IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 252 OF 2012S

STATE

v

SAVENACA TURAGAKECE

Counsels : Mr. S. Nath and Ms. W. Elo for the State
Mr. M. Fesaitu for Accused
Hearings : 2, 3 and 4 June, 2014
Summing Up  : 5 June, 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. You must disregard count no. 1 (indecent assault), count no. 4 (unnatural offence), and count no. 6 (indecent assault). These counts are no longer your concerns, therefore you must put it out of your minds. This trial only concerns the remaining five counts of rape, ie. count no. 2, 3, 5, 7 and 8. I will now read the same to you:

"… [read from the information]…."

D.	THE MAIN ISSUES

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

(i)	On count no. 2, did the accused, between 1 January and 31 December 2005, at Kadavu in the Central Division, rape the complainant?

(ii)	On count no. 3, did the accused, between 29 January and 4 May 2006, at Kadavu in the Central Division, rape the complainant?

(iii)	On count no. 5, did the accused, between 1 January and 31 December 2008, at Kadavu in the Central Division, rape the complainant?

(iv)	On count no. 7, did the accused, between 4 September 2010 and 25 January 2011, at Kadavu in the Central Division, rape the complainant?

(v)	On count no. 8, did the accused, between 17 August and 4 September 2011, at Suva in the Central Division, rape the complainant?
      
E.	THE OFFENCE AND ITS ELEMENTS

9.	Count nos. 2, 3, 5, 7 and 8 involved the offence of "rape". 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. Note that in count no. 2 and 3, the complainant was under the age of 13 years. She was a child at the time. As a matter of law, a child under 13 years was deemed to be incapable of giving her consent to sexual intercourse. So, once penile penetration of the child's vagina is proved, her non-consent to sex is presumed, and the accused is deemed to know that the child was incapable of giving her consent to sex.

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. For a child under 13 years, all males are presumed to know that such child is incapable, as a matter of law, to consent to sexual intercourse.

13.	Note that count nos. 2, 3, 5, 7 and 8 are representative counts, ie. the offence is alleged to have occurred between specified dates. For example, in count no. 2, the alleged rape was said to have occurred between 1 January to 31 December 2005 – a period of 12 months. The prosecution needs to prove only 1 incident of rape during that period to satisfy the allegation in that count.

F.	THE PROSECUTION'S CASE

14.	The prosecution's case were as follows. In 2012, the accused was 46 years old. The complainant was 19 years old. The accused was married to the complainant's mother (PW4). PW4 had three daughters from a previous relationship. The complainant was her youngest daughter. The accused and PW4 had no children of their own. However, when the two got married, the accused became PW4's daughters' stepfather, and they lived together in a village in Kadavu, as a family. The accused treated PW4's daughters as his own.

15.	On 19 October 2005, the complainant reached the age of 12 years old. According to the prosecution, the accused started to abuse her. He started to fondle the complainant's breasts while she was sleeping in their home, at night. On one occasion, according to the prosecution, the accused came to the complainant at night. He woke her up. He told her, he wanted to have sex with her. He told her not to resist. He forcefully took off her clothes, and had sexual intercourse with her. He told her, this was good for her (count no. 2).

16.	In 2006, between 29 January and 4 May, the accused took the complainant to the beach, on the pretext of catching crabs. The accused was carrying a knife. While looking around for crabs, the accused told the complainant he wanted to have sex with her. She refused. According to the prosecution, the accused threatened her with a knife, forcefully undressed her, and had sexual intercourse with her. Note she was still 12 years old at the time (count no. 3).

17.	On 19 October 2008, the complainant turned 15 years old. According to the prosecution, sometime in 2008, the accused again took her out to catch crabs at the beach. He again repeated the episode mentioned above. On another occasion in 2008, according to the prosecution, the complainant was sleeping in the family house, at night. The accused came to the complainant and forcefully had sexual intercourse with her, without her consent. He threatened to kill her, if she raised the alarm (count no. 5).

