IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 250 of 2013

STATE

V

WAISIKI GAUNAVOU

Counsel: Ms. K. Semisi for State
 Mr. J. Savou with Mr. W. Nainima for Accused 

Hearing: 12th, 13th October 2015 
Summing Up: 14th October 2015

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as [L.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 prosecution and defence 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 Indecently Annoying Any Person and one count of Rape. You saw that the accused pleaded guilty for the offence mentioned in count No. 1. Therefore you need not worry about or consider count No.1. I must also direct you that merely because he pleaded guilty to count No. 1, you should not assume that he is guilty of count No. 2 as well. The prosecution must prove all the elements of rape beyond reasonable doubt for you to find the accused guilty. 

[10] In count No.2, the accused is charged with 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. 

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

1.	the accused
2.	penetrated his finger into her ('L.S.'s) vagina

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

[12] The Law says that a child under the age of 13 years is incapable of giving consent. It is an agreed fact that the complainant 'L.S' was 8 years old at the relevant period. Complainant also said in evidence that she was born on 24th March 2005 and that she was in class 3 in 2013. That evidence was unchallenged. Therefore, it is immaterial whether the complainant consented to the sexual act or not.

[13] You will also see that the 2nd count is a representative count. It covers a length of time. It alleges that the offence was committed between 1st day of January 2013 and 17th day of June 2013. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of the exact date where the alleged offending had taken place during that period. You heard the complainant said in evidence that the accused used two fingers and touched inside her vagina. She said that the accused always called her to the room and did so. The accused is not charged with multiple counts of rape but as a representative count. As a matter of law you must ask yourselves whether between the dates specified in count No. 2, there was at least one offence of rape committed. You must be satisfied of that beyond reasonable doubt.

Evidence

[14] Prosecution called the alleged victim 'L.S.' to give evidence first. She said that her date of birth was 24th March 2005 and that she was 8 years old in 2013. In 2013 she had been in class 3. She had been staying in Raiwaqa with her grandmother, grandfather, two of her aunties, her small sister and 2 cousins.

[15] She said that the accused is her grandfather. She said that always when she was lying down in the sitting room, the accused always used to call her to his bedroom and use two fingers to touch her 'pipi'. Her grandmother had been staying in another room. Others had been in the sitting room. After touching her 'pipi' grandfather had told her not to tell anyone else.

[16] She said, that her grandmother and aunty questioned her. They had asked her as to what grandfather did to her. She had told them that when she was lying down in the sitting room, grandfather called her inside the room and used 2 of his fingers to touch her 'pipi'.

[17] Next day, when they went to cell group, grandmother had told it to another lady and they had gone to the police station. She said that after few days she was taken to the hospital and was checked by a lady doctor. Doctor had checked her 'pipi'. She said that when her grandfather touched her 'pipi' with 2 fingers, he touched inside the 'pipi'.

[18] In cross examination she denied that the accused touched outside the 'pipi'. She said it was painful when he touched it. She admitted that later she was taken to Central Police Station in December 2013 by her grandmother and Aunty and that she was forced by them to say things which were not true. When it was suggested that the accused touched only outside the 'pipi', she denied that. She said it was painful when he touched it. She said he only touched it.

[19] In re-examination she said, that at Central Police Station, her aunty forced her to tell that what she told at Raiwaqa Police Station was a lie. She said her grandfather touched inside her vagina with his two fingers.

[20] The last witness for the prosecution was Dr. Miriama Tukana who examined the alleged victim 'L.S.'.

[21] You heard her qualifications and experience as a medical doctor. She had medically examined 'L.S.' on 23/06/2013 and the report prepared by her was produced in evidence as Prosecution Exhibit 4. Her specific medical findings were, that 'L.S.'s 'vagina gapping posterior hymen intact and anterior hymen not visible – not intact.' She explained to you about the hymen and she said that it was consistent with the penetration of vaginal orifice. She said that the cause of the anterior hymen not being intact would have been penetration by a blunt object.

