IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 115 OF 2010

BETWEEN:

STATE

AND:

TALEMO BOLA

Counsel : Ms. P. Madanavosa for the State
Mr. M. Fesaitu for the Accused

Date of Hearing : 15th, 16th, 18th September 2014
Date of Summing Up : 19th September 2014

SUMMING UP

[With the request of the Prosecution the name and the identity of the victim are already been ordered to be suppressed. She will be called Ms. F.V.]

1.	ROLE OF THE JUDGE AND ASSESSORS.

Madam Assessors and Gentleman Assessor:

(i)	The evidence for the prosecution and the defence have been led and concluded. There will be no more evidence. The learned Counsel for both parties made their closing addresses to you. It is now my duty to sum up the case to you. After my summing up you will be asked to retire for your deliberations. Once, each of you, madam assessors and gentleman assessor, reach to a conclusion on the final verdict, the court will re-convene and your individual opinion will be asked. At any time, you will not be asked to give reasons for your opinions. The opinions of you three need not to be unanimous. Nevertheless, it would be desirable if you could agree on the final opinion. As the presiding judge of this case, though I am not bound by your opinions in delivering the final judgment of the court, I assure you, that your opinions will carry a great weight with me when I deliver my judgment.

(ii)	In my Summing Up I will direct you on the relevant areas of law which apply to this particular instance. You must accept that legal position and act upon that. In another words, you must apply the law as I direct you to the facts of this case. Facts, as you heard and saw in this court room, are entirely within your domain. You are the masters of the facts or judges of the facts of this case. It is your duty to determine what exactly happened on 29th May 2010, based on the facts of the case. The alleged victim says that she did not consent to any of the sexual acts performed by the accused. The accused says that the alleged sexual acts never took place. Therefore, you have to decide at the end of the day, whose version you are going to accept and believe.

(iii)	In reaching to your final opinion, you have to rely on the evidence you saw and heard, from the witness box and the documentary evidence tendered in court, and nothing else. You should simply disregard what you saw or heard from the printed or electronic media regarding this case before or during the trial if there were any. At the same time, any views or opinions expressed by your friends, family members, relatives or anybody should face the same fate. It is you who have to draw your own conclusions based on the evidence of this case. The learned counsel for the prosecution and defence, while making their closing submissions highlighted certain facts and tried to formulate their opinions according to their own case theories. You need not to accept either of those versions unless you agree with those. Same principle applies to me as well. If I express any opinion or appear to do so regarding any facts, do not follow it, simply because it came out of the Judge. It is solely your task to form your own opinions. In my summing up I might not touch all the areas or evidence which you think to be important. Please feel free to give due consideration to all the evidence you see fit, though I mention it or not.

(iv)	You have to decide the credibility and truthfulness of each and every witness. In doing so, you can rely not only what you heard, but what you saw as well. The way witnesses offered evidence from the witness box, how they face the cross-examination of the opposing counsel, for instance, were they firm on their stand or evasive, can be helpful in determining their demeanour and in turn to judge their credibility as well. I would like to emphasis that madam assessors and gentleman assessor, you were chosen to be judges of the facts of this trial as you represent a cross section of the pulse of the society. Your common sense and the experience in day to day life must come into operation when you deliberate this case. That common sense and the life experience have to be utilized in deciding or assessing the truthfulness or honesty of witnesses. In that task, you have the liberty to accept the whole version of a testimony of a witness or a portion of that testimony and reject the rest. You can refuse to accept even the whole testimony of a witness.

(v)	Coming back to the issue before hand, I must inform you that you must not be prejudiced or sympathetic towards anybody or any party involved in this case. The alleged victim in this case was a school girl at the time of the incidents, whilst the accused was a teacher of her school. This back ground does not warrant for you to be sympathetic towards the complainant girl or be harsh on the accused. You would recall that at one point of time when the accused was offering evidence he was emotional and burst into tears. You cannot be carried away by any of these things. Your final opinion should not be tainted with passion towards anybody. Anyway, remind yourselves the oath that you administered at the commencement of this process.

