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State v Bogi [2016] FJHC 615; HAC70.2014 (7 July 2016)

IN THE HIGH COURT OF FIJI
AT LABASA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 70 OF 2014

STATE

v.

JONE BOGI

Counsel: Mr. L. Fotofili for State
Mr. A. Paka for Accused

Dates of Hearing : 4, 5 and 6 July 2016
Date of Summing Up : 7 July 2016

SUMMING UP

Lady Assessors and Gentleman Assessor.

[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 the Defence and the Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. Their submissions are not evidence. 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 opinion 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 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 proved 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] You have a copy of the information with you. There are two counts in the information. On the 1^st count the accused is charged with rape. On the 2^nd count the accused is charged with theft. You must consider the evidence on each count separately and must not assume that if the accused is guilty of one count that he must be guilty of 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. The particulars of the offence of rape in count No. 1 say that the accused penetrated the vagina of the complainant Lisa Biehl with his tounge without her consent. Therefore, the elements of the offence that the prosecution has to prove beyond reasonable doubt in count 1 are;

1. The accused,
2. penetrated the vagina of the complainant with his tongue,
3. without her consent,
4. The accused knew or believed that she was not consenting or did not care if she was not consenting.
   

[11] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.

[12] It is not necessary for the prosecution to prove that there was full penetration of the accused persons tongue into the complainant’s vagina. Extent of the penetration is immaterial. Slightest penetration is sufficient to prove the element of penetration.

[13] Where the consent is obtained through fear or by threat, then that is not 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 tongue into her vagina anyway.

[14] In count No. 2, the accused is charged with theft. Particulars of the offence of theft in count No. 2 say that the accused stole one apple brand i-phone e valued at $1200 the property of the complainant Lisa Biehl.

[15] For the accused to be found guilty of theft, the prosecution must prove the following elements beyond reasonable doubt.

1. the accused;
2. dishonestly appropriated;
3. the i-phone belonging to the complainant;
4. with the intention of permanently depriving the complainant of that i-phone.
   

[16] I will now explain these elements to you.

[17] Dishonestly means not being honest. Appropriation of property means to take possession or control of the property without the consent of the person to whom it belongs. In law, property belongs to a person if that person has possession or control of the property. Once the possession of the property is taken by the accused from the person whom it belongs to, if he uses it or deals with it as the owner without the consent of the said person then he commits theft.

[18] ‘Intention of permanently depriving a person of property’ is also defined in law. If an accused person appropriates property belonging to the complainant without meaning the complainant permanently to lose the thing and if the accused person’s intention is to treat the property as his own to dispose of regardless of the complainants rights, then the accused has the intention of permanently depriving the complainant of it. In this case you remember the complainant Lisa said that the accused took her mobile phone and said that he will take the phone as payment. She had agreed as she wanted to leave. She said that she was afraid. If you believe the evidence of the complainant, and if you find beyond reasonable doubt that it was the accused who took the phone, then the accused has committed the offence of theft.
The Evidence

[19] The complainant Lisa Biehl was called to give evidence for the prosecution first. In 2014 September she had been 56 years old. She had been working in a nurse practitioner in United States. She had come with her husband to Fiji on vacation and for scuba diving. She had been staying in a hotel in Taveuni.

[20] On 6/9/2014 when her husband had gone for scuba diving she had gone to see the water slide nearby. After walking for some distance a taxi driver had dropped her near the water slide and had pointed to her to a trail where she had to go.

[21] She said that there was a Fijian man standing about 6 – 7 meter away. She said that he was not very tall and had a broad face wearing a short and a sleeveless shirt. There had been a towel around his neck. That man had asked her where she was going and she had told him that she was going up the water slide. Taxi driver also had been there when he asked that. That conversation had been short. She said that she did not want to make eye contact. She had walked to the water slide and taken some pictures. Although she expected people to be there she had felt uncomfortable as there was no one.

[22] She said that she took the pictures from her i-phone and that the value of the phone was about US$600. She had spent less than 5 minutes in the water slide area.

[23] When she came down, the same Fijian man whom she saw had been standing there. No one else had been there.

