child.

24. Maria Vilolo Nadua the grandmother of the Accused gave evidence.

She corroborated the Accused to certain extent. She said that the Accused came there and spent some time with her. She had not seen or heard anything abnormal on that day. She claimed that the Accused is his favourite grand child.

25. You heard and seen the witnesses giving evidence it is up to you to decide what really happened. The Prosecution says that the child is subjected to a sexual assault and rape. The defence says it was a made up story it never happened.

26. It is up to you to decide whether the child was coached and telling the story which was tutored to him. If so can the child repeat to Police, doctor and to the Court. It is a factual matter for you to decide. You can consider all and decide whether the child is telling the truth or telling a story what was told to him.

27. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of this accused person's guilt and you are sure of it. You must find this accused person guilty as charged. If you are not satisfied beyond reasonable doubt of this accused person's guilt and you are not sure of it. You must find this accused not guilty as charged.

28. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

29. Let me ask both State Counsel and the Counsel for the Accused person whether they have anything to be addressed to you?

Mr. Rabuku: Issue of blood test – fungus infection.

State Counsel: No.

30. You heard the blood sample was sent for test and there is no report before us. It can bring up two results. Fungus infection is present or not. If it is present it can support the Accused. If not it is other way.

Most of the time the report is obtained for clinical management of the child i.e. to give treatment. Some occasions it is taken to do forensic investigation. It was not clear why the blood test was done.

31. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are satisfied with the summing up.

32. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Gledvil Law firm for Accused