IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 08 OF 2017

BETWEEN:		THE STATE

AND:			MALAKI TUVALU
									
Counsel:	Mr R Kumar for the State
		Mr V Tuicolo for the Accused 

Date of Hearings:	    13 and 14 March 2018
Date of Summing Up:  15 March 2018

SUMMING UP

[1] 	Lady and Gentlemen Assessors, it is now my duty to sum up the case to you. We 	have differing roles in this trial. I have to give you directions on the law and you must 	accept those directions. You are to decide the facts applying those directions and to 	give me your opinions as to the Accused's guilt or innocence.

[2] 	In going through the evidence I may express an opinion. If you do not agree with that 	opinion, you are free to ignore it and to form another view of that piece of evidence. I 	may omit some evidence which you think significant. Nonetheless you may give that 	evidence such weight as you consider appropriate. You are free to form your own 	opinions.

[3] 	At the end of this summing up, and after you have given your individual opinions, the 	final decision on the facts rests with me. I am not bound to conform to your opinions. 	However in arriving at my judgment I shall place much reliance upon your opinions.

[4] 	The burden of proof rests throughout the trial upon the State. In our system of justice 	there is a presumption of innocence in favour of an Accused. The State brings the 	charge against the Accused. Therefore it is for the State to prove the charge against 	the Accused. Each element of the charge must be proved, but not every fact of the 	story. This burden never changes, never shifts to the Accused.

[5] 	The prosecution must prove its case beyond reasonable doubt. That means that before 	you express an opinion that the Accused is guilty of the charge you must be satisfied 	so that you are sure of his guilt beyond reasonable doubt. If you consider him 	innocent of the charge you must give your opinion that he is not guilty. If you 	entertain a reasonable doubt of guilt, you must also give your opinion that the 	Accused is not guilty of the charge.

[6] 	You must decide this case upon the evidence presented to you. If a witness was not 	called you must not speculate the reasons why the witness was not called. You must 	only consider evidence which were led in the trial. It will be your task to discover 	which witnesses have given honest and accurate evidence and which may not.

[7] 	After I have completed this summing up, you will be asked to retire to your retiring 	room to deliberate amongst yourselves so as to arrive at your opinions. Upon your 	return to court, when you are ready, each one of you will be required to state his or 	her individual opinions orally on the charge against the Accused, which opinions will 	be recorded. Your opinions need not be unanimous. You will not be asked for reasons 	for your opinions.

[8] 	However it will be helpful to you beforehand in arriving at sound and rational 	opinions if you ask yourselves why you have come to those opinions.

[9] 	Those opinions must be based solely upon the evidence. Evidence consists of sworn 	testimony of the witnesses, what each witness has told the court in the witness box.

[10] 	Neither speculation nor theories of one's own constitute evidence. Media coverage, 	idle talk, or gossip, are similarly not evidence. Put out of your mind when considering 	your opinions, anything you may have heard about this case outside the courtroom. 	Focus solely on the evidence which you have seen, heard, or examined in this court.

[11] 	This summing up is not evidence either, nor are counsel's opening or closing 	addresses. Naturally we hope all of these are of assistance to you, but they do not 	constitute evidence.

[12] 	If a witness is asked a question in cross-examination and agrees with what counsel is 	suggesting, the witness's answer is evidence. If he or she rejects the suggestion, 	neither the question nor the answer can become evidence for the proposition put.

[13] 	In arriving at your opinions, use the common sense you bring to bear in your daily 	lives, at home and at work. Observe and assess the witnesses' evidence and 	demeanour together with all of the evidence in the case. You can accept part of a 	witness's testimony and reject other parts. A witness may tell the truth about one 	matter and lie about another; he or she may be accurate in saying one thing and be 	wide of the mark about another.

[14] 	If you have formed a moral opinion on the conduct alleged in this case, put that to one 	side. Consistent with your oath, you should put away both prejudice and sympathy. 	Approach your assessment of the evidence dispassionately. Bring a cool detachment 	to your task of examining whether the case against the Accused has been proved 	before you, proved with evidence led by the State.

[15]	I turn now to deal with what the prosecution must prove. 

[16]	The Accused is charged with one count of digital rape. To prove digital rape, the 	prosecution must prove three elements.