[24] He had said “you will have sex with me”. She had said ‘no’. She said that she was afraid. He had pushed her to the ground and had tried to take her bathing suit off. When she tried to sit up he had slammed her down against the bank. She said that she told him that she was too old and she was sick. When she tried to sit up the 3^rd time, he had put his fist on her face. Then she had decided to wait. She had kept on asking him to let her go.

[25] He had taken her clothes off and had performed oral sex on her. He had licked her vaginal area. She had been afraid for her life. She said that his tongue penetrated her vagina. It had lasted few minutes. Then he had untied and pulled his short down and had laid on top of her. He had kissed her mouth.

[26] She remembered only up to that point, she said. Next thing she could remember was that she had her bathing suit back on and her T-shirt was on. Holding her short he had told her he “put these on”. Then he had discovered her phone that was clipped onto her shorts. He had taken the phone and had told her “I will take the phone as payment”. Because she wanted to leave, she had offered her back pack when he wanted money as she was afraid. She had agreed for him to take the phone as she wanted to leave.

[27] Then she turned around and ran, she said. She had run down the road and had met a woman with a small boy. She had told them that she was attacked. They have taken her home. They have called a man, a Fijian driver. She was taken to the police station and she had reported the matter to police.

[28] After reporting to police, as police vehicles were not available, Police had called a taxi for her to get back. The taxi driver had been the same taxi driver who took her to the water slide, she said. Hotel owner had taken her to the hospital for medical examination. No injuries were found on her, she said.

[29] She said that the police found her phone the same day at about 5.30pm. She said that the police took her statement identifying her phone. Police have taken the phone and had given her the phone on a later day.

[30] In cross examination she said that it took about 1 hour for her to come back from the forest. He said that the man who committed the offence on her was not very tall. However, after showing her statement to police she admitted that she had told the police that the man was tall. She said police misunderstood and her memory was not that. She admitted that she signed the statement confirming what was there after it was read back to her. She could not remember any specific marks on his body.

[31] She said that the perpetrator had dark skin. When it was suggested to her that it was not the accused who committed the acts on her, she said he looks like him. When it was suggested that it could have been someone else, she said that she doubts. She said Woman Police Officer Etta recorded her statement and Etta brought the phone to her in the evening. She said that she did not know from where the police found the phone.

[32] She said that an identification parade was held at the police station. However, she said that there was no line-up and no one was there. Following day police had summoned her and she was shown a photograph from a phone, she said. It did not look like the person who attacked her. She said at that point in time she could see Mr Bogi the man who attacked her through the glass. She had recognized him from the body shape and had asked a police woman to have him turned around. Then, she said she was sure that it was him. She said that it happened the next day or about 2 days later.

[33] Answering questions the witness said that when she came to the police station, she was taken to the place where the accused was. She said she recognized him from the back first. She had told the police that it was him. When it was suggested that the accused was not the person who committed the acts against her, she said that ‘looks like him’. When she was asked whether the police showed her the accused, she said that she saw the accused and that she wanted the police to turn him around to see his face.

[34] The next witness was Divendra Deo Raj, the taxi driver who drove the complainant to the water slide in Waitavala. He said that he dropped the complainant at the roundabout to the water slide. He had seen the accused there, about 5 meters away from him. Accused had been walking towards the Waitawala settlement. He said that the accused was living in the same village Waitavala with them for 4 – 5 years. He had not spoken to him before, but they had been calling him ‘Bogi’. Accused had left Waitawala village for Soqulu Estate. That day he had seen him for about 5 – 10 seconds. He was not sure what the accused was wearing, he said. Then he had gone home. After about 15 minutes he had got to know that the European lady he dropped had been raped. He had then come and taken the complainant to the police station in his taxi. He said that he had given his contact number to the European lady. He said that the time he dropped the lady at the roundabout and the time he picked her back at Waitavala after the incident was about 10 – 15 minutes. At the roundabout he has not seen anyone else other than the accused.

