IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 104 of 2013

STATE

V

SAKEASI SAULEQARAKI

Counsel : Ms. S. Puamau with Ms. S. Serukai for State
 Ms. P. Chand for Accused
Dates of Hearing : 23rd–26thNovember 2015
Date of Summing Up: 27thNovember 2015

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1.	I will now explain to you the legal principals you should apply in this case. You must accept those directions on law and must follow them when you analyze the facts of this case in order to arrive at your opinion.

2.	During this exercise, I may refer to certain evidence wherever necessary while explaining the legal directions and I will also be providing you a summary of the evidence. Being the judges of fact, you and you alone should decide what weight you give to the evidence. Therefore, if I express my opinion on the facts of this case or if I appear to express my opinion on the facts, you are at liberty to either accept or disregard such opinion. Do not accept my views on the facts of this case unless you agree with them.

3.	When I say 'evidence' that includes what the witnesses said from the witness box, the exhibits tendered by both parties and the admitted facts.

4.	Please remember that this summing up is not evidence. That said, in this summing up, I will not be reproducing the entire evidence led in this case. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you may think fit.

5.	The arguments, questions and comments by the counsel for the prosecution and counsel for the defence are not evidence. A suggestion made by a counsel during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening and closing addresses made by counsel for the prosecution and counsel for the defence. That is their duty as counsel. However, those arguments and comments made by counsel in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence if you wish to do so, but you are not bound to accept them.

6.	You must not consider anything you have heard or read about this case outside this courtroom before or during the trial. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been or allow yourself to be drawn into speculation. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box, the admitted facts, admitted documents and the documents tendered in this court. You must approach the evidence with detachment and objectivity and should not be guided by emotion.

7.	You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.

8.	You should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.

9.	In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistent statements, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you would consider unreliable.

10.	On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with any explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.

11.	The prosecution says that the complaint made by the complainant in this case to witness Miriama Ledua strengthens the credibility of the complainant. You should bear in mind that this complaint is not evidence of what actually happened between the accused and the complainant that night. You should first consider whether the complainant made that complaint without delay and secondly whether she sufficiently complained of the offences the accused is charged with.

12.	The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident. But the complaint should contain sufficient information with regard to the alleged conduct of the accused for such complaint to be regarded as a 'recent complaint' according to law. Accordingly, if you are satisfied that she made a prompt complaint with sufficient information, then and then only you may consider that her credibility is strengthened in view of that recent complaint.

13.	Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. Then apply the relevant law as per my directions on law to those facts and inferences, to form your opinion as to whether the accused is guilty or not guilty.

14.	You are not required to decide every point which has been raised by counsel in this case. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the said charges laid against the accused heve been proved.

15.	When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.

16.	The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of the accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.

17.	A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of an offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. However, if you find that the prosecution has proved all the elements of a particular offence the accused is charged with, beyond reasonable doubt, you should find the accused guilty of that offence.

18.	You should also bear in mind that you should consider each count separately. You must not assume that the accused is guilty of the other count just because you find him guilty of one count. You must be satisfied that the prosecution has proved all the elements of each count separately in order for you to find the accused guilty of both counts.

19.	You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my decision.

20.	Let us now look at the Information. DPP has charged the accused for the following offences;

COUNT ONE
Statement of offence
Rape: Contrary to Section 207 (1) and (2)(a) of the Crimes Decree 2009. 

Particulars of offence
SAKEASI SAULEQARAKI on the 14th day of January 2013 on Gau Island in the Eastern Division had carnal knowledge with ARIETA RADINIDRAVUWALU in that he penetrated the vagina of the said ARIETA RADINIDRAVUWALU, without her consent.

COUNT TWO
Statement of offence
Rape: Contrary to Section 207 (1) and (2)(b) of the Crimes Decree, 2009. 

Particulars of offence
SAKEASI SAULEQARAKI on the 14th day of January 2013 on Gau Island in the Eastern Division penetrated the vagina of the said ARIETA RADINIDRAVUWALU with his fingers, without the said ARIETA RADINIDRAVUWALU's consent.