1.	THE BURDEN OF PROOF

(i)	When approaching the matter in hand, you madam assessors and gentleman assessor, I would like to draw your attention to certain basic rules which govern our criminal justice system. The accused is presumed to be innocent, though he is charged before this court with three counts of Rape, until he is found guilty by this court. Proving his guilt is the sole burden of the prosecution, as it was the prosecution, who accuses the accused of committing the offence of Rape. The duty of the prosecution to prove the case against the accused continues throughout the trial and it never shifts to the accused. The law does not impose any obligation or duty upon the accused to prove his innocence or otherwise.

(ii)	When proving the case against the accused, the law expects the prosecution to prove it beyond reasonable doubt. That means the prosecution must prove the case for you to be 'sure' of the guilt of the accused and nothing else will discharge their burden. There is no specific formula where you can have a mathematical precision to be 'sure'. It is all about your day to day experiences and common sense come into play once again. The ultimatum is that you, madam assessors and gentleman assessor, must be 'sure' of the guilt of the accused based on the presented evidence in court by the prosecution. If you have a 'reasonable doubt' over the guilt of the accused that benefit should immediately be awarded to the accused. Such a doubt, as stated, should definitely be a 'reasonable doubt'. A mere possible doubt or trivial and imaginary doubts will not create a reasonable doubt. It should be an actual or substantial doubt which shakes the foundation of the case of the prosecution. The doubts should stem out of the evidence what you saw and heard in court.

2.	THE INFORMATION

(i)	The Director of Public Prosecutions, on behalf of the State has charged the accused for the following count of Rape.

First Count
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

TALEMO BOLA on the 29th day of May 2010 at Vunisea, Kadavu in the Central Division had carnal knowledge of F.V. without her consent.

Second Count
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

TALEMO BOLA on the 29th day of May 2010 in a second incident separate from the first count at Vunisea, Kadavu in the Central Division had carnal knowledge of F.V. without her consent.

Third Count
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

TALEMO BOLA on the 29th day of May 2010 in a third incident separate from the first and second counts at Vunisea, Kadavu in the Central Division had carnal knowledge of F.V. without her consent.

3.	ELEMENTS OF THE OFFENCE

(i)	The charge against the accused is based on Section 207 (1) (2) (a) of the Crimes Decree 2009. For the prosecution to bring home this charge successfully, they have to prove the following elements in the charge.

•	The accused, (Talemo Bola in this instance)
•	had the carnal knowledge with the complainant (Ms. F.V. in this instance)
•	without her consent.

(ii)	You madam assessors and gentleman assessor know by now that the accused totally denies the allegations. That means all these elements are been disputed by the defence. The term 'carnal knowledge' is used in the same context of 'sexual intercourse' and the moment prosecution proves beyond reasonable doubt or the accused agrees that penis of the accused penetrated the complainant's vagina, may it be a slightest of penetrations, the element of 'carnal knowledge' is proved. Therefore, ejaculation inside the vagina is not a 'must' to prove the penetration. 

(iii)	The next essential element in this case is the 'consent' of the complainant to have sexual intercourse with the accused. 'Consent' must be freely and voluntarily given by a person, (Ms. FV in this case) with the necessary mental capacity, to have the alleged sexual intercourse. As a matter of law I am directing you that the 'consent' is not freely and voluntarily given if it is obtained by false and fraudulent representations about the nature and purpose of the act or sexual intercourse. Furthermore, if the consent was obtained by exercise of the authority of the accused, it is not a free and voluntary 'consent'. Therefore, 'consent' is not proper or legitimate in the eyes of law, though it is visible on the face of it, had it been obtained in such a manner described above. I direct you that the complainant, Ms. F.V., was over 13 years of age at the time of the alleged sexual acts and thus, she is capable of giving consent to have sexual intercourse as there is no evidence to say that she did not possess the requisite mental capacity to consent. 

(iv)	As a matter of law, I am directing you that there is no need to look for any corroboration of the complainant's evidence for an accused to be convicted on a charge of 'Rape'. If the evidence of the complainant is so convincible that you can place your reliance beyond reasonable doubt, you can solely act upon it even in the absence of any corroborative evidence.As a matter of law I am directing you that the absence of injuries or remarks for physical resistance on the complainant does not necessarily mean that she 'consented' to the sexual acts.

