PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2014 >> [2014] FJHC 82

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

State v Sovau - Summing Up [2014] FJHC 82; HAC079.2011 (21 February 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO.: HAC 079 of 2011


BETWEEN:


THE STATE
COMPLAINANT


AND:


VUNIYANI SOVAU
ACCUSED


Counsel : Ms. M. Fong with Ms. D. Kumar for the State
: Ms. V Tamanisau with Ms. P. Chand for the Accused


Date of Hearing : 17th, 18th, 19th and 20th February 2014
Date of Summing Up: 21st February 2014


SUMMING UP


Madam Assessors and Gentleman Assessor,


  1. ROLE OF JUDGE AND ASSESSORS.
(i) You had the privilege of hearing all the evidence led in this trial, both by the Prosecution and the Defence. You have heard both the Learned Prosecutor and the Learned Defence Counsel making their closing addresses to you. The final step before you retire for your deliberations is the Summing Up from me. In my Summing Up, I will direct you on matters of Law, which you must accept as correct and act upon it. You must apply the law as I direct you, as throughout the trial, "the law" has been my area of responsibility.

(ii) In as much as I am entrusted with the responsibility of the area of "Law", Madam Assessors and Gentleman Assessor, you hold the responsibility of the "facts". You are Judges of the facts. It is you who should decide whose evidence is to be relied upon, what evidence is to be accepted, what weight is to put on a particular piece of evidence, etc.

(iii) Therefore, if I express any particular view or opinion or if I appear to do so about the facts of this case in my summing up it is solely a matter for you to decide whether or not to accept what I say. You can either agree with my contention or ignore the same and formulate your own opinions. In the same vein, Counsel for the Prosecution and Defence have already addressed you on the facts, but once again, you need not adopt their views of the facts, unless you do agree with their contention and analysis. The Counsel have a right to make such comments when performing their roles and duties. If you strongly think that those comments and analysis do appeal to your common sense and judgment, you are free to use them as you see fit. But, when I direct you on the Law and legal principles, you have to accept that as true and accurate and should act upon that. In the same vein, I might overlook or omit certain evidence, which in your analysis, is important. You can formulate your own opinions by giving due consideration to any piece of evidence as you think necessary.

(iv) You have to take into account all the evidence, both oral and documentary. You can accept all of what a witness says or reject all or accept a portion of it and reject the rest. As judges of facts, you are the masters of what to accept from the evidence placed before this court. You will not at any time be asked to give reasons for your opinions. Your opinions need not be unanimous. But it would be desirable if you three can agree upon on the final decision. As the Judge who is presiding in this case, your opinions are not binding on me, but, I assure you that I will give your opinions full weight when I decide the final judgment of the Court.

(v) It is of utmost importance that you must judge or reach to a decision of this case solely based on the evidence that you heard and saw in this court room and nothing else. There will be no more evidence. You may have read or seen about this case in the printed or electronic media or elsewhere before or during the trial. You must totally disregard those. It is your duty to apply the law or the legal principles, which I am going to explain to you in a short while in respect of the evidence you have heard and saw within the four corners of this court house.
  1. THE BURDEN AND STANDARD OF PROOF
(i) Before reminding and analyzing the already lead evidence in this court, it is my duty to enlighten you on several legal principles, which are involved in a criminal trial. Firstly, the issue of 'PROOF'. As a matter of law, I must direct you that the responsibility or the onus of proving the case against the Accused rests upon the Prosecution. That is a continuing responsibility casts upon the prosecution throughout the trial and it never shifts to the Accused. There is no obligation or duty upon the Accused to prove anything, including his innocence or otherwise. Accused, though charged before a court of law, is presumed to be innocent until he is found guilty by a competent court of law.