21.	To prove the first count, the prosecution must prove the following elements beyond reasonable doubt;

-the accused
-had carnal knowledge of Arieta Radinidravuwalu
-without her consent
-accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting

22.	The first element of the offence is concerned with the identity of the person who committed the offence. 

23.	Second element is having 'carnal knowledge' of Arieta Radinidravuwalu or the complainant. Carnal knowledge in the context of this case is, penetrating the vagina by the Penis. It is an admitted fact in this case that 'the accused inserted his penis into the vagina of the complainant on the night of 14th January 2013'.

24.	Therefore, with regard to the first count, there is no dispute with regard to the identity of the accused and with regard to the accused having carnal knowledge of the complainant. You should consider that the first and the second elements of the first count are proven beyond reasonable doubt.

25.	The only dispute concerning the first count therefore is on consent and now I will explain how you should deal with it. Please remember to apply the following directions regarding consent when you consider the relevant elements concerning 'consent' in the second count as well.

26.	Not only that the prosecution should prove the accused had carnal knowledge of the complainant without her consent, but the prosecution should also prove that the accused knew that she did not consent to the act or that the accused was reckless as to whether or not she was consenting.

27.	What is meant by 'reckless as to whether or not she was consenting'? If the accused was aware of the risk that the complainant may not be consenting for him to insert his penis into her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina with his penis, you may find that the accused was reckless as to whether or not she was consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.

28.	You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. The fact that there was no physical resistance alone shall not constitute consent. A person's consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;

a)	by force; or
b)	by threat or intimidation; or
c)	by fear of bodily harm; or
d)	by exercise of authority; or
e)	by false and fraudulent representation about the nature or purpose of the act; or
f)	by a mistaken belief induced by the accused person that the accused person was the person's sexual partner

29.	If you are satisfied beyond reasonable doubt that the prosecution has proved the elements based on consent as explained above, then you must find the accused guilty of the first count. If you have a reasonable doubt with regard to any of those elements, then you should find the accused not guilty of the first count.

30.	To prove the second count, the prosecution must prove the following elements beyond reasonable doubt;

-the accused
-penetrated the vulva or vagina of Arieta Radinidravuwalu with his fingers
-without her consent
-accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting

31.	The accused denies penetration in this count. Therefore, what is not disputed in this count is only the accused's identity. The prosecution should prove all the other elements beyond reasonable doubt.

32.	The law says that penetration is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration. Evidence of a slightest penetration by the accused's fingers is sufficient to satisfy this element.

33.	I have already explained you about the elements concerning consent.

34.	If you are satisfied that the prosecution has proved all the above disputed elements beyond reasonable doubt, then you must find the accused guilty of the second count. However, if you have a reasonable doubt with regard to any one element in the second count, you should find the accused not guilty of the second count. 

Case for the Prosecution

35.	Arieta Radinidravuwalu said she was 18 years old in 2012.The accused is her father's younger brother. While she was staying with the accused and his family at Nawaikama, on 09th January 2013, Noa Ledua who is her father's elder brother visited them with some others from Somosomo village. On that day, she went with them to Somosomo village to stay at Noa Ledua's house, with the permission of the accused. On 14th January 2013, the accused visited her uncle's house where she was staying at Somosomo with some others. She said, when she was preparing tea for the visitors, the accused signalled her using hand gestures for her to go back to Nawaikama with him. After having tea, the accused came to her several times and told her that they should leave at 9.00pm that night. She left with him accordingly with her clothes in her knapsack. She also took her aunt's torch on the instructions of the accused. She said that the accused told her that she should tell that they were walking to look for land crabs if anyone asked.

