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State v Kalounivalu [2014] FJHC 936; HAC10.2014 (22 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No: HAC 10 of 2014

BETWEEN:

THE STATE

AND:

JESE KALOUNIVALU

Counsel: Mr. M. Delaney for State
Mr. M. Fasaitu for Accused

Date of Hearing: 18-19 December 2014
Date of Summing Up: 22 December 2014

SUMMING UP

[1] Ladies 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 which is enshrined in the Constitution. The State brings the charges against the Accused. Therefore it is for the State to prove each 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 either of the charges you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of either of the charges you must give your opinion that he is not guilty of that charge. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] You must decide this case upon the evidence presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[7] 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 each of the charges against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[8] 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.

[9] 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, as well as the exhibits tendered in court, such as the caution interview statement. In addition, you will consider the evidence that went in by consent of both parties, listed in the paper headed admitted facts. Following correct procedure the two sides have agreed certain issues or facts. These are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed.

[10] 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 read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[11] 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.

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

[13] 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.

[14] 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 on each of the charges.

[15] The Accused is charged with three counts. On counts 1 and 2, the Accused is charged with rape. On count 3, he is charged with a representative count of defilement. You have heard that the Accused has pleaded guilty to the charge on count 3. The fact that he has pleaded guilty is now known to you, but it can have no bearing on your decision on counts 1 and 2. The prosecution has to prove its case against the Accused on counts 1 and 2. You must consider each count separately. The evidence concerning each count is different and therefore your opinions need not to be the same.

[16] I turn now to deal with what the prosecution must prove. On both counts, the Accused is charged with rape.

[17] First it must be proved beyond reasonable doubt that the Accused had unlawful carnal knowledge, that is, unlawful sexual intercourse with the complainant Tavaita Saqa, on the two dates. I shall refer to her throughout as the complainant. The physical act of intercourse must be proved, that is that the Accused's penis penetrated the complainant's vagina. The slightest penetration is sufficient. It is not necessary to prove ejaculation. On count 1, the Accused admits sexual intercourse and therefore you can accept the first element has been proven on that count. On count 2, the Accused denies sexual intercourse. You will have to consider whether there was sexual intercourse as alleged on count 2.

[18] Second, it must be proved that when the Accused had unlawful sexual intercourse with the complainant he did so without her consent. This includes where intercourse is consented to by the complainant but who only consents because she is forced to do so, or is threatened or intimidated to submit to the act, for fear of bodily injury. The defence says the complainant offered no or little physical resistance when the sexual intercourse occurred in January 2013. The defence says the lack of resistance by the complainant explains that the sex on count 1 was consensual. The prosecution says the lack of physical resistance by the complainant was due to the circumstances in which the alleged offence was committed and the relationship between the Accused and the complainant. In considering whether there was consent or lack of it on both counts, you must look at all the circumstances. You must consider whether a 14- year old school girl in a village setting and who knew the Accused was an older male and was physically stronger than her, could have offered more physical resistance when the alleged incident occurred. You will note that at age 14 years she is still of small stature in comparison with the height and built of the Accused. On both counts, you will have to decide whether the complainant consented to sexual intercourse.

[19] Thirdly, it must be proved that the Accused either knew that she did not consent or was reckless as to whether she consented. The Accused was reckless as to whether the complainant consented to sexual intercourse if you are sure that he realised there was a risk that she was not consenting and carried on anyway when in the circumstances known to him it was unreasonable to do so. The resolution of this issue is dependent upon who you believe, bearing in mind on this issue as on all, the prosecution must satisfy you beyond reasonable doubt. If you believe the complainant, then it would be obvious that the Accused had had to use force to get her to consent and would therefore have known she was not consenting.

[20] If you are not sure that he would have realised she was not consenting then go on to consider whether the Accused might have been reckless as to whether she consented. Did he genuinely believe she was consenting? If so, or you are not sure, he is to be acquitted of rape. If you do not believe he thought she was consenting when you consider all of the circumstances, you should convict him of rape.

[21] I turn now to summarise the evidence. 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 counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel 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.

[22] The first prosecution witness was the complainant. She gave evidence of two incidents of alleged rape. In relating to the first incident in January 2013, she told you that she had returned home from school and went to sleep. The Accused entered her home uninvited and woke her up. When she got up to leave, he pushed her on the bed and removed her clothes. She was naked from waist down. He penetrated her vagina with his penis for two minutes. She could not shout or call for help because he was on top of her and he had placed a pillow on her mouth. When he left, she said she was afraid to report the incident to anyone.

