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State v Naleba - Summing Up [2018] FJHC 545; HAC142.2016 (21 June 2018)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 142 OF 2016

STATE
v
POKITI NALEBA

Counsel: Ms. S. Kiran for State

Ms. K. Vulimainadave and Ms. B. Lata for Accused

Dates of Trial: 18^th 20^th and 21^st June, 2018

Date of Summing Up: 21^th June, 2018

SUMMING UP

Madam Assessor and Gentlemen Assessors:

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. Matters of facts however, are a matter 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. In other words you are the judges of fact. All matters of fact are for you to decide.
   
3. The Counsel for Prosecution and Defence made submissions to you about the facts of this case. That is their duty as Counsel. You are not bound by their submissions. However, you may properly take their submissions into account when evaluating evidence.
   
4. You will not be asked to give reasons for your opinions. 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 deliver my judgment.
   
5. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proven guilty. The burden of proving his guilt rests on the prosecution and never shifts.
   
6. 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. Remember if you have any doubt, it must be reasonable. You cannot speculate. These doubts must be based solely on the evidence or lack of evidence that you have seen and heard in this court room.
   
7. Your opinions must be solely and exclusively based 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 court room. 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. Approach the evidence with detachment and objectivity.
   
8. Your duty is to find the facts based on the evidence and apply the law to those facts. You are free to draw reasonable inferences from facts proved by evidence. However, the inferences should not be based on mere speculation.
   
9. Please remember, a proposition put to witness is not evidence unless it is accepted by the witness as being true.
   
10. An incident of rape 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 an incident. 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 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.
    
11. It would be understandable if one or more of you came to this trial with certain assumptions as to what constitute rape, what kind of person may be the victim of rape, what kind of person may be a rapist, or what a person who is being, or has been, raped will do or say. It is important that you should leave behind any such assumptions about the nature of the offence because experience tells the courts that there is no stereotype for a rape, or a rapist, or a victim of rape. The offence can take place in almost any circumstances between all kinds of different people who react in a variety of ways. Please approach the case with open mind and dispassionately, putting aside any view as to what you might or might not have expected to hear, and form your opinion strictly on the evidence you have heard from the witness.
    
12. I must emphasize that the assessment is for you to make. However, it is of paramount importance that you do not bring to that assessment any preconceived views or stereotypes as to how a complainant in a rape case such as this should react to the experience. It is impossible to predict how that individual will react, either in the days following, or when speaking publically about it in court or at the police station. The experience of the courts is that those who have been victims of rape react differently to the task of speaking about it in evidence.
    
13. 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 a trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
    
14. I have given you a copy of the Information which contains one count of Rape.

The Information reads as follows:

Statement of Offence

RAPE: Contrary to Section 207 (1) and Section 207 (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

POKITI NALEBA on 8^th day of December, 2015, at Nadi in the Western division, penetrated the vagina of RANJEET KAUR with his penis, without her consent.

15. In order to prove the charge, the Prosecution must prove beyond reasonable doubt that the Accused penetrated Complainant’s vagina with his penis without her consent. Insertion of penis fully into vagina is not necessary. A slightest penetration is sufficient to satisfy this element.
    
16. On the issue of consent, 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 penetration if you are sure that he realized 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.
    
17. Consent as defined in Section 206 of the Crimes Act, means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. Simply put, if somebody does not resist physically it does not necessarily mean that she or he had given consent. Different people react differently to situations. You don’t necessarily need violence, kicking, and shouting etc. to show that one is not consenting.
    
18. 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 complainant who saw, heard and felt the offence being committed. In this case, for example, the Complainant was a witness who offered direct evidence as to what she saw, heard or felt.
    
19. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the Accused-person that connects him to the offence that he is alleged to have committed.
    
20. In evaluating evidence, you should see whether the story relayed in evidence is probable or improbable; whether witness is consistent in his or her own evidence and with his or her previous statements or with other witnesses who have gave evidence in court. It does not matter whether that evidence was called for the Prosecution or for the Defence. You must apply the same test to evaluate evidence.
    
21. In testing the consistency of a witness you should see whether the witness is telling a story on the same lines without variations and contradictions. You must however, be satisfied whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points, given the mental status of the witness at a particular point of time, or whether such variation has been created by the involvement of some other person, for example by a police officer, in recording the statement.
    
