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State v Tawatatau - Summing Up [2013] FJHC 695; HAC329.2011S (6 June 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 329 OF 2011S

STATE

vs

JOELI TAWATATAU

Counsels : Mr. M. Vosawale for the State
Mr. J. Savou for Accused
Hearings : 3rd, 4th and 5th June, 2013
Summing Up : 6th June, 2013

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 if 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.
   

2. 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. 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.
   

100. THE INFORMATION
     

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

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

4. THE MAIN ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   
   • (i) Did the accused, on 22nd September, 2011, at Newtown in the Central Division, rape the complainant?
     

5. THE OFFENCE AND ITS ELEMENTS
   

9. 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.

F. THE PROSECUTION'S CASE

13. The prosecution's case were as follows. The female complainant was 21 years old, while the accused was 36 years old. On or about March 2011, the two met via a chance phone call. The accused rang the complainant's mobile number, which according to him, was his mother's phone number. The complainant told him, it was her phone number and he was not to call her again. However, the accused kept on ringing her, and consequently the two stuck up a relationship for the next 6 months. In other words, they became boyfriend and girlfriend.

14. According to the prosecution, on 21st September, 2011, at about 11 pm, the accused rang the complainant. He asked her to bring his camera to him, as he wanted to use the same in the morning. At the time, she resided at Delainavesi, Lami, while he resided at Tacirua. She told him, it was too late at night, but he insisted for her to bring the camera to him. She then took the camera to him at Tacirua in a taxi. At Tacirua, the accused jumped into the taxi, and the two went to a friend's place in Newtown.

15. According to the prosecution, they arrived at Newtown at about 11.45pm. They went into his friend's house. The complainant wanted to return home, but the accused stopped her. They slept in his friend's bedroom until the morning. In the morning of 22nd September, 2011, the two had breakfast with his friend and his wife. After breakfast, they went back into his friend's bedroom.

16. According to the prosecution, the accused begged the complainant for sex, but she declined. He then started to kiss her. He tried to take off her pants, but she resisted by pushing him away. He then lay ontop of her, and pushed her head down. He then gave two punches to her thighs. She felt weak. He began penetrating her vagina with his penis. The complainant kept pushing him away. He then strangled her on the neck. She said, she did not know what to do, and gave in under pressure. He had intercourse with her for about five minutes. According to the prosecution, the accused had sex with the complainant, without her consent, and he knew she was not consenting, at the time. They are therefore, asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

7. THE ACCUSED'S CASE
   

17. On 3rd June, 2013, the first day of the trial, the information was put to the accused, in the presence of his lawyer. He pleaded not guilty. In other words, he denied the rape allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to remain silent, in his defence. However, he called his friend's wife, as a witness for him, in his defence.

18. 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. That was, in fact, his right. The burden to prove the accused's guilt beyond reasonable doubt, remained with 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. He is entitled to remain silent, fold his arms, as he did here, and require the prosecution to prove the charges, against him, beyond reasonable doubt. That was his right.

19. In any event, the accused called his friend's wife [DW1] as his witness. DW1 confirmed the accused and the complainant were at their home, the crime scene, at the material time. She said, she observed nothing unusual when the accused and the complainant were in their bedroom, at the material time. She said, they left their house, at about 4pm, on 22nd September, 2011. The defence asks you, as assessors and judges of fact, to find the accused not guilty as charged. That was the accused's case.

8. ANALYSIS OF THE EVIDENCE
   

20. The State's case against the accused is grounded on two particular type of evidence, that is;

(i) the complainant's (PW1) evidence;

(ii) the complainant's aunty's (PW3) evidence.

(i) The Complainant's Evidence (Direct Evidence):

21. The State's case against the accused is grounded basically on the complainant's evidence. In other words, the State's case against the accused stands or falls, on whether or not, you, as assessors and judges of fact, accept the complainant, as a credible witness. You have watched her give evidence in court. Was she forthright, or was she evasive? Was she hiding anything from you? How did you assess her when answering questions? What was her demeanour like? Do you find her to be a credible witness? Your decision on this case will depend on how you answer the above questions. If you find her to be a credible witness, then you are entitle to accept some or the whole of her evidence, and you will have to find the accused guilty as charged. If you find her not to be a credible witness, then you are entitle to reject some or the whole of her evidence, and you will find him not guilty as charged. It is entirely a matter for you.

