IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 067 OF 2011S

STATE

vs

ERIBATI TIOUNTI

Counsels : Mr. S. Sovau and Mr. S. Nath for State
Mr. J. Rabuku for Accused 
Hearings : 21st to 23rd May, 2012
Summing Up : 25th May, 2012

SUMMING UP

A.	ROLE OF JUDGE AND ASSESSORS

1.	Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2.	State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3.	You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B.	THE BURDEN AND STANDARD OF PROOF

4.	 As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5.	The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.

6.	Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Defence Counsel referred to the accused been remanded in custody for the previous year. You must take that out of your mind, when deciding the guilt or otherwise of the accused, in this case. 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.

C.	THE INFORMATION

7.	You have a copy of the information, and I will now read the same to you:

"… [read from the information]…"

D.	THE MAIN ISSUE

8.	In this case, as judges of fact, each of you will have to answer the following questions:

(i)	On Count No. 1, did the accused, on 19th February 2011, at Rewa Street, Suva, in the Central Division, assaulted the complainant, thereby occasioning her actual bodily harm?

(ii)	On Count No. 2, did the accused, on 19th February 2011, at Rewa Street, Suva, in the Central Division, rape the complainant?

E.	THE OFFENCES AND THEIR ELEMENTS

9.	I will start with Count No. 2 first, because it is the more serious of the two counts the accused faces. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;
(ii)	without the complainant's consent; and 
(iii)	he knew the complainant was not consenting to sex, at the time.

10.	In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

11.	Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all. 

12.	It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties conduct, at the time, and the surrounding circumstances, to decide this issue.

13.	On Count No. 1, for the accused to be found guilty of "assault occasioning actual bodily harm", the prosecution must prove beyond reasonable doubt the following elements:

(i)	the accused;
(ii)	assaulted the complainant;
(iii)	and thereby occasioning her;
(iv)	actual bodily harm.

14.	In law, the least touching of another in anger, is often termed "an assault". In other words, an "assault" is the act of a person who intentionally applies unlawful force to the person of another, for example, to intentionally punch someone in the face, with anger, or to intentionally hit someone in the face with a stick, with anger.

15.	It must be proved by the prosecution, beyond reasonable doubt that, the assault "occasioned" or caused the bodily harm. In other words, the bodily harm was caused by the assault. "Bodily harm" means "any hurt or injury calculated to interfere with the health or comfort of the complainant, for example, swelling to the body caused by a punch, or striking the body with a stick which caused pain, or a black eye, as a result of a punch.

F.	THE PROSECUTION'S CASE

16.	The prosecution's case were as follows. The female complainant was a Bachelor of Science student, at the University of the South Pacific, in February 2009. She was from Kiribati, and resided with an uncle and aunty, at Rakua Street, Nailuva. They lived in a three-bedroom house. On 18th February, 2011, the uncle brought the accused and 3 relatives to his house. After having dinner, the 4 relatives drank liquor. The female complainant, and a friend also drank liquor. 

17.	At about 11 pm to 12 am midnight, the complainant, her friend and 3 of the relatives decided to go to the Dragon Nightclub. At the nightclub, the 5 continued drinking liquor, and also danced in the same. At about 4 am in the morning, the accused told the complainant that he will accompany her home. They found a taxi, and went home through Macgregor Road and Rewa Street. At Rewa Street, the accused told the taxi to stop, and he told the complainant to get out, although they have not reached her home.

18.	The accused then pulled the complainant's hand. She felt uncomfortable, and ran towards the Rabi Kava Shop. The accused followed her, and in front of the shop, grabbed the complainant. He punched her on the face, grabbed her hair and held her hand. The complainant suffered a swollen left cheek, and a cut lip. The accused threatened the complainant to be quite, or he will bash her up again. He later forced her up a driveway, forced her to take off her clothes, took off his clothes, lay on top of her, and forcefully inserted his penis into her vagina. He then had sex with her, despite her protest. After having sex, the two went home. According to the prosecution, the complainant never gave her consent to sex with the accused, and that the accused knew she was not consenting to sex, at the time. The prosecution asks you, as assessors and judges of fact, to find the accused guilty as charged, on both counts. That was the case for the prosecution.

G.	THE ACCUSED'S CASE

19.	When the information was read to the accused, on 21st May 2012, the first day of the trial, in the presence of his counsel, he pleaded not guilty to both counts. In other words, he denied the allegations against him. At the end of the prosecution's case, the accused, through his counsel, conceeded there was a prima facie case against him. He addressed the court through his counsel, and gave sworn evidence, in his defence. He choose to call no witness.

