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State v Nakula - Summing Up [2016] FJHC 235; HAC178.2014 (31 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 178 of 2014

STATE

V

SOKONAIA NAKULA

Counsel: Mr. M. Vosawale with Mr. S. Seruvatu for State
Ms. N. Mishra for Accused

Hearing: 29th, 30th March 2016

Summing Up: 31st March 2016

SUMMING UP

Ladies and Gentleman Assessors,

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so, it is a matter for you whether you accept what I say, or form your own opinions. 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.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The counsel for accused and the prosecution made submissions to you about the facts of this case. It is their right as the counsel. Their submissions are not evidence. You heard the evidence of the complainant and the accused adduced in court. It is a matter for you to decide which version of the facts to accept, or reject.

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

[5] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system, accused person is presumed to be innocent until he is proven guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.

[7] Your decisions 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 about this case, outside of this courtroom.

[8] Your duty is to find the facts based on the evidence, apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] The accused is charged with one count of Rape and one count of Sexual assault. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must be guilty on the other as well.

[10] Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent or if the person penetrates the vulva or vagina of the woman or girl to any extent with a thing that is not a penis without her consent.

[11] According to the particulars of the offence given in count No.1, the accused penetrated the vagina of the complainant with his finger without her consent. Therefore to find the accused guilty of count No 1, the prosecution must prove beyond reasonable doubt that:

1. the accused
2. Penetrated his finger into her vagina
3. Without her consent
4. He knew or believed that she was not consenting or did not care if she was not consenting.
   

It is not necessary to prove that there was full penetration. Slight penetration is sufficient to prove the element of penetration.

[12] Where the consent is obtained through fear or by threat or by exercise of authority, use of force or intimidation then that is not consent. Consent must be given freely and voluntarily and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. However, it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to penetrate his finger into her vagina anyway.

[13] Now I will explain to you about the offence of sexual assault. Accused is charged with Sexual Assault in count No. 2. For the accused to be found guilty of sexual assault, prosecution has to prove the following elements beyond reasonable doubt.

1. The accused
2. Unlawfully
3. Indecently
4. Assaulted the complainant
5. Without her consent.
   

[14] The word unlawfully means without lawful excuse. Indecently assault means that the act must have some element of indecency and that a right minded person would consider the conduct indecent. In this case the indecent acts alleged by the prosecution are, touching the complainant's breasts and licking the breasts and vagina. The complainant said in evidence that the accused touched her breasts, touched her vagina and licked her vagina without her consent. For you to find the accused guilty of any of the offences of rape or sexual assault you must decide whether the evidence of the complainant was truthful. If you find her evidence is truthful it is not required for you to look for corroboration and you may find the accused guilty. If you find the complainant not truthful and unreliable then you must find the accused not guilty.

Evidence

[15] Prosecution called the complainant Nainasa Vakaluma to give evidence. On 15/05/2014 she and her family had been living in accused's house. By that time she had been living there for about 6 months.

[16] On 15/05/2014 her husband had gone for fishing in the boat. Accused's wife had gone to Lautoka. She said that she has 4 children with her husband. On 15/05/2014 at about 1.00am she had been breast feeding the child in the room. She said that the accused came and lay down beside her and told her that he wanted her. She had said no that cannot happen as they both were married. He had ignored that and started touching her breasts and had pulled her 'sulu vakatoga'. She said that she got scared and stood up with the child. When the accused was moving closer she had planned to jump out of the window. Then she had thought about her children. Then the accused had forced her again giving excuses about their spouses. He had pulled her and taken her to the room and had taken her 'sulu' off. He had touched her vagina and breasts. He had touched inside her vagina with his fingers. She had felt his fingers in her vagina. He also had licked her vagina.

[17] She said that she couldn't scream as the accused was a big person and was lying on top of her. She also had been scared of him that he would do something to her and children. She said that she did not agree for him to insert his finger into her vagina.