[17] 	Firstly, it must be proved beyond reasonable doubt that the Accused unlawfully, that 	is, without a lawful excuse, penetrated the complainant, Tealiki Vovo’s vagina with a 	finger or an object. The slightest penetration is sufficient. 

[18]	In this case the prosecution relies on an inference to prove penetration. You are 	entitled to draw inferences – in other words, if you find certain fact proved, you are 	entitled to infer the existence of other facts. But you may only do so if that inference 	is the only reasonable inference to draw from the proved facts. So, if from a set of 	facts which you find proved there is a reasonable inference to draw against the 	Accused as well as one in his favour, then you must not draw the adverse inference. In 	this particular case, the prosecution says that there is direct evidence that the 	complainant woke up feeling pain in her vagina and that the appellant was on top of 	her in a compromising position before being pushed away and the prosecution says 	that the only reasonable inference to draw from those facts is that the Accused 	penetrated the complainant’s vagina with a finger. The defence says that although that 	might be one inference which could be drawn, it is not the only reasonable inference 	to draw. Whether the only reasonable inference to draw from the proven facts is that 	the Accused penetrated the complainant’s vagina is a matter for you. 

[19] 	Secondly, it must be proved that when the Accused had unlawfully penetrated the complainant’s vagina he did so without her consent. A valid consent to sexual penetration is one that is freely and voluntarily given by the complainant with the necessary mental capacity to give the consent. The prosecution case is that the complainant was incapable to give a valid consent because she was asleep when the Accused sexually penetrated her vagina with his finger. If you believe the complainant’s evidence that she was asleep when the Accused penetrated her vagina, then you may find the element of lack of consent proven.

[20] 	Thirdly, it must be proved that the Accused either knew that the complainant did not 	consent or was reckless as to whether she consented. The Accused was reckless as to 	whether the complainant consented to digital penetration if you are sure that he 	realised there was a risk that she was not consenting and carried on anyway when in 	the circumstances known to him it was unreasonable to do so. If you accept the 	complainant’s evidence that she did not consent because she was asleep, then you 	may find that the Accused knew she did not consent or was reckless as to whether she 	consented.

[21]	 All three elements of rape are disputed by the Accused. The defence case is one of denial. It is not in dispute that at the time of the alleged incident the Accused was present and sleeping on the same mattress and under the same mosquito net as the complainant. The defence case is that the Accused did not commit the alleged sexual act. The resolution of the charge depends on whether you accept the complainant as a truthful witness. 

[22]	I turn now to summarise the evidence. In doing this it would be tedious and 	impractical for me to go through the evidence of every witness in detail and repeat 	every submission made by counsel. I will summarize the salient features. If I do not 	mention a particular witness, or a particular piece of evidence or a particular 	submission of counsel that does not mean it is unimportant. You should consider and 	evaluate all the evidence and all the submissions in coming to your decision in this 	case.

[23]	The first prosecution witness was the complainant, Ms Tealiki Vovo. She is 62 years. She is a widow and a grandmother. She referred to the Accused as her adopted son. She raised him since he was a child. He moved out of her home when he got married. He lived on a neighbouring island after getting married. You will recall that counsel for the Accused in closing address said that the complainant was not asked to identify the Accused in the dock. However, in cross-examination of the complainant, counsel did not suggest that the complainant was mistaken in her identification of the Accused. In other words, identification was never made an issue and you will find little difficulty that when the complainant referred to Malaki Tuvalu in her evidence, she was referring to the Accused in the dock. That is a matter for you to consider together with the fact that the Accused does not dispute that on the night of 30 January 2017, he was the only other person inside the complainant’s house and slept on the same mattress as the complainant when the alleged incident occurred.

 [24]	The complainant’s evidence was that during the daytime, she went out to cut pandanus leaves with two other women from her village. When she returned home in the afternoon, she was tired and her legs were aching. While she was home, the Accused came by and greeted her. He requested her whether he could stay overnight at her home. Since she had raised him like a son, she agreed to that request. He went away to drink grog at his uncle’s house and returned to her home at around 10 pm. In cross examination, the complainant agreed that the Accused had massaged her legs before going to bed but she did not agree to the suggestion that the Accused had massaged her groin area. 