20.	In his evidence, the accused did not deny that, he arrived at the complainant's home, on 18th February 2011, and he was a relative of her uncle. He admitted that he and others, including the complainant, drank rum and coke at home, before proceeding to the Dragon Nightclub, between 11 pm to 12 am. He admitted, he and the others, including the complainant continued drinking at the Nightclub. He admitted, he returned in a taxi with the complainant, at about 4 am.

21.	On count no. 1, he admitted assaulting the complainant after they had sex. He also said, the complainant fought with another woman, at the nightclub. On count no. 2, he admitted he had sexual intercourse with the complainant, at the material time. However, he said, the complainant consented to the same. Consequently, he asks you, as assessors and judge of fact, to find him not guilty as charged on the rape matter, and leaves the assault charge, to your discretion. That was the case for the defence.

H	ANALYSIS OF THE EVIDENCE

(i)	The Undisputed Facts:

22.	When listening to the parties' evidence in court, it appeared that they do not dispute the following facts:

(i)	The female complainant is a Bachelor of Science student, at the University of the South Pacific, in February, 2011, and lived with her aunty and uncle, at Rakua Street, Nailuva;

(ii)	On 18th February, 2011, the complainant's uncle brought the accused and 3 male relatives to his house, at Rakua Street, and they arrived from Japan, and they were seamen;

(iii)	The male relatives drank rum and coke after 9 pm, and the female complainant and her friend, also did the same;

(iv)	Between 11 pm to 12 am, the accused and 2 of the male relatives, the complainant and her friend, went to the Dragon Nightclub to drink and dance;

(v)	After 4 am, the complainant and the accused returned in a taxi, and stopped and got off at Rewa Street;

(vi)	At a driveway before Nailuva Road, the complainant and the accused had sexual intercourse;

(vii)	After the above, the complainant and the accused returned home, to Rakua Street, Nailuva.

23.	Because the above facts are not disputed by the parties, I direct you as a matter of law, that you can take it that the above facts have been proven by the prosecution beyond reasonable doubt, and you may treat the same, as established facts, during your deliberation.

(ii)	The Case Against the Accused:

(a)	 Count No. 1: Assault Occasing Actual Bodily Harm

24.	On this allegation, the state relied primarily on the complainant's evidence, and her medical report, to prove its case. In her evidence, the complainant said, "…something went wrong at Rewa Street. Accused told the taxi driver to stop, and he told me to come out of the taxi. I told him we haven't arrived at home. Accused insisted I come out of the taxi. When the taxi left, the accused came to me and pulled my hand. I became uncomfortable. I managed to escape from him and I ran to Rabi Kava Shop. The accused followed me, and grabbed me at the shop's front. The accused punched me on the face and held my hair and one of my hand. I suffered a left swollen cheek and a cut lip. Accused told me to be quite, or else he will bash me up again. I was totally scared. I asked the accused to take me home…"

25.	The complainant was medically examined at CWM Hospital, on the same day approximately 7 to 8 hours later, by Doctor Unaisi Tabua. Doctor Tabua submitted the complainant's medical report, as Prosecution Exhibit No. 1. In the report, at D(10) page 3, the complainant complained to the doctor that the accused punched her, and later forcefully had sex with her. In D(12) of the report, the doctor noted, "…ecelymosis (swelling) on the left lower eye (black eye), cut on lower right lip, no active bleeding…" In D(14) of the report, the doctor said, "…injury on body suggests assault…" The complainant's medical report appeared to confirm her version of events. She said, the accused punched her on the face, and she suffered a swollen cheek and a cup lip. The medical report said she suffered a black eye on the left lower eye, which connects to the left cheek. She also said she received a cut lip, which the report verified.

26.	The defence tried to explain these injuries away, by referring to an alleged fight between the complainant and a woman, at the Dragon's Nightclub, earlier in the morning, that is, before 4 am. However, the accused said, when they came out of the nightclub, after 4 am, and according to him, the two were kissing. He said, at the time, he saw no injuries on the complainant's face. So, from the accused's own evidence, if this fight did actually happened, the fight did not cause the complainant's injuries, as reported in her medical report.

27.	Furthermore, the accused, when examined in chief, and cross examined admitted that, he slapped the complainant on the face, when he was looking around for his wallet. He said, this was after they had sex. But he mentioned nothing about causing any black eye or cut lip to the complainant, let alone the reason or reasons for him slapping her. A person slaps another person if he has a reason to do so – usually when he's angry about that person. But in this case, the accused mentioned no reason or reasons whatsoever. What was this admission designed to achieve? If anything, it did confirm the accused's predisposition to assault a female, which tend to corroborate the complainant's version of events, that the accused assaulted her, in front of the Rabi Kava Shop, on 19th February 2011. However, which version of events to accept is a matter for you, after considering all the evidence.