(ii) What is the standard that the Prosecution has to adopt in proving the case against the Accused? In legal literature, it is said that "the Prosecution should prove its case against the Accused beyond reasonable doubt". Its simplified meaning is that if you are to find the Accused guilty of the offence charged, you must be satisfied to an extent where you are sure of his guilt. I re-iterate, that you must be "sure" of the guilt and nothing less will do. There is no mathematically proven formula for you to be "sure". In the final analysis, it rests on the robust common sense of yours, which should not be fixed from over emotional responses.

(iii) If you have any reasonable doubt, the benefit of such doubt should be given to the Accused. Then it is your duty to express an opinion of "NOT GUILTY". But, it has to be borne in mind that such 'doubts' must be 'reasonable'. If it is to be 'reasonable', it should be actual and substantial doubts as to the guilt of the Accused which arose from the evidence and it should not be an imaginary or trivial or a merely possible doubt. The doubt, if the Accused is going to have any benefit, should be based upon reason and common sense grown out of the evidence.

(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 act.

(v) You would recall that the accused is an uncle of Mr. Ratu Peni and a cousin of Mr. Mosese Koro. Ms. Emi is the wife of Mr. Ratu Peni. Eventhough Mr. Peni and Ms. Emi were called by the prosecution, all 3 witnesses can be considered as close relatives of the accused. There is no such prohibition or obstacle in law for a relative of an accused person to testify in court, either in favour of the accused or otherwise. Still for all, their relationship obviously creates 'some interest' towards the accused. As a matter of law I am directing you that being a relative of the accused is not a ground to reject the evidence of a witness. It is always safe to scrutinize their evidence closely before you decide to accept or reject. If their testimonies, according to your final analysis, are credible and appeal to your conscience, there is no reason to disbelieve the same.
  1. THE INFORMATION
(i) You have been provided with a copy of the information. Please read it now.

"VUNIYANI SOVAU is charged with the following offence:


Statement of Offence


RAPE: contrary to section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.


Particulars of the Offence


VUNIYANI SOVAU on the 5th day of March, 2011, at Nasinu in the Central Division, had carnal knowledge of VANI VEIUSAYAKI without her consent."


  1. 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.

(ii) Carnal knowledge or sexual intercourse is proved when the penis of the Accused has penetrated the complainant's vagina. In the eyes of law, even a slightest penetration of the complainant's vagina by the penis of the Accused is sufficed to establish "sexual intercourse". Ejaculation is irrelevant and not essential in proving the "penetration". In this instance, 'penetration' is not a contested issue, as both parties have agreed on that.

(iii) If the complainant agrees freely and voluntarily out of her own free will to perform the sexual intercourse in issue, she is said to have 'consented' to the alleged sexual act. But, if that 'consent' was obtained by force or threat or intimidation or putting her in fear of bodily harm, that is not a "free and voluntary" consent on the part of the complainant. It is this 'consent' is disputed by the parties in this trial.

(iv) At the same time, the Accused must know that the complainant was not consenting to have sex at the time in issue or that he was reckless in having sexual intercourse with her without knowing whether she was consenting to the act or not. The issue you have to answer in this instance is "Did the Accused rape the complainant on 5th day of March 2011?". The prosecution has to prove the element of the charge and you have to assess the evidence against the charge.

5. AGREED FACTS


(i) Both the Prosecution and the Defence have agreed upon the following facts. Thus the prosecution need not prove those facts in court and you can assume that the prosecution has positively proved the said facts.
  1. THE CASE OF THE PROSECUTION
(i) The 1st witness for the prosecution was Ms. Vani Veiusayaki, the complainant. She was employed in 'Matua Taxi' as an Operator from 2008 – 2011. She recognized the accused as a driver of 'Matua Taxi' during this period. She recalled 5th of March 2011 and said her working shift started on 4th March at 8pm to 8am on the following day.

(ii) After her working hours, she had grog for about one hour with Vuniyani (accused), Tevita, Netani, Mareta, Joji and Mosese, the drivers of the taxi base and thereafter gone to MH Super Fresh to buy beer. The gang had beer for about 1 hour at the back of the Supermarket. At that point, a fight had erupted between one Tomu and the accused. Later, Tomu had been taken to the hospital by Mosese and Mareta as his nose was bleeding.