[25]	She said she gave him dinner and asked him to sleep in the living room. He told her, 	he was afraid of his late uncle and wanted to sleep in the same room as her. She 	agreed. While she was asleep, she felt pain in her vagina. She woke up and pushed the 	Accused. She felt the Accused’s fingers were inside her vagina. Although the room 	was dark, she knew it was the Accused. He was on top of her. He spoke to her when 	she pushed him away. He said to her that since uncle died she did not want any man 	to come near her. She recognised his voice.

[26]	The complainant said she got up and went outside her home to relieve herself. She returned inside, locked the doors and sneaked out to her friend, Filo’s house using the kitchen door. She arrived at Filo’s house yelling for her to open the door. When Filo opened the door she rushed inside and went straight to sleep on the floor of the living room. She did not say anything to Filo. The following morning the complainant told Filo that she did not like what the Accused had done to her but gave no details. 

[27]	The next witness was Ms Filogi Paki (aka Filo). Ms Paki had known the complainant for more than 20 years. They have been living on Kioa for very long time. Ms Paki’s home is about two homes away from the complainant’s home. Ms Paki’s evidence was that shortly after midnight on 30 January 2017, the complainant came to her home calling out her name to open the door. When she opened the door, she observed the complainant was distressed. Ms Paki said the complainant appeared scared from the sound of her voice. Ms Paki said that the complainant rushed inside and went straight to sleep. The following morning, the complainant told Ms Paki that the Accused had done something to her but she did not go in details. 

[28]	I wish to give you two further directions on recent complaint and distressed condition.  You heard from both the complainant and Ms Paki that a complaint was made to her by the complainant the following morning after the alleged incident that the Accused had done something to the complainant. This is not evidence as to what actually happened between the complainant and the Accused. Ms Paki was not present, and did not see what happened between the complainant and the Accused. Recent complaint evidence is led to show consistency in the conduct of the complainant and is relevant in assessing her credibility. In this case, since the complainant did not give details of her complaint to Ms Paki, the complaint evidence is of little value in assessing her credibility as a witness. 

[29]	Evidence was led that the complainant was distressed when she arrived at Ms Paki’s home shortly after the alleged incident. This is how you should approach the evidence of distress. You must be satisfied beyond a reasonable doubt that the complainant’s distressed condition was genuine and that there was a casual connection between the distressed condition and the alleged sexual offence. The distress evidence is only relevant in assessing whether the alleged sexual incident occurred. The distress evidence must not be used to connect the Accused to the alleged offence. Before you use the evidence of distress, you must be sure that the distressed condition was not feigned and was only referable to the alleged sexual offence and not any other cause.  In deciding these matters, you must take into account all relevant circumstances. If you are so satisfied then you may give such weight to the evidence of distress as is appropriate. But if you are not so satisfied then you must disregard the evidence of distress. 

[30]	The third and the final witness was Dr Tinfulagi. Dr Tinfulagi medically examined the complainant on 2 February 2017. The only significant medical finding was that there was an abrasion found on the vaginal wall. The doctor said the injury was consistent with a scratch mark, which can also be self-inflicted. The weight you attach to the medical evidence is a matter for you, bearing in mind that the medical evidence may support the complainant’s evidence but it does not link the Accused to the alleged sexual offence. 

[31]	After the close of the case for the prosecution, the Accused elected to remain silent 	and not to call any evidence. That is his right and you must not draw any adverse 	inference against the Accused for remaining silent and not calling any evidence. You 	must decide the charge on the evidence led by the prosecution. 

[32]	The prosecution case wholly rests on the complainant's evidence. If you believe the 	complainant is telling you the truth that the Accused penetrated her vagina with his 	finger on the night of 30 January 2017 without her consent and knowing she had not 	consented or was reckless as to whether she had not consented, then you may express 	an opinion that the Accused is guilty of the charge. But if you do not believe the 	complainant's evidence regarding the alleged rape, or if you have a reasonable doubt 	about the guilt of the Accused, then you must find the Accused not guilty. Your 	possible opinion is either guilty or not guilty. When you are ready with your opinions, 	please advise my clerk and the court will reconvene to receive them. You may now 	retire to deliberate on your opinions.

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

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