22. Another relevant aspect in assessing truthfulness of a witness is his or her manner of giving evidence in court. You have seen how the witness’s demeanor in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers or were they evasive? But, please bear in mind that many witnesses are not used to giving evidence and may find court environment distracting.
    
23. You must bear in mind that the evidence comes from human beings. They cannot have photographic or video graphic memory. The witness can be subjected to the same inherent weaknesses that you and I suffer insofar as our memory is concerned.
    
24. In testing the credibility of a witness, you may consider whether there is delay in making a 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 usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation for such delay.
    
25. Bear in mind, a late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. There can be a reasonable explanation for the delay. It is a matter for you to determine whether, in this case, the lateness of the complaint and what weight you attach to it. It is also for you to decide, when complainant did eventually complain, whether it was genuine.
    
26. You heard Complainant saying that she relayed the incident to her husband Pradeep two weeks after the incident. Pradeep gave evidence and said that he heard about it after one week but could not clearly remember the date. Pradeep told court what he heard from the Complainant. Please bear in mind that Pradeep was not present during the alleged incident and therefore, he is not capable of giving evidence as to what actually happened between the Complainant and Accused. What she heard from the Complainant is not evidence as to what actually happened between the Complainant and the Accused. If you find Pradeep a credible witness than you may use the complaint he received to test the consistency and credibility of the Complainant.
    
27. You may also consider whether there is a reason or motive on the part of the Complainant and her husband to make up an allegation against the Accused. If they had such a motive, then you may think that this allegation has been fabricated.
    
28. Evidence was led through Complainant’s husband that the days immediately after the alleged incident, Complainant looked distressed and different that she did not talk much and did not conduct herself the way she used to be. If you believe that she was in distressed condition, you must be satisfied beyond a reasonable doubt that the Complainant’s distressed condition was genuine and that there was a causal connection between the distressed condition and the alleged sexual offence. The distress evidence is only relevant in assessing whether the alleged sexual incident occurred and it does not connect the Accused to the alleged offence. Before you use the evidence of distress, you must be sure that the distressed condition was not artificial 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.
    
29. I must direct you on the defence of alibi taken up by the Defence. The Defence says that the Accused was not present at the crime scene at the material time and called three witnesses to show that the Accused was at Cavucavu settlement in Mataso on the 7^th, 8^th and 9 of December, 2015. Accused did not come and give evidence about his alibi. That is his right. He does not have to prove that he was elsewhere at the material time. Accused does not have to prove his alibi or anything at all in this case. It is the burden of the Prosecution to prove beyond reasonable doubt that it was the Accused who committed the rape.
    
30. When you consider the evidence led in trial, if you accept that the Accused at the material time was at Cavucavu settlement in Mataso, and not at the place where the alleged rape took place as the Prosecution claims or even if you are not sure of that, you must find the Accused not guilty of the charge of rape. Even if you reject the evidence of the Defence, the Prosecution must prove that the Accused was present at the crime scene with the Complainant. If the Prosecution has failed to prove this fact beyond reasonable doubt, you must find the Accused not guilty of rape.
    
31. Please remember, there is no rule in Fiji for you to look for corroboration of complainant’s story to bring home an opinion of guilt in a case of sexual nature. The case can stand or fall on the testimony of complainant, depending on how you are going to look at her evidence.
    
32. Lady and Gentlemen Assessors, I will now remind you evidence led in the trial. It is a short trial and things should be fresh in your memory. I will only summarize the salient features. If I do not mention a particular piece of evidence that does not mean it is unimportant.
    

Case for Prosecution

PW 1 Ranjeet Kaur (Complainant)

33. Complainant Ranjeet said that she was residing at Votualevu, Malawai, Nadi, for about 22 years. Nalabe came to her house on the 2^nd of December, 2016, her father-in-law’s birthday. Naleba had come to massage her husband Pradeep’s leg since it was paining. Naleba massaged Pradeep and informed Pradeep that he will buy some medicine from Rakiraki and bring it over. Naleba took $50.00 and went. He brought the medicine on the 7^th December, 2015 and gave it to Pradeep to drink.
    
