IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 23 of 2015

STATE

V

SERUVATU SAUVUNI RATUVA

Counsel: Ms. W. Elo for State
 Mr. P. Lomaloma for Accused

Date of Hearing : 20, 21 April 2016
Date of Summing Up : 22 April 2016

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 proof 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 one charge 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 victim or is reckless to whether she was consenting or not. 

[9] The State must prove therefore the following four elements:

 1) That is was indeed this accused Seruvatu

 2) He did penetrate her vagina with his penis, and

 3) She did not consent to that, and 

 4) He knew that she was not consenting, or was reckless as to whether she was consenting or not. 

[10] The evidence was brief, but it is my duty to summarize it for you. Remember that if I leave anything out or appear to adopt an opinion that you don't agree with it is entirely a matter for you as to what you make of the facts. 

[11] The first prosecution witness and the complainant in this case was Rosana who was aged 16 at the time told us that on the evening of 25th September 2014, a Thursday, she attended a prayer meeting at her home. The accused and his parents were there. Her sister's boy was hungry so the sister asked the accused's mother if there was any food at their house. Seruvatu's mother said yes and invited the sister (Ella) and her boy and Rosana to join them for dinner. The accused accompanied them and before reaching the house, Ella and her boy stopped in the hall while the accused asked Rosana to "go together and talk". Rosana had asked Ella to stay in the hall while she got the food. 

[12] Rosana told Seruvatu that if the "talk" was for sex, she wasn't interested. He said it was just talk, she agreed and they went to a house nearby. He started to kiss her and touch her "private parts". She then told him: no sex because we are related. He didn't listen. He then undressed her and made her lie down. He took off his clothes and then she says she knew it was too late. He lay on top of her and penetrated her with his penis. She felt pain but couldn't do anything about it because it was too late. She was crying. He said don't cry; it is meant to be something to be enjoyed. 

[13] They then left and went to his house where they had dinner. She didn't tell anybody at the time because her family was going through a lot of problems and she didn't want to further embarrass her family. 

[14] In cross examination she admitted that on going to hospital she found she was pregnant. She wanted then to report the rape. Her grandmother tried to talk her out of it because it would cause fighting in the family. She reported it nevertheless. 

[15] In a medical report produced by the defence it is noted that she was 29 weeks and 3 days pregnant which on Mr. Lomaloma's reckoning would lead to a conception date of about the 19th September. 

[16] She admitted that in early April she went to the accused's parents' home, while the accused was still being held by Police. She said that she went to apologize for reporting the matter but that the allegation was still true. She felt guilty about bringing shame on his family, on the church and on the settlement. 

[17] She insisted that the accused was in Taveuni on September 25th 2014 and denied that he stayed in Savusavu after the funeral there. 

[18] The second prosecution witness was Adi Ella who had gone to Taveuni with her son to vote in the elections in September 2014. She recalls being at a church meeting. It was a Thursday, but on a date she had forgotten. She told the same story about going to Seruvatu's parents' house for dinner. Seruvatu went with them. She and her son stopped in the hall while Seruvatu and Rosana went ahead. They got to the house after 30 minutes and Rosana and Seruvatu were there having dinner. They were acting normally and there was talking and laughing. 

[19] In cross-examination she confirmed that there was a prayer meeting on a Thursday the same night that they went to Seruvatu's house for dinner. Seruvatu was definitely in Taveuni that night and not in Savusavu. 

[20] Well Ladies and Sir, that was the end of the prosecution case. You heard me tell the accused what his rights in defence are. He elected to give sworn evidence. 

[21] I must now direct you Ladies and Sir that the accused is not obliged to give evidence because he doesn't have to prove anything. The State still has to prove the case beyond reasonable doubt whether he gives evidence or not. 

[22] Even if you don't believe a word he says, it doesn't make him guilty if you think that the State haven't proved their case. 

[23] The accused told us that on the 25th September 2014 he was in Savusavu. He had gone with Dale Tarte to her father's funeral on 11th September. Dale returned to Taveuni after a couple of weeks but he stayed on helping Dale's brother Jimmy tend the animals and doing some carpentry work for him. He stayed he says in Dales parents' house, not far from Jimmy and his family. He was there until a week or two before Christmas.

[24] He denied raping Rosana; nor did he have sex with her in September or October.

[25] In cross-examination he admitted that Rosana was close to his family and that she was regarded as a family member. 

[26] The second defence witness was the accused's father Apeti Vosapeci. 

[27] He told us that he is a church elder in Taveuni. He said that it was said in the lawyers office when he was there with his son that his son the accused had gone to Taveuni on 11th April and came back to Taveuni just a couple of weeks before Christmas. 

[28] He failed to declare any personal knowledge of that. 

[29] He said that Rosana came to his house the day before Easter in 2015 to apologize. She said she was wrong in reporting it, wrong in her allegations, and that she was wrong. 

[30] In cross-examination he said that she said it was wrong to mention their son's name. He denied that Seruvatu was in Taveuni on 25 September 2014. 

[31] The third defence witness was Jimmy Manuel who confirmed the accused's alibi of his being in Savusavu in September until December. He stayed in his parents' house for all the time he was there.

[32] Jimmy's wife Naomi Manuel said the same things, although reluctantly. Interestingly enough she said that Seruvatu had stayed in their house for the whole time he was there. 

[33] Well that is all the evidence Ladies and Sir, and it is for you to make what you will of it. There will be no more evidence. 

[34] You must be sure on the prosecution's case that the accused is guilty before you return an opinion of guilty. 

[35] Please let a member of my staff know when you are ready and I will reconvene the Court. I will ask Counsel if they wish me to alter or add anything to this Summing Up. 

[36] Counsel?

P.K. Madigan
Judge

At Labasa
22 April 2016