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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 257 OF 2015S
STATE
vs
ILAITIA NALAWA
Counsels : Ms. S. Puamau, Mr. Y. Prasad and Ms. S. Serukai for State
Mr. P. Tawake and Mr. A. Paka for Accused
Hearings : 16, 17 and 18 December, 2015; 1 to 4 February, 2016
Summing Up : 5 February, 2016
SUMMING UP
"... [read from the information]...."
9. On the four counts the accused was charged with, count no. 4 was the most serious, as it involved the offence of "rape". We will therefore begin the discussion by considering the "rape" offence first. In count no. 4, the accused was charged with raping complainant no. 2, contrary to section 207(1), (2)(a) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused penetrated the complainant's vagina with his penis;
(ii) without the complainant's consent; and
(iii) he knew the complainant was not consenting to (i) above, at the time.
10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to satisfy element 9(i) above. It is irrelevant whether or not there was full penetration of the complainant's vagina by the accused's penis, and the slightest penetration of the same sufficies. It is also irrelevant whether or not the accused ejaculated.
11. Consent is to "agree freely and voluntarily and out of her own free will", and she must have the necessary mental capacity to give her consent. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over her, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.
12. For a child under 13 years, as a matter of law, she cannot give her consent for someone to penetrate her vagina with his penis. This is the policy of the law to protect children. The prosecution does not need to positively prove non-consent by the child complainant, as it was a presumption in law. The prosecution need only prove the element mentioned in paragraph 9(i) above.
13. In adult rape cases, the prosecution also need to make you sure that the accused knew the complainant was not consenting to him penetrating her vagina with his penis at the time. The parties' conduct at the time, and the surrounding circumstances, will have to be examined to decide the above issue. However, for a child complainant, it was a presumption in law, that once a person penetrates a child complainant's vagina with his penis, he was presumed in law to know that a child was incapable of giving her consent to the same.
14. So, in a child rape case, the prosecution need only prove the first element of rape as discussed in paragraphs 9(i) and 10 hereof, to find the accused guilty as charged. Once they had made you sure of element one as described in paragraph 9(i) hereof, the second and third elements of rape as described in paragraphs 9(ii) and 9(iii) hereof, are presumed in law, and you may find the accused guilty as charged.
15. In terms of seriousness, we will next discuss count no. 3. The accused was charged with "assault with intent to rape", contrary to section 209 of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements
(i) the accused
(ii) assaulted
(iii) the complainant
(iv) with intent to rape
16. The physical element of the offence is the verb "assault". The least touching of another in anger is "assault", for example, slapping someone, hitting someone with a stick or punching someone. "Assault" is really the unlawful application of force to the person of another. When the accused is "assaulting" the complainant, he must have the intention of raping the complainant. You are trying to establish what was in his mind at the time of the assault. You must look to his actions and the surrounding circumstances, to infer what he intended, at the time. This is the fault element of the offence.
17. We will now discuss the offence of "burglary" in count no. 1. The accused was charged with burgling complainant no. 1's (PW7) dwelling house, contrary to section 312(1) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused
(ii) enters or remains
(iii) in a building
(iv) as a trespasser
(v) with intent to commit theft
18. The physical element of the offence is the accused "entering or remaining" in a building as a "trespasser". The verb of entering or remaining in a building is straightforward. "Entering or remaining" in someone's "dwelling house" is obviously "entering or remaining in a building". What makes the above act unlawful is that you are doing so as a "trespasser". A trespasser is a person who had no authority or permission to enter or remain in a building. The above is the physical element of the offence. The fault element of the offence was that, while acting as a trespasser at the material time, the accused intended to steal from the dwelling house.
19. We will now consider count no. 2, which is "theft". The accused was charged with "theft", contrary to section 291(1) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused
(ii) dishonestly appropriates
(iii) property belonging to another
(iv) with the intention of permanently depriving the other of the property.
20. "Theft" is basically "stealing". A person takes away a property that does not belong to him. When taking away the property, he intended to deprive the owner ownership of that property for good.
21. There are four counts in the information. You must consider each count separately when looking at the total evidence.
