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Nataqiri v State - Summing Up [2015] FJHC 815; HAC125.2012 (23 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 125 OF 2012

BETWEEN:

ASERI NATAQIRI

AND:

STATE

Counsel : Mr. Nath for the Applicant,
Mrs. Ratu for Respondent,

Date of Hearing : 20th, 21st and 22nd of October 2015
Date of Summing Up : 23rd of October 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. 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.
   
2. 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.
   
3. 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.
   
4. 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.
   
5. 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 of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is 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 are 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.
   
6. 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 but 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.
   
7. 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.
   
8. 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 is correctly recalling the facts about which he or she has testified.
   

Burden and Standard of Proof

9. 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 innocence 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.

10. 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 words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
11. 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 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.
    

Information

12. 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;

"Aseri Nataqiri on the 17th of September 2012, at Sigatoka in the Western Division, had unlawful carnal knowledge with a woman namely "A" without her consent".

13. Section 207 (1) and (2) (a) of the Crimes Decree 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"

14. Accordingly, the main elements of the offence of rape are that;
    
    1. The Accused,
    2. Inserted his penis into the vagina of the complainant,
    3. Without the consent of the complainant,
    4. The Accused knew the complainant was not consenting for him to insert his penis in that manner,
       
15. At this point I must emphasis you that the offences of sexual nature do not require evidence of corroboration.
    
16. I know 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.
    
17. I now draw your attention to summarise the evidence presented by the prosecution during the hearing.
    
18. The first witness of the prosecution is "A". She is the victim of this alleged incident. She stated in her evidence that she was staying at Hideaway Resort on the coral cost with her sister and was spending a vacation. She went to a bonfire on the beach near the resort with her sister in the night of 16th of September 2012. Few other tourists, few local staffs of the resort and few locals from the nearby village were also came to the bonfire. After the bonfire, she walked back to the resort with her sister and Suli, her boy friend. Then she decided to go back to the bonfire with her boyfriend, leaving her sister. Her sister proceeded back to the resort. She then had sex with her boy friend on the beach near the bonfire. All others who came to bonfire had gone back at that time. She then started to perform oral sex on her boy friend, while he was lying on the beach. She was crouching across his body while performing oral sex. She then felt someone was touching her vagina and then felt a penis inserted into her vagina from the back. She realised that there was someone else apart from them.
    
19. The victim stated that then she threw sand to her back and tried to stand up. The man whom she alleged that inserted into her vagina tried to get on top of her. She kicked him from her left leg and he fell back on the sand. She then picked up her cloths and ran down to the beach and shouted. She stopped to put her cloths on her way to the resort, at that time her boy friend came and asked what was wrong. She stated in her evidence, that man was just a meter away from her when he tried to get on top of her. She said it was a night with lot of moonlight. She further said that she saw the person for about 15 to 20 seconds. He was wearing a white t-shirt with a logo of "Fiji" on it. There was some kind of a symbol under the logo of "Fiji". That t-shirt didn't really have sleeves and it had black lines on the side of the shoulder. She testified that the person had quite macular arms. He had lot of lines on his forehead. She stated that she was scared but was not angry when this incident took place on her. She then went back to her room and told her sister about the incident that she faced on the beach. They then went to the police station and report the matter.
    
20. The victim admitted in her cross examination that she did not mention in her statement to the police that the person had beard on his face. She said that the police did not ask her about the facial fritters of that person. It took about 60 seconds for all these to happened. She said that the person was not wearing pants. She could not correctly recall the time, but stated it may be around 1a.m. or 2 a.m. in the morning.
    
21. The second witness of the prosecution is the younger sister of the victim. She was with the victim at the bonfire on the beach in the night of 16th of September 2012. She then went back to her room at the resort. Her sister stayed back with her boy friend Suli on the beach. While she was getting ready to sleep, the victim came into the room. She looked disturbed and scared. The victim then told her what had happened to her on the beach, that she was raped by a person. According to the witness, the time was around 2.30 a.m. in the morning. They then went to the police and reported the matter.
    
22. The third prosecution witness is Ruci Vakacokaiwasa. She is the wife of the accused person. She stated that she drank cava with few of her workmates and the accused until11p.m. in the night of 16th of September 2012. After that she found her husband had gone out of the house when she prepared their dinner. She waited for him and he finally appeared at 2.08 a.m. She testified in her evidence that the accused was dressed in a white t-shirt with grey and blue lines around the shoulder of it.
    
23. The last prosecution witness is Suliasi Raviko. He is the boy friend of the victim. He stated in his evidence that the victim told him that someone has raped her from behind. At that time she was performing oral sex on him. He was lying on the beach and she was crouching across him. He further stated that he did not see anything as he was lying on his back. No body was on the beach at that time and everyone who came to bonfire had gone back. He stood up and then saw a person was running away from them. That person was about 20 meters away from him. He tried to chase him after, but he was very fast. He stated that he saw that person was wearing a white shirt.
    

