IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 201 OF 2012S

STATE

vs

AISAKE KIVI

Counsels : Mr. S. Nath and Ms. W. Elo for the State
Mr. M. Fesaitu for Accused
Hearings : 14, 15 and 16 April, 2014
Summing Up : 17 April, 2014

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 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.

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. 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 with you. Please, disregard count no. 2 and 3. This trial is about count no. 1 only. I will now read the same to you:

"… [read from the information]…."

D.	THE MAIN ISSUE

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

(i)	On count no. 1, did the accused, on 26 May 2012, at Kadavu in the Eastern Division, rape the complainant, by penetrating her vagina with his fingers, without her consent?

E.	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 penetrated the complainant's vagina with his fingers;
(ii)	without the complainant's consent; and
(iii)	the accused knew the complainant was not consenting to (i) above, at the time.

10.	The slightest penetration of the complainant's vagina by the accused's fingers, is sufficient to satisfy element 9(i) above.

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 9(i) above, 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. On 26 May, 2012, the accused, aged 49 years at the time, was a music teacher at Richmond Methodist School. He resided in a house in the school compound. The accused had been single for the last 30 years. The female complainant was aged 13 ½ years, at the time, and also resided in the school compound, with her parents and three siblings – a sister (12 years), a brother (10 years), and a youngest brother (1 year 7 months).

14.	According to the prosecution, the accused came to the complainant's family's house before 8 am, to ask the complainant and her sister to clean his house. Because their father trusted the accused as a school teacher, he agreed. The complainant and her younger sister went to the accused's house and cleaned the same. The accused returned to his house later, and asked the complainant to massage his back. He laid on the floor, and the complainant sat beside him, and massaged him.

15.	The complainant's younger sister was around, and was sent around the house and away from the house, to give the accused and the complainant some privacy. While the younger sister was away, the prosecution said, the accused penetrated the complainant's vagina with two fingers, without her consent. The prosecution said, the accused well knew she was not consenting to the above, at the time.

16.	Later in the day, the complainant and her younger sister reported the matter to their parents. Their parents took the matter to the Vice-Principal. Later, the matter was reported to police. An investigation was carried out. The accused was caution interviewed by Kadavu police on 27 and 28 May 2012. He appeared in the Suva Magistrate Court on 1 June 2012, charged with rape. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G.	THE ACCUSED'S CASE

17.	On 14 April 2014, the first day of the trial proper, the information was put to the accused, in the presence of his lawyer. He pleaded not guilty to the charge. In other words, he denied the rape allegation against him. When a prima facie case was found against him, at the close of the prosecution's case, he choose to give sworn evidence in his defence, and choose not to call any supporting witness. That was his right. 

18.	In his evidence, he admitted he was at the crime scene, at the material time. He admitted that, he asked for the complainant and his younger sister to clean his house on 26 May 2012. He admitted, he asked the complainant to massage his back, in his house, at the time. He admitted that, he sent the complainant's younger sister around, to enable him and the complainant to be alone. He admitted, he touched the complainant's vagina, but denied inserting his fingers into the same.

19.	The accused was caution interviewed by the police, at Kadavu Police Station, on 27 and 28 May 2012. The interview notes were tendered in evidence as Prosecution Exhibit No. 3 (English version) and No. 4 ("i-taukei" version). In his caution interview statements, the accused admitted the offence (see Questions and Answers 37, 38 and 48). However, in his sworn evidence, the accused asked you to disregard his alleged confession, because the police force the same out of him. He said, he gave his alleged confession involuntarily. Because of the above, the accused is asking you, to find him not guilty as charged, and acquit him accordingly. That was the case for the defence.

H.	ANALYSIS OF THE EVIDENCE

(a) The Agreed Facts:

20.	There is an Agreed Facts submitted by the parties. A copy is with you. Please, read it carefully. It has 5 paragraphs. There is a minor mistake in paragraph 1. Richmond High School is in Kadavu, not Lau. Except for the above, you must take the agreed facts as established facts. ie. the prosecution had proven the above facts beyond a reasonable doubt.

(b) The Complainant's Evidence v Accused's Evidence

21.	The State's case against the accused stands or falls, on whether or not, you, as assessors and judges of facts, accept the complainant's evidence. The complainant's evidence was very simple. She said, she went to the accused's house, on 26 May 2012, to clean the same. The accused was their music teacher, and he lived alone. She said, she took her younger sister with her on the day. She said, the accused later arrived at his house. He asked her to massage his back. She said, the accused laid on the floor on a piece of cloth. She said, she sat beside the accused and massaged him. She said, while massaging him, the accused inserted two of his fingers into her vagina. She said, it was painful. She said, she didn't shout because she respected the accused, as a teacher. It appeared, she did not give her consent, and the accused well knew that she was not consenting to him penetrating her vagina with his fingers.

