PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2012 >> [2012] FJHC 1172

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

State v Namado - Summing Up [2012] FJHC 1172; HAC094.2010S (4 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 094 OF 2010S


STATE


vs


ILIESA NAMADO


Counsels : Mr. L. Sovau for State
Mr. T. Muloilagi for Accused
Hearings : 29th to 31st May and 1st June, 2012
Summing Up : 4th June, 2012


SUMMING UP


  1. 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.
  1. THE BURDEN AND STANDARD OF PROOF
  1. 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.
  2. 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.
  3. 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. 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.
  1. THE INFORMATION
  1. You have a copy of the information, and I will now read the same to you:

"... [read from the information]..."


  1. THE MAIN ISSUE
  1. 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, between 1st and 31st January 2006, at Navua in the Central Division, unlawfully and indecently assaulted the complainant?

(ii) On Count No. 2, did the accused, between 1st January 2009 and 31st May 2009, at Navua in the Central Division, unlawfully and indecently assaulted the complainant?

(iii) On Count No. 3, did the accused, between 1st June 2009 and 30th September 2009, at Navua in the Central Division, unlawfully and indecently assaulted the complainant?

(iv) On Count No. 4, did the accused, between 1st February 2010 and 28th February, 2010, at Navua in the Central Division, penetrated the complainant's vagina with his finger, without her consent?
  1. THE OFFENCES AND THEIR ELEMENTS
  1. The first, second and third counts involved the same offence, that is, "indecent assault". For the accused to be found guilty of "indecent assault", the prosecution must prove beyond reasonable doubt, the following elements
  2. To "assault" someone is to apply unlawful force to the person of another, for example, to punch someone in the face, without any justifiable reason, is to apply unlawful force to the person of another. Likewise, to touch and squeeze someone's breast and/or vagina, without that person's consent, is to apply unlawful force to the person of another. It wouldn't amount to an "assault", if a doctor examine a patient by touching and squeezing a patient's breast and/or vagina, with that person's consent, in the course of conducting a medical examination. To constitute an "assault", the application of force to the person of another, must be done with no legal justification whatsoever, that is, it was done unlawfully.
  3. The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent; for example, an older man touching and squeezing a girl's breast and/or vagina, without her consent. It is therefore essential for the prosecution to prove beyond reasonable doubt that the assault, was not only unlawful, it was also indecent.
  4. Previously, under the repealed Penal Code, Chapter 17, count no. 4 was treated as "indecent assault". Under the Crimes Decree 2009, count no. 4 is now classified as "rape". For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:
  5. The slightest penetration of the complainant's vagina by the accused's finger, is sufficient to satisfy element 12(i) above. It must also be shown by the prosecution, beyond reasonable doubt that, the complainant did not consent to 12(i) above, at the time. In law, a child under 13 years, is incapable of giving consent to rape, or indecent assault. Over the age of 13 years, consent is a defence to rape. 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. It must also be shown that the accused knew the complainant was not consenting to 12(i) above, at the time.
  1. THE PROSECUTION'S CASE
  1. The prosecution's case were as follows. The accused was born on 11th November 1958. In 2006, he was 48 years old. He was married, with 5 children, and resided at Waiyanitu, Navua. He lived in a house, with his family. He had resided at Waiyanitu, for the previous 40 years. In 2006, the female complainant was 11 years old. She was the niece of the accused's wife. In 2006, she went to attend class 5 at Nakavu Village School. She resided with the accused and his family.
  2. According to the prosecution, between the 1st and 31st January 2006, the female complainant was sleeping with her relatives in the accused's house, at the back. The accused quietly went to the complainant, lifted her top, touched and squeezed her breast. He told her to keep still and not to move. She was scared, at the time. In the morning, she told her aunty what the accused did. But her aunty didn't believe her. In 2009, during the first term of school, that is, between 1st January and 31st May 2009, the accused repeated the above to the complainant. She was approaching 14 years old at the time.