(iii) The rest of the group, Ms. Vani, Vuniyani (accused), Tevita and Netani had called for a cab and boarded to first go to Vatuwaqa to drop Vuniyani (accused) and Netani. It was only Netani who got off from Vatuwaqa followed by Tevita at the Horse Race Shop in Nabua. One Uraia was the driver of the hired cab and the complainant had asked him to drop her at Namadi. Instead, Uraia had followed the directives of the accused and proceeded to Narere. The complainant claimed that she was slapped by the accused inside the car when she kept on telling to drop her at Namadi.

(iv) After reaching Omkar Road, Narere, the accused had first gone alone to one Emi's house and came back whilst the complainant was in the cab. Then she had been pulled by the accused and taken to Emi's house. The complainant had seen all the family members of Emi were there getting ready to have lunch. The accused had gone to one room and started calling the complainant. Then she said, Emi also told her to go to the accused and whilst she was waiting in the sitting area without going to the accused because of fear, the accused had come out angrily and taken her to the room. Then the accused had asked her to lock the door.

(v) Describing the final phase of events, the complainant said that she was forced by the accused to lie down and remove all her clothes. She had failed in removing him from the top of her body as he was 'heavy'. Then the accused had lifted her both legs to his shoulders and had sexual intercourse. She said that she just lay down during this sexual intercourse as she was afraid and scared of the accused. She had failed to call her boyfriend as the accused had thrown her mobile away when she tried to do so. After the alleged forceful sexual intercourse, the accused had fallen asleep and the complainant, after wearing her clothes and finding her phone, had come out to the room with her handbag. Even though, Emi and her husband were outside or in their sitting area, the complainant had not told anything about this 'incident' to them. She had been scared to talk against the accused with them because she knew that the accused is related to Emi's husband. After coming out of Emi's house, she had run towards the road and got into a taxi to reach Hanson's Supermarket. From Hansson's she had taken a Mini Bus and gone straight to Nabua Police Station to report this incident. The complainant tendered the Medical Examination Form which was prepared after she was examined by a Medical Practitioner upon reporting the matter to the police as Prosecution Exhibit No. 1.

(vi) Ratu Peni Sauturaga was the 2nd prosecution witness. Accused is the uncle of this witness from his mother's side. Emi is his wife. He recalled that the accused came to his house one day with Vani, the complainant. Peni had noticed that the accused was drunk as was smelling liquor. After Vani, accused, Peni and his wife were talking for a while at the sitting area, the accused had left to the room and started calling the complainant by her name for about 3 times. Then the complainant had gone to the room. Peni had noticed that Vani looked normal. Later on she had come back and left his house saying that she is going because his uncle is already sleeping.

(vii) Ms. Emi Sauturaga was offered to the stand by the prosecution allowing the defence to cross examine her. In re-examination, Ms. Emi said that she told Vani to obey the accused as he was drunk and if he starts fighting, the owner of their house will chase them out of the house. She also said that the accused smelt liquor and was injured. Ms. Emi confirmed that Vani went inside the room first where the accused was and she followed Vani. She had closed the room door and left the room on the request of the accused. Finally, she said that Vani, when leaving her house, did not even say 'good bye' to her.

(viii) Detective Corporal 3175, Roy Senibici was the Interviewing Officer of the accused. He had interviewed the accused under caution on 6th and 7th of March 2011. The police officer confirmed that the accused was offered all his legal rights before the interview commenced. Prosecution Exhibit No. 2, the Caution Interview Statement of the accused was read in open court by this witness. The copies of the same are made available for your perusal.