[18] At that time the ages of her children had been 4, 3 and 1 year. She also was 2 months pregnant, she said. She had remained in the house that night and had reported the matter to police the next day.

[19] In cross examination she said that her husband used to be away out at sea for 2 weeks and on 15/05/2014 he left for 3 months. He had left the day before. She said that she misses the husband but doesn't feel lonely as she is with her children. She said that in general it is nice if somebody pays attention. She said that the accused told her that he liked her, but she did not pay attention to him. She denied behaving suggestively towards him.

[20] Accused had said that he wanted to have sexual intercourse with her and if she wanted to come to his room. She had told him that they cannot have sexual intercourse. She denied following the accused to his room and removing her clothes until she was naked. She said that the accused forced her, pulled her to the room when she said that they could not have sexual intercourse as she was pregnant. She said that the accused licked her body, touched her all over and licked her vagina but denied consenting. She denied holding his head with both hands for the accused to continue to lick her vagina. She said that she could not kick him as he was heavy. She had not screamed as it was in the middle of the night and neighbours were sleeping.

[21] She was scared that the accused would do something to them, she said. She was worried about the 2 little girls, she said. She said that she couldn't go outside because accused had been blocking the door. She denied consenting to the sexual acts.

[22] She said that she told the correct version to the police when she gave her statement. When she was asked about her telling the police that the accused came to her room, she said touching her breasts happened in her room and then she was dragged by the accused to his room. When her statement to the police was shown to her, she said that she did not mention to police that the accused dragged her to his room. She said that she was still scared when she gave the statement and that she told police whatever came to her mind. She said that licking part happened in accused's room.

[23] She said that she did not run outside as she was thinking about the 2 younger daughters. She denied cheating on her husband. She denied telling one Cama that she was feeling sorry for what she had done with the accused. She denied speaking to Cama. She denied apologizing to the accused's wife. She said that she only told the accused's wife what he did to her.

[24] She admitted signing the letter which was marked as Defence Exhibit 1. She said that the accused's wife brought the letter and forced her to sign. She said that the accused had written the letter. She did not read the letter and she was unaware of the contents, she said. She had not gone to report about the letter to police as it had not come to her mind. She had given a statement to DPP's office regarding the letter because she regretted signing it, she said. She had taken 8 months to give a statement to DPP's office because she had just given birth to the child, she said. She admitted that she was only 4 months pregnant when she signed the letter D1. Then she said as she was renting out with her children and could not leave the children to go and report about the letter. She denied cheating her husband. She said that the accused raped her and sexually assaulted her. She denied consenting.

[25] In re-examination she said she would not have had sex with the accused even if she was not pregnant. She said she wants the court to believe what she said in court and not what she had told the police about the accused entering her room. She said that about the accused dragging her to his room she want the court to believe what she said in court and not what she said in the police statement.

[26] She said touching breasts and vagina happened in her room and licking the vagina happened in accused's room. She said that the accused's wife told her that the accused wrote the letter D1.
That was the evidence for the prosecution.

Ladies and gentleman assessors,

[27] At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution all times. The accused chose to give evidence and subject himself for cross examination. So you have to give his evidence careful consideration.

[28] The accused said in evidence that he was at home on 15/05/2014. Complainant also had been there with her 3 children.

[29] At about 1am, after going to the toilet, he had been sitting in the sitting room. Complainant also had gone to the toilet and had come and sat beside him. He said that he put his heart out and told the complainant that the way she acted and dressed drew his heart. He said that the way she wore the towel and 'sulu' attracted him. Sometimes the complainant used to sit in front of him so that he could see her panty and that she never attempted to cover. He had told her that he wanted to have sex with her. She had said 'Yes'. He had told her to come to his room. After about 5 minutes she had come to his room. He had told her to undress and she had removed her clothes. When he asked her she had come to bed. They have kissed each other mouth to mouth and also he had licked her breasts, stomach and vagina. When he licked her vagina, complainant had put her hands on his head and pressed him down because she wanted him to continue, he said.

