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State v Ratudamudamu - Summing Up [2015] FJHC 867; HAC204.2014 (4 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 204of 2014

STATE

V

EMORI RATUDAMUDAMU

Counsel: Ms K. Semisi for State
Ms P. Salele for the Accused

Dates of hearing: 2,3 and 4 November 2015
Date of Summing Up: 4 November 2015

SUMMING UP

[1] Ladies and Sir assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

[2] As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

[3] Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.

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

[5] On the issue of proof, I must direct you as a matter of law that the onus or burden of truth lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until is proved guilty.

[6] The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

[7] Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else.

[8] The accused faces three charges of rape. In our law and for the purposes of this trial, rape is committed when a person penetrates the vagina of another and where the person doing that does not have the consent of the complainant or is reckless to whether she was consenting or not. Furthermore; when the complainant is under the age of 13, the law says that she is incapable of giving consent. All that needs to be proved that the child is under the age of thirteen and that there was an act of sexual intercourse with penetration. Penetration can be full or it can be just minimal but there must be penetration to some degree.

[9] In addition the State has charged the accused with three representative counts of rape. In a representative count the State is alleging that, during the period referred to in that count, the accused has committed several other offences of the same kind. Instead of loading up the Information (or Charge sheet) with counts charging many offences, they have selected one as an example, as they are entitled to. To find the accused guilty you must be sure that he committed one such offence during the period concerned, whether or not you are sure that he also committed other such offences.

[10] In noting that there are three representative counts we see that the State alleges that the accused has committed three different types of rape on the girl. The first count is the usual penis rape (that is what is meant by carnal knowledge); the second is rape by finger and the third is rape by tongue.

[11] Please be assured Ladies and Sir that in our law, penetration by any of these; penis, finger or tongue is rape.

[12] The fact that there are three charges means that you must look at each charge separately. Just because you think that he is guilty of penile rape for example does not necessarily mean that he is guilty of the other two counts.

[13] That is all I wish to say about the law at this stage. As I discuss the evidence thereare a couple of legal directions I must give, but it is better that I do that at a time to make them easier for you to put them in context.

[14] The evidence has been extremely brief; we heard it in a half day only. Now you are not to think any less of the case because of that. Sometimes in trials we hear too much unnecessary evidence but in this case we have heard all we need from both the Prosecution and the Defence for you to come to a considered reasonable opinion.

[15] I make no apologies for reminding you of the evidence. It is my duty as a Judge to do that in all fairness to both sides. However I remind you that when I discuss the evidence I appear to be taking a side with either the Prosecution or the defence, then you must put my view to one side and come to your own findings on the evidence. You are the judges of the facts.

[16] The first witness was the complainant Edith (not her real name). She is 7 years old now but only 6 at the time it is said that these offences were committed. You will recall that I asked Edith if she knew the difference between truth and lies. She said yes and she promised to tell the truth.

[17] Edith said that last year she was in Class 3 and she was living in Nailuva Road with her Mum and Emori. One day in June when she was sleeping Emori came into the room where she was sleeping with her Mum and took her to his room. He put his fingers inside her "mimi". He put his tongue on her mimi and licked it. He also put his "mimi inside her "mimi". He did this three times and then put her back where she was sleeping. The next day she went to school and she got sick and her tummy was sore. She lay down and her mother came to get her. Mum took her to the hospital. At the hospital her mother spoke to the doctor – a lady doctor she said- and she had an injection. The Doctor checked her whole body and then she stayed in the hospital for two days. Before they went to the hospital Edith had told her Mum what Emori did. Later she also told the Police all about it and they wrote it down.

[18] Edith's mother came to tell us her side of the story. It was obvious that she wasn't very bright and she was easily confused but the value in her evidence was that she confirmed everything that Edith had told us. When she had collected her from school on the day she got sick Edith had reluctantly told her at the bus stop about what Emori had done to her the night before. She said that Edith had said that he had taken off her panty, put his finger inside her vagina and tried to lick her.He did it three times and her panty was stained with blood. Mum was shocked and took her to the hospital and from there they went to the Raiwaqa Police. She said as an afterthought that Edith had said that he had also put his penis inside her and that Emori used to give her money.

[19] In cross examination Ms.Salele suggested that she was angry with Emori and that she told his cousin Waisea that she was going to take revenge on Emori. She denied that but said that she merely told Waisea that what Emori had done was not good.

[20] Dr. Rakai came and told us about the medical examination. It was immediately obvious that he wasn't a "lady doctor" as Edith said but then that discrepancy you might find is not important. There was a staff nurse at the examination and maybe that confused Edith. Having been told the history of the alleged rapes, the doctor found that Edith's vagina was lacerated on both sides and that such injuries were consistent with the history that Edith and her mother had related to him. His ultimate conclusion was that she had been sexually abused within the previous 7 days.

[21] Well, that was the end of the prosecution case.

[22] You heard me explain to the accused what his rights in defence are and he elected to give sworn evidence. Now I must direct you that in giving evidence the accused does not have to prove anything. The fact that he gives evidence does not relieve the State from proving their case to you so that you are sure. Even if you don't believe a word he says it does not make him guilty if the State have not proved their case beyond reasonable doubt. But if you think what he tells you is true or may be true, then you must return an opinion of not guilty.

[23] The accused in his evidence told us that the evidence of Edith about the events of 17th June 2014 were not true. He went on to say that Edith's mother while living with him had "changed"; her children used to steal from him and when he brought another woman into the house it made the mother angry. He first heard about the allegations at U.S.P. where he worked as a landscaper from one of his colleagues.

[24] He says that he and Edith had a "fatherly" relationship. They liked each other.

[25] In cross examination, he denied that he had gone to see Edith the week before the trial to persuade her not to give evidence against him.

[26] WaiseaLaqavakaroa gave evidence for Emori. He said he lives with Emori and when he saw the mother of Edith on the morning of the 18th June 2014, she told him that she was going to "frame" Emori.

[27] He agreed in cross examination that he had discussed his evidence with Emori (his cousin) and that he wanted to help him. He said that they talked about his evidence.

[28] It is a matter for you Ladies and Sir what you make of the evidence of Waisea. You may think he is too close to Emori to be taken seriously. But it is up to you what weight you wish to place on his evidence.

[29] Well that was the evidence.

[30] You have heard the prosecution witnesses tell of the night time rapes and you heard the defence evidence that it didn't happen – it was all made up out of spite because of "the other woman". It is an issue you have to decide.

[31] Before I let you go to make your deliberations I must direct you on the third count. As you see it is an allegation of several counts of rape by tongue. Now penetration by tongue is rape in our law but there must be evidence of penetration. There doesn't appear to me to be any evidence of penetration but you may think differently.

[32] If you think that there was an assault on Edith by tongue, then if you also think that there was penetration, then you will find him guilty for count three but if there was no penetration or you are not sure then you will find him not guilty of rape. It is open to you however to find an alternative opinion of not guilty of rape but guilty of sexual assault. I direct you that the licking of a vaginais a sexual assault and if you think it was done without the consent of Edith, then you can return an opinion of not guilty of rape but guilty of sexual assault.

[33] It would be best if you will be all agreed on your opinions but it need not be so if you can't agree. Please let a member of my staff know when you are ready and I will reconvene the court. You may retire now, but just before you do I will ask counsel if there is anything they may wish me to change in this summing up.

[34] Counsel?

P.K. Madigan
Judge

At Suva
4 November, 2015