(ix) Uraia Kalomau, the taxi driver who dropped Ms. Vani and the accused to Narere was the next prosecution witness. He confirmed that he went to MH Super Fresh on 5th of March 2011 to pick Vani, accused, Tevita and another person. Then he had dropped 'that person' at Vatuwaqa and Tevita at Nabua. When he was passing Kinoya, Vani had told him to drop her there but, the accused had told him both him and Vani are going to Narere. Uraia said that the accused was drunk and spoke like a drunkard man. The accused had told him that "We are going to Narere". Vani had not responded to this. He had heard a noise like 'slapping' at least less than 3 times from the back whilst driving to Narere.

(x) After reaching Omkar road, Narere, the accused had got off the taxi with Vani's handbag whilst she remained inside. Before reaching the house, the accused had called Vani to come. Mr. Uraia said that at that point he told Vani that they should go back. Vani had not responded to Uraia and remained inside the car. When Uraia started the engine to leave the place, Vani had got off from the taxi and by the time he turned the car, he had not seen both Vani and the accused on road.

(xi) Detective Corporal 3701, Epeli, the Investigating Officer was the last witness of the prosecution. He said that Ms. Vani, the complainant had lodged her report at Nabua Police Station and later it was referred to Nasinu Police Station as the alleged incident had taken place in Nasinu police area. He had visited the scene, recorded the statements of the witnesses and taken exhibits, such as the clothes of the complainant to his custody. Further, he had been the witnessing officer of the Cautioned Interview of the accused.

(xii) That is the summary of the case of the prosecution. After the prosecution closed its case, the court decided to call the defence.
  1. THE DEFENCE CASE
(i) Mr. Vuniyani Sovau, the accused opted to give evidence from the witness box, under oath, subject to cross examination. He said that he had a girlfriend – boyfriend kind of a relationship with Ms. Vani since 2010 up to this incident. He claimed that it was a 'sexual relationship' and apart from this incident they had 'sex' many times in Mosese's house and even inside the car.

(ii) The accused basically confirmed the sequence of events on 5th of March 2011 narrated by the complainant from the point of grog session at the taxi base to Narere. The only dispute was applying any force by him to Ms. Vani to have the sexual intercourse. He denied holding Vani whilst travelling in the car, pulling her out of the taxi when it reached at Narere or forcing her to the bedroom and the sexual intercourse. Finally, he said that he has no idea why she made this allegation against him.

(iii) Mr. Mosese Koro, a cousin of the accused testified on behalf of the accused to say that the accused did come to his house in Nanuku with Vani for several times and even spent the nights as well. He said that whenever both of them come to his house they sleep together and the impression that he got is that they are sharing a 'boyfriend – girlfriend' kind of a relationship.
  1. ANALYSIS OF THE EVIDENCE

Madam assessors and gentleman assessor,


(ii) It is clear from both sides of the story that they do not dispute the alleged sexual intercourse took place on 5th March 2011 in Emi's house at Narere. The conflict is with the 'consent' of the complainant. Ms. Vani vehemently denies that she consented to have sexual intercourse with the accused on that day, but surrendered herself to the accused due to fear and pressure.

(iii) The learned prosecutor argued that Ms. Vani's fear psychosis developed by seeing the accused's first attack to Tomu and the violent behavior of him inside the car. She said, the alien environment of Omkar Road, Narere and the compound of accused's relatives made the complainant more vulnerable. In support of this contention, the prosecution argued that Uraia heard the noices of slapping from the back of the car and the complainant rushed to Nabua police station from Emi's house, without even saying 'goodbye' to Emi.

(iv) You would recall the complainant went on to say that she insisted with Uraia that she wanted to go to Namadi and not Narere. She stressed that Uraia did not listen to her request and when she was inside the taxi, the accused opened the door and pulled her out. Then even at Emi's house, the accused had forcefully taken her inside the room when she did not respond to his calls. It is now left to you madam assessors and gentleman assessor to believe whether the complainant tells the truth or not.

