IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 32 OF 2010

BETWEEN:

THE STATE

AND:

TANIELA KARURU

Counsels: Ms. S. Kiran for the State
Ms. V. Tamanisau for the Accused

Date of Trial: 1st to 6th June 2012
Date of Summing Up: 7th June 2012

SUMMING UP

1. Ladies and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Defence Counsel. 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 the Defence Counsel made their submissions. That is their duty. The Prosecutor to submit how he proved the case and the 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 offence he is charged.

3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty 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 them the greatest weight when I deliver my judgment. 

4. In criminal cases the standard 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 duties 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 at the commencement of 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 witnesses 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.

10. The Director of Public Prosecution had preferred one Count of Rape punishable under Section 207 (1) of the Crimes Decree.

11. To prove the offence of Rape the Prosecution should prove the main ingredients of the charge. Main elements of the charge of Rape are as follows:

1.	The Accused had carnal knowledge of the victim.

2.	Without her consent.

3.	He knew or believed that she was not consenting or didn't care that she was not consenting.

12. For the Accused to be found guilty for the offence of Rape the prosecution must prove all these elements beyond reasonable doubt. While considering the evidence before the Court if you find there is a reasonable doubt that in any one of the element then you must find the Accused not guilty.

13. In this case the Accused says that he had sexual intercourse with the virtual complainant Siliva Rakavosa Stark with her consent. The Prosecution says the consent was not there.

14. The Prosecution must prove that the victim did not give consent to the Accused to have sexual intercourse.

15. Consent was defined in section 206 of the Crimes Decree.

"(1) The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained – 

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner."

16. In the present case the complainant was more than 18 years of age. Unless differently qualified she is capable of giving consent.

17. The virtual complainant Siliva Rakavosa Stark gave evidence in Court. She said on the 16th April 2010 she had visited to her uncle "Solo's" house to attend a funeral gathering. In the evening at around 7.00 pm she had walked to the grounds from there to the town with her cousins/ friends. Then she had met her friend near Hunters Inn night club walked with him and came back, then she found her friends all missing. Then she decided to walk back to her uncle's home at Natokowaqa. On the way passing FSC gate the Accused encountered her and called her "hey gang," that was after 12.00 midnight. When she tried to avoid and walk fast, the Accused followed her and told her that he wanted her. When she refused the proposal the Accused punched her on the face. She fell down, the Accused dragged her towards the drain and kept on punching her. He held her by the neck, when she tried to shout he had blocked her mouth with a cloth which he had. The virtual complainant tried to escape from the Accused and pulled his tee-shirt and tore the same. Then the Accused took a stone and hit her on her face, punched on her thighs and removed her tights and panty, then he got on to her and inserted his penis into her vagina and had sexual intercourse. She claims it was very painful. Once the Accused finished his act Siliva was released. She had seen a man coming along the road. She got herself dressed and told him what happened and with his help she had reached her house. Then her grandmother Sereseini saw the injuries and she was rushed to hospital. She was hospitalized for 5 days. At the hospital she had stitches for the tear in her vagina and treated for the other injuries on the face and the jaw.

18. You heard that Dr. Warren Thaggard who examined her told Court that Siliva was subject to forceful sexual intercourse. Her injuries are compatible with the history given by her. He also confirmed that they had to stitch the injury on the vagina. He had observed the virtual complainant was traumatized.

19. The virtual complainant had positively identified the Accused at the Identification Parade which is also confirmed by the investigating officer.

20. The Accused gave evidence and told Court that it was Siliva who had asked him to come to the night club. Both had gone into the night club and left after he had couple of beers. Both had walked under a tree and had a long chat in the night. Subsequently they went to the playgrounds at Central College and had sex there under a tree. Once it was finished they were talking for a while. At that time she had scolded him and swore at his parents then he got angry and punched her on the face. Then she fell down on the ground. Since she was normal he walked away and got into a van and went to his home. The Accused told Court he was under the influence of liquor.

21. You are here to consider the entire facts and decide whether the Accused and the virtual complainant had sexual intercourse with or without consent.

22. I wish to briefly summarize the evidence of witnesses. This does not mean you have to consider only this part of the evidence. I request you to analyze all the evidence and come a reasonable conclusion.

