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State v Waininima - Summing Up [2015] FJHC 851; HAC124.2013 (3 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 124 OF 2013

STATE

V

WAISAKE WAININIMA

Counsel: Mr. J. Niudamu for the State
Mr. W. Rosa for the Accused

Dates of Trial: 27th, 29thOctober, 2015
Date of Summing Up: 3rdNovember, 2015

(Name of the Complainant is suppressed. She is referred to as BT)

SUMMING UP

Madam Assessors and Gentleman Assessor:

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 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 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 opinions 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 or read about this case, outside of this Courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.

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.

13. 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 or she evasive? How did he or she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

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.

15. The charges against Accused are as follows:

Statement of Offence

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

Particulars of Offence

WAISAKE WAININIMA between 1st day of August, 2012 and 31st day of September, 2012 at Nadugu Settlement, Rakiraki in the Western Division penetrated with vagina of BT, with his penis, without her consent.

16. I will now deal with the elements of the offence. 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 to the vagina of a woman to any extent. So, that is Rape under Section 207 (2) (a) of the Crimes Decree.

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

a. the Accused, Waisake

b. penetrated the vagina of BT to some extent with his penis.

c. without BT's consent.

19. Insertion of penis fully into vagina is not necessary. Slightest penetration is sufficient to satisfy this element.

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

21. A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The Complainant in this case is over 13 years of age at the time of the alleged incident and therefor she had the capacity to consent.

22. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the Accused-person and connect him to the offence that he alleged to have committed.

23. Proof can be established only through evidence. Evidence can be 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 Complainant was a witness who offered direct evidence as to what she saw, heard or felt.

24. 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 Complainant.

25. The doctor, in this case, came before Court as an expert witness. Expert evidence of a doctor's report and his opinion is not accepted blindly. You will have to decide the issue of rape 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.

26. I will now remind you of the Prosecution and Defence cases. In doing this it would not be practical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

Case for the Prosecution

27. First witness for the Prosecution is BT, the Complainant in this case. She was sixteen years of age at the time of giving evidence. She was residing with her big uncle and aunty at FSC Compound in Rakiraki at the time of the alleged incident in 2012.

28 On a Sunday between 01st August, 2012 and 31st of September, 2012 Accused Waisake came to BT's home and asked her if they can go together to the Nadovi church. Complainant's aunty said 'no' but big uncle allowed her to go.

29. BT asked the Accused to take the main road. But he wanted to take a short cut along the railway road. On their way, Waisake pulled her hands, threw her into a sugar cane field. He touched her breasts, then he used one of his hands to hold her both hands and with the other hand he pulled down her panty. After that he inserted his penis into her private part. She tried to go but she could not because he was holding her hands tightly. She called out to Jipa but did not get any response. She shouted loudly but nobody could hear. Once done, he said enough and asked her to stand up. Then she followed him to the Nadovi Church, crying.

30. In cross examination, Complainant said that after that all finished she could not run away as she was in pain. She, however, proceeded to the church for 'Pathfinder' meeting with him. She did not inform any of the Pathfinders what Waisake had done to her. She got back home with Laisiana around 3 p.m. after attending Pathfinder meeting.

31. She did not report the incident to Police or anybody at home as she was scared of her Police officer father. She did not go to a doctor although she was really in pain. She reported the incident to Police in June 2013, nearly after ten months. She refrained from giving any answer when she was asked what prompted her tomake a belated complaint to Police ten months after the incident.

32. Complainant could not resist, kick or bite his tongue as he was strong and she was young. He was holding her tightly.

33. Next witness for the Prosecution was Constable Petero. When he was attached to the Rakiraki Police Station he received instructions to interview the Accused. He interviewed the Accused under caution giving all his rights including right to legal representation. He was not assaulted, threatened or coerced. Nothing was promised, nor inducement given. He was cooperative. He read the cautioned interview statement P.1in evidence.

34. In the interview, Accused had stated to Police that the Complainant had asked him to accompany her to the Nadovi Church. He had confessed to Police that he had sexual intercourse with the Complainant as she had agreed to have sex with him.

35. In cross examination, Constable Petero admitted that the father of the Complainant is a Police officer and he used to visit Rakiraki Police Station for official work. Complainant's father had come to Rakiraki Police Station after the matter had been reported to police.
36. He further said that he could not find any evidence connected to the offence during his visit to the alleged crime scene with the Accused for reconstruction.

37. Sailosi Bawaqa, Ladies and Gentlemen, was the witness who gave evidence next. He was the officer who charged the Accused at the Rakiraki Police Station. He said that the Accused was treated fairly during the interview. He was not threatened or intimidated. He was not offered any inducement or promise. Accused gave the charge statement voluntarily. Witness tendered the charge statement of the Accused marked as P2.

