IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
 
CRIMINAL CASE NO: HAC 003/2012

BETWEEN:

THE STATE

AND:

1. PAULIASI TEMO
2. METUISELA CORIAKULA

COUNSELS : Ms K Semisi for the State
Ms L Raisua for the First Accused
Mr P Tawake for the Second Accused

Dates of Trial : 09-13/06/2014
Date of Summing Up : 16/06/2014

[Name of the victim is suppressed. She will be referred to as I.G.]

SUMMING UP

Madam and Gentlemen 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 is guilty or not guilty. 

[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 judgement.

[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 persons to prove their innocence. Under our criminal justice system accused persons are presumed to be innocent until they are 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.

[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. These witnesses should be experts on that particular subject. For example, you get experts on medical field. 

[09] The caution interview statement of the accused person is 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:

•	 Consistency: That is whether a witness is saying the story on the same lines without variations and contradictions.

•	 Probability: That is whether the witness was talking about in his/her evidence is probable in the circumstances of the case.

•	 Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to the police on the available opportunity about the incident.

•	 Spontaneity: That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking about. 

[11] 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. 

[12] 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.

[13] Now let's look at the charge. The trial commenced on amended information filed against three accused. After leading evidence of the investigating officer of this case the Director of Public Prosecution filed a nolle prosequi against Apisai Naburelevu on 11/06/2014. Accordingly Apisai Naburelevu was discharged from this case. On that day the information was further amended and the trial proceeded against the accused persons mentioned above on second amended information. The defence counsels did not object to the second amendment as the charge against the accused persons has not changed.
 
The First Count

Statement of Offence
RAPE: Contrary to Section 207 (1) (2) and (a) of the Crimes Decree No: 44 of 2009.
 
Particulars of Offence
Pauliasi Temo on the 14th December 2011 at Kelland Street, Narere in the Central Division, had carnal knowledge of I.G. without her consent.
 
The Second Count
Statement of Offence
RAPE: Contrary to Section 207 (1) (2) and (a) of the Crimes Decree No: 44 of 2009.
 
Particulars of Offence
Pauliasi Temo on the 14th December 2011 at Kelland Street, Narere in the Central Division, had carnal knowledge of I.G. without her consent.

The Third Count
Statement of Offence
RAPE: Contrary to Section 207 (1) (2) and (a) of the Crimes Decree No: 44 of 2009.

Particulars of Offence
Metuisela Coriakula on the 14th December 2011 at Kelland Street, Narere in the Central Division, had carnal knowledge of I.G. without her consent.

[14] In Fiji law, the offence of Rape is committed when the vagina is penetrated either by the penis or by the finger of the accused. Hence in this case the prosecution has to prove:

i) The accused persons had carnal knowledge of the complainant,

ii) Without her consent,

iii) They knew or believed that she was not consenting or did not care if she was not consenting. 

 [15] Carnal knowledge is the penetration of vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[16] As far as the element of consent is concern, in our law, a child under the age of 13 years is incapable of giving consent. In this case the victim was 23 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.

[17] 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.

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:

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.

[18] 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.

[19] Now let's look at the evidence led by the prosecution in this case.

[20] The victim I.G. was a work mate of the accused persons. On 14/12/2011 they commenced a drinking party at their work place and went to the First accused's house to continue the drinking party. The group consisted of 09 persons including the victim and the accused persons. The group consumed two cartons of Fiji Bitter Beer (long neck) and had taken another carton to the First accused person's house. The First accused's house is situated in Narere and they all went there at 5pm. The group commenced drinking and the victim got knocked out due to excessive intake of alcohol. She only remembers it was dark when she knocked out. Suddenly, she found she was in a cassava patch and the First accused lying on top of her and inserting his penis into her vagina. She identified the First accused through a torch light which the First accused's wife was holding. As she could not move due to her drunkenness the First accused's wife punched her several times. When the First accused ran away from the scene his wife followed him. She did not consented for sex with the First accused.

[21] At this point another work mate Bure came to help her. He dressed her up and went to Bure's house and had rice and curry. After hearing someone calling her she walked to the road and met 03 other boys. She could not identify any body. They carried her to another cassava patch removed her pants and undergarment and had sexual intercourse by taking turns. Though she was drunk but was conscience. At this time another person came to help her. He helped her to dress and went away when she met the First accused on the road.