34. Naleba again visited them on 8^th of December, 2015, and asked Pradeep, who was sitting underneath a tree at that time, if he had ever dreamt about anything. He said he did not. Then Naleba asked Pradeep to call her wife. Ranjeet went under the tree when Pradeep called her. Naleba asked her if she had a dream. She said she did not dream about anything. Naleba said that she was feeling shy that is why she was not saying. He then asked her to come to the porch so they can sit and talk. She agreed and went to the porch with Naleba. Then he was forcefully asking her if she had dreamt about anything. When she said ‘no’, Naleba then went back under the tree where her husband was.
    
35. After having a cup of tea, Pradeep fell asleep under the tree. Ranjeet came inside the house to clean the dishes. Her daughter was watching TV at that time. When she went inside her room, Naleba also came to the room and started touching her. She told him to leave. She said she will tell her husband about this. She was trying to go out of the room but Naleba closed the door. When he was closing the door, the daughter came. He told the daughter to go and have a sit; he will be coming in a while. Ranjeet tried to call her daughter but he pressed her mouth.
    
36. Ranjeet said that Naleba then removed her clothes and panty and raped her. He made her bend down and he did it from behind. She wanted to shout but she couldn’t because he closed her mouth with his hand. She said he used his body part to have sex. She re-fused to name the body part. She said Naleba used his body part into her body part.
    
37. When she was asked to describe the functions of her body part into which Naleba used his body part, Ranjeet said it is used to have sex, give birth and have menses from. She said that his body part is used to have sex. She said she knows how his body part looks like. She was not comfortable in telling or writing the name of his body part but agreed to draw it on a paper. She drew it and we were shown what she drew. She showed us the front end of that body part Naleba used to have sex. She said that his body part was hard and he used it into her body part to have sex. When he was having sex with her, she could feel hardness of his body part at the place where she used to give birth and where she used to have menses from. She described her emotional feeling as paining. She did not allow Naleba to do this to her.
    
38. After doing this Naleba came out and told his husband to take him home. Husband asked him why he was in such a hurry to go so early. Then Naleba said that if he can’t be dropped home then they have to give him the bus fare. Husband then took him and dropped him home. When husband came back she wanted to tell him what happened but she was scared because when Naleba came out he had told her that if she told this to anybody he would kill them.
    
39. After one week, she eventually told her husband when he asked him. She identified the Accused as the person who did this to her.
    
40. Under cross-examination Ranjeet said that, in 2016, all her children were living with her. She admitted that his father-in-law went harvesting honey with Naleba and he took his share of honey. She admitted that Naleba came on the 2^nd of December, 2015 to her house for the second time. She denied the proposition that Naleba was in Ra and he had never come back to her house on the 8^th of December, 2015.
    
41. Ranjeet denied that in 2015, her husband was practicing witchcraft and that he had shown Naleba a ‘Tanoa’, Tabua or grog roots. She denied that in December, 2015, her husband had requested Naleba to join him in worshipping ‘Dakuwaqa’ or the Shark God and, when Naleba refused, her husband was not happy. Ranjeeta denied that she and her husband had made up this case after Naleba refused to join them in worshipping and, because Naleba took the major share of honey.
    
42. Ranjeet admitted that she lodged the complaint at Namaka Police Station on the 27^th of February, 2016. Ranjeet admitted that, in February, 2016, her husband was sick and at that time she told her husband everything that had happened in 2015. She said that she had told her husband about this one week after the incident also.

PW 2 Pradeep Kumar

43. Pradeep is the husband of the Complainant. He said that on 2^nd of December, 2015, at around 6.30 pm his father, mother and Naleba came at his place to celebrate his father’s birthday. His father told Naleba that his legs were paining. Naleba took him and his wife to the bedroom and massaged his leg while talking to his wife. Then he prescribed some medicine for his pain and went. On the 4^th December, 2015, he picked Naleba from his father and mother’s house when he was selling bed sheets and brought him over to his house. He bought a bed sheet and gave him extra $ 50 for the medicine.
    