(v)	There are three charges laid down by the prosecution against the accused. All these charges should be proved beyond reasonable doubt or to your fullest satisfaction by the prosecution. That means the prosecution has to produce evidence to satisfy you on all the charges separately and you have to assess the evidence separately for each charge. Thus, it is practically possible for you to reach different opinions on different charges.

4.	AGREED FACTS

(i)	The following facts are been agreed between the prosecution and the defence at the beginning of this trial. Thus, the prosecution is relieved from proving those facts. You madam assessors and gentleman assessor can positively assume that the prosecution has proved those facts beyond reasonable doubt.

•	That F.V. ("hereinafter known as the Complainant") was 17 years old and a Form 6 student at Vunisea Secondary School in Kadavu at the time of the alleged raped on 29th May 2010.

•	That Talemo Bola ("hereinafter known as the Accused") was the Computer Science Teacher at Vunisea Secondary School at the time of the alleged incident.

•	That the Complainant resided at the Vunisea Secondary School compound in Vunisea, Kadavu during the time of the alleged incident.

•	That the accused resided also at the Vunisea Secondary School compound at the time of the alleged incident but would otherwise usually reside at 146 Fletcher Road, Vatuwaqa.

•	That the accused has two (2) children.

5.	THE CASE OF THE PROSECUTION

(i)	The Complainant in this case is Ms. F.V. She was a Form 6 student in Vunisea Secondary School in year 2010. She said that she was in the school boarding or the hostel. She recalled 29th May 2010 and said around 6.00pm, when she was on the way to dining hall to have dinner with Lutuitewa, her cousin, who was also a student of the same school,Lilivio and Wainikiti, two other girls had approached them and told that Master Bola, the accused wants to see her. Then Ms. F.V. and her cousin had gone to the computer lab to meet the accused.

(ii)	Upon reaching the lab, she had asked the accused what he wants from her. He had not responded. As the bell for the dinner had rung, they had turned back to go. The accused had then told that he wants to see her. She had opened the lab door, gone inside the lab and sat on a stool beside the accused. She said that the accused showed her the computer, which reflected some names. According to her, the accused then stood up, walked to the door, closed it and came to her after removing his T-Shirt. He had switched off the light before come to her. She said that he then forcefully pushed her to the back of the lab and pushed her on the ground whilst trying to remove her skirt away. Though she had tried to push him away, he had managed to make her lie down on floor and pull down her panty and the skirt.

(iii)	Finally, she said that he managed to "spread her legs" and insert his penis into her vagina. He had started kissing her and made love bites on her neck. Even when he was kissing, Ms. F.V. said that she tried to get away from him but was futile. He had ejaculated inside her vagina. Ms. F.V. claimed that she was frightened during this first sexual intercourse because the dinner time was about to finish and she was concerned what would happened if other students come to know about this.

(iv)	Referring to the second sexual intercourse, Ms. F.V. told that after the first sexual act, she heard some students coming towards the computer lab after dinner. When she told this to the accused, she said that he swore at her. Mere, Rigi and Kalesi had then came to the lab and told her to come out before the Deputy head girl comes to know that she is inside the lab. They had been calling her from the corridor outside the lab. Accused had covered her mouth to prevent her responding to the calls of the said girls. Once they left Ms. F.V. claimed that he inserted his penis again into her vagina and ejaculated inside. She had tried to push him away, but failed to do so as she was weak.

(v)	Ms. F.V. said that, when Mere Rione came with a torch to look for her inside the lab, the accused was still on top of her body. Since they were lying on the floor after the last bench inside the lab, Ms. F.V. said that Mere could not see them. Accused had closed her mouth preventing her from making any noises during this time. Once Mere left, Ms. F.V. said that the accused inserted his penis into her vagina for the third time and ejaculated inside. She told court, by that time she was 'weak and frightened'.