  3. According to the prosecution, the complainant, her aunt (the accused's wife), and a cousin, were sleeping in the sitting room of the house. The accused was watching blue movie at the time. After watching the movie, the prosecution said, the accused came to the complainant, touched her thighs, pulled off her pants and touched her vagina. The complainant told the accused not to do the above, but he kept doing the same. The aunt awoke and told the accused off, but he threatened her and the complainant, that he will do something bad to them, if they told anyone.
  4. According to the prosecution, the accused again repeated the above episode, when the complainant left school in the second school term, that is, between 1st June and 30th September, 2009. She was now 14 years old, while the accused was 51 years old. In February 2010, the abuse reached another level. According to the prosecution, the complainant was changing her clothes in the house. No one else was around. The accused came, and forcefully told the complainant to lie down. She was scared, and she did so. The accused then inserted two of his fingers into her vagina. He then rubed his penis on her vagina. After this incident, the complainant went to Suva for a family funeral. She never returned. She reported the above to an uncle, who reported the matter to the police. An investigation was carried out, and the accused was subsequently prosecuted for the pending four counts. The prosecution asks you, as assessors and judges of fact, that given the above, you should find the accused guilty as charged, on the four counts. That was the case, for the prosecution.
  1. THE ACCUSED'S CASE
  1. When the four counts in the information was put to the accused, on 29th May 2012, the first day of the trial, the accused pleaded not guilty to the counts. In other words, he disputed the allegations against him.
  2. The prosecution closed his case after calling 7 witnesses, and a prima facie case was found against the accused. He was required to make his defence. The options to give evidence and call witnesses were given to him. He choose to remain silent, and call no witnesses. As a matter of law, I must direct you that nothing negative whatsoever should be imputed to the accused, when he choose to remain silent, and call no witness. That was, in fact, his right. The burden to prove the accused's guilt beyond reasonable doubt, remained with the prosecution throughtout 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. He is entitled to remain silent, fold his hands, as he did here, and require the prosecution to prove the charges, against him, beyond reasonable doubt. That was his right.
  3. However, you can get a fair idea of what the defence's case is about, if you carefully listened to and considered the way defence counsel cross-examined state witnesses, and what he said, in his closing submission. In his closing submission, defence counsel said, "...our position is that these offences never took place..." This is consistent with their not-guilty pleas to the four counts in the information, at the beginning of the trial.
  4. However, when the accused was caution-interviewed by police on 3rd and 4th May 2010, first at Navua Police Station and then at CID HQ, Suva, the prosecution said, he allegedly confessed to the crimes alleged against him. In their cross-examination of the police officer witnesses, the defence was alleging that the alleged confessions were involuntarily given, and therefore, as assessors and judges of fact, you should reject them. We will discuss this issue further, when we analyse the evidence later. Suffice to say, at this stage that, given the above, the defence asks you, as assessors and judges of fact, to find the accused not guilty as charged on all counts, and acquit him accordingly. That was the case for the defence.

H ANALYSIS OF THE EVIDENCE


(i) The Undisputed Facts:


  1. After considering the prosecution's witnesses' evidence, the challenges posed by defence counsel's cross-examination, and the parties' agreed facts, it appeared that the following facts, were undisputed by the parties:
  2. Because the above facts are not disputed by the parties, I must direct you, as a matter of law that, you may take it that the prosecution had proven the above facts, beyond reasonable doubt, and you may treat them as established facts, in your deliberation.