[35] In cross examination he said that the distance from Waitavala to Soqulu is about 10 – 15 kilometers. He said that it was the police that came to him and it was not him who went to the police station. He had given the statement to police after 1 year from the incident. He said that he could recall what happened one year before. He said that it was the accused that he saw that day. He said that he knew Bogi’s face only but not any other marks on his body.

[36] When it was put to him that the accused was at a carnival that day, he said that it was a lie. He said that he could recall the date as he used to fill his taxi diary daily. However, he did not have it in court. He said that he told the police that he took the complainant to the police station. However, after seeing his statement, he said that it is not written there.

[37] The next witness was DC 2793 Taniela. He had been involved in the investigation of this case. He had recovered the i-phone from Waitavala in a bush. He had recovered it on a tip off. He had handed it over to the police station, but could not recall the date he recovered the phone.

[38] Ladies and gentlemen assessors, you may remember that at this point, the defence admitted that the phone recovered by this witness from a bush was the same i-phone that was stolen from the complainant.

[39] The witness said that he also went to the crime scene. Photographs of the crime scene were produced in evidence as Exhibits P1 and P2.

[40] In cross examination, he said that the i-phone was recovered the same day. He had picked it up from the bush with his hands. He said that the Forensic Department would be the best place to get finger prints from the phone, but Taveuni had no branch of Forensic Department.

[41] He said that he arrested the accused at Soqulu settlement. About the distance between Soqulu and Waitavala, he said that it takes 10 – 20 minutes to go in a taxi and one hour – one half hours to walk. He said that there are no waterfalls in Soqulu. From Soqulu, before reaching Waitavala there is a water source in Waica, he said.

[42] The last witness for the prosecution was the Investigating Officer Sergeant Etta. She said that there was an i-phone recovered and that it was returned to the owner as she was leaving the country. She also has recorded the taxi driver’s statement. She said that it took more than 1 year to record the taxi drivers’ statement as the file was sent to Labasa. However, she said that she could have recorded the statement of the driver, before the file was sent to Labasa. She said that she made attempts, but could not locate the driver as the name given was ‘Harry’. Later they found that name of the driver was Divendra Deo, she said.

[43] She said that the witness Ashwin had given birth and cannot travel. She also said that they could not find the person named Sainiala to get his statement to confirm that he was with the accused at the time of the offence. They have searched him for 2 weeks at various places including Veidawa but could not find him, she said.

[44] In cross examination she said that she took the photographs of the scene. The i-phone was recovered the same day, she said. She said that it was she who approached the complainant and showed her the phone. Same day she had recorded the complainants’ statement after giving her the phone, and after she identified it. While this was happening she said that the accused had not been arrested. Accused was arrested on 8/9/2014, she said. By that time police have already recovered the phone. Phone was not recovered from the accused, she said. She said that the statement of the taxi driver was recorded after over one year.

[45] That was the evidence for the prosecution.

Ladies and Gentleman assessor,

[46] 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 at all times. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. You must give his evidence careful consideration.

[47] The accused in his evidence said that he could not recall the date 6/9/2014. He said that he was educated up to class 7. He said that he is in court because of the incident happened to European lady. He said he was ashamed as she was a tourist and as he also has worked a little bit in hotel industry as a young boy. He said that he was at a carnival at the time the incident had happened. About the allegation of rape and taking the i-phone, he said that he doesn’t know anything. In 2014, he had been residing at Soqulu.

[48] In cross examination he said that he could not speak to foreigners all the time in itaukei language. He said that he has a basic understanding of English. He said that he cannot understand the word ‘I’. He said that he know the English word ‘Hello’. He said that he doesn’t understand English well. He had heard the word ‘sex’ mostly in education programs. He said that he was not told about a tourist being raped. He was not informed about this incident, he said. He said Saniela is his friend. He denied informing Court that Saniela is at Veidawa. He said that Saniela lives in Dogotuki.

[49] When he was shown the ‘Notice of Allibi’ filed on behalf of him in court, he admitted that he had told court through his lawyer that Saniela is from Veidawa. He said that Saniela’s village is Dogotuki. He said that he knew that Saniela did not have money with him and that he did not want him to be brought by police as he had done no wrong.

[50] He admitted however that Saniela could have supported his story that he was not at water slide but somewhere else.

