IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 09 OF 2014

STATE

V

NAVITALAI TATORO

Counsel: Ms. S. Kiran for the State
 Ms. V. Narara for Accused 

Dates of Hearing : 13thand19thApril, 2016 
Date of Summing Up: 21st April, 2016 

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, and 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 come to 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 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 or read about this case outside of this courtroom. Your duty is to apply the law as I explain it 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. 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 give evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

13. Incidents of sexual assaults would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such incidents. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to. 

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. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this court.

15. The agreed facts of this case are:

NAVITALAI TATORO (the accused) was born on the 24th of September 1993.

Selina Tonu Aropio is the complainant in this case, aged 15 years in 2012.

Selina Tonu Aropio was in Form 3 at St. Thomas High School in the year 2012.

Selina Tonu Aropio resided in Koroipita with her parents and 4 other sisters.

In 2012, NAVITALAI TATORO (the accused) had a relationship with Selina Tonu Aropio's sister, Farina and had a child with her.

A medical examination of Selina TonuAropio was not conducted.

The accused, NAVITALAI TATORO was interviewed under caution at the Lautoka Police Station on the 08th of August 2012 by CPL 2313 Ana Nai.

The accused, NAVITALAI TATORO was charged on the 08th of August 2012 by WDC 3692 Asenaca.

16. According to the amended Information, charges against accused are as follows:

FIRST COUNT
COUNT 1
Statement of Offence
INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence
NAVITALAI TATORO between the 22nd of January 2012 and 27th April 2012 at Lautoka in the Western Division unlawfully and indecently assaulted Selina TonuAropio.

COUNT 2
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence
NAVITALAI TATORO between the 31st of May 2012 and 01st of June 2012 at Lautoka in the Western Division unlawfully and indecently assaulted Selina TonuAropio.

 I will now deal with the elements of the offences. 

17. Accused is charged with Indecent Assault on the first count. Prosecution must prove the following elements:

 (a). The Accused,

 (b). Unlawfully and Indecently

(c). Assaulted the Complainant

18. The Second Count is Sexual Assault. Elements of the Sexual Assault are that:

 (a). The Accused,

 (b). Unlawfully and Indecently

(c). Assaulted the Complainant.

19. You will find that the elements of the offence of Sexual Assault appear to be the same as that of Indecent Assault. Sexual assault is actually an aggravated form of indecent assault. The Accused is guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainant. The word "unlawfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. Assault can be defined as an application of unlawful force on another's body. 

20. Proof can be established only through evidence. Evidence can be from 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, if you believe her as to what she saw, heard and felt.

I will now deal with the summary of evidence in this case.

Evidence of the Complainant

21. Prosecution called the Complainant as its first witness. She was fifteen years old, Form 3 student at St. Thomas High School in 2012 when the alleged incident took place. She was residing with her parents and siblings in Koroipita. 

22. Complainant's sister Farina also lived with her in a small house that had no bedrooms. Farina was in a relationship with the Accused and had a child from him. Complainant had known the Accused from 2007. He used to come to her place almost every day. 

23. On 31stMay, 2012 she went to sleep around 8.30 p.m. with her three sisters. She woke up around 11 p.m. when she felt someone putting his hand between her thighs, going up to her undergarment. His hand was near but not inside her undergarment. She woke up and saw the Accused. She tapped his hand. Then she shifted closer to her sisters and slept again. Accused went back to watch the movie. 

24. On the following morning, she went to school and told Adi Vika about the incident that happened to her previous night. 

25. She did not recall any incident that happened on 22nd January or any other day. 

26. Under cross examination, she admitted making a complaint to police on the 4th of June, 2012, a few days after the incident. 

27. She had told police in her statement that whilst she was sleeping with her two sisters, she felt a hand was touching her thighs and it going upwards her undergarment. She had also told police that she felt a finger being inserted into her undergarment and it went inside her vagina. Complainant said what she told court was the truth. 

28. Complainant denied that her sister Farina was also present where she was sleeping and that Farina called the accused from her bed. She said that a curtain partitioned the only room in her house and her sister Farina was sleeping behind the curtain. 

29. Complainant did not share lots of things with her mother and sisters. She admitted that she did not complain about the incident to her mother and sisters on the following morning. 

30. Prosecution called Adi Vika next. She was the head girl of St. Thomas College where Complainant was studying during the period the alleged incident happened. On 1st June 2012, she saw the Complainant in the school wash room in a distressed condition. She asked her what happened. Complainant informed her of an incident happened the previous night. 

31. Complainant informed her that when she was sleeping with her sisters, she felt her elder sister's boyfriend putting his hand between her thighs. He was sitting beside her. Then she tapped his hand and moved closer to her sisters. She had not told anyone until the matter was reported to her because she was scared. She thought her mother would not believe her and take her elder sister's side. 

 32. That was the case for Prosecution. You heard me explain to the accused what his rights were in defence and how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined. 

33. You are aware; Accused elected to remain silent and called a witness on his behalf. That is his right. Now I must tell you that the fact that accused did not give evidence does not give rise to the inference that he is guilty. Burden of proof remains with the prosecution throughout. Evidence called by the Defence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate. Even if you don't believe a single word of what the witness called by accused said, you must still be sure that Accused is guilty of the offences he is charged with.

Case for the Defence

34. Defence called Complainant's sister Farina Chabella. She lives together with the accused. Accused is the father of her child. Complainant lives with them even today. 