24. At the conclusion of the prosecution case, the accused was explained of his rights in his defence. The accused did not give evidence on oath and called no witnesses for the defence.

25. I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.

26. In view of the evidence presented by the prosecution, the main contentious issue of this case is the identification of the accused person. Neither the victim nor her boy friend identified the accused as the person who allegedly came behind the victim and inserted his penis into her vagina. The victim stated that she saw the person only for 15 to 20 seconds as he was trying to get on top of her. At that time she fell down on the beach and was scared of what was happening. She only saw that he was wearing a white colour t-shirt. It had no proper sleeves and had black colour lines around the neck and shoulder of it. He had muscular arm. The boy friend of the victim only saw a person was running away from them and that person was wearing a white t-shirt. According to the agreed fact, the accused has admitted that he was at the bonfire on the beach on that day. His wife, in her evidence stated that the accused was in a white t-shirt with grey and blue lines around it neck.

27. The prosecution presented evidence to prove facts and incident and suggested that when they considered as a whole, leads to an indisputable and inescapable conclusion that the accused person is the one who came behind the victim and inserted his penis into the vagina of the victim. In other words, the prosecution case of identification of the accused person is founded on circumstantial evidence.

28. A circumstantial case is one that depends for its cogency on the unlikelihood of coincidence. In such cases, the prosecution seeks to prove separate facts, incidents and circumstances which cannot be explained as coincidence, but the only rational explanation is the guilt of the accused person. Circumstantial evidence can be powerful evidence but it needs to be examined with care to assure whether it actually has such effect.

29. The circumstantial evidence that the prosecution is seeking to rely on in this instant case is that;

1. The accused was at the bonfire on the beach in the night of 16th of September 2012,
2. His wife stated in her evidence that the accused was dressed in a white t-shirt.
3. The victim saw the person who raped her, was wearing a white colour t-shirt with no proper sleeves.
4. The boy friend of the victim saw a person who was running away was dressed in a white t-shirt.
   

30. It is your duty to examine these evidence presented by the prosecution and decide whether you accept them or not. Drawing of inference is a process by which you find from evidence which you regard as reliable, that you are driven to a further conclusion of fact. You need to be careful to ensure that the evidence really leads to the conclusion, that the prosecution proposes you to reach.

31. Let me give you an example of drawing or forming an inference or a conclusion, which does not arise out of the facts of this case, but will illustrate the need of care in judging whether the facts proved supports the inference of guilt. If my finger print is found in the living room of my neighbour's home, it is a sound inference that at some stage I have been in his living room. It would not, however, support an inference that I was the burglar who stole his DVD recorder from his living room. If you accept my neighbour's evidence that I have never been invited into his home, then, in the absence of some acceptable explanation from me, you might infer that at some stage I had been in my neighbour's home uninvited. You may or may not be driven to the further conclusion that I was the burglar. But, if you also accept that there was a second fingerprint of mine found at the point of entry or, that in my shed there was a DVD recorder found, which my neighbour recognises as the one stolen from his living room, you, would, no doubt, conclude that you were sure that I was the burglar. You will notice how the inference of guilt becomes more compelling depending upon the nature and number of the facts and incidents proved.

32. What conclusion or inference you reach from the evidence is entirely for you to decide. However, in considering what inference you should draw or what conclusion you should reach, it is important to be mindful that speculation has no part in this process. The conclusion or the inference must be the only and certain rational conclusion or inference of the guilt of the accused persons. If the evidence that you accepted or considered as reliable, suggest you some other probable inferences or conclusions, which show the innocence of the accused or create a doubt as to the guilt of the accused, you are then not entitled to draw any inference or form any conclusion of guilt of the accused person.

33. When you consider the evidence of the victim and her boy friend, identifying the t-shirt of the person who raped her, you need to exercise special caution. You have to look carefully the circumstance in which they made those observations. In doing such, you can consider following factors;

1. How long was that person under observation,
2. At what distance,
3. In what lighting condition,
   

34. You observed and witnessed 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, whether they were evasive, in order to decide the credibility of the witness and 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.

35. Upon consideration of all evidence, if you believe and satisfied beyond reasonable doubt that the person who dressed up in a white t-shirt and inserted his penis into the vagina of the victim is the accused person, then you can find him guilty for this offence.

36. If you are not satisfied beyond reasonable doubt that the person who dressed up in a white t-shirt and inserted his penis into the vagina of the victim is the accused person, then you must find the accused not guilty.

37. Madam and gentleman assessors, I now conclude my summing up. It is 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.

38. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
23rd of October 2015

Solicitors: Office of the Director of Public Prosecutions for Respondent,
Legal Aid Commission,