(vi)	After this, the accused had asked Ms. F.V. to stand up and wear her clothes before they are been caught. He had then walked to the door after wearing his clothes. Ms. FV had then stood-up, sat for a while, worn her clothes and walked slowly towards the door. She told that she got angry and frightened when the accused at that point said her not to tell anybody of what happened. When she came outside, she had seen Mere, Rigi and Kalesi standing in front of Form 602 classroom, anticipating her. Though they asked her what had happened, she had not told them anything, but, gone for choir practices. After that, Ms. F.V. said that all the students went back to the hostel and she told everything to Tokasa, when she asked what happened in the Computer Lab.

(vii)	Ms. LutuitewaSawalu, the girl who accompanied Ms. F.V. to the Computer Lab on the day in issue was a Form 7 boarding student at Vunisea Secondary School, Kadavu. She said that when they were waiting for the dining bell to ring, they saw the accused inside the computer lab trying to close its door. As soon as Ms. F.V. saw him, Ms. Sawalu said that Ms. F.V. wanted to hide. Then, Ms. FV had told her to come with her to go to Master Bola or the accused. Ms. Sawalu had seen the accused typing something on computer through the window louvers. After the dinner bell rang, Ms. Sawalu had returned to the dining hall as Ms. F.V remained there with a call from the accused. At the dinner, Ms. Sawalu said that the head boy noticed the absence of Ms. F.V.

(viii)	After dinner, Ms. Sawalu had gone with another girl Ms. MereaniSenilagakali, to check Ms. FV. She had seen Mere, Rigi and Kalesi were also standing outside the computer lab. They have told these two girls to go for choir practices. Whilst the choir practices were going on, Ms. Sawalu had seen Ms. F.V. and the three girls who were waiting near the lab came for the practices. Ms. Sawalu claimed that Ms. FV looked worried with a 'red face' and once they reached the dormitory, Ms. F.V. told everyone the accused made love bites on her neck, tried to remove her panty and told that he will make her pregnant. Ms. Sawalu had witnessed the "love bites" on Ms. F.V.'s neck.

(ix)	Ms. Mere VakacoaRaione, the 'table leader' of Ms. F.V.'s dining table, confirmed the head girl asking her about Ms. FV's absence during the dinner on 29th May 2010. She had overheard one boy telling the head boy that Ms. F.V. is with the accused. After diner, Ms. Raione had gone to look for Ms. F.V. to the computer lab with Kalesi and Rigieta as she was worried of her. Though the light in the lab was not lighting, they had heard the lab door getting closed whilst they were climbing the stairs to reach the lab. They had heard some noises from the lab and in fact, ran away when they heard it. 

(x)	They had managed to get a torch from a student who was studying in a close by classroom and gone back to the lab. Once the torch was focused inside the lab through the window closer to the last bench, Ms. Raione said that she did not see anything. Another girl had called Ms. F.V.'s name, but for no response. Then they had gone to a dark place near the computer lab and waited for a 'bit long' to see what is happening inside the lab. Finally they had seen Ms. F.V. opened the door and came out of the lab. When they called her, Ms. Raione said, she was rather smiling and tried to pull her skirt properly. All of them had then gone to the dining hall for choir practices. Ms. Raione had noticed that Ms. F.V. was a bit ashamed, never talk much and quite or kept her head down. Ms. Raione's view was that it was like Ms. F.V. had "really did something and she is ashamed of that".

(xi)	The last witness of the prosecution was Ms. TokasaBuka. She had noticed that Ms. FV was absent during the dinner on 29th May 2010 and asked Ms. Raione about that. She had replied Ms. Buka that Ms. F.V. is in the Computer Lab. Even Ms. Buka had gone to the lab after dinner to see Ms. F.V. and there she had met Ms. Raione, Kalesi and Rigieta.

(xii)	Ms. Buka recalled what Ms. F.V. told her at the dormitory once they returned from choir practices. According to Ms. F.V., she had gone with Lutui to the computer lab as she was called by the accused. Once she went inside the lab and Lutui left, the accused had closed the door and thrown her on the floor to have sex. Ms. F.V. had refused to do so. Then the accused had covered her mouth, took off her clothes and made love bites on her neck. This is what Ms. F.V. had told Ms. Buka.