36.	She said that night was really dark and it took them about half an hour to reach Delainaniu where the accused told her to rest for a while. Accused told her to lean against a coconut tree and to keep her legs on another small tree nearby. He then told her to off the torch she was holding and she turned it off. Then the accused moved closer to her and told her to massage his shoulder. She complied. Then the accused touched her breasts and while touching he asked her whether she like what he is doing to her. She said she was scared and was anxious and therefore she only said "mmm". She said she could not say anything 'because it was far and I was new to the place' and as there were no houses and no people nearby. He then told her to open the zip of the pullover she was wearing. She was scared and placed her hand on her chest. The accused took her hand off the chest, unzipped the pullover and licked her stomach. The accused then opened the sulu she was wearing and removed her panty. Accused licked her vagina and then inserted his penis into her vagina. She said the accused had his penis inside her vagina for about 5 minutes and he did not ejaculate.

37.	After that they continued their journey. She was only wearing her panty as the accused told her to do so. She complied as she was scared. They again stopped at Vunitavola to have a rest. At that place, the accused told her to lie down so that he can ejaculate. She said she told him that she cannot do it because it was paining and that she cried. According to her, the accused then pushed her to the ground and said that he wants to ejaculate. The accused made her suck his penis for it to erect. At this point, the accused inserted two of his fingers into her vagina. She said that after a while the accused told her that they should leave as he failed to get an erection. She said she then got up, got dressed, took her bag and she took the lead.

38.	According to her, when they were about to enter the house, the accused kissed her. She could not sleep that night. Next morning she waited till the accused and his wife leave the house and then she went to her aunt Miriama at Somosomo and informed her about the incident.

39.	In cross examination, she admitted that the accused told her that they should leave at 6.00pm on 14th January 2013 and also that the accused went back to the village hall as she wanted to leave a bit late. She said when the accused was touching her she could not do anything because she was new to the place and it was dark. She admitted that she did not flick his hand away when the accused touched her.

40.	It is pertinent to note the following questions and answers;

Q: You just said "mmm"?
A: I couldn't speak, I just said "mmm".

Q: I put it to you that when you said this, Mr. Sakeasi took it that you were consenting?
A: He already touched me. After that he asked me 'you like what I am doing to you?'. That was my response by saying "mmm".

Q: When you uttered those words, it was difficult for my client to take it as whether you were consenting or not consenting?
A: Because it was dark and he cannot see me when I uttered that. I uttered those words, not with head shaking, just that.

Q: So it is correct that Mr. Sakeasi was not in a position to interpret that?
A: Yes

…..

Q: You told court at that time Mr. Sakeasi has inserted his penis inside your vagina?
A: Yes

Q: I put it to you, while this was happening, you were on top of Mr. Sakeasi?
A: Can't recall.

Q: I put it to you, before Mr. Sakeasi put his penis into your vagina, he asked for your consent, and you said yes?
A: No

Q: You were not scared at all when you said yes to him?
A: I was scared.

Q: I put it to you that at Delainaniu, you had consensual sex with Mr. Sakeasi?
A: I couldn't say anything at that time because I know he would do something to me and because it was also dark.

Q: I put it to you that when Mr. Sakeasi inserted his penis in your vagina, you were holding his hand* tightly?
[*The word the defence counsel used in the question was 'head', but during re-examination it was revealed that the interpreter had heard it as 'hand' and had translated accordingly to the witness.]
A: Yes

Q: I put it to you, at this point in time, Mr. Sakeasi had never threatened you?
A: He didn't threaten me because I did not say anything and I also did not do anything to him.

Q: I put it to you that because you said "mmm", that you were on top of him, and you were holding his hand* tightly, he took it as consent: Is that true?
A: Yes

Q: You and Mr. Sakeasi had a conversation after all this at Delainaniu?
A: Yes

Q: The conversation was about for you to have sexual intercourse at Nakobua?
A: Yes. That is what he told me.

Q: You had agreed to that?
A: I did not say anything.

41.	When she was being questioned with regard to the second incident, she admitted the suggestion that the accused was fondling her vagina. She also admitted that the accused told her that they should go home when she told the accused that it was painful. However, she denied the suggestion that the accused never inserted his fingers in her vagina. She admitted that her aunt, Miriama and the accused did not have a good relationship but denied the suggestion that Miriama influenced her to get the accused into trouble.

42.	In re-examination, the issue with regard to interpretation of the word 'head' as explained above was highlighted. She said that she was not on top of the accused when he inserted his penis and that she did not run away from Nadawalu stream where they stopped for the accused to have a wash on their way to Vunitavola, because it was midnight and it was dark.

