IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No: HAC20.2014

BETWEEN:

THE STATE

AND:

LATCHMAN

Counsel: Mr. F. Lacanaivalu for State
 Mr. M. Fesaitu for Accused

Date of Hearing: 8-9 December 2014
Date of Summing Up:10 December 2014

SUMMING UP

[1] Madam and Gentleman Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused's guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused. The State brings the charge against the Accused. Therefore it is for the State to prove the charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] The Accused elected to give evidence. I must remind you that when an Accused gives evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate. 

[7] You must decide this case upon the evidence presented to you. If a witness was not called you must not speculate the reasons why the witness was not called. You must only consider evidence which were led in the trial. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[8] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[9] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[10] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box.

[11] Neither speculation nor theories of one's own constitute evidence. Media coverage, idle talk, or gossip, are similarly not evidence. Put out of your mind when considering your opinions, anything you may have heard about this case outside the courtroom. Focus solely on the evidence which you have seen, heard, or examined in this court.

[12] This summing up is not evidence either, nor are counsel's opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[13] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness's answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[14] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses' evidence and demeanour together with all of the evidence in the case. You can accept part of a witness's testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[15] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the Accused has been proved before you, proved with evidence led by the State.

[16] The Accused is charged with two counts. You must consider each count separately, when you examine the case in your deliberations. You are not obliged to find the Accused guilty either on both counts or not guilty on both. Look at the evidence as it affects each count separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each count and the evidence available on each count.

[17] I turn now to deal with what the prosecution must prove. For the offence of indecent assault on count one, the prosecution must prove beyond reasonable that the Accused unlawfully and indecently assaulted the complainant. The word "unlawfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As to whether the act of measuring the thigh of a 12 year old girl from waist down with a mobile charger after asking her to remove her pants and underwear in a secluded location is indecent, you must ask yourselves what right-minded persons would think of this act. Was the act so offensive to current standards of modesty and privacy as to be indecent? In considering these questions you may consider the general nature of the relationship between the Accused and the complainant and the age gap between them to decide whether or not the act was indecent. If you are satisfied beyond reasonable doubt that the Accused without lawful excuse measured the thigh of complainant after asking her to remove her undergarments and that the act was such that right-minded persons would consider to be indecent, then you may find the Accused guilt on count 1. If you are not so satisfied then you must find him not guilty on count 1. 

[18] On count 2, the Accused is charged with rape. It is alleged that the Accused licked the vagina of the complainant. To prove rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated the complainant's vagina using his tongue. The slightest penetration is sufficient. It is not necessary to prove lack of consent on behalf of the complainant. The law is that a child under the age of 13 years is incapable of giving consent to any form of sexual penetration. If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his tongue then you may find him guilty of rape. If you are not satisfied that penetration had occurred, you must consider the lesser or alternative offence of sexual assault, notwithstanding that the Accused is not charged with sexual assault. Sexual assault has the same elements as the indecent assault. If you accept the Accused licked the complainant's vagina falling short of penetration and that right-minded persons would consider such an act to be indecent, then you may find the Accused not guilty of rape but guilty of sexual assault. 

[19] In this case, the date of birth and the age of the complainant when the alleged incident arose are not in dispute. She was born on 31 July 2002 and when the alleged incident arose, she was 12 years old. In relating to the first alleged incident, the complainant said in the morning of 15 January 2014, she accompanied the Accused in his vehicle to come to town from Vunivutu village with her friend Asena. One their way to town, the Accused got Asena to get off the vehicle near FSC. Asena in her evidence said she got off near Jim's supermarket and the Accused drove away with the complainant towards Batinikama. The complainant said when they arrived at a secluded location, the Accused stopped the vehicle and asked the complainant to go to the back seat. When the complainant went to the backseat, the Accused got the complainant to remove her pants and underwear. When the complainant had removed her garments, the Accused measured the complainant's thigh from waist down using a mobile charger. 

[20] The Accused in his evidence denies asking the complainant to remove her clothes and measuring her thigh. He said in the morning of 15 January 2014, the complainant and Asena accompanied him to town in his vehicle with other children. He did not drop off Asena at FSC and he continued his journey to town with the complainant, Asena and other children. 

[21] In relating to the second alleged incident, the complainant said she accompanied the Accused to Nasealevu with other children in the afternoon of 15 January 2014. While they were at Nasealevu, the Accused took her to an isolated location and asked her to take off her pants. He asked her to spread her legs and he licked her vagina for 5 minutes. She said he licked outside the vagina and not inside. The complainant said she did not complain to anyone because the Accused promised to buy her school stationaries. Bradley gave evidence that he saw the Accused and the complainant walking towards the bridge and the tramline which were in the same direction when they were at Nasealevu. 

[22] The Accused in his evidence said he did not lick the complainant's vagina as alleged. He said the allegations against him were fabricated after he accused the complainant's father for stealing his mobile phones and money. The defence's case is denial of the alleged incidents. Even if you do not accept the Accused's evidence as true, that does not mean he is automatically guilty of the charges. You can only find the Accused guilty if you are satisfied beyond reasonable doubt of his guilt on the prosecution's evidence.

[23] The prosecution's case wholly rests on the complainant's evidence. If you don't believe her, then the Accused is not guilty of any offences. On count 1, if you believe the complainant is telling you the truth that the Accused measured her thigh after asking her to remove her clothes and if you are satisfied beyond reasonable doubt that right minded persons would consider the conduct to be indecent, then you may find the Accused guilty of indecent assault. 

[24] On count 2, if you believe the complainant is telling you the truth that the Accused licked her vagina, and if you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his tongue, then you may find the Accused guilty of rape. But if you have reasonable doubt as to whether penetration occurred, then you must consider the lesser or alternative offence of sexual assault. If you accept the complainant's evidence that the Accused licked her vagina as true and if you are satisfied beyond a reasonable doubt that right minded persons would consider the conduct to be indecent, then you may find the Accused not guilty of rape but guilty of the lesser or alternative offence of sexual assault. 

[25] On count 1, your opinions would be either guilty or not guilty. On count 2, you must first consider whether the Accused is either guilty or not guilty of rape. If you find the Accused guilty of rape, then you must not consider the lesser or alternative offence of sexual assault. If you find the Accused not guilty of rape, then you must consider the lesser or alternative offence of sexual assault. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive them. Please now retire to deliberate on your opinions.

Daniel Goundar
JUDGE

At Labasa
10 December 2014

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused