IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 146 OF 2012

STATE

-v-

PENISONI WAQANILIVA RAVUTUBANANITU

Counsel: Ms. L. Latu for the State
Ms. S. Nasedra for the Accused 

Dates of Trial: 03rd August 2015 -04th August 2015
Date of Summing Up: 06th August 2015

SUMMING UP

Madam and Gentlemen Assessors:

1.	We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial, to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. 	I will direct you on matters of law which you must accept and act upon.

3. 	On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So, if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

4. 	In other words you are the Judges of fact. All matters of fact 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.

5. 	The counsel for the Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

6. 	You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.

7. 	On the matter of proof, I must direct you as a matter of law, that the Accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the Prosecution and never shifts.

8. 	The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the Accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

9. 	Your decisions must be solely and exclusively based upon the evidence, which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this Courtroom. 

10. 	Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

11. 	As Assessors, you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

12. 	In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

13. 	I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is, as you could hear from evidence, this case involved an alleged incident of Rape. An incident of Rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offences with which the Accused-person is charged, in a short while.

14. 	In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this Court.

i.	It is agreed that Penisoni Waqaniliva Ravutubananitu aged 20 years is the Defendant in this case and at the time of the alleged offending the Defendant was 19 years old.

ii.	It is agreed that Lusiana Qionicolo, is the victim in this case.

iii.	It is agreed that the Complainant was medically examined on the 22nd of October, 2012.

iv.	It is agreed that the Accused was arrested by the Police on the 23rd of October, 2012.

v.	It is agreed that the only issue for is in regards to Consent.

15.	The charges against Accused are as follows:

First Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PENISONI WAQANILIVA RAVUTUBANANITU between the 1st of October 2012 to the 31st of October 2012 at Tavua in the Western Division penetrated the vagina of Lusiana Qionicolo with his penis without the consent of the said Lusiana Qionicolo.

Second Count
Statement of Offence

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

Particulars of Offence

PENISONI WAQANILIVA RAVUTUBANANITU on the 21st day of October 2012 at Tavua in the Western Division penetrated the vagina of Lusiana Qionicolo with his penis without the consent of the said Lusiana Qionicolo.

16. 	I will now deal with the elements of the offences. A person rapes another person if:

(a) 	The person has carnal knowledge with or of the other person without other person's consent; or

(b) 	The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) 	The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

17. 	Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. So, that is Rape under Section 207 (2) (a) of the Crimes Decree.

18. 	So, the elements of the offence of Rape in this case are that: 

a. 	the Accused,
b. 	penetrated without Lusian's consent.

19. 	Other parts of the offence are irrelevant to the facts of this case.

20. 	Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. 

21. 	Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the victim was a witness who offered direct evidence as to what she saw, heard or felt.

22. 	Documentary evidence is the evidence presented in the form of a document. In this case, Medical Report is an example, if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the victim.

Case for the Prosecution

23.	Prosecution called Doctor Nadeem Faroon as its first witness. He is a doctor with 24 years of experience, having served in Labasa, Tavua and Lautoka government hospitals. He had given evidence in more than ten rape cases during his career. He tendered in evidence the medical report he prepared after examining Lusiana at the Tavua Hospital on 22nd October 2012 marked as PE.1. 

24.	Referring to PE.1, the Doctor said that the patient was in a distressed and depressed condition at the time of examination. Patient had told the Doctor that she was raped by a Fijian youth at 10 p.m. on Saturday and 7.30 a.m. on Sunday. 

25.	Referring to specific medical findings, the Doctor described the following:

a.	Fresh blood in vaginal area
b.	Multiple bruises around the neck
c.	No hymen seen
d.	Excessive pulling of fresh blood in vagina 
e.	Lacerations on the upper part of vaginal wall.

26.	All injuries were of recent origin caused less than 24 hours of examination. Injuries and the history related by the patient were consistent with his medical findings.

27.	The Doctor opined, in view of distressed condition of the patient, fresh lacerations seen on upper vaginal wall, multiple bruises around the neck, pulling of large amount of blood in vagina, that the intercourse had taken place forcibly.

28.	The Doctor said, in cross examination, that multiple bruises around neck would be consistent with love-bites. He, however, doubted the possibility of such a large amount of blood being present in vagina after a rough consensual intercourse or thrusting the erected penis during ordinary climax unless the patient was suffering from Menorrhagia. 