18.	On 19 October 2010, the complainant turned 17 years old. She was in Form 6 at the time, and was residing with an uncle and aunty at Korovou, Tailevu. She went to Kadavu for the Christmas holiday and also visited her mum and family. The accused again forced himself on her, had sexual intercourse with her without her consent, and threatened to harm her and her mother, if she raised the alarm. The complainant felt the accused had ruined her life as a girl (count no. 7).

19.	In 2011, the complainant returned to Kadavu to attend Form 7 at Kadavu Provincial School. She turned 18 years old on 19 October 2011. Between 17 August and 4 September 2011, she came on a field trip to Viti Levu with other students. While in Suva, the accused took her to "Urban Nest Motel", and forcefully had sexual intercourse with her, without her consent. He knew she was not consenting at the time. The complainant later told her mum what the accused was doing to her over the years. Her mum opted to keep the family together, by reconciling the parties (count no. 8).

20.	In 2012, the complainant told her cousin (PW6) the above abuse. PW6 told her parents. The matter was reported to police. An investigation was carried out. The accused was caution interviewed by police on 27 and 29 June 2012, wherein he admitted having sex with the complainant, at the material times. He was charged with rape, and appeared in the Suva Magistrate Court on 2 July 2012. 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

21.	On 2 June 2014, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. On the five rape counts (ie. count no. 2, 3, 5, 7 and 8), he pleaded not guilty to the same. In other words, he denied the five rape allegations against him. At the end of the prosecution's case, a prima facie case was found against him. He was called upon to make his defence. He choose to give sworn evidence, in his defence. He called no witness. That was his right.

22.	His defence was very simple. In his sworn evidence, he denied ever inserting his penis into the complainant's vagina, at any time whatsoever. He admitted fondling the complainant's breast and kissing her at times. He admitted, he was caution interviewed by police on 27 and 29 June 2012, at Kadavu and Nabua Police Station. He admitted, the police did not assault, threaten or made promises to him before, during and after the caution interview. While the interview notes recorded him admitting having sexual intercourse with the complainant on numerous occasions, he appeared to say, that this was a fabrication by police. Because of the above, he is asking you, as assessors and judges of fact, to find him not guilty as charged on the five counts of rape, and acquit him accordingly. That was the case for the defence.

H.	ANALYSIS OF THE EVIDENCE

(i)	The Complainant's Evidence vs Accused's Evidence:

23.	The State's case against the Accused, stands or falls on whether or not, you, as assessors and judges of fact, accept the complainant's evidence. You will only accept the complainant's evidence, if you find her to be a credible witness. You will also have to consider the accused's evidence. You will look at and consider other evidence – for example, the accused's alleged confessions in his police caution interview statements, the doctor's evidence, the mother's evidence and the cousin's evidence – to find out whether or not they support the complainant's version of events or the accused's denials. As I've said before, as judges of fact, you will have to decide the facts, after listening to and considering all the evidence.

24.	On count no. 2, the complainant said, in 2005, when she was 12 years old, the accused used to fondle her breasts, while she was asleep in the family home. She said, on one occasion, she woke up to find the accused ontop of her. She said, the accused told her he wanted to have sex with her, and it was good for her. She said, he threatened her not to resist, inserted his penis into her vagina and had sex with her. She said, she was frightened and did not know what to do.

25.	On count no. 3, the complainant said, in 2006, while she was still 12 years old, the accused took her to the beach to catch crabs. He was carrying a knife with him. At the beach, he threatened the complainant, forcefully had sexual intercourse with her, despite her non-consent. In 2008, when the complainant was 15 years old, the accused again took her out to the beach to catch crabs. She said, the accused repeated what he did to her in 2006, that is, had unlawful sexual intercourse with her, without her consent. He well knew she was not consenting to the above. Again, he had unlawful sex with her in the family house, on one occasion, without her consent. He threatened to kill her if she raised the alarm (count no. 5).

26.	On count no. 7, the complainant said, she went to the village in Kadavu for the Christmas holiday. Again, the accused forced himself on her, had sex with her without her consent, and he threatened to harm her mother, if she raised the alarm. She was 17 years old at the time.

27.	On count no. 8, the complainant said, she was a Form 7 student at Kadavu Provincial School, at the time. She said, her Form made a school field trip to Viti Levu, at the time. While in Suva, the accused came and got her away from the field trip. She said, the accused took her to the "Urban Nest Motel" in Suva. In a room, she said, the accused forcefully had sexual intercourse with her, without her consent. She said, he well knew she was not consenting to sex at the time, because she was crying at the time. At the time, the complainant was 17 years old.

28.	The accused, in his defence, denied the complainant's five rape allegations, on oath. He said, he had never inserted his penis into the complainant's vagina, at any time whatsoever. He admitted that, at times, he fondled the complainant's breast and kissed her.

(b)	The Accused's Alleged Confession: Police Caution Interview Statements (Prosecution Exhibit 3 – "i-taukei" version) (Prosecution Exhibit 4 – English Version):

29.	The accused was cautioned interviewed by then police officer DC 3566 Peni Vuakanisakea (PW7), at Kadavu Police Station on 27 June 2012, and at Nabua Police Station on 29 June 2012. PW7 tendered the accused's police caution interview statements in evidence as Prosecution Exhibit No. 3 (the "i-taukei" version) and Prosecution Exhibit No. 4 (the English version). The accused was asked a total of 114 questions and he gave 114 answers. In his evidence, the accused admitted, the police never assaulted, threatened or made promises to him, before, during and after the interview. Both PW7 and the police witnessing officer, SC 2187 Waisale Salu (PW8), confirmed the above. They also said, the accused was given his legal rights, and the standard rest and meal breaks. He was also formally cautioned.

30.	The five rape allegations were put to the accused, during the interview. On count no. 2, in Questions and Answers 30 to 36 of Prosecution Exhibit No. 4, the accused admitted having sexual intercourse with the complainant in 2005 several times. However, he said, it was done with her consent. Note that the complainant was under 13 years old at the time. She was in fact 11 years old at the time beginning of 2005, and turned 12 on 19 October 2005. As I've said before, a girl under 13 years, as a matter of law, cannot give her consent to sex, at any time whatsoever. Males who have sex with under 13 year old girls, risked being convicted of rape.

31.	On count no. 3, in Questions and Answers 37 to 42 of the Prosecution Exhibit No. 4, the accused admitted having sexual intercourse with the complainant in the family farm. Note this was different from what the complainant said, that it was at the beach. But the fact of sexual intercourse was admitted by the accused in 2006. That is the essential point. At the time, the complainant was still aged under 13 years old. She turned 13 on 19 October 2006. The risk to a male of being convicted of rape for having sexual intercourse with a girl under 13 years old, still applied.

32.	On count no. 5, in Question and Answer 50 of Prosecution Exhibit No. 4, the accused admitted having sexual intercourse with the complainant in 2008. The complainant turned 15 years old on 19 October 2008. The important point here was that the accused admitted having sexual intercourse with the complainant in 2008. In other words, he admitted the first element of rape.

33.	On count no. 8, in Questions and Answers 56 to 68 of Prosecution Exhibit No. 4, the accused admitted having sexual intercourse with the complainant at "Urban Nest Motel" in Suva in 2011. In Question and Answer 112, the accused admitted that he was not forced or threatened to give his statements. You will see that the accused's above admissions supported the complainant's version of events, that the two had sexual intercourse, at the relevant times. The accused's own admission enhances the complainant's credibility as a witness.