(ii) The Case Against the Accused: The three Indecent Assault Charges ie. Counts No. 1, 2 and 3:


  1. The prosecution's case against the accused is founded basically and fundamentally on three types of evidence; first, direct evidence from the complainant; second, the accused's alleged confessions in his police caution interview statements (Prosecution Exhibit No. 1(a) and 1(b)); and third, your view of the complainant's medical report (Prosecution Exhibit No. 2). We will now discuss these types of evidence in turn.
  2. When giving evidence on Count No. 1, the complainant said, the accused started to abuse her on or about January 2009. She was 11 years old at the time. She was staying with the accused, at the time. The accused was married to her aunty, and as a result, he was her uncle. She was sleeping with her cousins, in the accused's house, at the time. It was night time. She said, the accused came to her, pulled up her top, touched and squeezed her breast. She said, she was scared, at the time.
  3. On count no. 2, the complainant said, the accused repeated the above to her, on the first term of school in 2009, that is, between 1st January and 31st May 2009. She was 14 years old, at the time, and she was in Class 8. She said, she was sleeping alongside her aunt, and a cousin, in the accused's house, at the time. She said, the accused was watching blue movie on TV. It was night time. After watching blue movie, the accused came to her, touched her thighs, pulled off her panty, and touched her vagina. She said, she told him not to do the above, but he kept doing it. Her aunt woke up, and fought with her husband, because of the above.
  4. On count no. 3, the complainant said, the accused repeated the above to her, when she left school in the second school term, that is, between 1st June and 30th September, 2009. She was 14 years old, at the time, and in Class 8.
  5. On count no. 4, the complainant said, the accused put his finger into her vagina, on or about February 2010. She was 15 years old, at the time. She was in the accused's house, at the time. She was changing her clothes. No-one was in the house. The complainant said, the accused came into the house, told her to lie down, and he put his finger into her vagina. She said, she was scared at the time. She told the accused not to do it. However, the accused later rubbed his penis on her vagina. She said, she informed her aunt about the above, but nothing was done.
  6. Through his counsel's cross-examination and through his closing submission, the accused denied all the above allegations. Your acceptance or otherwise of the complainant's evidence, will depend on your assessment of her credibility as a witness. You have observed her while she was giving evidence from the witness box. Was she forthright, was she evasive or was she argumentative, while giving evidence? Remember, this was a child witness from 2006 to 2008, and a young person from 2009 to 2010. She was trying to recall matters that allegedly occurred 2 to 6 years ago. It is not unusual for children or young persons who are sexually abused, to forget the actual dates of the abuse, even more so, when the abuse were done repeatedly, over a long period of time. So, in cases of this nature, the actual dates are really not essential, so long as they fall within the period mentioned in the charge. Your decision on her credibility will depend on you observing her while she was giving evidence, and your views on the whole of the evidence.
  7. Next, we will consider the accused's alleged confession in his police caution interview statements, on 3rd and 4th May, 2010, which was tendered as Prosecution Exhibit No. 1(a) and 1(b). You have a copy of these statements, and you must read it very carefully. In questions and answers 37, 38 and 39, the accused admitted count no. 1, 2 and 3. He admitted fondling the complainant's breast and vagina, at the times mentioned in count no. 1, 2 and 3. A confession is strong evidence against its maker, provided the trier of fact, accepted the same. In this case, you, as assessors and judges of fact, are the trier of fact. You may only accept a confession, if the prosecution satisfied you beyond reasonable doubt, and you are sure that the accused gave his statements to the police voluntarily, and out of his own free will. Any evidence of assault, threats or unfair promises done by police to the accused, to induce his confession, will negate free will, and you are entitled, as the trier of facts, to reject the statements, as evidence against the accused. However, if you are satisfied beyond reasonable doubt, and are sure that the accused gave his statements to the police voluntarily, and out of his own free will, you are entitled, to use the statements, as evidence against the accused. It is a matter for you.
  8. In this case, PC 3169 Paula Kaikai (PW5), caution interviewed the accused, at Navua Police Station and CID HQ Suva, on 3rd and 4th May 2010. D/Sgt 2209 Rupeni Taoka (PW2) witnessed the caution interview. Both police officers said, they and other police officers did not assault, threaten or made promises to the accused before, during and after his caution interview. They said, the accused made no complaints to them whatsoever, of any police assault or threats, while he was in their custody. When he first appeared in the Suva Magistrate Court on 5th May 2010, he made no complaints whatsoever to the Magistrate, about any police assault or threats whatsoever. In his first appearance in the High Court on 14th May 2010, the accused also did not complain to the court of any police assault or threats whatsoever. Whether or not to accept the accused's alleged confession in his police caution interview statements, is a matter for you, after considering all the evidence.
  9. If you accept the accused's confession in his police caution interview statement, it will certainly corroborate and strengthen the complainant's evidence. However, this is a matter for you.
  10. We will discuss the complainant's medical report. Doctor Viliame Nasila (PW7) medically examined the complainant, at CWM Hospital, on 10th March 2010 at 9.35 pm. He submitted his report, as Prosecution Exhibit No. 2. In D(10) of the report, he recorded the history related to him by the complainant as follows, "...since the patient was in class 5, the alleged used to fondle patient's breast and insert his finger into her vagina. This happened numerous times. The last time it happened was in February this year..." In D(12) of the report, the doctor recorded, "...Remnant of hymen seen. No sign of trauma..." The doctor concluded that the complainant's vagina had been penetrated. This conclusion appear to confirm the complainant's history in D(10). In terms of the indecent assault charges, is it possible that this conclusion appear to strengthen the complainant's version of events? However, this is a matter for you.