23. The 1st witness called by the State was Siliva Rakavosa Stark. She said on the 16th April, 2010 she went to her uncle Solo's house. From there she had gone to town with her friends. Since she lost them she had returned alone on the Drasa Avenue. After 12 midnight the Accused had raped her. She was traumatized and hospitalized for 5 days. At the hospital they had to stitch her vagina and treated for her facial and jaw injuries. She said she doesn't know the Accused prior to the incident and she had never met him before. She identified her blood stained clothes in the Court. The Defence Counsel suggested that she and the Accused had consented sexual intercourse, the witness vehemently denied this and said that the Accused dragged her and assaulted her with a stone and had forceful sex with her, due that she had injuries on the face, jaws and vagina. When the Defence suggested that the Accused smelling of liquor the witness said no, he smelled filthy.

24. The 2nd witness called was Lusiana Biu Vakaloloma. She is a student. On the 16th April 2010 she had also gone for the same funeral gathering at Natokowaqa. She with Maria, Lusia Lakalaka and Siliva had gone to town in the night. All of them had gone to Shirley Park and were talking there. Since it was after 10.00 pm Police officers had chased them away. Then Siliva had met a slim tall boy of his 20's and went with him on the road. She also said Siliva never entered the night club. When she was waiting in front of the night club she had lost Siliva and looked for her with Maria. Since it was after 3.00 am they kept on looking for her and then they received a call from home to come back and Siliva had arrived home with injuries. When the Defence Counsel asked whether the boy met in front of the club was the Accused, she firmly denied and said not this Accused.

25. 3rd witness called was Maria Kasanita. She also went to Natokowaqa on the 16th April 2010 to attend the funeral gathering. She also gone out with Siliva and others. After they had been chased away by the Police officers they had gone to Hunters Inn night club then she and another girl went into the club while Siliva and Lusiana were standing outside of the club. When she was in the club a bouncer had come and asked her to come out. Then she came to know that Siliva was missing. Then all three of them searched for her but couldn't find. Her uncle called from home and told that Siliva had come home with injuries. It was after 3.00 am. When the defence suggested that Siliva met the Accused she said she can't recall the person whom Siliva met on the day.

26. Mereseini Kurulo was the 4th witness called by the State. She said her cousins including Siliva went to Nadovu Park on the 16th April 2010 night. Since they didn't come she was in search of them but she couldn't find them. At 1.00 am she heard a sound at the gate. When she came there she found Siliva with bleeding injuries. She had rushed to her mother and told her that Siliva had met with an accident. She had seen lot of blood on the face, eyes and mouth. She had provided ice cubes to control the bleeding of the virtual complainant. She had not seen any Fijian man at the gate with Siliva.

27. Sereseini Marama on 16th April 2010 she also had gone to the funeral. When she was at home in the early morning of 17th April 2010 Siliva had arrived with bleeding injuries and she couldn't talk properly. This witness had taken her to Lautoka Hospital.

28. Sixth witness called was Dr. Warren Thaggard. He is a medical practitioner. On the 17th April 2010 he was attached to Lautoka hospital. At 5.45 am he had examined Siliva Stark and prepared the medical report which marked as P7. He had observed five injuries on the patient. Multiple bruises on the face, swelling on the left jaw, multiple lacerations on the lips, laceration on the scalp and sub conjunctive haematoma (on the eyes). When he examined the patient clinically he had found a laceration on the vault of the vagina at 6 o'clock position and it was bleeding. He had cleaned up the (cut) laceration wound on the vagina and sutured it. The doctor had observed that the patient was traumatized. Siliva had told him that she was attacked and raped by a man. After the examination the doctor is of the opinion that the history given to him and the injuries are compatible. Siliva was subject to x-ray and other tests. She was referred to Dental Unit and hospitalized. Another doctor had observed haematoma on the thighs of the complainant. This witness had not found any injury on the neck and legs. When the Defence Counsel suggested whether injury on the vagina is possible of vigorous sexual intercourse he said it is very unlikely. Similarly he said it was unlikely of a consensual sexual intercourse. When the defence asked whether those injuries on the face are possible of a fall the doctor said unlikely. He concluded by saying the overall injuries are consistent with assault and rape.

