IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 221 of 2014

STATE

V

FABIANO DAKAI NADUVA

Counsel: Ms. S. Navia and Ms. S. Tivao for State
 Ms. M. Tarai for Accused

Hearing: 7th, 8th September 2015 

Summing Up: 10th September 2015

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as M.S.]

Ladies and Gentleman Assessors,

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so, it is a matter for you whether you accept what I say, or form your own opinions. 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.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The counsel for accused and the prosecution made submissions to you about the facts of this case. It is their right as the counsel. Their submissions are not evidence. You heard the evidence of all witnesses adduced in court. It is a matter for you to decide which version of the facts to accept, or reject.

[4] You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system, accused person is presumed to be innocent until he is proven guilty. 

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.

[7] Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom.

[8] Your duty is to find the facts based on the evidence, apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] The accused is charged with one count of Rape. Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent or if the person penetrates the vulva or vagina of the woman or girl to any extent with a thing that is not a penis without her consent. 

[10] According to the particulars of the offence given in count No.1, the accused penetrated the vagina of the complainant 'M.S.' with his fingers. Therefore to find the accused guilty of count No 1, the prosecution must prove beyond reasonable doubt that:

1.	the accused
2.	Penetrated his fingers into her ('M.S.'s) vagina

It is not necessary to prove that there was full penetration. Slight penetration is sufficient to prove the element of penetration.

[11] The Law says that a child under the age of 13 years is incapable of giving consent. It is an agreed fact that the alleged victim 'M.S.' was born on 8th October 2010 and that she is under 13 years of age. Therefore it is immaterial whether she consented to the sexual act or not.

Evidence

[12] Prosecution called the alleged victim 'M.S.' to give evidence first. She referred to the accused as Momo Fabi. She said Momo Fabi touched her pussy. It had happened in Lami. She said that Momo Fabi called her upstairs and touched her pussy. She said it was painful when he touched it. Then she had told her mother. Her mother had been sleeping in the room. The witness demonstrated to you how Momo Fabi touched her pussy. She said when he told the mother Momo Fabi went and hid.

[13] When she was asked how Momo Fabi touched her pussy, she said he touched inside the pussy and he pinched inside.

[14] In cross examination she said that there is no upstairs in her house. She said that she was playing outside on the porch with Livia and Maika that day. She said Aunty Asilika was cooking in the kitchen. She said Uncle Manasa also was there. She said when Momo Fabi touched her she was not wearing the shorts. She said that she spoke to mommy about this before coming to court and that mommy told her to say that Momo Fabi touched her pussy. However she said that Momo Fabi pinched her pussy. When it was suggested that Momo Fabi did not do anything, she said he did not do anything.

[15] In re-examination she again demonstrated in court how the accused touched her with the fingers.

[16] The next witness was the alleged victim 'M.S.'s mother Aqela Naduva. She said on 13/05/2014 there were 6 adults and 2 children at home. When she was sleeping, her daughter 'M.S.' had woken her up telling her that she has changed. She had told her that mucus from uncle's balls has gone to her clothes. She had asked her to shower. Then she had taken her to the town and asked her what and how it happened. 'M.S.' had told her that when she was clearing the dishes to put in the sink Momo Fabi had called her to read a book to her and while reading he had touched her. She had been feeling shy. She said that it took few days for 'M.S.' to open up. 'M.S.' had told her that Momo Fabi touched her pussy. She said that she was lost and was shocked. After telling her dad she had reported to the police on 26/05/2014.

[17] 'M.S.' was medically checked at a clinic at Waimanu Road, she said. She said that in her house, sitting room is at a higher level. To go to the kitchen and to the rooms one has to go down steps from the sitting room. She explained about the layout of the house. 

[18] She said on 13/05/2014 her dad had gone to work and mom had gone to Vanualevu to drop her brother.

[19] In cross examination she said Livia and Maika were not at home that day. Her mom was not at home she said. She denied that she had an argument with the sisters that morning and that Fabi got into the argument. She said that her kitchen is 5 steps down the sitting room and from the kitchen one cannot see what is happening in the sitting room through the window. She further described the layout of the house. She denied that Fabi had punched her on some occasions after heated arguments. She said that her mother was not at home that morning.