43.	The second prosecution witness, Miriama Ledua said she is married to Noa Ledua who is the complainant's Tatalevu or the elder father, They live at Somosomo village in Gau Island. Noa Ledua, Complainant's father and the accused are brothers where Noa Ledua is the eldest among them and the accused is the youngest. On 09th January 2013 she went to Nawaikama village and the complainant came back with them to Somosomo village with the permission of the accused. On 14th January 2013, the accused visited Somosomo with some other villagers from Nawaikama. She said, on that day, around 9.00pm, the accused left with the complainant back to Nawaikama by foot.

44.	On the next day around 12.00pm, complainant came back to her house and went straight to the kitchen. Complainant did not look normal, she was dirty and when the witness asked, complainant told her that the accused raped the complainant when they were travelling the previous night.

45.	In cross examination, she admitted that there was a conflict in the family after her husband's elder brother passed away as this elder brother had nominated accused's son as the beneficiary to his FNPF. But she said the dispute lasted only for a short while. She denied the allegation that she spread the rumour in the village about the complainant having sex with the accused after the complainant told her about the incident. She also denied the proposition that she is the one who convinced the complainant to allege that the accused raped the complainant.

46.	The next prosecution witness was Mere Vakawaletabua, Medical Officer at Rakiraki Hospital. She graduated from the Fiji School of Medicine in 2009 and she examined the complainant on 15th January 2013 at the Qarani Health Centre. She said she observed abrasions on left labia and right upper labia and some white discharge. According to her there was evidence of sexual intercourse most likely by force as there were abrasions. The white discharge could signify an infection, she said. In cross examination, she said the abrasions could have been caused by the patient scratching, depending on the extent of scratching.

47.	That was the case for the prosecution.

Case for the Defence

48.	At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence and to subject him to cross examination.

49.	Accused said, on 14th January 2013, he went to Somosomo village with some others. The complainant served them food and tea. There he told her in front of the others that he will be going back to Nawaikama. He said, when he wanted to have a shower that day, the complainant gave him her toothbrush and also provided him soap. After the shower he had a conversation with the complainant where he told her that she can go back with him in the fiber glass boat in which he came to Somosomo with the others. She said she want to travel by foot. Then he told her that in that case they should leave at 6.00pm, but the complainant told him that she wants to leave after sunset. He then told her that if she want to travel at night to look for a sack to catch crabs. He said when he went to her at 6.00pm and 7.30pm she was not willing to leave. Finally, when he went to her at 8.30pm, she agreed to leave and they left at 9.00pm that night. On their way, he suggested to take a rest at Navau where there is a house and a bench to rest, but the complainant said that they can have a rest at Delainaniu.

50.	At Delainaniu, he told the complainant to lie down on a slanting coconut tree. He sat next to her and then told her to massage his shoulder from behind. Then he turned facing her for her to massage his chest. He said, the complainant tempted him by the way she massaged him. Then he touched her breasts from his right hand and asked her whether she like it. She said yes. He then fondled her nipples and again asked her whether she liked it and this time she did not say anything. According to him, when he asked for the third time, complainant said "mmm". He said, when he heard her say 'mmm', he considered it as she giving her consent. He said the complainant did not seem scared, she did not push him or his hand away from her. Then they started kissing each other and by this time the complainant was holding his head tightly. When he tried to pull her pullover up, she herself unzipped it and also removed the bra she was wearing. He said when he inserted his penis into her vagina she was spreading her legs. At one point he lied down and the complainant came on top of him. According to the accused, the complainant enjoyed what she was doing and after she reached her climax, she lied on top of him for about 10 minutes. He had to wake her up, and before they left he told her that he did not ejaculate and asked her whether they can continue at Nakobua. She said yes. He said she was wearing her cloths when they continued to walk. He also admitted that he told her not to put on her cloths. On the way, at Nadawavula, they stopped where he relieved himself and took a wash. He said the complainant could have run away at this point if she wanted as she had the torch with her.