29. Corporal Elia Waqasogo is the seventh witness called by the State. He was attached to the Strike back Team, on the 17th April 2010 he was instructed to assist the investigators to arrest the Accused. They were in search of the suspect on the description given by the complainant. When they spotted the Accused and approached him he had started running from them. They had given a chase and arrested him. At the time of arrest he was under the influence of liquor. After the arrest he had taken the Accused and remanded him at the cell of the Police Station of Lautoka. At the time of arrest the Accused was wearing a black tee-shirt which was torn at the neck, a white sleeveless tee-shirt, and it had blood stains. All his clothes were marked and produced at the Court.

30. The next witness called was WDC Irene Singh. She was the investigating officer in the case. On the 17th April 2010 she had visited to the Lautoka Hospital because of a report received from the staff nurse regarding an incident of Rape. She had recorded the statement of the complainant Siliva Rakavosa Stark at the hospital and assisted her to take x-ray. She had obtained the Police Medical Examination Report from the doctor. She had also observed the injuries on the face and jaws. She had obtained the clothes of Siliva. She had seen the Accused at the Police Station after the arrest and she had not offered any promise threat or inducement to him. Since the Accused was under the influence of liquor his statement was recorded on the 18th and 19th April 2010. She also submitted to Court that the Accused was positively identified at the Identification Parade conducted by Independent Police officers at the station. 

31. After calling eight witnesses State Counsel closed the case for the Prosecution. Since there is no application from Counsel for the Accused, Defence called from him.

32. When the Defence called from the Accused person, he opted to give evidence. It should be noted that the Accused need to say anything because the prosecution should prove the case beyond reasonable doubt.

33. The Accused gave evidence and said that he is married and has children. He knew the complainant, Siliva Stark, prior to this and she had called him to come to town to meet her. He met her and took her to the club, there he had beer and she had juice. After that they had walked out and had sex under a tree at the Central College grounds. He denied raping her. He said after this he had asked her about her boyfriends she got angry and scolded him and swore at his parents. Then the Accused got angry and punched her. She fell on the ground. He had seen the injuries he picked her up and hugged her. Thereafter he left her alone and walked away, got into a passing van and went to Tomuka. When he was cross examined he said the Police had assaulted him and applied chillies on his face, anus, his private part and all over the body. He said he is also from Yasawa Island and he doesn't know the parents of Siliva. It should be noted that this is the first time the Accused coming out. Things such as that he had an affair with Siliva and assault by Police. It was not even suggested to the relevant witnesses namely Siliva and Police officers. The Accused said he was forced to admit the incident by the Police officers. The statement made to the Police is not before the Court and it is not evidence. The State Counsel used certain portion of the statement to contradict the Accused. You can only use that portion of the evidence to check the credibility of the Accused and nothing else. What he told to Police is not evidence before you. I want you to not to consider the statement as evidence.

34. If I simply summarize the case, the virtual complainant Siliva says that on the 17th April 2010 she was attacked and raped by this Accused Person. The Accused says he had sex with her consent. You have to consider all evidence before you and decide whether the Prosecution had proved the case beyond reasonable doubt.

35. Please consider all evidence and use your experience in life and common sense and decide, whether the sexual intercourse had happened with or without consent.

36. 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 the accused person's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused person's guilt and you are not sure of it. You must find the accused not guilty as charged.

37. 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.

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

Defence Counsel, Ms. Tamanisau: 

I want the following issues to be addressed to the Assessors:

1)	Assault on the victim was after sexual intercourse and not before;
2)	There was no dragging and strangulation marks on the victim.

You heard the virtual complainant Siliva giving evidence. She said the Accused punched her on the face when she fell down he hit her with a stone and raped her then she received a injury on her vagina. But the Accused said he had sex with her with her consent and everything was normal after that only the assault took place. The Accused says he got angry when the victim swore at his parents.

The second issue the Counsel want me to re-address you is that there is no dragging marks or strangulation mark on the victim.

The Doctor said that he didn't find any injuries on the legs and the neck. I think I addressed to you all on both these issues earlier anyhow I want you to consider these two areas when you are considering your decision.

Ms. Karan: I am satisfied, no issue to be addressed.

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

Assessors say they are happy with the summing up.

40. 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 Lautoka
7th June 2012

Solicitors: The Office of the Director of Public Prosecution for State 

Legal Aid Commission for the Accused