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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 270/2013
BETWEEN:
THE STATE
AND
1. KOROIVOU WAQAVAKAVITI
2. VERENIKI VAKAREWA
3. NEMANI ROKODUA
COUNSEL : Ms A Vavadakua for the State
Ms V Tamanisau for the Accused
Dates of Trial : 26/05/2014
Date of Summing Up : 29/05/2014
[Name of the victim is suppressed. She will be referred to as M.S.]
SUMMING UP
Ladies and Gentleman Assessors,
[01] It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about facts of the case or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of facts. All matters of facts are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
[02] You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused persons are guilty or not guilty to their respective charges.
[03] Prosecution and defence made submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
[04] You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgment.
[05] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.
[06] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused persons' guilt before you can express an opinion that they are guilty. If you have any reasonable doubt about their guilt then you must express an opinion that they are not guilty to their respective charges.
[07] Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called Documentary evidence.
[08] In certain circumstances the court would allow witnesses to give their opinions on a matter. Theses witnesses should be experts on that particular subject. For example, you get experts on medical field.
[09] The caution interview statements of the accused persons' are in evidence. What an accused says in his caution interview is evidence against him. I will direct you shortly on how you should consider that evidence.
[10] In assessing evidence of witnesses you need to consider certain tests. Examples:
[11] The facts which agreed between the prosecution and the defence are called agreed facts. You may accept those facts as if they had been led from witnesses from witness box. The following facts are agreed between prosecution and the defence:
(1) That the accused in this case are Koroivou Waqavakaviti, Vereniki Vakarewa and Nemani Rokodua.
(2) That all the above named accused persons are charged with several counts of sexual attacks on the Complainant as specified on the information.
(3) That the accused persons are also residents of Lokia.
The following documents are tendered by consent:
(a) Caution Interview of all accused persons.
(b) The medical report of Dr V Madanavosa.
[12] Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you have heard about this case outside of this court room.
[13] Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.
[14] Now let's look at the charges.
First Count
Statement of Offence
INDECENT ASSAULT: contrary to Section 212 (1) of the Crimes Decree No: 44 of 2009.
Particulars of Offence
Koroivou Waqavakaviti on the 23rd day of June 20013 at Lokia, Nausori in the Central Division, unlawfully and indecently assaulted M.S. by sucking her breasts.
Second Count
Statement of Offence
RAPE: Contrary to Section 207(1) (2) (c) of the Crimes Decree No: 44 of 2009.
Particulars of Offence
Koroivou Waqavakaviti, on the 23rd day of June 2013 at Lokia, Nausori in the Central Division, penetrated the mouth of M.V, with his penis without her consent.
Third Count
Statement of Offence
ATTEMPTED RAPE: contrary to Section 208 of the Crimes Decree No: 44 of 2009.
Particulars of Offence
Nemani Rokodua on the 23rd day of June 2013 at Lokia, Nausori in the Central Division, attempted to have carnal knowledge of M.V, without her consent.
Fourth Count
Statement of Offence
RAPE: Contrary to Section 207(1) (2) (b) of the Crimes Decree No: 44 of 2009.
Particulars of Offence
Vereniki Vakarewa on the 23rd day of June 2013 at Lokia, Nausori in the Central Division, penetrated the vagina of M.V, with his tongue without her consent.
Fifth Count
Statement of Offence
RAPE: Contrary to Section 207(1) (2) (c) of the Crimes Decree No: 44 of 2009.
Particulars of Offence
Vereniki Vakarewa, on the 23rd day of June 2013 at Lokia, Nausori in the Central Division, penetrated the mouth of M.V, with his penis without her consent.
Sixth Count
Statement of Offence
RAPE: Contrary to Section 207(1) (2) (c) of the Crimes Decree No: 44 of 2009.
Particulars of Offence
Vereniki Vakarewa, on the 23rd day of June 2013 at Lokia, Nausori in the Central Division, penetrated the mouth of M.V, with his penis without her consent.
[15] In order to prove the offence of Indecent Assault the prosecution has to prove the following elements beyond reasonable doubt.
(i) The accused
(ii) Unlawfully, and
(iii) Indecently
(iv) Assaulted
(v) The female complainant.
[16] In Fiji law, the offence of Rape is committed when the vagina, anus or mouth is penetrated either by the penis, finger or a thing or a part of the accused's body. Hence in this case in respect of Second, Fifth and Sixth counts the prosecution has to prove:
1. It was the accused,
2. who had sexual intercourse with the victim or that he sexually abused the victim by invading her with his penis,
3. penetrated the mouth of the victim to some extent, by inserting his penis,
4. without her consent.
[17] In respect of Third count the prosecution has to prove:
1. It was the accused;
2. attempted;
3 . to have sexual intercourse with the victim;
4. without her consent and the complainant would not be consenting to sex at that time.