(xiii)	The Medical Examination Form of Ms. F.V. is been provided to you. That is been agreed upon between the parties. It reflects in the Agreed facts as well. The professional opinion of the medical practitioner was, that Ms. F.V. "have had sexual intercourse on several occasions before this incident. Hymen not intact. Love bites noted in D (12) probably was done during the intercourse on 29/05/2010."

6.	THE DEFENCE CASE

(i)	Madam assessors and gentleman assessor, you witnessed this court calling the defence from the accused at the end of the prosecution case. He opted to give evidence from the witness box, under oath and subject to cross examination. He totally denied the three allegations laid against him. But, he admitted Ms. F.V. and Ms. Lutuitewa came to the computer lab while he was doing an analysis inside the lab. He said that he got annoyed as Ms. F.V. sat beside him and switched on a computer without his permission. He claimed that then she asked him whether he was married or single and went to the extent of saying the dormitory is empty.

(ii)	Since it was irritating, the accused said that he told her off with some hard words like "Is this what you been doing in the village or school trying to get attention from teachers or villagers". The accused claimed that he got very crossed when Ms. F.V. kept on smiling for his comments as if nothing has happened. Then he had told her "Is this what you were taught by parents". Then she had started crying. Whilst denying that he ever asked Ms. F.V. to come to the lab, the accused said he then told Ms. F.V. not to cry.

(iii)	According to the accused, Ms. F.V. had left the lab by 6pm. Since he was "very very angry", he had gone to the men's dormitory at 6.07pm, as the computer screen indicated the time. He said that there is a problem in the computer lab door as it cannot be locked and anybody can open it. Two days after this incident, the accused said that he was called by the Principal to his office and told him about the allegation. He claimed that he told the Principal if it is serious, to have an investigation. Though he wanted to confront the girl, according to the accused, it was never done by the principal.

(iv)	The accused told court that he was reported to police by Master Matai, the sports teacher of the same school. He recalled a previous incident which took place between them where it was nearly ended up with a fist fight. With the tearful eyes, the accused said to court that he did not rape Ms. F.V. and he is telling the truth.

(v)	Mr. Poe Keleimavuadoka, the present Principal of Nasinu Secondary School testified on behalf of the defence. He confirmed receiving a written complaint from one teacher against the accused on an allegation of rape. When confronted with this allegation, Mr. Poe said that the accused denied it. Mr. Poe had then reported the matter to Ministry of Education in Suva and compiled a report over their request on the following day. The decision to transfer the accused to Suva, the witness said was taken by the Ministry. He admitted that he did not report the matter to police, but knows that Master Matai did so going against the procedures applicable to government servants.

7.	ANALYSIS

(i)	Madam assessors and gentleman assessor, you heard two conflicting versions about the same story from the alleged victim and the accused. Ms. F.V. claims that she was raped three times continuously by the accused inside the computer lab during the dinner time on 29th May 2010. The accused totally denied these allegations. Now, you have to decide whose version you are going to accept and believe.

(ii)	You would recall that Ms. F.V. told court that when she was on the way for dinner with Lutuitewa, her cousin, Lilivia and Wainikiti, two other school mates told her that the accused called her to the computer lab and that is why she went to see the accused to the lab. Ms. LutuitewaSawalu told court that when Ms. F.V. saw the accused trying to close the lab door from inside, she wanted to hide and it was only then Ms. F.V. told her that they should go to the accused. The accused did not dispute the fact that these two girls came inside the lab while he was doing some work. It is from this point the whole episode starts. Therefore, madam assessors and gentleman assessor, it would be helpful for you to have a clear view of this point before proceeding further.

(iii)	It might be important for you madam assessors and gentleman assessor to recall the evidence in respect of the way Ms. F.V. left the computer lab. Ms. F.V. said that after the alleged three sexual acts, she got herself dressed over the request of the accused whilst he was standing at the door. She said that the accused told her not to tell anyone what has happened when she came outside. Then she had seen Mere, Rigieta and Kalesi standing in front of 602 classroom. Ms. Raione told court that whilst they were waiting in a dark place close by to the lab, they saw Ms. F.V. opened the lab door and coming towards them, smiling and trying to pull her skirt properly. She confirmed that they did not see anybody else coming out of the lab along with Ms. F.V. On the other hand, the accused said that Ms. F.V. left the lab around 6.00pm after he "told off" to her and he himself left the lab at 6.07pm. Then the prosecution suggested the key to lab is only with the accused. Ms. Raione told she saw Ms. F.V. coming out of the lab by opening the door. The accused said that the door cannot be locked properly and anybody can open it. After considering all these factors, you can now decide whose narration you are going to rely upon.