[23] In relating to the second incident on 17 June 2013, the complainant told you that she was returning to her uncle's home where her mum was, after dropping food at her home, when the Accused approached her. The Accused grabbed her using both arms and pulled her towards a vacant house. When he could not open the door of the vacant house, he pulled her by her arm to the other side of the house, and forced her to the ground and removed her clothes from waist down. He penetrated her vagina with his penis for five minutes. She felt severe pain in her vagina. She could not say anything because he was covering her mouth with his hand. When he was done, she pushed him off and got hold of her clothes. She dressed herself and left the place to return to her uncle's home. On her way to her uncle's home, she met her aunt, Akanisi. After a conversation, Akanisi accompanied the complainant to her home. As a result of a further conversation that the complainant had with her mother, the matter was reported to the police.

[24] You also heard Dr Vakawaletabua who medically examined the complainant on 18 June 2013, that is, a day after the alleged incident on 17 June 2013. The medical findings are not in dispute. The doctor said the laceration found on the opening of the complainant's vagina was less than 72 hours old. The hymen, that is, the soft tissue in the opening of the vagina, was not intact. Few activities can cause the hymen to perforate. Sexual penetration is one of them. In doctor's opinion, the medical findings are consistent with sexual intercourse. In this case, the defence says to you that although the Accused had sexual intercourse with the complainant on other occasions, he did not have sex with her on 17 June 2013. The doctor, of course, cannot say that the Accused had sex with the complainant as alleged. However, you can use the medical evidence to consider whether the complainant's account that sexual intercourse took place on 17 June 2013 without her consent is consistent.

[25] Before the Accused was charged, A/IP Soqosoqo caution interviewed him. The record of caution interview is not a disputed document. The contents of the interview were read out to you by Mr Delaney. Regarding the alleged incident on 17 June 2013, the Accused said although he engaged in consensual sexual foreplay with the complainant, they got distracted by some intervention and he did not have sexual intercourse with the complainant. When asked if he had sex with the complainant before, the Accused said he had sex with her three times in May 2013. That was the prosecution evidence.

[26] The Accused has elected to give evidence although he was not obliged to give evidence. He does not have to prove his innocence. He does not have to prove anything. However, he has chosen to give evidence and you must take what he has said into account when considering the issues of fact which you have to determine. It is for you to decide whether you believe the evidence of the Accused or whether it may be true. In relating to the incident alleged on count 1, the Accused admitted having sexual intercourse with the complainant but said the sex was consensual. He said on 17 June 2013, he intended to have sex with the complainant and they did engage in sexual foreplay, but got distracted and did not have sexual intercourse. He also told you that he grew up with the complainant knowing she was 4 years younger than him. He said apart from January 2013, he had consensual sex with the complainant in April 2012, May 2013, but not in June 2013.

[27] On count 1, the case centers on the issue of consent or lack of it. The Accused has told you that he had consensual sexual intercourse with the complainant in January 2013. If you have doubts about the complainant's evidence or disbelieve her when she said she was forced, the correct opinion to tender would be one of not guilty of rape but guilty of defilement of a girl between the ages of 13 and 16, an offence contrary to section 215 (1) of the Crimes Decree.

[28] By virtue of section 162 (1) of the Criminal Procedure Decree when a person is charged with rape and the court is of opinion that he is not guilty of that offence but guilty of a lesser or alternative sexual offence, the relevant one of which here is the offence of defilement which I have just referred you to, the court may find the Accused guilty of the lesser or alternative offence.

[29] There is no suggestion that the Accused thought the complainant was over 16 years of age, whilst consent is not a defence in law to a charge of defilement. The Accused in his evidence admitted to the act of unlawful sexual intercourse with the complainant.

[30] On count 2, the case centers on whether you believe the complainant is telling you the truth about being forced to have sexual intercourse with the Accused. If you accept the account given by the Accused regarding the incident on 17 June 2013 is or may be true, then on count 2, you must find the Accused not guilty. But if you entirely reject the account given by the Accused, that would not relieve the prosecution of its burden of making you sure by evidence of the Accused's guilt on count 2.

[31] To return to the Amended Information before you. On count 1, if you believe the complainant is telling you the truth that the Accused forced her to have sexual intercourse with him, and the Accused either knew that she did not consent or was reckless as to whether she consented, you may properly convict the Accused of rape . But if you believe the complainant gave her free consent, then your opinion will be not guilty of rape but guilty of defilement. On count 2, if you believe the complainant is telling you the truth about being forced to have sexual intercourse with the Accused, and the Accused either knew that she did not consent or was reckless as to whether she consented, then your opinion will be guilty of rape. But if you disbelieve the complainant regarding the incident alleged on count 2, or if you have a reasonable doubt about the Accused's guilt, then you must find him not guilty of rape on count 2.

[32] So on count 1, first you will be asked if your opinion is guilty or not guilty of rape. If you express an opinion that the Accused is guilty of rape, then you will not be asked for your opinion on the lesser or alternative charge of defilement. It is only if you find the Accused not guilty of rape on count 1, then you will be asked for your opinion on the lesser or alternative charge of defilement. On count 2, your possible opinions are either guilty or not guilty. Please now retire to deliberate on your opinions.

Daniel Goundar
JUDGE

At Labasa
22 December 2014

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