[22] The First accused then took her to a place behind the landlord's bathroom and had sexual intercourse after removing her pants and undergarment. She did not consent to the act. After dressing she went to the First accused person's house in order to take her belongings. When they entered the house from the front door the First accused called the Second accused. He then put her on the First accused's bed and had sexual intercourse after removing her pants and undergarment. At that time the light was on in the house. When the Second accused did this the First accused was outside the house. She did not consent to the act. She knew the Second accused as he was working with her in the same garment factory for about 3 years.

[23] She then dressed up and saw both the accused persons in the kitchen. At that time the First accused's landlady walked in through the kitchen door. The First accused told her to hide. After arguing with the First accused the landlady left the place. She was outside when the landlady walked in. She then walked up to Makoi and boarded the bus and went home. She told the incident to her sister and reported the matter to the police after two days. First she was taken to the First accused's house and then to CWM Hospital for a medical examination. She identified the accused persons in open court. 

[24] In the cross examination by counsel for the First accused I.G. said that she was sober when she left her work place. She can't remember the First accused's wife giving a towel and sleeping in the First accused's house. She admitted that she was so drunk that she can't remember anything. Witness said that the First accused had sexual intercourse at the cassava patch. She admitted that the First accused was also drunk at that time. According to her the First accused had taken her behind the landlord's bathroom which is situated behind the landlord's house. At that time some people were in the landlord's house. The victim admitted she did not shout when the First accused took her behind the bathroom. She denied that she consented for sex with the accused. Although she passed several police stations before she reached home but reported the matter after two days of the incident. According to her the First accused's house is not so close to other houses but is situated just opposite his landlord's house. But she did not shout or scream when she was raped behind the landlord's bathroom. The bathroom is just 03 meters away from the landlord's front door. Before she left the First accused person's house she had changed her dress. She said that she can't remember whether she was with her undergarment when the First accused person's wife found her. She went to the First accused person's house again to collect her things. She admitted that she left the First accused's house as the landlady came in looking for her to chase her away from the First accused person's house. She also said that her sister told her to report the matter to the police.

[25] In the cross examination by counsel for the Second accused, the victim said she knocked out at the First accused's house and she did not know how she went to the cassava patch. She admitted that she did not inform the incident to Bure. The Second accused had raped her inside the First accused's house after closing her mouth. Victim said that she did not go away from the scene after the second incident happened behind the bathroom. The First accused called the Second accused when he brought the victim to his house. The landlady entered the house after she was raped by the Second accused. She left the house when the landlady entered the house. She could not take her things. She went away as the landlady entered the house angrily. She did not complain to the landlady at that time as she was frightened. She denied that she had sexual intercourse with the Second accused with consent. She further admitted that her sister had forced her to report the incident to the police. She said that she can't re-call what happened as she was fully drunk. 

[26] In the re-examination witness said that she did not shout as she was frightened. She could not run away from the scene as she was too weak. She did not complain to anybody at that time as she was frightened. She did not report to the police on that day as she wanted to go home first. She was well aware as to what happened to her on that day.

[27] Dr Unaisi Tabua [Mrs] had examined the victim on 18/12/2011 at the CWM Hospital. She is a MBBS qualified doctor and currently reading for her masters in Obstetrics and Gynaecology. The victim said that after X-Mas party on Wednesday (14/12/11) she went with her friends to Pauliasi's house in Narere, a drinking party of 09 people. Around 5pm she knocked out and woke up in the cassava patch with Pauliasi on top of her, having sex. When found by his wife, he ran off leaving her to the wife who punched her face and chest before leaving her there. A neighbour found her in the cassava patch and took her to his house and gave her dinner, when she came out she was met by 03 boys unknown to her who took her to the cassava patch and forced themselves on her and had sex with her and left her there. When she reached the road Pauliasi took her again to the cassava patch and force himself on her despite her refusing and took her to the house where again a friend Metui forced himself on her on the bed-she refused this people but too weak/drunk to run away. 

 [28] Doctor found love bite marks below her neck. Healing laceration was noted over introitus. Hymen remnant also noted. According to the doctor history is consistent with examination. Her hymen was not intact. Family counselling recommended.