[18] In respect of Fourth count the prosecution has to prove:
1. It was the accused,
2. who had sexual intercourse with the victim or that he sexually abused the victim by invading her with his tongue,
3. penetrated the vagina of the victim to some extent, by inserting his tongue,
4. without her consent.
[19] For the person to be guilty for attempted rape, the person's conduct must be more than merely preparatory to the commission of the offence. It is for you to decide what the intention of the accused was and what he did was more than mere preparation.
[20] Carnal knowledge is the penetration of vagina or anus by the penis.
[21] As far as the element of consent is concerned, in our law, a child under the age of 13 years is incapable of giving consent. In this case victim was 15 years of age at the time of the offence and, therefore, she had the capacity under the law to consent. Therefore, the offence of rape is made out only if there was no consent from the alleged victim.
[22] According to Section 206(1) of Crimes Decree No. 44 of 2009, 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.
[23] According to Section 206(2) without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained:
[24] I now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by the counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
[25] Now let's look at the evidence led by the prosecution in this case.
[26] The victim M.W originally from Lokia Village, Nausori and stays with her family. She has four brothers and three sisters. Presently she is a Form 4 student of Rewa Secondary School. After School she helps her mother and goes to church every Sundays. On 23 June 2013, she went to the First accused's house in order to bring her brother's bag. Being a Sunday, she wanted to bring the bag first and then go to church. On her way to the First accused's house, the First accused was seen standing near a shop and told her that the bag was under the bed in his house. When she entered the house, the T.V was on and she went inside the house but could not find the bag. When she came back the First accused was standing on the porch. He told her to go again but she could not find the bag. When she came back the First accused came inside the house. She had asked the First accused whether the back door was open. The First accused answered in affirmative but she found the back door was closed. When she came back, the First accused held her, pushed her on a bed, unbuttoned her top, raised her skirt and sucked her breasts. She did not cry or shout at that time. After doing this the First accused went out of the room.
[27] Then the Second accused entered the room when she was about to wear her clothes. He then told her to suck his balls which she did not like. The Second accused then licked her vagina and said this would be very quick. He threatened her with death if she screams.
[28] The Second accused went out when the Third accused walked into the room. He lifted her and made her lie down and tried to insert his penis into her vagina but was not successful.
[29] After this the First accused came to the room again sucked her breasts and licked her vagina. When he wanted to insert his penis into her vagina, victim said that she did not like it. Hence he went out.
[30] After wearing her clothes, she came out of the house she saw the Third accused standing outside and he forced her to suck his penis which she did. He then ejaculated inside her mouth and she vomited. She could not free herself as the Third accused held her head firmly. After this she went home but did not tell anybody.
[31] When she came out of the house three boys namely Kiti, Eroni and Paul were standing out of the house. They all are related to her. Nemani and Vereniki are supposed to call her "aunty". Koroivou and her brother Tevita are good friends. She did not make any effort to run from there as she thought the other boys would harm her. She tried to go from the back door as Kiti, Eroni and Paul were at the porch. She did not tell her mother or father after she reached home. She was scared after the incident. Finally she said that she did not consent for any kind of sexual act performed on her by the accused persons.
[32] In the cross examination witness said that she did not allow the First accused to pull her inside the bed room. When the First accused removed her clothes she did not push him away. Further when the First accused was inside the house, the Second and Third accused persons were outside the house. When the First accused had oral sex with her she did not struggle or scream. Though her three relations were waiting outside but she didn't cry for help. Although the Third accused tried to insert his penis into her vagina but he failed. She did not suffer any injuries. The accused went inside the house one by one. She admitted that she divulged this incident to her mother after a week. She admitted that she did not say to the police that she saw her relations were at the back of the house. Also admitted that threatening with death by the Second accused was not in her statement. Victim said her father is a hot tempered person and she feared that he would do something to the accused persons if she tells this to him. Victim agreed before she told this to her mother her brother Setareki had come to know the incident. Further her aunty Vasemaca also inquired from her. She denied that she consented for sex on 23 June, 2013.
[33] In the re-examination witness said she was worried about her father as he would have punched the accused persons if she tells this to him.
[34] Dr V Madanavosa a MBBS doctor had examined the victim on 29/06/2013 after 6 days of the incident. In the history victim said that she was raped by three boys on 26 June 2013 at 6.00pm in Lokia Village, Rewa.
[35] Her hymen is perforated and no lacerations, bruises or bleeding noted on the victim's body. She had examined the victim after 06 days of the incident. According to her any injury caused to vaginal area would heal between 2-4 days.
[36] In the cross examination witness said that she did not witnessed anything unusual on the victim. She did not examine the back of the victim's head as the victim did not complain of neck pains.
[37] Sesarina Dakuiboca confirmed that the victim went to bring the school bag from the First accused's house on 23 June, 2013. She returned home after 7.00pm and looked frightened. She did not go to school for one week. After one week she divulged the incident to her. She confirmed that the victim was scared of her father. She told her husband about the incident and he went and lodged the complaint to the police.