29.	The victim, Lusiana gave evidence next. She was born on 17th March 1996 and 16 years of age at the time of the incident. She was schooling from 1st to 20th of October 2012. After a dispute with her mother she decided to leave home. Having contacted a boy named Meli she left for Tavua on the 20th of October. She could not find Meli in Tavua and went inside the village. She met Seruwaia who was known to her and inquired about Meli. Seruwaia accompanied Lusiana to her house to look for Meli. She went to the church in Yasiyasi with Seruwaia but never met Meli. Accused, Penisoni Waqa had come to the church. Seruwaia introduced Penisoni to Lusiana. They had a talk. 

30.	On 20th October 2012, a Saturday night, she went to Alumita's place. Alumita was Seruwaia's friend. Penisoni had come there and wanted to have a talk with her. She went outside to find that Penisoni was smelling liquor. She turned back and tried to go inside. Penisoni forcibly got hold of her, grabbed her hands and took her to a nearby house, inside a kitchen. Kitchen was separated from the house where family members lived. She could not run away. He was stronger and holding her hands. 

31.	In the kitchen, Penisoni put her down, undressed, took off her under garments, and inserted his private part into her private part. He made bites on her neck. She could not push him away or run because he was on top of her. She did not scream. She was new to that village. She did not give Penisoni permission to have sexual intercourse. He did it twice without her consent. They spent there from 11 p.m. till the next morning of 21st of October. 

32.	Having done all those things, Penisoni took her again to Alumita's house. She did not complain the incident either to Seruwaia or Alumita because she was scared. She was a visitor to that village and not familiar with the place. She was running away from home. Mother was looking for her. She wanted to avoid matter being reported to police. 

33.	Tavua Police came on Monday to pick her. They took her to the hospital where she was medically examined on 22nd October 2012. Lusiana identified the Accused in Dock. 

34.	In cross examination, Lusiana denied consenting to sexual intercourse with Penisoni. She admitted making a statement to Police on 22nd October 2012. She also admitted saying nothing about smelling of liquor on Penisoni in her statement. She confirmed that she ran away from home on two occasions. 

35.	Lusiana admitted spending nearly 3 hours with Penisoni in the Kitchen. She did not agree with the Defence Counsel when she was asked whether she would not have made a complaint if the Police did not come that day. 

36.	Lusiana admitted that she did not yell or call for help when she was being taken from Alumita's house. She also admitted that Penisoni made three love bites on her neck. 

37.	Lusiana denied making up an allegation because she ran away from home and the mother was looking for her.

38.	Vani Lewatu, Lusiana's mother gave evidence next. Vani's eldest daughter Lusiana was late from school and returned home only around 7 p.m. Vani counselled Lusiana in the belief that she would listen to her. Lusiana had left home without informing her. She was searching for Lusiana everywhere and finally made a report to Police, after three weeks.

39.	One Alumita called from Tavua on a Sunday night and informed Vani that her daughter, Lusiana was with her. Later in the day the Tavua Police also contacted her and told that Lusiana was with them. 

40.	Vani came to know of the incident only when Penisoni's father called her three days after Lusiana had come back home. Upon being questioned about the incident, Lusiana opened up and said Penisoni did it forcibly without her consent. She believed what her daughter told was true. She said Lusiana knew nothing about the world and boys.

41.	You will remember two police officers; Arunesh Kumar and Shailesh Kumar giving evidence next. They told us about the interview and charging of the Accused. In the cautioned interview statement and the charged statement which they tendered in their evidence marked as PE2 and PE3 respectively, the Accused had admitted having sexual intercourse with Lusiana with her consent. The evidence of the Police officers was not challenged by the Defence.

Case for the Defence

42.	At the end of the Prosecution case, you heard me explaining to the Accused his rights in defence. The Accused was given three options; right to give evidence; right to call witnesses and right to remain silence. The Accused was given those rights not because he had to prove anything but because I was required by law to do so.

43.	Accused opted to give evidence under oath. His position was that the alleged sexual intercourse took place with Lusiana's consent.

44.	When he was attending the afternoon service at Tagitagi Baptist church, he saw Lusiana and his cousin, Seruwaia. Seruwaia introduced Lusiana to him. It was for the first time they had met. They had a conversation and got to know each other. He came to know from Seruwaia that Lusiana liked him. 