35. On 31st May 2012 Accused was sleeping with her son on the floor in her house in Koroipita. Nothing unusual happened that night. In the following morning, Complainant did not complain about anything. 

36. Under cross examination, Farina said that her house was an open room and there was a curtain across the room. Her bed was on one side of the curtain. When the accused was there, he used to share the bed with her and her baby. 

37. On 31st May 2012, her three sisters were sleeping on the floor. Accused was sleeping next to her bed about three meters away from her sisters. At one point, after she prepared the bed, she called the accused to come and sleep with her on her bed. Until then, he was sleeping on the floor. She could see the accused every moment he was there. That is the case for Defence.

38. I have summarized evidence that I thought important to you in the light of arguments of the Counsel of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all that evidence and from your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence. You are the judges of facts and are free to consider the evidence in its entirety and come to your own conclusion. 

Analysis

39. There is no issue in this case with regard to the identity of the Accused. Complainant had known the accused from 2007 as her sister's partner. 

40. The Prosecution based its case substantially on the evidence of the Complainant. Prosecution says that the accused unlawfully and indecently assaulted the Complainant on two occasions. Accused denies the charge and takes up the position that the allegation is made up.

41. First, you have to be satisfied that the evidence Complainant gave is truthful and believable. If you are satisfied that the evidence she gave in court is truthful and trustworthy you can safely act upon her evidence in coming to your conclusion. 

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

43. If you are satisfied that Complainant told the truth and her evidence is believable, then you have to consider whether the Prosecution had discharged its burden and proved, each element of counts 1and 2, in the amended Information, beyond reasonable doubt. You have to consider each charge separately.

44. In evaluating Complainant's evidence, you consider whether what she was talking about in her evidence is probable and believable in all the circumstances of the case.

45. You have to consider whether there is a delay in making 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 leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation for such delay.

46. Complainant did not report the incident to her mother or sisters soon after the incident. She, however, informed in the following morning, Adi Vika, her school mate, everything accused had done to her. She explained to Adi Vika the reason why she did not complain to her mother or sisters. Contention of the Defence is that the fact that Complainant did not report to her family members what have happened as soon as possible makes it less likely that the complaint she eventually made to police was true.

47. You have to see whether Complainant had given an acceptable and legitimate explanation for not complaining at the first available opportunity to her family members. It would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. 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 would react with shame, or fear or shock or confusion, do not complain or go to Police or any other authority for some time. It takes a while for self confidence to re-assert itself. There is, in other words no classic or typical response. 

48. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complain. It's a matter for you to determine whether, in the case of this particular Complainant, the lateness of the complaint to family members, such as it is, assists you at all and, if so, what weight you attach to it. You need to consider what the Complainant herself said about her experience and her reaction to it. 

49. You consider whether Complainant was telling a story on the same lines without variations and contradictions and whether she is shown to have given a different version elsewhere. 

50. She had told in her statement to police four days after the incident that accused inserted his finger into her vagina. She told us in court that he only rubbed her thighs. You consider whether there is a contradiction between her statement to police and evidence in court and, if so, the contradiction is material so as to affect the credibility of her evidence. 

51. Please remember, what she told police is not evidence. However, you can use her previous statement to police to test the consistency and credibility of her evidence. 

52. You watched Complainant giving evidence in court. What was her demeanor like? How she reacts 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.

53. Accused is the father of Farina's child. Accused and farinaare living together. Accused financially supports her and contributes toward her family. Farina has allowed the accused to come and live with them despite the allegation against him. Complainant also lives in the same house even today. You decide what weight you attach to Farina's evidence and also to that of the Complainant in this context.

54. You watched witness called by the Defence giving evidence in court. You can apply the same tests and your common sense to evaluate her evidence. It is up to you to decide whether you could accept her version and his version is sufficient to establish a reasonable doubt in the prosecution case. 

55. If you accept the evidence presented by the Prosecution, you must also be satisfied that each element of each count had been proved beyond reasonable doubt. 

56. Complainant spoke only about an incident happened on 31st May 2012. If you are satisfied that the complainant told the truth, then you decide whether rubbing thighs of a girl's up to her under garment whilst she is at sleep constitutes any or all of the offences in the Amended Information. 

57. The Second Count is Sexual Assault. If you are satisfied that the complainant told the truth and the act of rubbing thighs of a girl's up to her under garment whilst she is at sleep is aggravated form of indecent assault, you can find the Accused guilty of Sexual Assault.

58. 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 beyond reasonable doubt.

59. If you accept the Prosecutions' version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of accused's guilt of each charge you must find him guilty of each charge. You have to consider evidence against each charge separately. The fact that accused is guilty of one charge does not mean that he is guilty of other charges as well. 

60. If you do not accept the prosecutions' version of events, and you are not satisfied beyond reasonable doubt, so that you are not sure of the accused's guilt, you must find him not guilty as charged. 

Your possible opinions are as follows:

(i) First count of Indecent Assault accused 'Guilty' or 'Not Guilty'?

(ii) Second count of Sexual Assault accused 'Guilty' or 'Not Guilty'?

61. 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.
Any re-directions?

Aruna Aluthge
Judge

AT LAUTOKA
On 21stApril, 2016

Solicitors: Office of the Director of Public Prosecution for State
 Office of the Legal Aid Commission for Accused