[38] In the cross examination she confirmed that the victim did not say anything on the day of the incident. Although her husband got angry after hearing the incident but he did not look for the accused. Victim took three weeks to resume school after the incident.
[39] DC/3908 Emosi had recorded the caution interview statement of the First accused. DC/2137 Faiyaz had recorded the caution interview statement of the Second accused and DC/3588 Alvin Kumar had recorded the caution interview statement of the Third accused. All the accused were given their rights and were not subject to any intimidation or threat during recording of their caution interview statements.
[40] After calling 06 witnesses Prosecution closed their case.
[41] Defence was called and explained the rights of the accused persons. The First accused elected to give evidence from witness box and the Second and the Third accused elected to remain silent.
[42] According to the First accused, he knew the victim as she is his cousin. On 23 June, 2013 he had met the victim on the road and asked her whether he could talk to her. Both then went to a nearby half build house but the victim was reluctant to go in as she felt somebody might see her. Then she went to his house voluntarily. He entered the house from front door and the victim entered from back door as a church is near his house. He then called her to his bed room and both had sex for about 10 minutes. Victim took off her clothes herself and lay on the mattress. Then he had sex with her consent. Victim never cried or screamed. While having sex he heard somebody knocking at the back door. When the opened the door, the Second and the Third accused entered the house. Both are related to the victim. Nobody was outside except the Second and the Third accused. He denied that he forced the victim for sexual intercourse. He was 19 years old in the year 2013.
[43] In the cross examination by the prosecution the First accused said that his house situated on a hill and surrounded by bushes. He is a friend of victim's brother. He admitted people watched Television in his house but was not in when the victim came to his house. He denied that the victim came in search of a bag. He confirmed the presence of Paul, Eroni and Poate at the drive way. He denied that he abandoned her in the house and allowed the boys to take turn.
[44] In the re-examination the First accused said that he did not go inside the house after he opened the door as the Second and the Third accused came there at that time.
[45] After calling the First accused the defence closed their case.
Analysis of the Evidence
[46] As assessors and judges of facts, in this case the victim said that she did not consent for sex with the accused persons. When the alleged incident happened she did not shout nor cried for help. At that time three boys who are related to her were standing outside the house. Immediately after the incident she went home but did not tell anybody about the incident. She only came out when her brother questioned her about the incident. One of her aunties also questioned her about the incident. Victim said she was frightened due to the incident. But she did not inform her father who she considered as a hot tempered person. She worried about the accused persons as her father might assault them if she divulges this incident. But when this incident came to light her father lodged a complaint to the police but never looked for the accused persons. Although the doctor recommended general counselling for the victim she was not taken to a trained counsellor. Instead she was sent to the Sunday school teachers for advice. Consider her evidence very carefully.
[47] Dr Madanavosa confirmed that the victim's hymen was perforated and no lacerations, bruises and bleeding noted. She did not notice anything unusual on the victim. She had examined her after 06 days of the incident.
[48[ You heard the evidence of Sesarina mother of the victim. According to her the victim was seen frightened but she did not inquire from her daughter. Further she did not tell this court what her daughter said to her about the incident. You have to consider her evidence very carefully.
[49] Ladies and gentleman assessors, in this case the First accused elected to give evidence from witness box. That is his right. In his evidence he admitted the charges. According to him he had sexual intercourse with the victim with consent. He was 19 years old at the time of the offence.
[50] Second and Third accused also took up the same position as taken by the First accused. But they remained silent. Second accused was 23 years and Third accused was 21 years at the time of the offence.
[51] As assessors and judges of facts, the accused persons admitted the sexual intercourse in their caution interview statements. What an accused says in his caution interview statement is only evidence against him. The accused persons' were not intimidated or threatened at the time of recording their interviews. What weight you give to this evidence is entirely a matter for you to decide.
[52] Ladies and gentleman assessors, in this case state has to prove lack of consent before you can find the accused persons guilty of their respective charges. If you find there was consent and that they are therefore not guilty of their respective charges. I have already explained to you about the charges and its ingrediences.
[53] You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject. Use the tests mentioned above to assess the evidence of witnesses.
[54] You must also carefully consider the accused persons position as stated above. Please remember, even if you reject the version of the accused persons that does not mean that the prosecution had established the case against the accused persons. You must be satisfied that the prosecution has established the case beyond reasonable doubt against them.
[55] Ladies and gentleman assessors, as per Section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases.
[56] Ladies and gentleman assessors, remember, it is for the prosecution to prove the accused persons' guilt beyond reasonable doubt. It is not for the accused persons to prove their innocence. The burden of proof lies on the prosecution to prove the accused persons' guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
[57] Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
[58] This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
[59] Any re-direction?
I thank you for your patient hearing to my summing- up.
P Kumararatnam
JUDGE
At Suva
29/05/2014
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