51.	At Nakobua, he said they sat on a tree trunk. He said he did not put his finger inside the complainant's vagina at Nakobua. According to him, he told the complainant to make his penis erect and the complainant put his penis inside her mouth. He was fondling the complainant's vagina. Even after about 10 minutes he was unable to get an erection and the complainant at that point told him that she is in pain. Then he told her that they should leave. He said that on their way home, they were kissing each other. He told her not to tell about the incident as the others should not know that they had sex, and she agreed.

52.	He said he never threatened the complainant at any point. He indicated that he has been framed due to the family dispute with Miriama over his elder brother's money.

53.	In cross examination he admitted that he was for all purposes, complainant's father when she was at Gau Island. He denied that he signalled the complainant to come with him on 14th January 2013. He denied when it was suggested to him that he is the one who insisted to travel at that night. He denied that he forced the complainant to have sex with him at Delainaniu. It was put to him that "mmm" would mean "No", but he maintained that it implies consent. When questioned about the second allegation, he denied forcing her and said that the complainant was not crying. He said, when the complainant told him that she was in pain, he told her to stop. He denied inserting his fingers in the complainant's vagina. He said that they both consented for what happened that night and that he is telling the truth.

54.	In re-examination, he said that he did not force her to go home in a way she did not agree. He said "mmm" means "yes" to him.

55.	That was the case for the Defence.

Analysis

56.	With regard to the first count, the prosecution says that the accused inserted his penis without the complainant's consent. The defence says that the complainant consented and that the accused perceived that the complainant was consenting due to her response.

57.	The complainant said that she did not consent for what the accused did to her.She said she did not say anything apart from saying "mmm" when the accused asked her after he touched her breast, as she was scared. She admitted during cross examination that the accused could have taken her conduct including the uttering of "mmm" as she giving her consent. Accused said he asked the complainant thrice whether she liked what he was doing before he inserted his penis into her vagina and he said that he construed the complainant's "mmm" as complainant giving her consent.

58.	First you must ask yourselves whether you are sure that the complainant did not consent for the accused to insert his penis. If the answer is no, you should find the accused not guilty for the first count.

59.	If the answer to the above question is yes, then you should consider whether you are sure that the accused knew that she was not consenting or that he did not care whether she was consenting or not. If your answer is no to both these questions, you should again find him not guilty.

60.	If you answer is yes to one of the questions, which means you are either satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting; or you are satisfied beyond reasonable doubt that the accused did not care whether the complainant was consenting or not, then you must find him guilty of the first count.

61.	With regard to the second count, the complainant says that the accused inserted his fingers into her vagina without her consent at Nakobua and the accused says he did not insert his fingers. He says, he only fondled the complainant's vagina when she was trying to get his penis to erect.

62.	Therefore, first you must be satisfied beyond reasonable doubt that the accused did insert his fingers in the complainant's vagina. If you have a reasonable doubt, you should find him not guilty of the second count.

63.	If you are satisfied beyond reasonable doubt that the accused did penetrate the complainant's vagina with his fingers at Nakobua, then again you must consider whether or not the complainant consented for that penetration, and then whether the accused knew that she was not consenting or whether he was reckless as to whether or not she was consenting. In this regard, you may follow the steps I explained to you in relation to considering the elements on consent in the first count.

64.	I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused's evidence must be considered along with all the other evidence and you may attach such weight to it as you think appropriate.

65.	You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.

66.	Generally, an accused would give an innocent explanation and one of the three situations given below would then arise: 

(i)	You may believe him and, if you believe him, then your opinion must be that the accused is 'not guilty'.

(ii)	Without necessarily believing him you may think, 'well that might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be 'not guilty'.

(iii)	The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of the offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proven the case beyond reasonable doubt. If you are sure that the prosecution has proven all the elements, then your proper opinion would be that the accused is 'guilty' of that particular offence charged.

67.	Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.

68.	Your possible opinions would be;
First Count: Guilty or Not Guilty
Second Count: Guilty or Not Guilty

69.	Any re-directions?

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Office of the Legal Aid Commission, Suva.