44. On the 7^th of December, 2015, Naleba brought the medicine and gave it for him to drink. Then he started to feel dizzy and he informed Naleba about this. Naleba told him to pick him up on the next day. On the 8^th of December, 2015, Pradeep picked Naleba up from Legalega and brought him home. As soon as he parked the vehicle, Naleba rushed to the washroom. Whilst sitting under a tree, Naleba asked him whether he had a dream. When he said ‘no’, Naleba wanted to speak to his wife. When he called his wife under the tree, Naleba then said that she’s feeling shy and that he wants to speak to her more.
    
45. After talking to Naleba, wife went inside the house. Then they had a cup of tea and suddenly he fell off to sleep. When he woke up, he saw that Naleba was not there. Then he quickly went inside the house. He saw Naleba coming out of the house a bit scared and he asked for some money for his fare. He agreed to drop Naleba home. On the way, Naleba was silent and did not talk.
    
46. After dropping Naleba, he came back home and asked his wife if something had gone wrong because Naleba was not talking to him nicely, then she said, no, nothing. From her behavior, he noticed that something was wrong with her. She was quiet and not responding. After that he was forcefully asking her to tell if something was wrong after ensuring that he won’t leave her and hit her. After two weeks, she informed him everything that had happened to her. Then they went and reported the matter to police. She said that Naleba had sex with her on 8^th December, 2015.
    
47. Under cross-examination Pradeep admitted that he went with Naleba once to harvest honey and came back to his place in Votualevu with his father to share the honey. Pradeep said that he gave Nalebe $ 50 on the 4^th and he brought medicine on the 7^th of December, 2015. He said he was 100% sure that he picked Naleba up on the 8^th of December, 2015, and brought him home.
    
48. He denied that in February 2016, he had a health problem that caused him to collapse. He said that he could not recall the date he lodged the complaint. When he found out then he went and reported the matter to police, he said.
    
49. He denied that he had shown Naleba a ‘Tanova, Tabua’ and waka or kava roots sometimes in December 2015 and told him to join in worshipping the Shark God, ‘Dakuwaqa’. He denied that when Naleba refused to join him in worshipping he was not happy and that is the reason why they went to police and made a false report.
    
50. That is the case for the Prosecution. At the close of the Prosecution case, 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.
    
51. Accused exercised his right to remain silent. That is his right. You must not hold against the Accused for not giving evidence in his defence. You must not draw an inference that the Accused remained silent because he was guilty. Burden of proof remains with the Prosecution throughout.
    
52. Defence called three alibi witnesses although it had nothing to prove in this case. Now I must tell you that the fact that Defence presents evidence does not relieve the Prosecution of the burden to prove their case to you beyond reasonable doubt. Burden of proof remains with the Prosecution throughout. Defence’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    

Case for Defence

DW 1 Tevita Laulau

53. Tevita said that in 2015, he was residing in Mataso, at Cavucavu settlement. Naleba is his cousin brother. In December 2015, Naleba visited him but he could not recall the date. Naleba wanted him to find some Fijian herbal medicine for his friend in Nadi. He stayed at his place for 3 to 4 days. About one or two weeks later, when the medicine was ready, he contacted Naleba.
    

DW 2 Linieta Dreka

54. In December 2015, Dreka was residing at Cavucavu settlement in Mataso. Naleba is her father. Naleba visited her at Cavucavu Settlement on the 7^th of December, 2015 and stayed with her on 7^th, 8^th, and 9^th and, on the 10^th, he went back. On the 8^th of December, 2015, he went to the farm to plant dalo. She said that nothing significant happened between 7^th and 10^th for her to be able to remember these dates. Then she said she could clearly remember the events of 7^th and 8^th because on 10^th of December, 2015, she had her cousin’s wedding ceremony.
    
55. Under cross-examination Dreka said that she could not recall the date she gave the statement. When the statement given to police was shown, witness agreed that it was given on 19^th of June, 2018. She agreed that she could not remember a statement given on 19^th June 2018 but could remember the things that happened in December 2015. She agreed that she did not make any note or diary entry for the 7^th, 8^th, and 9^th of December, 2015, but marked 10^th of December 2015 on the calendar because, on that day, the function took place. She admitted that she can’t confirm the dates.
    
56. Under re-examination Dreka said if she were asked about the statement given to police, she could have recollected the date she gave it. Then she said she gave two statements to police and she could not recall the day she gave her first statement in Mataso.
    