(b)	Count No. 2: Rape:

28.	In this case, we will not discussed the first element of rape, that is, the accused had sexual intercourse with the complainant, in that, his penis penetrated her vagina. Both parties in their evidence admitted, they had sexual intercourse, at the material time. They agreed that, the accused's penis penetrated the complainant's vagina, at the time. The first element of rape was therefore satisfied in this case.

29.	The next issue to consider, is the second element of rape, that is; Did the complainant give her consent to the accused to penetrate her vagina with his penis? On this issue, the parties' version of event differ. When you are considering this issue, you must bear in mind the directions I gave you in paragraph 11 hereof, on the issue of consent. Consent must be given voluntarily by the complainant, and given out of her own free will. As I have said before, if consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed, as a matter of law, to be no consent at all. The consent must be freely and voluntarily given by the complainant, and it must not be induced by fear.

30.	In this case, you have watched both the complainant, and the accused give evidence, in court. The complainant is a typical female her age. The accused is a strongly built male, capable of imposing his will on the complainant, if he so desires. From the complainant's view point, the accused assaulted her after the taxi left them at Rewa Street. She suffered a black eye and a cut lip, which her medical report verified. She said, she was scared of the accused, as a result. The accused is a bigger and physically stronger person than her. She denied the accused's allegation that sex was discussed in the taxi, or at anytime prior to her been told to go up the driveway. After assaulting her, the complainant said, the accused threaten her "to be quite or he will bash her up again". It would appear that, at this time onward, the complainant appeared to be a dominated individual. When told to go up the driveway, she did so, although she asked to be taken home.

31.	When told to "stripe her clothes off", she begged the accused not to do what he had in mind and to take her home. She said, at the time, she was very scared. She said, the accused told her, he was a fearful man. When ordered to strip, she striped. The accused took off his clothes, lay on her, and inserted his penis into her vagina and had sex with her. When he finished, they stood up and went home. The complainant said, she was irritated and disappointed with the accused.

32.	When she reached home, she later complained to her aunty that the accused assaulted and raped her. This is evidence of recent complaint, to show the consistency in her conduct in reporting the matter, as soon as she got an opportunity to do so. Her aunty later rang Kiribati, and reported the matter to police. Was this the action of someone who consented to having sex with someone a few minutes or hours before? Logically, if the complainant consented to having sex with the accused, she wouldn't report the matter to her aunty as described above.

33.	The accused, on the other hand, said the complainant consented to having sex with him, at the time. He described the various position the two engaged in, in an effort to show that, the complainant consented to having sex with him. He said, they were kissing and hugging each when they came out of the nightclub, and when they were travelling in the taxi. He said, they discussed in the taxi about their plans to have sex that early morning. He said, the complainant willingly took off her clothes, and willingly had sex with him. He said, the complainant consented to having sex with him, at the time. It could be seen that the complainant's and the accused's version of events on the issue of consent vary greatly. Which version of events to accept, is a matter for you, after considering all the evidence.

34.	If you accept the accused's version of events that the complainant consented to sex with him, at the Rewa Street driveway, then you must find the accused not guilty as charged, on the rape matter. However, if you accept the complainant's version of events that she did not consent to sex with him, at the time, then you must move on to consider the third element of rape, which is: Did the accused know, at the time he was having sex with her, that she was not consenting to sex with him? In answering this question, you must consider the surrounding circumstances before, during and after the two had sexual intercourse. If the complainant's version of event is to be accepted, 

then obviously the accused knew she was not consenting to sex, at the time he was having sex with her. However, if the accused's version of events is to be accepted, then obviously the accused knew she was consenting to sex with him, at the time. Which version of events to accept, is a matter for you, after considering all the evidence.

35.	You have heard the evidence of the prosecution and defence witnesses. You have observed their demeanour in the courtroom while they were giving evidence. How did they behave in the courtroom? Were they forthright when examined-in-chief, cross-examined and re-examined? Were they evasive or argumentative when examined-in-chief, cross-examined and re-examined? How did they dress to court? Given the above, my address to you on the law, your life experiences and common sense, you should be able to decide which witness's evidence or part of his evidence is reliable and therefore to accept, and which witness's evidence or part of his evidence is unreliable and therefore to reject, in your deliberation in this case.

I.	SUMMARY

36.	Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

37.	Your possible opinion are as follows:

Count No 1:	Assault Occasioning Actual Bodily Harm-	Guilty or Not Guilty	
Count No 2:	Rape	Guilty or Not Guilty.	

38.	You may now retire to deliberate on the case, and once you've reached your decision, you may inform our clerk, so that we could reconvene to receive your decisions.

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecutions, Suva 
Solicitor for Accused : Mr. J. Rabuku, Barrister & Solicitor, Suva.