45.	In the conversation, he came to know that Lusiana was staying in Tavua with his cousin. On the following day he met Lusiana at his cousin Alumita's place when he visited his aunt Tarusila. They kissed and hugged each other at Alumita's house. She agreed his proposal to spend time alone and went to aunt Tarusila's kitchen, holding hands. They had sex in the kitchen and then slept there for three hours. She never said 'no' to anything. It all happened with her consent. In the morning, they went back to Alumita's house and from there he went to cut sugarcane in Tagitagi, assuring her that he would come back on Monday. 

46.	Under cross examination, the Accused admitted saying nothing about the conversation with Lusiana at church and the fact that she had told him that she liked him, to the Police. 

47.	I have summarized evidence I thought important to you in light of arguments of the Counsels of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all that evidence and from your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.	

48.	The Prosecution based its case mainly on the evidence of the Victim, Lusiana. It also relied on Doctor's expert evidence and Accused's own statements given to Police marked PE.2 and PE.3. If you are satisfied that the evidence Lusiana gave in Court is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion. 

49.	Please remember, there is no rule in Fiji for you to look for corroboration of victim's story to bring home an opinion of guilt in a Rape case. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence. 

50.	You may, however, consider whether there are items of evidence to support the victim's evidence if you think that it is safe to look for such supporting evidence. Corroboration in that sense is, therefore, only to have some independent evidence to support or to test the consistency and credibility of the victim's story of Rape. You can consider documentary evidence such as the medical report and other oral evidence led in the trial in this regard. 

51.	If you are satisfied that Lusiana had told the truth and her evidence is believable, then you have to consider whether the Prosecution has discharged its burden and proved each element of the Counts in the Information beyond reasonable doubt.

Analysis

52.	The Accused had admitted in his cautioned interview statement PE.2 and the Charge Statement PE.3 that he penetrated the vagina of Lusiana with his penis. Those documents were not challenged by the Defence and you can safely act upon them. 

53.	The Prosecution alleges that the sexual intercourse happened without Lusiana's consent. Accused says it happened with her consent. The only issue to be decided in this case therefore is whether the prosecution had proved, beyond reasonable doubt, that the sexual intercourse took place without Lusiana's consent. 

54.	I must repeat hear what the law says in respect of 'consent'. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. You must evaluate evidence in light of that legal framework. 

55.	First, you are invited to consider whether Lusiana had any motive or reason to fabricate this type of an allegation against the Accused. Lusiana was only sixteen years of age and a Form 3 student at the time of the alleged incident. She had met the Accused for the first time at a church the day before the incident. The Accused had come to Fiji a few days before the incident, after a long stay in New Zealand. There was no dispute whatsoever that they were not known to each other when they first met at the church. Defence's version was that Lusiana made up this case as an excuse for her running away from home. It is up to you to form your own opinion. 

56.	Then you have to consider how probable or improbable is the evidence given by Lusiana. That is whether what she was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in her evidence is improbable given the circumstances of the case. There is another important factor that you should consider. That is whether she had behaved in a natural or rational way in the circumstances that she was talking of. 

57.	Lusiana said that she did not scream or yell for help when she was being taken by the Accused to his aunt's kitchen and also when she was being raped. You might wonder why she did not scream or yell if she was taken forcibly and raped without her consent. 

58.	You have to be cautious here. You must not make comparisons and come to your conclusion on the basis of general behaviour expected of a woman in such a situation. You are expected to analyse evidence presented in this case deeply in light of the Section 206 of the Crimes Decree, I just mentioned to you, and see whether she gave her consent freely and voluntarily and whether she possessed necessary mental capacity to give such consent at that time. 

59.	In coming to your conclusion I suggest you to consider:
 
a.	her vulnerability as far as her age was concerned.
b.	her vulnerability as a complete stranger to Tavua on that night 
c.	her bargaining power vis-a-vis the Accused. 
d.	the fact that she was a runaway girl from home after a dispute with her mother. 
e.	whether she was in fear psychosis. 
f.	the expert opinion of the doctor. 

60.	Contextualise the factual scenario. Lusiana was in Tavua for the first time. She was a complete stranger to the place where she was. She did not have any relative in Tavua. It was transpired in Accused's evidence that both Seruwaia in whom Lusiana finally sought refuge in Tavua and Alumita whose house she visited that night were closely related to the Accused. It was in his Aunt Tarusila's kitchen that everything had happened. 

