IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 81 of 2018

STATE

V

KASIANO NACANIELI ASOA

Counsel	:	Mrs. A. Vavadakua for the State
			Mr. J. Korotini (L.A.C.) for the Accused.

Date of Trial		:  25 March 2019
Date of Summing Up	:  25 March 2019

SUMMING UP

1.	Madam and Gentlemen assessors. It is now my duty to sum up 	to you. In doing so, I will direct you on matters of law which you 	must 	accept and act on. You must apply the law as I direct you 	in this case.

2.	As far as the facts of this case are concerned, what evidence to 	accept, what weight to put on certain evidence, which witnesses 	are reliable, these are matters entirely for you to decide for 	yourselves. So if I express any opinion on the facts, or if I 	appear to do so it is entirely a matter for you whether you 	accept what I say or form your own opinions. In other words 	you are masters and the judges of facts.

3.	Counsel for the prosecution and the defence have made 	submissions to you about how you should find the facts of this 	case. They have the right to make these comments because it is 	part of their duties as counsel. However you are not bound by 	what counsel for either side has told you about the facts of the 	case. If you think that their comments appeal to your common 	sense and judgment, you may use them as you think fit. You 	are the representatives of the community in this trial and it is 	for you to decide which version of the evidence to accept or 	reject.

4.	You will not be asked to give reasons for your opinions, but 	merely your opinions themselves, and you need not be 	unanimous although it would be desirable if you could agree on 	them.  Your opinions are not binding on me but I can assure 	you that I will give them great weight when I come to deliver my 	judgment.

5.	On the issue of proof, I must direct you as a matter of law that 	the onus or burden of proof lies on the prosecution to prove the 	case against the accused. The burden remains on the 	prosecution throughout the trial and never shifts. There is no 	obligation upon the accused to prove his innocence. Under our 	system of criminal justice an accused person is presumed to be 	innocent until he or she is proved guilty.

6.	The standard of proof is one of proof beyond reasonable doubt. 	This means that before you can find the accused guilty of the 	offence charged, you must be satisfied so that you are sure of 	his guilt. If you have a reasonable doubt about the guilt of the 	accused, then it is your duty to express an opinion that the 	accused is not guilty. It is only if you are satisfied so that you 	feel sure of the guilt of the accused that you can express an 	opinion that he is guilty.

7.	Your opinions must be based only on the evidence you have 	heard in the courtroom and upon nothing else. 

8.	The accused faces one charge of rape. In our law and for the 	purposes of this trial, rape is committed when a person 	penetrates the vagina of another with his finger. Consent is not 	an issue because the law says that a young child under 13 is 	not able to give consent, not that you would expect this little girl 	to be consenting to the abuse anyway. 

9.	Penetration does not have to be full penetration. It can be 	partial or slight to be enough for rape.

10.	So in this case all you would need to find proved is that the 	accused penetrated Rosa’s vagina to some degree and if you 	find that then you will find him guilty of rape.

11.	You will judge this case on the evidence alone. If indeed the 	allegation of the State is proved, then it would be an absolute 	tragedy not only for the little girl’s psychiatric well-being, but 	harmony in the whole family; but you must not let your decision 	be swayed by sympathy, anger or possible consequences. Your 	final findings must be analytical and dispassionate.

12.	The evidence has been brief. You heard the little girl tell us that 	on the night she slept with her father, he used his finger to 	“poke” her. She was in pain. 

13.	The next day she went to her grandmother’s house and told 	Grandma about the pain. Grandma asked what happened and 	Rosa told her that her father had used his hand. The child 	demonstrated with her fore-finger and used the work “poke”. 	Gandma checked her genitals and saw injuries there. 

14.	A report was made to the Police and she was taken to the local 	hospital for examination. 

15.	The examining doctor told us that her examination revealed a 	broken hymen and injuries consistent with blunt force trauma 	which could include penetration with a finger. 

16.	That was the end of the prosecution case and you heard me 	explain to the accused what his rights are in defence . He could 	give evidence and say that the State had not proved the case 	beyond reasonable doubt or he could give sworn evidence from 	the witness stand. In either case he was entitled to call 	witnesses. 

17.	As you know he chose to remain silent. He does not have to give 	evidence. He is entitled to sit in the dock and require the 	Prosecution to prove its case. You must not assume that he is 	guilty because he has not given evidence. The fact that he has 	not given evidence proves nothing, one way or the other. It does 	nothing to establish his guilt. On the other hand it means that 	there is no evidence from the accused to undermine, contradict 	or explain the evidence put before you by the prosecution. 
18. 	However you still have to decide whether on the prosecution 	evidence you are sure of the accused’s guilt. 

19.	Well Madame and Gentlemen, that is all I wish to say. You may 	leave us now to deliberate on your opinions. Please let my staff 	know when you are ready and I will reconvene the Court.

20.	However before you go I will ask Counsel if they wish me to 	amend or add any directions on the law.

21.	Counsel?

P.K. Madigan
Judge

At Labasa
25 March 2019