[29] In the cross-examination by counsel for the First accused the doctor said that she examined the victim on 18/12/2011 after 4 days of the incident. As the healing wound indicated of an old injury she ruled out any injury sustained after the incident.

[30] In the cross-examination by counsel for the Second accused the doctor said that she checked the entire body of the victim during the examination. 

[31] Madam and Gentlemen Assessors disregard D/Sgt 1471 Falimaka's evidence as it is not relevant to this case now. 

[32] DC/2914 Tautu was the investigating officer in this case. He had conducted the investigations and compiled the docket. Though the victim complained on 17/12/2011 her statement was recorded on 19/12/2011. He said that the Second accused was interviewed under caution.

[33] After calling four witnesses prosecution closed their case.

[34] Defence was called and explained the rights of the accused. Accused persons elected to give evidence from the witness box and called one witness each.

[35] The First accused confirmed the evidence of the victim up to the commencement of the second session of drinking party at the First accused's house with other members. According to him he had consumed 50 classes of beer. As all got drunk the drinking party members except the victim and the Second accused left his place before getting dark. The second accused and the victim were sleeping in the house as both got knocked out. As per earlier discussion, he took the victim to the cassava patch. The cassava patch belongs to Bure and is about 3 meters away from his house. The victim laid down voluntarily and when he was about to lay on top of her his wife came to the spot yelling at them. He ran away leaving the victim there. When he came home his wife left the house and went to Raiwaqa. When he went to Bure's house he saw the victim seated among the members of the drinking party. He then took the victim to his house via a long route to avoid others seeing them. On their way the victim pulled him towards the bathroom of the landlord which is not far from his house. She lay down voluntarily and removed her clothes. He then had sex with the victim with consent. At that time lights were on but the place where they had sex was dark at that time. They both left for his house. When he entered the house the second accused was having his meal. At that time the landlady came in search of the victim. But the victim escaped though the rear door of the house. 

[36] In the cross-examination by the prosecution the First accused said that as the victim got drunk his wife helped her to wash and gave clothes to change. After the wash she and the Second accused slept in the house close to the kitchen. Although others went, victim did not want to leave the place. Accused said that he took the victim to the cassava patch with her consent and she removed her clothes there and gave consent to have sex with her. At that time she was not weak or surprised. The First accused further said that she consented for sex behind the landlord's bathroom. He denied that he closed the door when the victim entered his house and told the victim to hide when his landlady walked into his house.

[37] In the cross-examination by counsel for the Second accused, the First accused said he too got drunk on that day. He confirmed when he entered the house the Second accused was eating and his landlady walked into the house. 

[38] In the re-examination the First accused said when his wife came he was just kneeling down to the victim. He was scared as the landlady was angry with him and the victim on that day.

[39] Raijeli Bola, wife of the First accused was called next by the First accused. Confirming the arrival of the drinking group on 14/12/2011, she said that the group consumed about one carton of beer. As the victim and the Second accused were fully drunk both stayed in her house. She helped the victim to take a wash and she gave her clothes to change. The Second accused went to sleep at 5.30pm and the victim slept at 7.00pm. She then went for a smoke with her neighbour and hearing sound of bottles, she came home from the neighbours' house which is about 7 meters away from her house. On the way she had seen a couple lying under a Voivoi tree near the cassava plantation. As no light was there she wanted to pass the couple and when she said "Oe" the First accused stood up and ran away from there. He was wearing only a vest. She then saw the victim lying down wearing a T-shirt and an undergarment. She identified them through the light coming from other houses. The light condition was not so bright.

[40] In the cross-examination by the prosecution witness said the victim stayed back as she was too drunk. The light was enough to identify the First accused and the victim. According to her the First accused was about to go down on the victim when she raised cries. The victim was lying down but her arms were moving. She admitted that she assaulted the victim and informed the landlady about the incident.

[41] In the cross-examination by counsel for the Second accused the witness said when she helped the victim to take a bath she was walking on her own and was not staggering. 

[42] This is the end of the First accused person's case.