DW 3 Mereti Tubu

57. In December 2015 Tubu she was residing at Mataso. She said she could recall that her brother-in-law Naleba came to her village sometimes in 2015. She said that she could not recall the month he came but she could recall that Naleba came on a 7^th day of the month. Naleba stayed there planting dalo with her husband and went back on 10^th. She said she could clearly remember the dates because she wrote down the dates.
    

Analysis

58. Lady and gentlemen Assessors, the Accused is charged with one count of Rape. To find the Accused guilty of Rape, you must be satisfied beyond a reasonable doubt that the Accused penetrated Complainant’s vagina with his penis without her consent.
    
59. Defence case is one of denial. They say that the Accused did not commit the alleged Rape. They took up the position that the Accused was elsewhere when the alleged rape occurred.
    
60. Prosecution called two witnesses, the Complainant and her husband, Pradeep and based their case substantially on the evidence of the Complainant. The resolution of the dispute depends on whether you accept the Complainant as a truthful witness. If you are satisfied that the evidence she gave in Court is truthful and believable, then you can safely act upon her evidence in coming to your conclusion. No corroboration is required.
    
61. First of all you have to be satisfied beyond reasonable doubt that it is the Accused that had committed the alleged rape before you can find him guilty.
    
62. Prosecution says that the Complainant is consistent and reliable. They say that the Complainant did not make a prompt complaint because she was scared of the Accused and the warning he had given. Pradeep described how he had to reassure the Complainant to make herself open up with her story. You had the

opportunity to observe what type of a woman she is and her manner of giving evidence in Court. Considering the directions I have given, you decide what weight to be attached to her evidence and whether the complaint she ultimately made to police on the 27^th February 2016 was genuine.

63. Prosecution relies on distress evidence to prove Complainant’s consistency in her conduct. I have directed you as to how you should deal with distress evidence. If you are satisfied that the Complainant was in a distressed condition after the alleged incident and that distressed condition was not artificial and was only referable to the alleged sexual offence and not any other cause, then you may give such weight to the evidence of distress as is appropriate, having taken into account all relevant circumstances.
    
64. Defence says that the Complainant did not tell the truth in Court. They say that the complainant and her husband made up this case against the Accused because they were not happy with Accused’s refusal to join them in worshipping and also he took the major share of the honey they collected. You decide what weight should be given to this claim.
    
65. Version of the Defence is that Accused was elsewhere and was not present at the alleged crime scene at the material time. They called three witnesses to show that the Accused was at Cavucavu settlement in Mataso on the 7^th, 8^th and 9^th of December, 2015. Complainant on the other hand said that the Accused came to her house on the 8^th of December, 2015 and he did to her the act what she said he did. Prosecution also called Pradeep to show that the Accused came to his house on the day the alleged incident happened.
    
66. Prosecution says that the defence witnesses are not reliable because they could not confirm the dates the Accused had visited their settlement which is crucial to the Defence case. They also say that the Defence’s witnesses are related to the Accused and therefore they are interested in the defence case. You decide whether the Defence witnesses are reliable and what weight should be given to their evidence.

67. It is up to you to decide which version is to believe and whether you could accept the version of the Defence. If you accept the version of the Defence you must find the Accused not guilty. Even if you reject the version of the Defence, still the Prosecution should prove their case beyond reasonable doubt.
    
68. The Complainant for whatever reason did not want to name the sexual organs that were involved in the alleged sexual conduct of the Accused. She used a drawing to portray the sexual organ of the Accused and gave a description as to her sexual organ. You decide whether the elements of rape are satisfactorily proved in this case.
    
69. If you believe the Complainant is telling you the truth that the Accused penetrated her vagina with his penis on the 8^th of December, 2015, without her consent then you may express an opinion that the Accused is guilty of Rape. But if you do not believe the Complainant's evidence regarding the alleged offence, 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 of the offence.
    
70. You may now retire to deliberate on your opinions. Once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
    

71. Any re-directions?

Aruna Aluthge
Judge

AT LAUTOKA

21^st June, 2018

Solicitors: Office of the Director of Public Prosecution for State

Legal Aid Commission for Defence