38. If you look at the set of Agreed Facts provided to you, charge statement of the Accused is an agreed fact. In the charge statement, the Accused had admitted engaging in 'sex' with the Complainant with her consent. He had denied that he had forced her.

39. Last witness for the Prosecution was doctor. Joseph Brian. After obtaining MBBS degree, doctor had started his practice in 2012. He had examined the Complainant on 15th June, 2013 at the Rakiraki Hospital.

40. Perusing the Medical Examination FormP.3,doctor read the history related to him by the Complainant. Complainant had said that Fijian youth had sexual intercourse with her against her will in latter part of 2012. He had not noticed any lacerations, or scars on tissues in vaginal area. Her hymen was not intact. In his concluding remarks, doctor had noted that "because the incident had occurred almost a year a ago" and the "clinical findings are not specific", the only opinion he could give was that the Complainant may have been sexually active as her hymen was not intact.

41. In cross examination, doctor did not rule out possibility of hymen being not intact in a woman due to reasons other than sexual intercourse such as physical activities or congenital reasons.

That Ladies and Gentlemen was the case for the Prosecution.

42. When the Prosecution had closed its case, you heard me explain to the Accused his rights in defence. He could remain silent and say that the Prosecution had not proved the case beyond reasonable doubt; he could give evidence and be subjected to cross examination and call witnesses on his behalf. Although he has nothing to prove in this case, the Accused elected to give evidence and called a witness on his behalf. Evidence of the defence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

Case for the Defence

43. First witness for the Defence was Waisea Waininima. He was assistant youth director and Master Guide in Pathfinder march organised by Nadovi Seventh Adventists church. He was doing classes for participants of pathfinder club who were preparing for a Camporee to be held towards the end of 2012.

44. He talked about a Pathfinder meeting that was held at Nadovi Church on a Sunday in August, 2012 where both Complainant and Accused had participated. On that particular Sunday, the Complainant was participating in the full club session lasted for nearly four hours from 1p.m. to 5 p.m. She had not made any complaint to him or to other participants. Witness had not noticed anything unusual in her behaviour.

45. You will remember, Ladies and Gentlemen, Accused himself finally came to the witness box and gave evidence. He completely denied having had sexual intercourse with the Complainant. Explaining the contrary position he had taken in his cautioned interview, Accused said that he had no option but to make such a statement because the interviewing officer was insisting that he conforms to the Complainant's statement.

46. Accused admitted visiting Complainant's house on that particular Sunday and accompanying her to the Nadovi church on the request of her grandmother. Under cross examination, he denied visiting Complainant's house on Complainant's request. He blamed police for fabricating part of his interview.

That was the case for the defence.

Analysis

47. The Prosecution based its case substantially on the evidence of the Complainant, BT and the cautioned interview statement of the Accused that was marked P.1. If you are satisfied that the evidence T gave in Court is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion.

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

49. You may, however, consider whether there are items of evidence to support the complainant'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 complainant's story of rape. You can consider in this regard the documentary evidence such as the medical report and the cautioned interview statement of the Accused apart from other oral evidence led in the trial.

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

51. There is no issue in this case with regard to the identity of the Accused. It was agreed by the parties at the commencement of the trial that the Accused in this case is Waisake Waininima and that he accompanied the Complainant to church on the date of the alleged incident.

52. In order to assist you, I will pick some salient items of evidence which you will analyse to test the credibility of a witness. However, you are free to use your common sense and come to your own finding.

53. You have to consider how probable or improbable is the evidence given by Complainant. That is whether what the witness was talking about in her evidence is probable in the circumstances of the case. In the same way you should analyse the evidence of the Accused and decide which version is appealing and preferable to you. Bear in mind that the Accused is under no obligation to prove anything and the burden is always on the Prosecution to prove that the sexual intercourse took place without Complainant's consent. If you find that the Complainant did consent or if you are not sure whether she consented or not, you must not find the Accused guilty of Rape.

54. Complainant said that Accused came all the way from Korowaqa to FSC compound to take her to Nadovi church. But she had told him 'no'. Complainants' aunty also had told her not to go with him. But her big uncle had allowed her to go with him. Complainant also said that he forced her to go with him. Defence Counsel argues that it is not possible, in the presence of her guardians, to take the Complainant forcibly unless she had agreed to go with him. Apply your common sense and form your own opinion.

55. She also said that after the rape incident, she was really in pain. Nevertheless, she had followed the Accused to the church and participated in the Pathfinder meeting until she left around 3 p.m. You consider how probable her behaviour was after the alleged rape incident and form your own opinion.

56. And also consider the following scenarios, apply your common sense and form your own opinions. When the Complainant was allegedly being raped, she had shouted loudly. But no one had come to her rescue. The incident had taken place during lunch time. Police Officer said there are houses around the alleged crime scene.

57. Complainant said that before the Accused penetrated, he was holding both her hands with one of his hands and pulled down her panty using the other hand.