[51] He denied residing at Waitavala before he left for Soqulu. He said he was raised in Soqulu since he was a little boy.

[52] He said that there are lot of taxi’s in Taveuni. He has seen Divendra Deo as a Taxi driver. He said that Waitavala water slide was a place they used to go and swim. He denied seeing a female tourist at water slide.

[53] He denied seeing taxi driver Divendra Deo there. He denied seeing the female tourist and waiting for her. He denied telling her “you will have sex with me”. He denied pushing her on the ground and undressing her. He denied putting his fist on her face in a threatening manner. He denied putting his tongue into her vagina. He denied taking her iphone. He denied throwing the iphone in the bush. He denied that he was the same man who was at the roundabout at water slide.

[54] That was the evidence for the defence.

[55] Ladies and Gentleman assessors,

You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision.

[56] The written agreed facts are before you. Also during the trial parties agreed that the i-phone recovered from the bush by the police was the same i-phone that was stolen from the complainant. Those facts are agreed by the parties, and you may accept them as if you have heard them lead in evidence from the witness box unchallenged. You may consider those facts as proved beyond reasonable doubt.

[57] You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. For example, the complainant said in evidence that the man who raped her was not very tall, broad face and was wearing shorts and a sleeveless shirt. However, in her statement to the police she had said that he was tall. She said that she thinks police misunderstood it. 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.

[58] May I also direct you on the defence of alibi. Defence of alibi means, the accused takes up the position that he was not at the crime scene but elsewhere at the time the crime was committed. The accused says that he was not at the crime scene but at a carnival at the time the alleged crime has taken place. The complainant says that she identified the accused at the police station as the person who raped her. The taxi driver Divendra says that he saw the accused at near the Waitavala round about when he dropped the complainant. You heard the evidence of the witnesses for the prosecution as well as the accused. Therefore you decide which witnesses are truthful and which are not. If you accept the version of the accused that he was at a carnival and never got involved with the crime, then you must find the accused not guilty. However if you do not accept his version, that alone does not mean that he is guilty of the charges because the burden to prove the accused persons guilt beyond reasonable doubt remains with the prosecution at all times. It is for the prosecution to prove that the accused committed the crime and not for the accused to prove that he was elsewhere.

[59] Ladies and gentleman assessors, may I direct you on circumstantial evidence. In circumstantial evidence you are asked to place the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

[60] Let me give you an example of drawing inferences which does not arise on the facts of this case but which illustrates the need for care in judging whether the fact proved supports the inference of guilt: If my fingerprint is found in the living room of my neighbour’s home, it is a sound inference that at some stage I have been in his living room. It would not, however, support an inference that I was the burglar who stole his DVD recorder from his living room. If you accepted my neighbour’s evidence that I had never been invited into his home, then, in the absence of some acceptable explanation from me, you might infer that at some stage I had been in my neighbour’s home uninvited. You may or may not be driven to the further conclusion that I was the burglar. But, if you also accept that there was found a second fingerprint of mine at the point of entry or, that in my shed there was found a DVD recorder which my neighbour recognizes as the one stolen from his living room, you would, no doubt, conclude so that you were sure that I was the burglar. You will notice how the inference of guilt becomes more compelling depending upon the nature and number of the facts proved.

[61] What conclusions you reach from the evidence is entirely for you to decide. When you are considering what inferences you should draw, or what conclusions you should reach, it is important to remember that speculation is no part of that process. Drawing inferences and reaching conclusions are not the same as fitting the facts to a particular theory.

[62] Having decided what evidence you accept, consider whether, looked at as a whole, it drives you to conclude, so that you are sure, that the accused is guilty.

[63] It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused person having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.

[64] Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven is credible and truthful.

[65] In this case, the prosecution led the evidence of the complainant Lisa as direct evidence to show that the accused raped her and stole her phone. If you believe the evidence of the complainant as true and as credible and that the prosecution has proved the elements of the offences as I explained to you beyond reasonable doubt, you may find the accused guilty. The prosecution also led other evidence such as evidence of the taxi driver Divendra Deo who said that he saw the accused near the water slide that day, as other circumstances. You may also consider those circumstances and consider what inferences you may properly draw from those facts.