22.	The accused, in his sworn evidence, agreed with most of what the complainant said. He agreed that, he asked the complainant to clean his house. He agreed that, he later went home, and asked the complainant to massage his back. He agreed, he laid on the floor on a piece of cloth, and the complainant massaged him on the back. He admitted the two were alone together. He admitted, he touched the complainant's vagina. However, he denied inserting his two fingers into her vagina. So, you will see that while most of the matters the parties said were consistent with each other, they differ when they came to the issue of the accused allegedly inserting his two fingers into the complainant's vagina.

(c) The Complainant's Medical Report [Prosecution Exhibit No. 2]:

23.	Doctor Raina Shimona Ram (PW3) medically examined the complainant, on 27 May 2012, at 11.50 am at Kadavu Hospital – approximately 1 day after the alleged rape. The doctor tendered the medical report as Prosecution Exhibit No. 2. In D(10) of the report, the doctor recorded the complainant's history as follows, "…was alone at home on 26.5.12 with siblings. Mum had come to Vunisea. Her sister and her were asked by the accused to come and clean his house. The sister was playing the guitar and the accused asked victim to massage his back. While she was doing it, he inserted his fingers into her vagina…" In D(12) of the report, the doctor recorded her findings as follows, "…small laceration in perineal (area between vagina and anus) area. Not bleeding actively (no blood coming out of laceration). Hymen not intact. Blood stains on labia majora…" In D(14) of the report, the doctor wrote, "…recent trauma…" The doctor said that, his medical findings were consistent with the history given by the complainant. In other words, what the doctor was saying was that, her medical findings supported the complainant's story, as noted in D(10) of the report. If you accept the doctor's report, it will strengthen the complainant's version of events. In any event, what you make of the doctor's evidence and report, is a matter entirely for you.

(d) The Accused's Police Caution Interview Statements; Prosecution Exhibit No. 3 (English version) and 4 ("i-taukei" version):

24.	On 27 May 2012, a day after the alleged rape on 26 May 2012, the accused was caution interviewed by then police officer Peni Vuakanisakea (PW6), at Kadavu Police Station. The interview started at 3pm and was concluded on 28 May 2012, at 10.20 am. The police asked the accused a total of 58 questions and he gave 58 answers. He was given his right to counsel, and the standard caution was given to him. He was given the normal rest breaks. In his caution interview, the accused admitted the offence [see Questions and Answers 37, 38 and 48 of Prosecution Exhibit No. 3]. In other words, the accused admitted inserting his fingers into the complainant's vagina, at the material time. This is what is often termed a confession.

25.	Before you consider the above alleged confession, I must direct you as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of facts, you are entitled to rely on them for or against the accused.

26.	On whether or not the accused gave his caution interview statements voluntarily, the caution interview officer (PW6) said, he did not assault, threaten or unfairly induced the accused before, during and after the interview, to give his statements. He said, the accused was well during the interview, and voluntarily answered the questions asked of him. When the accused was cross-examined on question 38 of Prosecution Exhibit No. 3, wherein he allegedly admitted penetrating the complainant's vagina with his fingers, he said, he was forced to answer the question. However, later in his cross-examination, the accused admitted on oath, that he gave his caution interview statements to the police voluntarily, and out of his own free will. In question and answer 57 of Prosecution Exhibit 3, he also admitted that he gave his caution interview statements voluntarily. If you accept that the accused gave his confessions voluntarily, and out of his own free will, the confession will substantiate the complainant's version of events. In any event, it is a matter entirely for you.

(e) Considering All the Evidence Together:

27.	You will now have to consider all the evidence together. First of all, you have the parties' Agreed Facts. There were five paragraphs of facts together. These are established facts. Then, you have the complainant's evidence. On the count of rape, she said, the accused penetrated her vagina with two fingers, at the material time. She did not give her consent, and the circumstances appear to show that, the accused well knew she was not consenting at the time. Then, you have the accused's evidence. On the count of rape, he admitted he touched the complainant's vagina. However, he denied penetrating the same with his two fingers. Then, you have the doctor's medical report, Prosecution Exhibit No.2, which confirmed the complainant's hymen was not intact and there was laceration in the perineal area. The complainant, in D(10) of the report, told the doctor the accused penetrated her vagina with 2 fingers, at the material time. According to the doctor, her medical findings supported the complainant's story. Then you have the accused's police caution interview statements, Prosecution Exhibit No. 3 (English version) and No. 4 ("i-taukei" version). In Questions and Answers 37, 38 and 48, the accused admitted inserting his fingers into the complainant's vagina, at the material time. In his sworn evidence, the accused, when cross-examined, admitted giving his police caution interview statements voluntarily and out of his own free will. Putting all the evidence together, it appeared that, all the evidence appear to support the complainant's version of events. However, it is a matter entirely for you.

I.	SUMMARY

28.	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.

29.	Your possible opinion are as follows:

(i)	Count No. 1 : Rape : Guilty or Not Guilty

30.	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 your decisions.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Legal Aid Commission, Suva