IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC. 240 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

SIMIONE SOVUNA
ACCUSED PERSON

Counsel: State - Ms. J. Cokanasiga 
 Accused Person - In person 

Dates of Hearing: 14th and 15th November 2011 

Date of Summing Up: 16th November 2011 

SUMMING UP

1.	Madam Assessors and Gentleman Assessor,

2.	It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

3.	You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

4.	The Counsel for the Prosecution made submissions to you about the facts of this case. That is her duty as State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

5.	You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

6.	On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. 

7.	The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.

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 you might have heard about this case, outside of this courtroom.

9.	Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

10.	The accused is charged with one count of rape contrary to section 207(1) and 207(2)(b) of the Crimes Decree No. 44 of 2009. Section 207(2( (b) of the Crimes Decree states that, a person rapes another person if 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 persons consent. 

11.	According to the particulars of offence given in the information, the accused is alleged to have penetrated the vagina of Litia Tinai, with his finger.

12.	I will now explain to you the elements of the offence which the prosecution must prove beyond reasonable doubt. The prosecution must prove beyond reasonable doubt that;

1.	The accused

2.	Penetrated his finger into the vagina of the complainant Litia Tinai

3.	Without her consent.

4.	He knew or believed that she was not consenting or did not care if she was not consenting.

13.	It is not necessary for the prosecution to prove that there was full penetration.
 
14.	For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. In this case the prosecution alleges that the accused penetrated his finger into the vagina of the complainant Litia Tinai without her consent. Therefore the prosecution must prove beyond reasonable doubt, that the accused penetrated his finger into the vagina of the complainant without her consent, and that he knew or believed that she was not consenting or didn't care whether she consented or not.

15.	In this case the accused denies inserting his finger into the vagina of the victim. 

16.	As far as the element of consent is concerned, where the consent is obtained through fear or by threat, then that is not consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined insert his finger into her vagina anyway.

17.	Prosecution must prove all the elements mentioned above beyond reasonable doubt to find him guilty of the charge.

The Evidence 

18.	The evidence of the alleged victim Litia Tinai was that she was 17 years old when the incident happened. She had been sleeping in the sitting room on a mat with her aunt and her grandmother. She demonstrated to you how they were sleeping in the sitting room. She had been fast asleep when she felt her uncle doing something to her. She said that when she looked back she saw her uncle, the accused lying beside her. He was touching her and was trying to have sex with her. Accused had been fondling her vagina and she said that his finger went inside her vagina. She said that she ran to her brother. When she shouted, she said that her aunt and the grandmother woke up. The light in the kitchen which was adjoining the sitting room had been on, so that she was able to identify the accused. The accused is her mother's cousin.

19.	The next witness was the aunt of the victim Alumita Vivili. She had been drinking grog in the sitting room while Litia was sleeping. The accused had come and asked where he would sleep. She had told him that they would sleep after the grog session. Accused had been sitting there until they finished the grog. There after they had gone to sleep. Accused had been sharing the same pillow with Litia. She said that she knew that as the accused was Litia's uncle and therefore he will not do anything. She demonstrated to you how they were sleeping.

20.	She had woken up when Litia cried. She said that she saw the accused stood up, took his flip-flops and ran away. When asked why Litia was crying, Litia had said that the accused was touching her.

21.	Prosecution called W/Cpl 2997 Susana Yaca to give evidence next. She had recorded the caution interview statement of the accused. She said that his rights were given to the accused, but he did not exercise the same. The accused was not forced to make any admission, she said. The caution interview was produced in evidence and was read before you. In his caution interview the accused had admitted that he inserted his finger inside Litia's vagina. However he had denied pushing her down on the floor when Litia tried to stand up.

22.	In cross examination he said that Litia was medically checked by a doctor.

23.	The next witness was D/C 3575 Sekonaia who was the charging officer. The Charge statement was produced in evidence. The accused had not made any admission or statement in reply to the charge.

24.	The last witness for the prosecution was Dr. Viliame Nasila who examined the alleged victim Litia Tinai. His qualifications and experience as a medical doctor was not challenged and his medical opinion is admissible in evidence. He had examined the alleged victim and the medical report was produced in evidence. His medical findings were that, he has seen remnant of hymen and no signs of trauma.

That was the evidence for the prosecution.

25.	Madam assessors and Gentleman assessor,

At the end of the prosecution case, you heard me explain several options to the accused. He has these options because he does not have to prove anything. The accused chose to give sworn evidence and to subject him to cross examination. You must give his evidence careful consideration.

26.	The evidence of the accused was that he did not drink grog that night. He was lying with Litia. While he was lying down he had thought that he was lying beside his wife. He said that was why he hugged her. Then he said that she took his hand and threw it. Then he knew that it was Litia, he said. Then he had stood up, taken his shoes and left.

27.	In cross examination he said that he did not talk to Alumita, but straight went and slept. However he said that he knew that it was not his wife and that she was Litia. Further he said that it was normal to hug each other when he slept with his wife.

28.	Further answering the questions put to him, he denied inserting his finger into her vagina. He even denied touching the vagina. He said that he did not know of Litia crying, because he stood up and went home as he knew that he had done something wrong. He further said that he did not admit committing the offence to the police. 

Analysis

29.	The prosecution has to prove all elements of the offence of Rape which I mentioned before, beyond reasonable doubt.

30.	The alleged victim Litia Tinai testified in court as to how she was woken up when the accused hugged her and inserted his finger into her vagina. The witness Alumita said that she was woken up when Litia cried and that the accused ran away. The accused had admitted in his caution interview statement to the police that he inserted his finger into Litia's vagina. However the accused denied that he admitted committing the offence in his statement to the police. The accused admitted that he hugged Litia thinking that it was his wife. The accused also said in evidence that when he hugged her Litia took his hand and threw it away. However he denied that he inserted his finger into the vagina. 

31.	You have to decide which version you are going to accept, the prosecution version or the defence version. You must decide which witnesses are reliable and which are not.

You must use your commonsense when deciding on the facts.

32.	I have explained the legal principles to you. You will have to evaluate all the evidence, and apply the law as I explained to you when you consider the charge against the accused has been proved beyond reasonable doubt.

Your opinions on the charge will be either guilty or not guilty. 

33.	Madam assessors and Gentleman assessor,

This concludes my summing up of the Law. 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.

Priyantha Fernando
Judge
 
At Suva 
16th November 2011