[20] She said that she did not report to police on the same day. She denied that she told 'M.S.' to say that Fabi touched her pussy because Fabi had severely told her off that morning. 

[21] In re-examination she said that she did not report to police on the same day as she was shocked, and could not believe that her own brother had done it and that she did not know what to do.

[22] The last witness for the prosecution was Dr. Elvira Onbit who medically examined 'M.S.'. You heard her qualifications and experience as a medical doctor. She has medically examined 'M.S.' and the medical report prepared by her was submitted in evidence.

[23] She said 'M.S.'s vaginal examination revealed that her hymen was intact. She said there were no injuries in the hymen. There had been an abrasion on the left side between the vaginal opening and the labia minora. She said it was a superficial scrape of the skin. She said the cause can be of rubbing or scratching. She said that it was a mild abrasion and it takes 6-7 days to heal.
[24] In cross examination she said, the history given by the patient in D10 of the report was related to her by the mother of the patient as the child could not speak English. She said that in a situation where something is inserted inside vagina there would be an injury to hymen. If a finger is inserted into a 4 year old girl's vagina it is highly expected the hymen not to be intact, she said. She said that this kind of abrasion can cause by wearing tight clothes like pants but not by wearing tight panty.

[25] In re-examination she said that the hymen was intact and nothing had gone through the hymen. Answering the question by State counsel she said that if something goes through the vaginal opening there would have been hymental lacerations, but in this case hymen was intact. Hymental laceration would heal within 2 weeks but old healed hymental laceration would be shown. She said that in this case she did not see any fresh or old healed hymental lacerations.

That was the evidence for the prosecution.

Ladies and gentleman assessors, 

[26] At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution all times. The accused chose to give evidence and subject himself for cross examination. He also called another witness for defence. So you have to give that evidence careful consideration.

[27] Accused in his evidence said on 13/05/2014 he was at home. His 3 sisters, mother, younger brother and nephew also had been at home. At breakfast mother had growled at Aqela about household work and Aqela had talked back. After an argument Aqela had swore at the mother. Then the accused had stood up and scolded the sister. Aqela had got angry and tried to defend herself and had gone to the room and started crying. Then she had left with her daughter 'M.S.'. When Aqela went to the room his brother had been with him in the sitting room. 

[28] He denied the allegation against him. He said the argument in the morning led to this allegation. He said he also told the police that he did not know anything about the allegation. He said that he was shocked when the police arrested him and told him about the allegation.

[29] In cross examination he said, as the sole guardian he took the role of discipline 'M.S." and other nieces and nephews. He said 'M.S.' respected and listened to him. He said 'M.S.' was not scared of him but trusted him. He denied calling 'M.S.' to the sitting room and placing his fingers into her vagina. He said that morning his sister Mere and her new born baby was also at home. He denied that his mother had gone to Vanualevu that day.

[30] He denied that if one looks through the kitchen window only the ceiling of the sitting room can be seen. He denied that the sitting room is isolated from the rest of the house. He denied that Aqela was the least favoured sister in the house. He said that he also punched Aqela. He said his father did not confront him on the allegation of Rape.

[31] The last witness for defence was Mere Naduva who is a sister of the accused. On 13/05/2014 she had been at home. She had been having breakfast with her sister Aqela, her mother and the accused. Mother had asked Aqela to assist her with duties at home. Aqela had talked back. Then accused had stood up and wanted to punch Aqela, she said. The witness had gone to her bedroom leaving mother, Fabiano and Aqela. She said, that day her mother, Fabiano and herself was watching TV in the sitting room. 'M.S.' had been outside with the rest of her nieces and nephews.

[32] In cross examination she denied that her mother was at Vanualevu and said mother had arrived on 12/05/2014. She said that she didn't see Fabiano inserting his finger into 'M.S.'s vagina that morning. She said the window in the kitchen is below her level. She said if somebody is in the sitting room and if she is in the kitchen she would not know what that person is doing in the sitting room. She said the sitting room is isolated from the rest of the rooms in the house.

That was the evidence for defence.

 Ladies and Gentleman assessors, 
[33] You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[34] The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box unchallenged. 