(iv)	Then Madam assessors and gentleman assessor, the evidence of the subsequent conduct of Ms. F.V. will also help you to deliberate your opinions. Ms. Rione told court that when she came out of the lab, she was smiling and trying to pull her skirt properly and she felt like Ms. F.V. did something that she is ashamed of. Ms. Sawalu told Court that Ms. F.V. looked worried with a red face and told everybody once she returned to the dormitory about how the accused tried to remove her panty, made love bites on her neck and his comment of making her pregnant. Ms. TokasaBuka had also told by Ms. F.V. up to the point of accused making love bites on her neck and removing her clothes. Both, Ms. Sawalu and Ms. Buka did not speak of any sexual intercourse. The prosecution tried to prove that Ms. F.V. narrated her experience to others soon after the incident. In contrary, defence argued that what she told to fellow students was not what she alleged to police and court. Now it is left to you madam assessors and gentleman assessor to decide what weight you are going to attach to the genuineness of the 'subsequent conduct' of Ms. F.V.

(v)	The 'love bites' on the neck of Ms. F.V. received a considerable attention throughout the trial. Some prosecution witnesses confirmed witnessing the so called 'love bites' on Ms. F.V's neck. Even the medical report says so. According to prosecution, these 'love bites' are a clear indication to confirm Ms. F.V.'s allegations against the accused. The defence, referring to Professional opinion in the Medical Report, argued the alleged love bites could have caused in a different way. It is true that if the doctor offered evidence, a better picture could have been drawn about the 'love bites'. Since the Medical Report is an agreed fact, doctor is not called to testify. Even the doctor was present in court and offered evidence, it will be left to you to decide whether you are going to accept the doctors version or what he stated in the Medical Report. Therefore, now you have to determine the value that you are going to attach to this piece of evidence when assessing the evidence of Ms. F.V.

(vi)	Finally, the accused claimed that it was Master Matai, the sports teacher of the same school reported this matter to police. Ms. F.V. agreed that she was forced by Master Matai to report this incident and after about three times she agreed to do so. Mr. Foe, the school principal during that time also said he followed the departmental procedures and informed this incident to the Ministry but not to police. The accused told you one incident to show you why this 'Matai' had this 'motive' to put him in trouble. Now you can decide what weight your will give to this claim by the defence in respect of ill motive of Matai towards accused.

8.	SUMMARY

(i)	I remind you once again that the accused need not to prove anything to show his innocence. The fact you do not believe his version, does not necessarily mean that he is guilty of the charges. The prosecution still must prove the charges beyond reasonable doubt or to your fullest satisfaction over the guilt of the accused. If you have any reasonable doubt on the case of prosecution, you have to find the accused 'NOT GUILTY'.

(ii)	Finally, I recall the instruction I gave you in my opening address. I hope you approached this case with an open mind. The accused is presumed to be innocent until proven guilty by a court of law. Thus, if you are satisfied beyond reasonable doubt or for sure that the prosecution has proved its case, you must find the accused guilty to the charges of Rape. If you are not sure of the guilt of the accused after having analyzed the evidence of the prosecution, you must find him 'NOT GUILTY'.

(iii)	Your possible opinions in this instance are 'GUILTY or 'NOT GUILTY' to the charges of Rape.

(iv)	You may now retire to deliberate your opinions. When you are ready with the opinions, I will reconvene the court and ask your individual opinion.

(v)	Any re-directions or additions to what I said in my summing up Ms. Madanavosa and Mr. Fesaitu?

JanakaBandara
Judge

At Suva
Officer of the Director of Prosecution for State
Office of the Legal Aid Commission for the Accused