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State v Naua - Summing Up [2015] FJHC 97; HAC162.2013 (20 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 162 of 2013

STATE

V

KANEA NAUA

Counsel: Ms P. Madanavosa for the State.
Ms M. Tarai (L.A.C.) for the accused.

Dates of trial: 18, 19 February 2015.
Date of Summing Up: 20 February 2015.

SUMMING UP

Ladies and Gentleman 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 had 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 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 one charge of rape and one charge of sexual assault. In our law and for the purposes of this trial, rape is committed when a person penetrates the vulva or vagina of another and where the person doing that does not have the consent of the victim. Penetration to any degree of the vulva or vagina with a finger is in our law rape. When a child is under the age of thirteen at the time, by law she cannot give consent. You have her birth certificate before you, so it is quite clear that she was only 7 turning 8 at the time and therefore in law she cannot be said to have given her consent. The crime therefore is proved if you find beyond reasonable doubt that Kanea did put his hand in her panties and did insert a finger into her vulva or vagina. As I stated by penetrating the vulva by just a little is still rape.

9. In addition to the rape charge, the State has charged Kanea with one representative count of sexual assault.

10. This means that within the period specified in the charge the accused committed not just one but several acts of sexual assault. Instead of loading up the Information with counts relating to many separate offences, they have charged him with one as a sample charge for those offences – this they are entitled to do. To find Kanea guilty of that count of sexual assault you must be sure that he committed at least one sexual assault on the young girl during the time alleged whether or not you are sure that he also committed other sexual assaults. In our law a sexual assault could be fondling of the genitals of the girl without penetration, a fondling of her breasts, or contact between bodies in a simulated act of sexual intercourse.

11. So your task in this case Ladies and Gentleman is to first look at the representative sexual assault count (ie Count 1) and decide whether there has during the year 2010 been at least one incident of sexual assault on the girl by Kanea and if you find that there has been at least one such assault, then you will find Kanea guilty of this count.

12. Secondly and in looking at the rape count quite separately you will decide if you believe the young girl when she says that Kanea put his finger into her vagina. If you think he did or if you think he put it into her vulva then you will find him guilty of the count of rape.

13. This has been an extremely brief case and I am sure that the evidence is still fresh in your minds. However it is my duty to remind you of the main points of it.

14. I am going to use the name Doreen for the young girl. That is because I have granted an application from the State that she not be identified and be publicly embarrassed.

15. In her evidence Doreen told us that in 2010 she was living with her Mum and Dad and Aunty Pene in Valelevu. One afternoon her father asked her to go to Kanea's house and get some water. When she got there, Kanea asked her to sit on his lap. She did that and then he started to touch her "main part" as she called it. He pulled up her skirt, put his hand inside her panties and started to touch it. He poked it. He then put his hand right inside. He kissed her mouth. He then told her to lie down. He started touching her "main part" again. It felt sore. It was in the sitting room and nobody else was there. He told her to sit on him again and he started to push his "butt" against her. He licked her lips and touched her breasts. At that time Junior came out of the adjoining room so Kanea took the remote and pretended to be watching TV. Doreen was scared she said. She went home.

16. In cross examination she admitted that she didn't tell anybody straight away, she was too scared, but on that day Aunt Pene caught her moving her hips up and down on a mattress, she told Aunty Pene about what had happened. Aunty Pene told her mum. She said that on the day in question she had gone to Kanea's house three times but these things happened on the first visit. However on the second visit Kanea did the same things again.

17. Aunty Pene was the second prosecution witness. She confirmed that one day in 2011 Doreen had told her that Kanea had touched her breasts and hugged her and had touched her private parts. She in turn told the mother.

18. Ladies and Gentleman, there is no rule of law that says the victim of rape or sexual assault must tell somebody else and must tell somebody else soon after the assault. The fact that she did and the circumstances that she did you will take into account and give them whatever weight you might think fit. Even if she never told anybody at any time, you are still entitled to judge this case on the evidence of Doreen alone.

19. The mother, Esther, said that her sister Aunty Pene did tell her the story that Doreen had told her; that Kanea had put his hand into her panties and touched her private parts. She called Doreen to get confirmation of the story but she refused to hear it in detail because she was so angry. She rushed to Kanea's house but he wasn't there. Later she said Kanea came to her house wanting to apologise. He said "I am sorry - maybe I was too doped. I didn't know what I was doing". Esther then got angry and told him to get out of the house. She and her husband went to the Police.

20. We then heard from the two Police Officers who produced the record of the caution interview and the record of the formal charge respectively. You will know now that the record of interview and the answer to charge are strongly disputed by the accused. He says that he didn't understand the process because he has a limited knowledge of English and anyway the answers that his counsel referred to were not answers that he gave but were fabricated by the Police.

21. I now direct you assessors how you should deal with these two documents. On the face of them they are evidence for you to take into account in the normal way. However the accused having raised issues about them I further direct you as follows.

22. The prosecution say that the record of interview contains admissions on which you can rely. The accused says in turn that the admissions were fabricated and in any event the interview was oppressive because it was unfairly conducted in English, a language that he knows only to a small degree. If you think that his English is as poor as he would have us believe then the use of that language for the interview would be oppressive and you must disregard it, even if you think that it was or may have been true. If however you are sure that the confessions were not obtained unfairly and that the answers are true then you may take it into account when considering your verdict.

23. Well, that was the end of the prosecution case.

24. 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. He was not obliged to give evidence. However he chose to give evidence. You must take what he has said into account when considering the issues of fact that you are to consider.

25. It is for you to decide whether you believe the evidence of the accused or whether it may be true. If you think it is true or maybe true then you must find him not guilty. But even if you entirely reject the account given by the accused, that would not relieve the prosecution of its burden of making you sure by their evidence that he is guilty.

26. Kanea told us his version of events as they unfolded on that day. I will try to summarise the main points but if I miss anything that you might think is important you must give it the weight that you think fit. It was only yesterday morning that you heard his evidence.

27. He started his evidence by saying that of the allegations, he had never put his hand into her panties and had never kissed her mouth, nor fondled her breasts.

28. When Doreen first came to his house he was watching TV. He saw her come to the back side of the house, fill her bottle and then go home again. She came back a second time and came into the house. She said she wanted to watch a DVD. He told her to take the water home and come back. She did come back and they sat on the settee together and watched a movie. He was drinking beer. Junior kept coming in and out of the room. After the movie she went home. He did nothing to her. He later heard rumours that he had abused her so he went to Esther's house to find out what was being said. He didn't go to apologise - Esther was angry so he couldn't find out what the story was.

29. He was arrested and participated in the caution interview which you have the record of Ladies and Gentleman. He said that in the many answers that he referred you to, he did not give those replies – he was constantly telling the Police that he didn't do anything to Doreen that day.

30. Well Madame and gentleman that is all I wish to say to you about the evidence. It is now time for you to retire and consider your opinions. It would be better if you could all be agreed but that is not strictly necessary. You will be asked individually for your opinion and you will not have to give a reason for it.

31. Your possible opinions are on the first count of sexual assault – guilty or not guilty; and then looking quite separately at the second count of rape your opinions again can be guilty or not guilty. Let a Member of my staff know when you are ready and I will reconvene the Court.

32. Redirections Counsel?

33. You may now retire.

P.K. Madigan
Judge

At Suva
20 February, 2015