[35] You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

Analysis

[36] The prosecution must prove beyond reasonable doubt, all the elements of 'Rape' as I explained to you.

 [37] In this case, the alleged victim says that she told her mother about the incident the same day. Complainant's mother said that 'M.S.' told her a part of the incident the same day, she was feeling shy and it took few days for her to open up. If you believe their evidence as true that 'M.S.' told her mother without delay, it shows that 'M.S.' was consistent and it may enhance her credibility. You may consider 'M.S.'s age that she was 4 years old at the time of the alleged incident when you consider her evidence.

[38] However, Aqela has not reported the matter to the police the same day. She had reported the matter to the police only on 26th May 2014, 13 days after the alleged incident. She says that she was shocked, lost when she heard the incident and that she went for counseling. You decide whether that delay is justified in the given circumstances and how it affects her credibility.

 [39] The complainant 'M.S.' said that the accused touched her 'pussy'. She demonstrated to you how he did it and said that he pinched inside. You also heard the evidence of the doctor who examined 'M.S'. It is not necessary to have full penetration. Slight penetration is sufficient to prove the element of penetration. You decide whether the accused penetrated his fingers inside her vagina or not.

[40] The Law says when a person is charged with an offence, and facts are proved which reduces it to a minor offence, the person may be convicted for the minor offence although he was not charged with it.

[41] Now I will explain to you about the offence of sexual assault. For the accused to be found guilty of sexual assault, prosecution has to prove the following elements beyond reasonable doubt.

1.	The accused
2.	Unlawfully
3.	Indecently
4.	Assaulted the complainant 
5.	Without her consent.

[42] The word unlawfully means without lawful excuse. Indecently assault means that the act must have some element of indecency and that a right minded person would consider the conduct indecent.

[43] Now in this case the accused is charged with rape. If you find that the complainant 'M.S.' was truthful when she said that the accused penetrated his fingers into her vagina you may find the accused guilty of rape. However, if you find that the accused touched her vagina but his fingers did not penetrate the vagina or if you have a doubt whether there was penetration, then you may consider the lesser alternative offence of sexual assault. Element of consent is immaterial as the complainant is below 13 years of age. For you to find the accused guilty of any of the offences of rape or sexual assault you must decide whether the evidence of the complainant was truthful. If you find her evidence is truthful it is not required for you to look for corroboration.

[44] The prosecution says that the accused inserted his fingers into M.S.'s vagina. Defence says that it was a made up story by Aqela, the mother of the complainant as she was angry with the accused. Defence says that the complainant child related in court what her mother wanted her to say. You decide which witnesses are truthful and which are not.
 
[45] It is a matter for you to decide on the facts and to decide whether the accused has committed the offence as charged or not, whether the prosecution has proved the charge against the accused beyond reasonable doubt.

 [46] I have explained the legal principles to you. You will have to evaluate all the evidence, and apply the law as I explained to you when you consider whether the charge against the accused has been proved beyond reasonable doubt.

[47] Your opinions on the charge of Rape will be either guilty or not guilty. If you find him not guilty of rape, then you may consider whether he is guilty or not guilty of sexual assault. 

Ladies and Gentleman assessors,

[48] This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

At Suva
10th September 2015

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

Re-direction

Ladies and Gentleman assessors.

May I further direct you on the evidence. In the re-examination 'M.S.' said, when she told her mother, mother had told her that she will tell the police.

On the doctor's evidence you may consider that 'M.S.' was examined by the doctor on the 27/05/2015 and the medical report is with you. Doctor also in her evidence said it was a mild abrasion and it would take 3 to 4 days to heal and maximum of 7 days to heal.

I may also remind you that 'M.S.' said in evidence that she told her mother that 'Momo Fabi' touched her pussy. However 'M.S's mother said in her evidence that apart from that, 'M.S.' told her that mucus from uncle's balls has gone to her clothes. 

If you consider those as inconsistencies between the evidence of 'M.S.' and her mother that may affect the credibility of the witnesses. However you may also consider the age of the complainant 'M.S.' when you consider her evidence.

Priyantha Fernando
Judge
10/09/2015