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State v Ravouvou - Summing Up [2015] FJHC 582; HAC230.2011 (24 July 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 230 OF 2011

BETWEEN :

STATE

AND :

VATEMO RAVOUVOU

Counsel : Mr. A. Singh for State
Accused in person

Date of Hearing : 22nd- 24th of July 2015
Date of Summing Up : 24th of July 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The victim's name is supressed.
   
2. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
3. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
4. You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
5. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
6. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel or accused person are not evidence. The purpose of the opening address by the learned counsel for the prosecution was to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They were their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
7. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion, not the reasons for your opinion. Your opinion need not be unanimous. I must emphasise you that I am not bound by your opinion, but I assure you that I

will give the greatest possible weight on your opinions when I form and deliver my judgment.

8. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
9. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
   
10. You have seen how the witnesses presented in the witness box when answering questions. Bear in mind that many witnesses are not used to giving evidence and may find the different environment distracting. Consider the likelihood of the witness's account. Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or know the things that the witness testified about. Another point may be; has the witness said something different at an earlier time? These are only few general considerations which I assumed will assist you in your deliberation. It is, as I have said, up to you to assess the evidence and what weight, if any, you give to a witness's evidence or to an exhibit.
    

Burden and Standard of Proof

11. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocent is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing.
    
12. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other word, there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
13. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means, that the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

The Information.

14. The accused is being charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree. The particulars of the offence are that;
    

"Vatemo Ravouvou on the 18th day of November 2011 at Nadi in the Western Division had carnal knowledge with Ateca Saubuli without the consent of the said Ateca Saubuli".

15. Sections 207 (1) and 207 (2) (a) states that;
    

"Any person who rapes another person commits an indictable offence.

A person rapes another person if-

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

16. Accordingly, the main elements of the offence of rape are that;
    
    1. The accused,
    2. Inserted his penis into the vagina of the victim,
    3. Without the consent of the victim, and
    4. The accused knew the victim was not consenting for him to insert his penis in that manner.
       
17. At this point, I must emphasis you that the offences of sexual nature do not require evidence of corroboration.
    
18. I now kindly request you to draw your attention to the agreed facts which are before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution.
    
19. It is important to note that proof can be established only through evidence. Evidence can be presented in the forms of:
    
    1. Direct evidence,
    2. Circumstantial evidence,
    3. Documentary evidence,
    4. Expert evidence.
       
20. I now draw your attention to summarise the evidence presented by the prosecution during the hearing.
    
21. The first witness of the prosecution is Meri Adirereki. She stated in her evidence that she went for drinking with her uncle Kaliova on the evening of 17th of November 2011. They first went to Wailola shopping centre and bought 8 bottles of Fiji Better beer and consumed them under a tree at the opposite side of the shopping centre. They then went to Steps night club and drank a jug of Fiji Bitter beer. At the Steps night club they were joined by one of their cousins, the victim. Three of them drank together. Meri then left the Steps night club and went to Greenland night club with Kaliova. The victim did not join with them. However, they met the victim again at the Greenland night club, where they drank two jugs of Fiji Bitter beer. When the night club was closing, they bought 6 bottles of Fiji Bitter beer and came out to drink it. She invited the accused, who was a bouncer at the night club to join with them for a drink. Meri, Kaliova, Victim and the accused sat at the back of the night club and started to drink beer.
    
22. Meri stated in her evidence that the time was around 4 a.m. when they started to drink at the back of the night club. They finished it around 6 a.m. and the place was clear with the daylight. She could not recall whether the place had lights but sated that no street lights came to that place. They were able to see each other while drinking. Boys served them the beer. She left unfinished a bottle and stood up to go home around 6 a.m. The victim was lying down on the ground. Meri spoke to her and asked her to go with them. She said no and she was alright. Meri stated that the victim was drunk but was able to recognise her when she called her and replied to her. At that time the accused was still sitting and finishing the last bottle of beer. Meri and Kaliova then left home.
    
23. She was called to the Nadi Police station on 22nd of November 2011 for an identification parade. She was able to identify the accused out of the nine youths who had lined in front of her. She positively identified the accused as the person who drank with them at the back of the night club on the early morning of 18th of November 2011. She stated that she knew the accused as a bouncer as she is regularly going clubbing.
    