(iii) The Case Against the Accused: Rape


  1. Like the indecent assault charges in counts no. 1, 2 and 3, in count no. 4 (ie. rape), the prosecution case is grounded on the complainant's direct evidence, the accused's alleged confession, and her medical report. In her evidence, she said that, in February 2010, the accused came to her in his house while she was changing her clothes. She said, no-one was around in the house. She said, the accused forced her to lie down. He then pulled off her panty, and inserted his finger into her vagina. She told him not to do it, but he ignored her, and kept doing it. He later rubbed his penis on her vagina. She said, she tried to report the matter to her aunty, but nothing was done to the accused, about the matter.
  2. When cautioned interviewed by police on 3rd and 4th May 2010, the accused admitted inserting his finger into the complainant's vagina, on 25th February 2010, between 8 pm and 5 am. This admission is significant in that it showed that the accused did in fact put his finger, into the complainant's vagina, in the month of February, 2010. This evidence tends to lend further credibility to the complainant's version of events. See question and answer 41 in accused's police caution interview statements in Prosecution Exhibit No. 1(a) and 1(b). You must consider this evidence in the light of the directions I have previously given to you on confessions, and the prosecution's position that the accused gave his statement's voluntarily and out of his own free will. Whether or not to accept this admission of rape is a matter for you, after considering all the evidence.
  3. You must also consider the complainant's medical report (Prosecution Exhibit No. 2). In D(10) of the report, the complainant told the doctor that the accused had inserted his finger into her vagina on numerous occasions. The last occurred in February 2010. When he medically examined the complainant's vagina on 10th March 2010, the doctor found "remnant of the hymen". In other words, the hymen was no longer intact, and according to the doctor, "it proved that penetration had occurred". He also found "no sign of trauma on the vaginal area". The doctor said, "...if the insertion of the finger was not forceful, I would not expect injuries and considering that this has been happening to the victim since class 5, I would not expect to see any injuries..." It would appear that the doctor's finding was consistent with the history given by the complainant. This evidence, been independent of both parties, would tend to corroborate and strengthen the complainant's version of events. However, it is a matter for you, after considering all the evidence.

I SUMMARY
37. 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.


  1. Your possible opinions are as follows:
(i) Count No. 1:
Indecent Assault:
Guilty or Not Guilty
(ii) Count No. 2:
Indecent Assault:
Guilty or Not Guilty
(iii) Count No. 3:
Indecent Assault:
Guilty or Not Guilty
(iv) Count No. 4:
Rape:
Guilty or Not Guilty

  1. 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. T. Muloilagi, Barrister & Solicitor, Suva.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2012/1172.html