(v) In contrary, the defence claims that Ms. Vani was a willing and consensual participant to the 'sexual intercourse' in issue. The accused went to the extent to say that he shared a sexual relationship with the complainant and had sexual intercourse with her many a times. He brought Mr. Mosese Koro, one of his cousin's to support this contention. Mr. Mosese confirmed the visits of the accused and Ms. Vani to his house and even spending nights. Madam assessors and gentleman assessor you have to decide the weight that you are going to attach to Mr. Mosese's evidence.

(vi) Then remains the evidence of Mr. Ratu Peni and his wife Ms. Emi Sauturaga. Both of them testified to the effect that the accused and complainant came to their home on 5th of March 2011 and they did notice Ms. Vani to be 'normal' in her behavior. They said that Ms. Vani was talking with them in the sitting area before going inside the room where the accused was waiting for her. Ms. Emi said that her elder sister is married to Ms. Vani's eldest brother. Ms. Emi went on to say that she showed Ms. Vani the toilet and accompanied Ms. Vani to the room where the accused was. Ms. Emi told court that when Ms. Vani came out of the room, she said that she is going as 'uncle is sleeping'. This was told by Mr. Ratu Peni as well. Nevertheless, Ms. Emi said that Ms. Vani did not even say 'goodbye' when leaving the house.

(vii) Ms. Vani categorically rejected that she is related to Ms. Emi, but said that Ms. Emi's elder sister is married to a man from her village. Ms. Vani admitted that she had a nice chat with Ms. Emi and her husband, before the accused pulled her to a room but, did not tell them as to what exactly happened to her as she was scared to rely on the relatives of the accused. At one point, Ms. Vani highlighted that she could not escape from Ms. Emi's house as the accused was keeping her handbag which contained her wallet with money. Mr. Ratu Peni once said that Ms. Vani took the handbag which was kept in the sitting area when she left the house. Then again he said that the handbag was taken inside the room by his uncle/accused. Ms. Emi said it was she who gave the handbag and her shoes to Ms. Vani when she came out of the room. The learned defence counsel suggested that Ms. Vani's conduct over the handbag is rather unacceptable as she had given undue prominence to the handbag, had her life was in a real threat or danger. Now it is your turn to analyse all these aspects and decide whether you are going to believe Mr. Peni's and Ms. Emi's evidence to be credible.

(viii) Finally, we come to Mr. Uraia's evidence. He said that his suggestion to Ms. Vani to leave Omkar Road, Narere when the accused got off from the taxi was not responded by her and instead, she got off from the taxi when he started the engine. Going a step further, he said in fact, he called her mobile in the evening and spoke with her for several minutes as he was informed by one of his workmates that Ms. Vani had gone to the police station. But, Ms. Vani did not accept or endorse what Mr. Uraia said. It was this same witness said that he heard 'slapping' from the back whilst only the accused and the complainant were inside the car. The weight to be given to Mr. Uraia's evidence has to be decided by you.
  1. SUMMARY
(i) In essence, madam assessors and gentleman assessor, you are confronted with two different versions to say how the 'sexual intercourse' took place. At this juncture, I have to tell you once again that there is no burden on the accused whatsoever to prove anything. He need not to prove that he is innocent. Nevertheless, the accused in this instance put forward his side of the story to you. It is entirely up to you to accept or reject it. If you decide to reject the accused's story that does not necessarily mean the prosecution has proven the case. The prosecution still must prove all the elements of the offence to your fullest satisfaction.

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

(iii) You may now retire to consider your opinions. When you are ready, you may inform one of the court clerks so that I will re-convene the court. You will be asked individually for your opinion.

(iv) Before you retire, I would like to ask the Counsel of both parties if there is anything that they wish me to say in addition or want me to re-direct the assessors on any matter.

Janaka Bandara
Judge
At Suva


Solicitors
Office of the Director of Prosecution for State
Office of the Legal Aid Commission for Accused

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2014/82.html