(c) Doctor's Medical Report – Prosecution Exhibit No. 2

34.	On 31 May 2012, Doctor Saiasi Caginidaveta (PW5) medically examined the complainant at CWM Hospital. He tendered the complainant's medical report as Prosecution Exhibit No. 2. In A(4) of the report, the police noted the reasons for the medical examination, that is, "…the victim alleged that she was sexually abused by her step-father at Vabea, Kadavu since 2004 until last year at Urban Nest Motel…"

35.	In D(10) of the report, the doctor recorded the complainant's history as follows, "…According to victim, since 2004 she had been sexually abused by her step-dad, until last year (2011). Victim was threaten not to inform or mention about the incidents that has been happening. Often victim was not allowed to spend time with her mum, since her step dad never kept space between victim and mum – possibly because of the worry that victim might inform mum of sexual incidents that has been happening. Victim is the youngest of the three sisters, and sent to Suva, because her mum got to know of the incident. Her last sexual abuse was in August…Later this year, it started affecting her psychologically and emotions, and that's when she told her aunt, who told her uncle, who reported matter to police…"

36.	In D(12) of the report, the doctor recorded his medical finding, as follows, "…vaginal examination: well shaven pubic region. External genetalia – normal. Vaginal hymen – remanant noted (no longer intact)..." The doctor, in his evidence, said that his medical finding is consistent with the complainant's history. This medical report and evidence appear to support the complainant's version of events.

(d)	Recent Complaint Evidence: The Complainants Mother (PW4) and her cousin (PW6):

37.	The complainant's mother, L. T. (PW4 and the accused's wife), gave evidence in court. She said, in December 2011, her daughter the complainant, told her about the abuse the accused had been doing to her over the years. She said, the complainant told her, the accused had been fondling her breasts, touches her vagina, takes off her clothes and does "things" to her. She said, she confronted her husband, the accused, and he cried and admitted what the complainant told her. She said, she was angry and she cried. She wanted to leave the accused, but they later, as a family, reconciled. They did not report the matter to police. When re-examined, PW4 admitted that her daughter told her, the accused put his penis in her vagina. 

38.	The complainant was not happy about the family reconciliation. In January 2012, she was residing with her uncle (PW3) and aunty, in Korovou, Tailevu. Her cousin (PW6) was also there. She told her cousin (PW6) what she told her mum (PW4). PW6 later told her parents. The matter was then reported to police.

39.	PW4 and PW6's evidence are often termed "evidence of recent complaint". As a matter of law, PW4's and PW6's evidence cannot be used to prove the truth of the alleged rape allegations, because they were not present at the crime scene, at the material time, to directly witness the alleged rape incidents. However, PW4's and PW6'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, when she was over 13 years. In other words, is it normal for a person, with the legal capacity to consent to sexual intercourse, to complaint to a mother or a cousin, if she consented to sex with a person? Is it normal for a person, with the legal capacity to consent to sexual intercourse, to have the matter reported to police, if she consented to sex with a person? These are questions for you to answer.

(e)	Consider all the Evidence Together:

40.	You must now consider all the evidence together. You have observed and listened to all the prosecution's and defence's witnesses in the courtroom. You have watched them give evidence in the courtroom. The two main witnesses in this trial are the complainant and the accused. Who of these two were the more credible witness to you? Who was more forthright as a witness to you? Who was the more evasive of the two? Who, appeared to be hiding something from you? Who, from your point of view, was telling the truth? If you find the complainant to be a credible witness, out of the two, you must find the accused guilty as charged on all counts, ie. Count no. 2, 3, 5, 7 and 8. If you think the complainant was not a credible witness, then you must find the accused not guilty as charged, on the above counts. It is a matter entirely for you.

I.	SUMMARY

41.	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.

42.	Your possible opinions are as follows:

(i)	Count No. 2	:	Rape	:	Guilty or Not Guilty
(ii)	Count No. 3	:	Rape	:	Guilty or Not Guilty
(iii)	Count No. 5	:	Rape	:	Guilty or Not Guilty
(iv)	Count No. 7	:	Rape	:	Guilty or Not Guilty
(v)	Count No. 8	:	Rape	:	Guilty or Not Guilty

43.	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