[30] It had taken more than ½ hour. When he wanted to take out his trousers to have sex, complainant had said that she was 2 months pregnant. Then he had said ok and had put on his clothes. He respected her decision as she was pregnant, he said.

[31] She also had put her clothes on and he had told her to go to her room. Then he had slept. He said that what complainant said in evidence that he touched her breasts in her room when she was breast feeding the baby was not true. He also said that it was not true when she said that she was dragged to his room. He said everything happened with consent and that she was a willing partner. He said that the complainant was not telling the truth when she said that she feared of him. He had been taking her children shopping. For 8 months they had been together.

[32] When he woke up the next day complainant had not been there. When they were having breakfast at about midday she had come. Everything was normal, he said. He said that a police officer came and arrested him after 5 days of the alleged incident. That was on 20/05/2014. He was released on bail on 14/08/2014, he said.

[33] Giving evidence on the letter Defence Exhibit 1, he said that he did not write that letter. One Semesa had written the letter. He said that he got to know about the letter once he came out on bail. His wife had told him. He said that all times the complainant consented. He denied penetrating his fingers into her vagina.

[34] In cross examination he said that the complainant was living in his house for about 8 months, but he waited for a time to express his feelings. He said that he got the opportunity when his wife was away and when the complainant's husband was away to put his heart out. He denied inserting his fingers into her vagina. He denied going to complainant's room and touching her breasts when she was breast feeding the child. He denied dragging the complainant to his room. He denied removing her clothes. He denied forcing her. He denied putting the complainant's belongings out when she reported the matter. He denied having any knowledge on the letter Defence Exhibit 1.

That was the evidence for defence.

Ladies and Gentleman assessors,
[35] You heard the evidence of the complainant and the accused. If I did not mention a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[36] The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box unchallenged. You may consider those facts as they have been proved beyond reasonable doubt.

[37] You may have observed that when the complainant gave evidence there were some inconsistencies between her evidence before this court and the statement given to the police. For example, there were inconsistencies about the room the alleged incidents happened. Although she said in court that the accused dragged her into his room she had not told that to the police in her statement. In her evidence she requested the court to believe what she said in court on those matters and not what she had told the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police, can affect the credibility of the witness.

[38] You may remember that when the accused gave evidence, in cross examination he was asked whether for the last 20 years he was faithful to his wife. He replied that sometimes he had not been faithful. You may not take any adverse inference against him on that evidence as that is not relevant to this case. All what you have to consider is whether the accused committed the acts alleged by the complainant and if so whether it was without the consent of the complainant, not whether he was faithful to his wife for last 20 years?

[39] The complainant says that the accused forcefully touched her breasts, licked her breasts and vagina and inserted his fingers into her vagina without her consent. She says that she was dragged into his room from her room. She says that touching her breasts and touching the vagina happened in her room and that licking part happened in his room. She says that she was forced by the accused's wife to sign the letter 'D1' and that she was not aware of the contents of the letter although she signed. The accused says that he touched her breasts, licked her breasts and the vagina but he denies inserting his fingers into her vagina. He says that the complainant was a willing partner and that she consented. He says that he had no knowledge on the letter 'D1' until he came out on bail.

[40] You decide which witnesses are truthful and which are not. It is a matter for you to decide on the facts and to decide whether the accused has committed the offences as charged or not, whether the prosecution has proved the charges against the accused beyond reasonable doubt.

[41] You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[42] I have explained the legal principles to you. You will have to evaluate all the evidence, and apply the law as I explained to you when you consider whether the charges against the accused have been proved beyond reasonable doubt.

[43] Your opinions on the charges of Rape and Sexual Assault will be either guilty or not guilty.

Ladies and Gentleman assessors,

[44] This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

At Suva
31st March 2016

Solicitors
Office of the Director of Prosecutions for State
Office of the Legal Aid Commission for Accused