F. THE PROSECUTION'S CASE
22. The prosecution's case were as follows. On 7 July 2015, the 9 year old female complainant (PW9) was living in a house in Nakasi with her parents. She was a Class 4 student at a nearby primary school. Every morning her father drops her off at school in a van. At about 3pm, the school finishes and she normally walks home with her friends. On this particular day, 7 July 2015, she was dropped off at school by her father. At about 3pm, she walked home along Salua Road, with a student friend.
23. The accused (DW1), on 7 July 2015, was aged 31 years old. He reached Class 8 level education. He was residing at Mataiasi's (DW2) house at Salua Road at the time. Mataiasi was his uncle. Mataiasi was farming in the area, and it appeared the accused was assisting him in the same. Also assisting Mataiasi in the farm on 7 July 2015 were Apenisa Vuniivi (DW3), Livai Navudi (DW4) and Semisi Salusalu (DW5). It would appear that DW1, DW2, DW3, DW4 and DW5 were related and well-known to each other.
24. According to the prosecution, after 3pm on 7 July 2015, DW1, DW3, DW4 and DW5 went to a nearby shop to buy some biscuits for afternoon tea. On the way, the accused decided to rest in the bush because of an alleged painful leg. While resting, the accused met the 9 year old female complainant (PW9) returning alone from school. He put on a black pompom, jumped on the girl, grabbed her and dragged her into the bushes. He closed her mouth with his hand, to prevent her raising the alarm.
25. He then assaulted the girl by hitting her twice on left and right side of her face. He then forcefully took off her clothes and undergarment. He then forced himself on her by parting her legs and forcefully inserting his penis into her vagina. The girl cried and struggled as a result of the pain she felt in her vagina. She also fainted as a result of the accused's actions. According to the prosecution, the accused notice excessive blood coming from the girl's vagina. After assaulting and raping the girl, the accused put on his clothes and left the crime scene.
26. Earlier that morning on 7 July 2015, according to the prosecution, the accused broke into Raijieli Tuisorisori's (PW7) dwelling house at Salua Road, Nakasi. When in the house, the accused ransacked the same, and stole the properties mentioned in count no. 2 of the information. He took the stolen properties and hid them in the bush.
27. Because of the matters mentioned above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.
G. THE ACCUSED'S CASE
28. On 1 February 2016, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to all the charges. In other words, he denied all the allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to give sworn evidence and called four witnesses in his defence. That was his right.
29. The defence's case was very simple. On oath, the accused denied all the allegations against him. He said, he didn't burgle PW7's dwelling house on 7 July 2015. He said, he didn't steal her properties as mentioned in count no. 2. He denied assaulting PW9 with intent to rape. He denied raping PW9 at the material time.
30. He asks you to disregard his alleged confessions in his police caution interview statements, which were tendered as Prosecution Exhibit No. 4(A) and 4(B). He also asks you to disregard his alleged confessions in his police charge statements, which were tendered as Prosecution Exhibit No. 5(A) and 5(B). He said, the police forced the above alleged confessions out of him by assaulting him and swearing at him. He said, you should place no weight and value on the above alleged confessions because they were not true.
31. Because of the above, the defence is asking you, as assessors and judges of fact, to find him not guilty as charged on all counts and acquit him accordingly. That was the case for the defence.
H. ANALYSIS OF THE EVIDENCE
32. In analysing the evidence, you must always keep in your mind and follow the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. The State was the one that brought the four allegations contained in the information and the burden to prove those allegations beyond a reasonable doubt stays with the prosecution from the start to the end of the trial. The Defence does not need to prove anything as the burden of proof is not on them. They may, if they choose, give some evidence to create a reasonable doubt in the prosecution's case, and if after considering all the evidence, you are thrown into a reasonable doubt on the accused's guilt, you may find the accused not guilty as charged on all counts.
33. For the above reasons, we will analyze the evidence, by first considering the four types of evidence the State was relying on against the accused. First, the State relied on documentary evidence. Second, the State relied on physical exhibits. Third, the State relied on the witnesses' direct evidence. Fourth, the State asks you to consider all the above evidence together and consider what does the total circumstances of the case tell you.