58. 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 is 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 delay, you should look whether there is a reasonable explanation to such delay.

59. The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim's reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in her society, in relation to an open discussion of matters relating to sex with others. It takes a while for self confidence to reassert itself. There is, in other words, no classic or typical response by victims of Rape.

60. Failure to complain soon after the incident is not necessarily consistent with consensual sexual intercourse. It is only a matter of evaluating consistency of her evidence and credibility. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. When she makes a belated complaint it is a matter for you to determine whether she is genuine or whether it was due to some other ulterior motive.

61. BT had not informed or complained promptly about the incident of rape to Laisiana, her aunty, uncle or anybody else. She had reported the matter to Police in June 2013 nearly ten months after the alleged incident. You have to see whether she had acceptable and legitimate reason for not complaining soon after the incident.

62. BT's explanation was that she was scared of her police officer father. She had not informed the incident to her father and had kept it a top secret until now. However she had complained to Rakiraki Police station where his father used to come for official duties. She refrained from answering when she was asked why she made a belated complaint to Police ten months after the incident. You consider if her explanation is acceptable and what weight you should attach to her evidence.
63. Ladies and Gentleman, in your exercise to test her credibility, you have to consider how consistent BT was in her evidence. That is whether she was telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere.

64. Defence Counsel highlighted a phrase of BT's statement to police where she had stated that 'we went together' and argued that her previous statement is not consistent with what she told us in Court that she was forced by the Accused to go with him. You consider whether what the Complainant has told court contradicts with her earlier version.

65. If you find two versions contradictory to each other, then you see whether that contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. 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.

66. You have before you the cautioned interview statement and the charge statement of the Accused. In the cautioned interview (P.1), he had admitted the allegation of sexual intercourse. However he had maintained that it was consensual. In his evidence in court Accused completely denied that he had sexual intercourse with the Complainant. He says that he was compelled to give such a statement and part of which is fabricated by Police.

67. His charge statement (P.2) is an admitted document. In that he has admitted having had sex with the Complainant. However, Accused had never used the term 'sexual intercourse' or penetration of the penis but the word 'sex'. 'Sex' is a word with a general meaning that can mean any form of sex, not necessarily mean sexual intercourse or penetrating penis into the vagina.

68. I direct as a matter of law that if you believe that the Police did fabricate the interview and that some of the answers crucial to this case are not his then you are to discard it.

69. If on the other hand, you find that he did give the answers contained in the record of interview and that he gave those answers willingly then the interview is evidence for you to consider in the normal way.

70. It is for you to assess what weight should be given to those documents. If you are not sure, for whatever reason, that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true, you may rely on it.

71. If you decide to rely upon those documents, you must bear in mind that he had only admitted consensual sex and consensual sexual intercourse. They are not admissions of sexual intercourse without Complainant's consent. Crucial ingredient of the offence of Rape, namely, 'without her consent' had not been admitted. Considering all evidence led in the trial, you have to be satisfied beyond reasonable doubt that he penetrated her without her consent.

72. You watched BT giving evidence in Court. What was her demeanour like? How does she react to being cross examined and re-examined? Was she evasive? How she conducted herself generally in Court? It is up to you to decide whether you could accept her version.

73. In dealing with the issue of penetration, medical evidence in this case is of little help as there was considerable time gap between the alleged incident of rape and the medical examination. You may consider the issue of penetration in light of doctor's opinion and other evidence led in the trial. It is entirely a matter for you to be satisfied that the absence of hymen in BT's vagina is a result of penetration with Accused's penis.

74. Finally you have to consider whether the Defence case has thrown any doubt on the Prosecution case. It is important that you consider the evidence of the Accused and his witness too applying the same yardsticks that you applied to assess the credibility of Prosecution evidence. You can generally expect an innocent explanation from the Accused to escape criminal liability. The witness he called is his brother. He is an interested witness. You decide what weight you attach to their evidence.

75. In the cautioned interview, Accused had told Police that it is the Complainant who had requested him to come and accompany her to the church. In Court, he said it was her grandmother.

76. His version in Court in regard to his sexual interaction with the Complainant is contradictory to his version in the cautioned interview and the charge statement. You consider what weight you attach to his evidence.

77. If you find the Accused's evidence is not credible, that does not mean the prosecution version is automatically becomes acceptable. 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.

78. However, if you believe the Accused, then your opinion must be 'not guilty'. Alternatively, without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your minds and so again your opinion must be not guilty. The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the Prosecution witnesses in any way.

79. If you accept the prosecution version and if it proves each element of the offence beyond reasonable doubt that he committed the offence then the proper opinion would be '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, to receive the same.

81. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 3rd November 2015

Solicitors: Office of the Director of Public Prosecution for the State
Mr.W. Rosa for the Accused