24. During her cross examination she denied the presence of any other person apart from herself, the victim, Kaliova and the accused and stated that she bought beer for them.
    
25. The second witness of the Prosecution is Kaliova Caucau. He stated in his evidence that he went for a drink with Meri on the 17th of November 2011. They first went to Wailoa shopping centre, where he bought 6 bottles of beers. They consumed it and then went to Steps night club. They had two jugs of beer. They met the victim in the Steps night club. The victim drank with her friends and Kaliova drank with Meri. However, the victim joined with them later and they drank together. Once they finished at Steps night club, he went to Greenland night club with Meri. The victim did not come with them. They once again met the victim at the Greenland night club. They drank together in the night club until it was closed.
    
26. Kaliova stated in his evidence in chief that the accused was also joined with them for a drink inside the night club, however, during his cross examination he stated that he only remember that the accused drank with them outside the night club. When the night club was closing, they decided to continue their drinking outside the club. Meri, Kaliova, the victim and the accused came out from the back door of the night club and sat at the bottom of the staircase and drank. They finished at around 7 a.m. When he left the place with Meri; the victim was sitting and talking with the victim. He asked her to come with them, so did Meri, however she stayed back with the accused. They then went home. He stated in his cross examination that the victim slept while they were drinking. He further stated that the place they drank only surrounded with buildings and no houses.
    
27. The next witness of the prosecution is Doctor Anereta Naqica, who has medically examined the victim on 18th of November 2011. She explained her educational qualification and the procedure of examination of rape victim. She recalls that she medically examined the victim of this case. She was referred with a copy of the Fiji Police Medical Examination Form. She positively identified it as the medical form she filled after medically examined the victim. She marked and tendered the copy of the medical report as prosecution exhibit one. During her evidence, she explained the history of the incident informed to her by the victim and her medical findings. She stated that her findings consisted with the history given by the victim.
    
28. Dr. Anereta further stated that the injuries she found on the victim could be caused by unconsented sexual intercourse or a use of a blunt object. She further explained that consensual sexual intercourse could not cause such injuries around the vulva of the victim. She has further found blood in her undergarment. (need to discuss Culanchini's recent court of appeal judgment for the purpose of expert evidence of the medical examination).
    
29. The fourth witness of the prosecution is the victim. She stated that she went to Nasa night club at Namaka with two of her friends and drank there. She could not recall how much alcohol she consumed at the Nasa night club. They then went to Steps night club, where she met Meri and Kaliova. She later joined with them for a drink at the night club. Meri and Kaliova then left the Steps night club and went to Greenland night club. The victim did not go with them, however she later went to Greenland night club, where she once again met Meri and Kaliova. She stated that she was not that much drunk when she went there. They drank in the Greenland night club until it was closed. Once the night club was closed, they came out and went back side of the night club and drank. The victim was with Meri, Kaliova and another person, whom she did not know at that time. The four of them drank there. The victim and Meri felt asleep and lay down on the ground. At that time, the fourth person, who she later identified as the accused told her to go inside and sleep there. She accordingly went inside through the door. She found Meri and Kaliova has gone at that time. She felt asleep and only found that the fourth person who drank with them was on top of her. She tried to push him away and struggled to get away. She shouted and asked for help but no one came for her help. He was strong and managed to remove her pant. He then removed his pant and inserted his penis into her vagina. It took about 20 minutes for him to finish all he done and then he asked for forgiveness. She specifically stated that she did not consent for what the accused did to her.
    
30. The victim further stated that she has not seen or known that person before that incident. She however has observed him while they were drinking. She stated that she saw his face clearly when she found him on top of her. The accused asked her to wait until he found a taxi for her and left. She put her cloths up and then went to the foot path, where she sat on the roadside and cried. She stated that the place where she was raped is about 50 meters away from the road. It was inside the bottom of the night club. One Indian descendant Fijian came and asked her why she was crying. He called the police. She waited there until the police came. She made her statement and then was taken for medical examination.
    
31. She recalls that she went to the Nadi Police Station for an identification parade. She has identified the accused among the men lined in front of her.
    