61.	Lusiana said he was stronger and holding both her hands. She smelled liquor on him. She was worried that he might do something to her. She was also scared that he might kill her inside the kitchen. She did not want Penisoni to know the matter being reported to the Police. If you believe her evidence, you consider whether she had a reasonable cause not to resist, scream or complain. 

62.	You have to consider whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

63.	Lusiana had not complained either to Seruwaia or Alumita soon after the incident. She had not complained even to her mother about the rape incident when she came back home. She told her mother only when the father of the Accused made a call to her mother three days after her return. 

64.	In this context, you have to ask these questions yourselves. Is her failure to complain consistent with consensual intercourse? Had she offered acceptable, legitimate reason not to complain? In coming to your conclusion you must not forget that she had related the incident to Police and to the doctor soon after the incident. It is up to you to form your own opinions.

65.	Madam and gentlemen, you find in society some smart ladies who would resist and complain of the slightest injustice that may have been caused to them. On the other hand you may have come across ignorant, naïve, passive and powerless women. You decide to which category Lusiana belonged. 

66.	You watched Lusiana and her mother giving evidence in Court. What was their demeanour like? How did they react to being cross examined and re-examined? Were they evasive? How they conducted themselves generally in Court? It is up to you to decide whether you could accept their versions. 

67.	In dealing with the issue of consent, you might find helpful the Doctor's evidence in coming to your conclusion. The Doctor opined that the intercourse had taken place forcibly. Earlier in my summing up, I summarized the reasons the Doctor had given that led to forming his opinion. The doctor in this case, came before Court as an expert witness. Expert evidence of a doctor's report is not accepted blindly. You will have to decide the issue of Rape before you by yourself and you can make use of doctor's opinion, if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence in the case. 

68.	Ladies and Gentleman you have to consider how consistent Lusiana was in her evidence. That is whether she was telling a story on the same lines without variations and contradictions. You must see whether she is shown to have given a different version elsewhere. Defence Counsel questioned about previous statements made by Lusiana and her mother to Police. If you find those statements to be contradictory or inconsistent with what they said in Court, you must consider whether such contradictions are material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. 	

69.	If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another for example by a police officer in recording the statement where the witness is alleged to have given that version. 

70.	You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanour, the way he/she faced the questions etc. in deciding on a witness's credibility.

71.	You must also consider the issue of omission to mention something that was adverted to in evidence on a previous occasion on the same lines. You must consider whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave, you may even consider that to be a contradiction so as to affect the credibility or weight of the evidence or both. 

72.	In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that, you must bear in mind that the evidence comes from human beings. They cannot have photographic or video graphic memory. All inherent weaknesses that you and I suffer, insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses. Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.

73.	You watched the accused giving evidence in court. I must remind you that when the accused elected to give evidence he assumed 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. You will generally find that an accused gives an innocent explanation. 

74.	What was his demeanour like? How he react to being cross examined and re-examined? Was he evasive? How he conducted himself generally in Court? 

75.	You have to consider if the position taken up by the accused in giving evidence is different from his position taken up through his Counsel at the time of cross examination of prosecution witnesses. In other words, see whether his version is inconsistent. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his version still the prosecution should prove its case beyond reasonable doubt.

76.	Remember, the burden to prove the Accused's guilt beyond reasonable doubt lies with the Prosecution throughout the trial, and never shifts to the Accused, at any stage of the trial. The Accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.

77.	If you accept the Prosecution version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of Accused's guilt of each charge you must find him guilty of each charge. If you do not accept the Prosecution's version of events, and you are not satisfied beyond reasonable doubt, so that you are not sure of the Accused's guilt, you must find him not guilty as charged. 

78.	In the representative First Count it is alleged that the sexual intercourse took place between 1st of October 2012 and 31st of October 2012. In the Second Count it is alleged that it happened on the 21st of October 2012. If you are satisfied that the alleged rape incident occurred on the 21st of October 2012 and that charge is proved beyond reasonable doubt, then you can find the Accused guilty on Count 2. If you are satisfied that the rape charge is proved but the specific date of the rape is not proved then you can find the Accused guilty on Count 1. 

79.	Your possible opinion is as follows:

1st Count	- 	Accused guilty or not guilty or
2nd Count 	- 	Accused guilty or not guilty

80.	You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene.

81.	Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 6th August 2015 

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