34. Lastly, we will discuss the defences' witnesses evidence, and find out whether or not their evidence had introduced into the prosecution's case a reasonable doubt, entitling you, if you accept the same, to find the accused not guilty as charged on all counts. They were also relying on what was often termed "alibi evidence", that is, the accused was with them (ie. DW3, DW4 and DW5) at the material time, and thus he could not have committed the offences.
(b) Documentary Evidence:
35. The following documentary evidence were tendered by the prosecution, in making its case, against the accused:
(a) Prosecution Exhibit No. 16: The booklet of 31 photos of the alleged rape crime scene, tendered by Detective Sergeant 820 Rakesh Mani (PW10).
(b) Prosecution Exhibit No. 21: The booklet of 7 photos of the alleged burglary and theft crime scene, tendered by Detective Corporal 1928 Sakenasa Loganimoce (PW13).
(c) Prosecution Exhibit No. 6: The accused's medical report, taken after he was caution interviewed by police on 22, 23 and 24 July 2015. The report was dated 24 July 2015, and was tendered by Doctor Rayneel Singh (PW5)
(d) Prosecution Exhibit No. 7: The accused's medical report, taken before he was caution interviewed by police on 22 July 2015. The report was dated 22 July 2015, and tendered by Doctor Rayneel Singh (PW5).
(e) Prosecution Exhibit No. 8: The accused's medical report, taken on 26 November 2015, as a result of the defence request to the court. The report was tendered by Doctor Talemaitoga Tamanitoakula (PW6).
(f) Prosecution Exhibit No. 18: The 9 year old female complainant's (PW9) medical report, taken on 8 July 2015 at CWM Hospital, approximately 15 to 16 hours after she was allegedly raped. The report was tendered by Doctor Reapi Mataika (PW11).
(g) Prosecution Exhibit 4(A) and 4(B): The accused's caution interview statements, taken by Detective Corporal 3541 Isikeli Rokodreu (PW1) on 22, 23 and 24 July 2014. It was tendered by him. It had 188 questions and 188 answers.
(h) Prosecution Exhibit 5(A) and 5(B): The accused's charge statements, taken on 24 July 2015 by Corporal 3834 Josefa Ranuku (PW3), and tendered by him.
36. The documentary evidence are there for you to carefully read and consider. From the prosecution's point of view, Prosecution Exhibit No. 16 and 21 introduces you to the alleged crime scene concerning the four counts in the information. Prosecution Exhibits 6, 7 and 8 are the accused's medical reports taken by three different doctors, before and after the police caution interviews on 22, 23 and 24 July 2015. Prosecution Exhibit No. 8 was the third doctor's medical report, while he was remanded in custody. From the prosecution's point of view, the reports showed that the accused suffered no injuries before and after he was caution interviewed by police, and while remanded in custody on 26 November 2015. The reports will become relevant when we discussed the accused's alleged confession later.
37. Prosecution Exhibit No. 18 shows you, from the prosecution's perspective, the injuries suffered by the 9 year girl, approximately 15 to 16 hours after the alleged rape. Prosecution Exhibit No. 4(A) and 4(B) contains the accused's police caution interview statements, where he allegedly confessed to the crimes alleged in the information. Prosecution Exhibit No. 5(A) and 5(B) are the accused's police charge statements, where he allegedly confessed to the crimes. We will discuss the above alleged confession later. The documentary evidence are there for you to consider before we further analyse the evidence.
(c) Physical Exhibits
38. The prosecution further relied on physical exhibits to prove its case against the accused. The physical exhibits were tendered
by the prosecution to make you get a feel of what the complainants allegedly went through. You are to examine and carefully consider
the same:
(a) Prosecution Exhibit No. 1: These were the items the accused allegedly stole from the first complainant's (PW7) house. It will be relevant when you are examining question and answer 164 in Prosecution Exhibit 4(B). The exhibit was tendered by PW1.
(b) Prosecution Exhibit No. 2: The 9 year complainant's (PW9) school bag allegedly recovered from the crime rape scene. It was tendered by PW1.
(c) Prosecution Exhibit No. 9: The black pompom allegedly used by the accused when he attacked the 9 year old complainant (PW9). It was tendered by PW7.