[43] The Second accused in his evidence said he knocked out at the First accused's house and only woke up when it was dark. While he was having food in the kitchen the First accused and the victim walked into the house. At the same time the landlady also walked in. She inquired about the girl and went into the house. Then she came back and told him what the First accused had done was wrong and his wife left the house. He denied having sex with the victim on that day. He only knew the victim for three weeks not three years as claimed by the victim.

[44] In the cross-examination by the prosecution witness denied that he pulled the victim by her hand when the First accused walked into the house with the victim. Also denied that he put her on the bed, closed her mouth and had sexual intercourse against her consent. He reiterated that the landlady came as soon as the First accused and victim entered the house.

[45] Anaseini Railoma the landlady gave evidence next on behalf of the Second accused. On 14/12/2011 the First accused's wife had informed her that the First accused and the victim were having an affair at the cassava patch. She had gone to the place with her daughter and saw the girl. At that moment she heard the fighting of the First accused and his wife. She called both of them to her house as her house is situated close by. When she saw the First accused and the victim in the First accused's bedroom she called the First accused from her house as she could see the First accused's bedroom from her bedroom. The distance between the two bedrooms is about 2 meters. After calling the First accused she went to the First accused's house in 1-2 seconds and saw the Second accused sitting down and eating. When she went towards the First accused's bedroom the victim was not there but had seen the back door was opened. She went very quickly as she was angry with the First accused. She was the landlady at that time. 

[46] In the cross-examination by prosecution witness said when she went there the First accused opened the door and the Second accused was eating. She said that she did not observe the girl much at the cassava patch as it was dark.

[47] In the cross-examination by counsel for the First accused witness said when she saw the girl the second time she was in the First accused's house. The cassava patch is about 3 meters away from her house.

[48] This is the end of the Second accused person's case. 

Analysis of the Evidence
[49] Madam and Gentlemen Assessors, in this case the victim gave evidence first. According to her she was raped by the First and Second accused on 14/12/2011. After the First accused and before the Second accused, three others also raped her but their identity was not revealed. The First accused takes up the position that he had sexual intercourse with victim behind the bathroom of the landlord with consent. He says that he could not have sexual intercourse with the victim at the cassava patch as his wife came there before the act. Although prosecution listed the First accused's wife and landlady as prosecution witnesses they were called by the defence as defence witnesses. According to the First accused's wife when she helped the victim to take a bath and change her clothes she was not fully drunk. Victim had a sleep before she was found in the cassava patch. At that time she was wearing a T-shirt and an undergarment. Further the First accused wife did not used a torch to identify the couple as claimed by the victim. Though she had the opportunity to inform Bure, the First accused's wife and landlady but she did not do so. Victim said that she went again to the First accused's house to take her belongings. But she had already changed her clothes before the incident. The Second accused took up the position when the First accused and the victim entered the house he was having his food in the kitchen. This was confirmed by the landlady in her evidence. Landlady entered the house immediately after the victim entered the house with the First accused. The First accused's wife complained to the landlady that the First accused and the victim were having an affair and she went away from the house. Although victim said that she reported the incident in two days after her sister's insistent, she was examined by the doctor after 4 days and her statement was recorded after 5 days of the incident. She had told the doctor that the second incident happened at the cassava patch. As assessors and judges of facts, you have to consider this evidence very carefully.

[50] The doctor has expressed her opinion that the findings are consistent with the history. Considering the age of the injury over introitus, she ruled out any sexual activity after the incident. 

[51] Madam and Gentlemen Assessors, although investigating officer mentioned about the caution interview statement of the Second accused it was not tendered to this court.

[52] In this case the accused is charged for rape contrary to Sections 207(1) (2) (a) of the Crimes Decree No: 44 of 2009. I have already explained to you about the charge and its ingredients.

[53] Madam and Gentlemen Assessors, in this case both accused persons opted to give evidence from witness box and called one witness each. That is their right. But they have nothing to prove to you.

[54] I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every items of evidence and you should remind yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence. 

[55] You have heard all the prosecution and defence 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.

[56] 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 the accused persons.

[57] Madam and Gentlemen Assessors, as per Section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases. 

[58] Madam and Gentlemen 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.

[59] 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.

[60] 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. 

[61] Any re-direction? 

 I thank you for your patient hearing to my summing- up.

P Kumararatnam
JUDGE

At Suva
16/06/2014