22. In this case, this is what the complainant said, as recorded in the court record, "...After breakfast, accused went back into the bedroom. He called me to follow him. While we were in the room, he tried kissing me. He tried so hard to take off my pants. I pushed him away. He kept lying ontop of me. I tried so hard to push him away again. He pushed my forehead down to the bed. He also punched my thighs. I can feel 2 punches. I told him I didn't want to have sex because...He penetrated his penis into my vagina. I kept on pushing him away. He then strangled me on the neck. I did not know what else to do, but give myself in. He kept on...going in and out of my vagina for about 5 minutes. I didn't raise an alarm at that point, because I was new to the area. I didn't agree to what he was doing to me. He later went to get some warm water...This water was for me to wipe myself with. I cleaned myself with the warm water. He told me to clean myself with the warm water. At this time, Joeli called his friend to see what has happened. ie. to see the blood on me and the bed. The blood came from my vagina..."

23. It is accepted that the accused and the complainant were boyfriend and girlfriend at the time, but the law of rape applied to boyfriends and girlfriends also, as much as it applied to everyone. The law was put there to protect women and girls against any unwarranted interference with their dignity, that is, against any unwanted penile intrusion into their vagina. The complainant's direct evidence appear to show that the accused had sexual intercourse with her, at the material time, without her consent, and he knew she was not consenting to sex, at the time. If you accept the complainant's evidence, you must find the accused guilty as charged. If you reject the complainant's evidence, you must find the accused not guilty as charged. It is a matter entirely for you.

(ii) The Complainant's Aunty's Evidence (Recent Complaint Evidence):

24. The complainant's aunt (PW3), in her sworn evidence, said as follows, "...On 22.9.11, at 5 pm, my niece came home with a Fijian boy. They came in a taxi. I called them into the house. I talked to them. The man then left. I notice my niece's face was swollen. I asked her questions regarding the above. She told me that she was raped on that day. She was forced and as a result, her swollen face. She told me that the guy raped her without her consent. I asked her whether she wanted to report the matter to police and she agreed. My niece is J. L. R (PW1). I have known her for 20 years. She is a humble person, a quite girl. She doesn't talk back if she disagrees, she just cries... PW1 was lost when I saw her that day. It wasn't the PW1 I know. She looked ugly and shattered that day. She looked dirty, she was not confident when I spoke to her and her eyes were confused. I asked her to take a shower before we went to the police station. We went to Valelevu Police Station...The police took PW1 and my statements at the Valelevu Police Station. We gave them our phone contact. We contacted Joeli and he was answering...PW1 told me the man raped her. She had swollen thighs, hands and forehead..."

25. PW3's evidence is what is often termed "evidence of recent complaint". As a matter of law, PW3's evidence cannot be used to prove the truth of the alleged rape allegation, because she was not present at the crime scene, at the material time, to directly witness the alleged rape incident. However, PW3's evidence of "recent complaint" can be used as evidence of the consistency of the complainant's conduct with the story she told in the witness box, and also as evidence, to negative her consent to sex with the accused. In other words, it is normal for an adult person to report the alleged incident, if she consented? Is it normal for a consenting adult to appear injured and untidy to a person, after the alleged incident? Is it normal for a consenting adult to appear injured to PW3 after the alleged incident? If you accept PW3's evidence, it will have the effect of strengthening the complainant's evidence, on the consent issue and the consistency in her conduct in reporting the matter, and you will find the accused guilty as charged. If you don't accept PW3's evidence, then you will have to work on the complainant's evidence, and DW1's evidence to find out whether or not the accused is guilty as charged. It is a matter entirely for you.

(iii) Siteri Gade's (DW1) Evidence:

26. The accused called Siteri Gade (DW1) as his only witness. She confirmed that, the accused and the complainant were at the crime scene, that is, their home, at the material time. She confirmed that, the accused and the complainant went into their bedroom, after breakfast, on 22nd September, 2011. She confirmed that, after a while the two come out of their bedroom in their house in Newtown. She said, she heard nothing in the bedroom when the accused and the complainant were in the same. She said, the complainant came out of the bedroom looking normal. She said, the bedsheets on which the complainant and accused slept on was not bloodstained. On this issue, the complainant, in her evidence, said DW1 was lying. She admitted, her husband and the accused were close friends. She admitted, she's serving time at Korovou Women's Prison, at the moment. What you make of DW1's evidence, is entirely a matter for you.

I. SUMMARY
27. 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.

28. Your possible opinions are as follow:

(i) Rape : Accused : Guilty or Not Guilty

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

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva

Solicitor for the Accused : Legal Aid Commission, Suva