(d) Prosecution Exhibit No. 10: The black pompom cuttings allegedly done by the accused. It was tendered by PW7.
(e) Prosecution Exhibit No. 11: Victim's undergarment allegedly recovered from the rape crime scene. It was tendered by PW8 (victim's mother).
(f) Prosecution Exhibits Nos. 12, 13, 14 and 15: The victim's green tights, school uniform, pull over and ribbons allegedly handed over to police by the victim's mother (PW8). The exhibits were tendered by her.
(d) Direct Sworn Evidence by Selected State Witnesses:
39. We will discuss the rape allegation first because it was the most serious of all the counts. When analyzing the evidence on this
allegation, please take on board my directions in paragraphs 4, 5 and 6 on the burden and standard of proof, and the elements of
the offence of rape as discussed in paragraphs 9, 10, 11, 12, 13 and 14 hereof. In the rape allegation, the most important witness
was the 9 year female complainant (PW9). According to her, when she was allegedly raped, only her and the alleged rapist, were at
the crime scene, at the material time. There were no other persons present at the crime scene, to confirm or otherwise the rape allegation,
mindful as a matter of law, that a rape allegation does not need to be corroborated.
40. According to the complainant (PW9), she was walking home after school after 3pm on 7 July 2015. She took a cross-cut in the bush towards her home. Photos 1 to 12 and 20 to 29 of Prosecution Exhibit No. 16 (Booklet of Photographs) would give you an idea of the vegetation in the area. The complainant said she was alone. She said, an "i-taukei" man with a black mask jumped out of the bush and grabbed her. She said, the man assaulted her on the face, forcefully took off her clothes and covered her mouth with his hand so that she could not raise the alarm. She said, the man forced her to the ground, parted her legs and forcefully inserted his penis into her vagina. She said, she could not identify the rapist because he was masked, and also she fainted during part of the incident.
41. The defence, while cross-examining the complainant, and while making their closing submission to court, did not dispute the complainant's evidence. When he gave sworn evidence in his defence, the accused did not dispute the complainant's version of events. Mindful of our discussion on the first element of rape in paragraph 9(i) hereof, it would appear it was not a contested issue that someone penetrated the complainant's vagina with his penis, at the material time. Given that this was a child complainant, and given the discussions we had in paragraphs 9, 10, 11, 12, 13 and 14 hereof, the second and third element of rape, as discussed in paragraphs 9(ii) and 9(iii) hereof, appeared satisfied. A person who penetrates a child's vagina with his penis, as a matter of law, is presumed to know that a child cannot consent to the above at the time, and is incapable of giving her consent to the same.
42. So, in this case, given the above, the prosecution appeared to have proven beyond a reasonable doubt that, at the material time, someone penetrated the child complainant's vagina with his penis. The next question to ask: Was it the accused?
43. The child complainant could not identify the alleged rapist at the material time because the person was masked. Consequently, the prosecution could not pin the rape allegation on the accused on any identification evidence. To connect the rape allegation, including the other allegations to the accused, the prosecution relied on the accused's police caution interview [Prosecution Exhibit No. 4(A) and 4(B)] and his charged statements [Prosecution Exhibit No. 5(A) and 5(B)]. In these two statements, the accused allegedly confessed to the four counts in the information. In the caution interview statements [Prosecution Exhibit 4(A) and 4(B)], the prosecution said, the accused confessed to the crimes from Questions and Answers 51 to 73, 81 to 100, 102, 103, 105 to 110, 132 to 148, 152 to 160 and 184. In the charge statement [Prosecution Exhibit No. 5(A) and 5(B)], the prosecution said, the accused confessed to the crimes in Question and Answer 9. The prosecution asks you to carefully read and consider the above questions and answers.