32. During her cross examination, she stated that it was daylight when this incident took place. She stated that only she remembers that the accused was in a long pant and t-shirt.
    
33. The sixth witness of the prosecution is S.P. Peniasi Nabuta. He has conducted the identification parade of the accused person at the Nadi Police Station. He explained in his evidence about the procedure of conducting an identification parade. He stated that he had not actively taken part in this investigation and was holding a rank permitted to conduct an identification parade as per the guidelines of the Fiji Police Force. He has first briefed the accused and he had no objection to conduct this identification parade. He stated that he had 8 Fijian male with same built, look as of the accused person for this parade. He then escorted the accused in to the room, where those 8 males were standing in a line. He asked the accused person to stand in the line of his choice. He chose to stand at the fifth place of the line. He then brought the first witness, who was a female. She pointed out the accused and identified. The victim was brought next. She walked along the line with him and told him the fifth person standing in the line is the one who raped her.
    
34. The last witness of the prosecution is D.C. Anil Kumar who is the investigation officer of this matter. D.C. Kumar stated in his evidence that he visited the place of this alleged incident when he was informed by the station orderly about this complaint. He explained the place in his evidence. It was under the night club, which was used by youth to drink in the night. He stated that the main road is about 50-60 meter away from the place of incident. It was his opinion that it would not be possible to hear from the main road if someone shouted for help from the place of incident as the road is a busy main road.
    
35. He has observed the victim and found that her cloths were dirty and had blood strains on it. She was stressed and was crying. He took her for medical examination with a woman police constable. He located that accused and arranged the identification parade. He specifically stated that he did not take part in the identification parade. According to his observation the place of this alleged incident took place is an isolated place.
    
36. At the conclusion of the prosecution case, the accused was explained of his rights in his defence. The accused gave evidence on oath and did not call any other witness for the defence.
    
37. The accused denied the allegation in this information. He stated in his evidence that he was invited by a girl and a man to help them to carry six bottles of Fiji Bitter beer to the bottom of the club when they were closing the night club. He was a bouncer at the night club. He then helped them and invited to join with them to have a drink. He told them that he needs to change his cloth and join later. He accordingly changed his cloths and jointed the drinking party. Meri and Koliova left the place after they had a fight with the victim. He then told the victim that he is also going. She replied that's ok, and she will stay there for a while. He then left to the Nadi magistrate's court to see his brother who has a case in the Nadi Magistrate's court on 18th of November 2011.
    
38. I have summarised the evidence adduced during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every details of evidence and recalled yourselves of all of them. What I did only draw your attention to the main items of evidence and helped you in recalling yourselves of the evidence.
    
39. The prosecution presented evidence in the form of direct, expert and documentary evidence. The victim and the two other civilian witnesses gave direct evidence and the doctor gave expert evidence about this incident. The prosecution tendered the medical report as documentary evidence.
    
40. In view of the evidence adduced during the course of the hearing, there is no dispute that the accused was in the drinking party with the victim, Meri and Kaliova. However, Meri and Kaliova left the place leaving the accused and victim alone. The victim in her evidence stated that she clearly saw the face of the accused when he came on top of her. It was the daylight. She then identified the accused at the identification parade.
    
41. The victim in her evidence stated that the accused inserted into her vagina with his penis. The Accused in his evidence denied it. The Doctor in her evidence stated that she observed blood in her undergarment and injuries around the vulva of the victim. She formed her opinion that the injuries would have caused by unconsented sexual intercourse or by a blunt object. The victim further stated that she did not consent for the accused to have sexual intercourse with her. She tried to push him away and shouted for help. She had struggled but was over powered by the accused.
    
42. You watched that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re- examined, were they evasive, in order to decide the credibility of the witness and the evidence. Moreover, you must consider the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
    
43. You have heard the evidence presented by the accused, where he denied this allegation. If you accepted the version of the accused person that he did not commit this offence, then the case of the prosecution fails. You must then acquit the accused from this charge.
    
44. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.
    
45. Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.
    
46. Upon consideration of all evidence, if you believe that the count of rape is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty.
    
47. Madam and gentleman assessors, I now conclude my summing up. It is the time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened.
    
48. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
24th of July 2015

Solicitors : Office of the Director of Public Prosecutions for Respondent
The Accused person,