[66] I must also give you a direction on identification. In this case the defence says that the identification of the accused as the person who raped the complainant should not be relied upon.

[67] When an accused has been identified by a witness and when that evidence of identification is challenged by the accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.

[68] In assessing the evidence on identification, you must take the following matters into account.

1. Whether the witness has known the accused before?

In this case the complainant did not know the accused before. The witness taxi driver said that he knew the accused before

2. For how long did the witness have the accused under

observation, and from what distance? Was it more than a fleeting glance?

In this case according to the complainant she saw the accused near the roundabout and was with the accused from the time he came to her the second time, to the time he left after the alleged rape. She also said that she saw the accused at the police station. The taxi driver had seen him for 5 to 10 seconds.

3. Did the witness have any special reason to remember?

In this case the special reason is that the accused allegedly raped her.

4. In what light was the observation made?
   

Incident in this case took place during day time.

5. Whether there was any obstacle to obstruct the view?

There is no evidence of any obstacle between the complainant and the assailant, and between the taxi driver and the accused.

[69] However, when you consider these questions when assessing the identification, you must also consider the reliability and the credibility of the above witnesses.

[70] I must also warn you about dock identification. You noticed that the complainant Lisa identified the accused from the dock in court. No identification parade was conducted on accused during the investigation stage before the trial. However the complainant says that she saw the accused at the police station and informed the police that he was the man who raped her. The accused was not known to the complainant Lisa before the incident. The law says that dock identification is completely unreliable in the absence of a prior foundation of identification parade or photograph identification. It is because the witness may identify the accused merely because he is in the dock. Witness may assume that the accused is the person who committed the crime because he is in the dock. Therefore I warn you that dock identification evidence should be approached with great care for the reasons given before. The complainant Lisa says that the accused looks like the person who raped her and stole her phone. She also said that he licked her vagina and that his tongue penetrated her vagina. She said that she identified the accused at the police station and told that to police. Accused says that he was at a carnival that time and was not at the crime scene. Taxi driver says that the accused was there near the roundabout when he dropped the complainant on that day. You may consider the evidence of all witnesses when you decide whether the identity of the accused was mistaken or not.

[71] In this case the complainant has made the complaint to the police on the same day without any delay. It may enhance the credibility of the complainant. However the fact that the complaint was recent cannot be taken as corroborative evidence. You decide whether the complainant Lisa is a reliable witness or not. If you decide that she is a reliable and credible witness, then you need not seek for corroborative evidence.

[72] The evidence of the complainant that the perpetrator penetrated her vagina and that he stole her phone was not challenged by the defence in cross examination. However, the position of the defence was that it was not the accused who committed the crime. Complainant said that she saw the accused at the police station, identified him as the perpetrator and informed the police. The complainant who is a foreigner after one year and nine months of the incident giving evidence in court said that the perpetrator looked like the accused that is in the accused box. The accused says that he was at a carnival on that day. The taxi driver says he saw the accused when he dropped the complainant at the roundabout near the water slide. The defence says that the phone was not recovered from the accused and that it was recovered before the accused was arrested.

[73] Therefore after considering all the evidence, on count No.1, you decide whether the accused penetrated his tongue into Lisa’s vagina as alleged in counts No.1. If you decide that he has done so, then you decide whether Lisa consented to that or not and whether the accused knew or believed that she was not consenting or did not care if she was not consenting.

[74] On count No. 2 you decide whether the prosecution has proved all the elements of theft as I explained to you.

[75] Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you. You must decide which witnesses are reliable and which are not. You observed all the witnesses giving evidence in Court. You decide which witnesses were forthright and truthful, and which were not. Which witnesses were evasive or straight forward? You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanor in arriving at your opinions.

[76] 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 the charges against the accused have been proved beyond reasonable doubt.

[77] Your opinions on each count will be either guilty or not guilty.

[78] Lady Assessors and Gentleman Assessor,

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. You may peruse any of the exhibits you like to consider. 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 Labasa
7 July 2016

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