44. However, the weight and value of the above alleged confessions, were seriously contested by the parties. The defence asks you to put no weight and value on the above alleged confessions because the police forced the same out of him, and they also fabricated the answers. He said, the alleged confessions were not true. He said, before the interview, they slapped him three times on the head, that is, a slap each to the cheeks and the forehead. He said, they then delivered a strong right uppercut to his left rib. Then they swore at his mother, called him "he had evil ancestors" and that he was an animal". He said, he was frightened and fearful and as a result, he signed the pages of his caution interview notes and charge statements. The police, on the other hand said, the accused was given all his legal rights, his right to counsel and the right to see his relatives, while in police custody. They said, he was given the standard rest and meal breaks during the interview and formal charging. They said, he was medically examined by doctors before and after the interview. They said, the doctors found no injuries on him. He was also medically examined while in custody on 26 November 2015, and the doctor found no injuries on him. They said, they did not assault, threaten or made promises to him, before, during and after the interview and formal charging. They said, the accused made no complaints about alleged police misbehaviour to the Magistrate Court when he first appeared there on 25 July 2015. According to the prosecution, he gave his caution interview and charge statements voluntarily and out of his own free will.
45. When considering the above evidence. I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his police caution statements and charge statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If its otherwise, you may give it less weight and value. It is a matter entirely for you.
46. If you accept the accused's above confessions, then you will have to find the accused guilty as charged on all counts. If you don't accept the same, then you will have to find the accused not guilty as charged on all counts. It is a matter entirely for you.
(e) Direct Sworn Evidence of the Witnesses for the Defence:
47. We will now discuss the defence's evidence. Again, bear in mind my directions on the burden and standard of proof in paragraphs 4, 5 and 6 hereof. The burden of proof is always on the prosecution from the start to the end of the trial. There is no obligation on the accused to prove his innocence. He is entitled to put in evidence to create a reasonable doubt on the prosecution's case, and if you are thrown into a reasonable doubt as a result, you must find the accused not guilty as charged.
48. In this case, the accused was relying on what was often termed "an alibi defence". First of all, in his sworn evidence, he denied all the allegations against him. He said, he didn't burgle PW7's dwelling house (count no. 1), did not steal her properties (count no. 2), did not assault PW9 with intent to rape her (count no. 3) and did not rape PW9 (count no. 4). He further said, on 7 July 2015, at the material time, he went to a shop with Apenisa Vuniivi (DW3), Livai Navudi (DW4) and Semisi Salusalu (DW5). He said, on 7 July 2015, they were assisting his uncle, Mataiasi Ligacivia (DW2), in his farm, at Salua Road, Nakasi. After 3pm, DW2 told them to go to the shop and buy something for afternoon tea. They went along Salua Road, and took some short cuts into the bush, to go to the shop. At the shop, they bought some biscuits, and after a while, they returned home together. At DW2's house, along Salua Road, the accused made tea for them. According to the accused, he was with DW3, DW4 and DW5 from Mataiasi's house to the shop, and back. DW3, DW4 and DW5 gave sworn evidence, and they confirmed the above. DW1, DW2, DW3, DW4 and DW5 are related and closely known to each other. If you accept the accused's above evidence, you must find him not guilty as charged on the rape charge (count no. 4). If you accept his sworn denials, you must find him not guilty on all counts.
49. However, if you reject the accused's alibi evidence, you will still have to consider the prosecution's case. You will still have to look at the whole of the prosecution's case to decide whether or not they had made you sure of the accused's guilt. If they had made you sure of the accused's guilt on all counts, you must find the accused guilty as charged on all counts. If it's otherwise, you must find the accused not guilty as charged on all counts.
(f) Considering All the Evidence Together:
50. You must consider all the evidence together. You have heard the evidence of all the prosecution and defences' witnesses. You have
observed their demeanour in the court room. Who do you think was the credible witness? Who do you think was the forthright witness?
Who do you think was evasive? Who do you think was telling the truth? If you think the prosecutions' witnesses were credible, you
must find the accused guilty as charged. If its otherwise, you must find the accused not guilty as charged. It is a matter entirely
for you.
I. SUMMARY
51. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it
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. If you accept the prosecution's version of events,
and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If
you do not accept the prosecution's 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.
52. Your possible opinions are as follows:
| (i) Count No. 1: | Burglary: | Guilty or Not Guilty |
| (ii) Count No. 2: | Theft: | Guilty or Not Guilty |
| (iii) Count No. 3: | Assault with intent to commit rape: | Guilty or Not Guilty |
| (iv) Count No. 4: | Rape: | Guilty or Not Guilty |
53. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
Salesi Temo
JUDGE
Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.
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