[22] In cross examination she said that if vagina is rubbed by a finger without penetration, it cannot cause the hymen stretch. She also said that if a finger is put outside the vagina, there is no possibility that it would damage the hymen. She gave an example where hymen can break without penetration. If the child falls on to a railing with the legs on each side, she said that it may cause injury to surrounding tissues. She also said that horse riding cannot cause damage to the hymen. She said that all that she can say is that penetration was done with a blunt object.

[23] The caution interview statement and the charge statement of the accused were produced in evidence by consent of the parties.

That was the evidence for the prosecution.

 Ladies and gentleman assessors, 

[24] 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 opted to remain silent and you must not draw any adverse inference from his choice to remain silent.

 Ladies and gentleman assessors,

[25] 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.

[26] 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. 

[27] The caution interview statement and the charge statement of the accused were admitted in evidence unchallenged. You may decide whether what the accused had said in the caution interview and the charge statement is the whole truth, and what weight you would give to the said statements.

[28] 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.

[29] As a matter of law I must tell you that a witness can give evidence on his observations like what he heard, what he saw and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example, you get experts in the medical field, finger prints, explosives etc. In this case the medical doctor Miriama Tukana attached to the CWM hospital gave evidence on the medical examination she conducted on the alleged victim 'L.S'. You heard her qualifications which were unchallenged. Therefore as a medical doctor her expert opinion on the medical examination and on her medical findings is admissible in evidence.

[30] However, in her medical report that was tendered as 'P4', in columns D10 and D11 she has mentioned the history given by the person to be examined and the initial impression of that person. The complainant in her evidence did not say that she gave any history to the doctor. Therefore, as a matter of law, I direct you that you must disregard what the doctor has mentioned in the report P4 as what the complainant told her about the incidents. All other opinions the doctor gave including the special medical findings, professional opinion may be considered when arriving at your opinions.

[31] The complainant 'L.S.' said that the accused touched inside her 'pipi' with his two fingers. When it was suggested by the defence that the accused touched only outside the vagina, the complainant denying the suggestion said that it was painful when he did it. You also heard the evidence of the doctor who examined 'L.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.

[32] 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.

[33] 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.

[34] 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.

[35] Now in this case the accused is charged with rape. If you find that the complainant 'L.S.' was truthful when she said that the accused touched inside her vagina with his fingers, 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.

[36] You may also remember that the counsel for the accused said in court that the accused also wishes to plead guilty to an alternative lesser offence of Sexual Assault. State counsel moved to proceed with the count of Rape as it was. You may disregard that as well. Merely because the counsel said that the accused wishes to plead guilty to a lesser offence, you should not feel that he is guilty of a lesser offence. The prosecution must prove beyond reasonable doubt all the elements of the offence. You first decide whether the accused penetrated his fingers into 'L.S.'s vagina. Only if you find that the accused touched her vagina but did not penetrate his fingers, then, you may go on to consider the lesser alternative offence of sexual assault.

 [37] 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. You may also take into account the complainant's age, when you consider her evidence. If you find her evidence is truthful, it is not required for you to look for corroboration.

[38] It is evident that the complainant told about the incidents to her aunt and the grandmother when they inquired from her. There is no evidence to show that the complainant on her own told about the incident or incidents to the grandmother and aunt. It is for you to decide whether that was justified. When deciding that, you may also consider the complainant's age and the social background. Children do not have the same life experience as adults. Their understanding may be severely limited for number of reasons such as their age and maturity. They may be embarrassed and feel guilty about what happened to them. You may consider those factors when evaluating her evidence.

[39] Prosecution says that the accused inserted his fingers into complainant's vagina. Defence took up the position that the accused only touched outside of her vagina but did not penetrate inside. You may also consider the demeanour of the witnesses when evaluating their evidence. 

[40] 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.

[41] 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,

 [42] 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
14th October 2015

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

Re direction

Ladies and gentleman assessors,

May I also tell you a portion of evidence that I missed when I summarized the evidence for you.

The doctor also said in her evidence in cross examination that she cannot confirm the time and the age of the injuries on 'L.S.'.

Priyantha Fernando
Judge

14/10/2015