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State v Jackson - Summing Up [2019] FJHC 626; HAC145.2016 (13 June 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


Criminal Case No.: HAC 145 of 2016


STATE


V


BILL JACKSON


Counsel : Mr. T. Tuenuku and Mr. R. Chand for the State.

: Ms. V. Diroiroi [LAC] for the Accused.


Dates of Hearing : 10, 11, 12 June, 2019
Closing Speeches : 12 June, 2019
Date of Summing Up : 13 June, 2019


SUMMING UP


Ladies and Gentleman Assessors


1. It is now my duty to sum up this case to you.


ROLE OF JUDGE AND ASSESSORS


  1. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of facts, however, which witness to accept as reliable, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you wish.
  2. So, if I express an opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of facts.
  3. 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 own opinion as to whether the accused is guilty or not.
  4. State and Defence Counsel have made submissions to you about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsel in this case. Their submissions were designed to assist you as judges of facts. However, you are not bound by what they said. You can act upon it if it coincides with your own opinion. As representatives of the community in this trial it is you who must decide what happened in this case and which version of the facts to accept or reject.

  1. You will not be asked to give reasons for your opinions and your opinion need not be unanimous. Your opinions are not binding on me but it will assist me in reaching my judgment.

BURDEN OF PROOF AND STANDARD OF PROOF


  1. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on 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 proven guilty.
  2. 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 person’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.
  3. Your decision must be based exclusively upon the evidence which you have heard in this court and nothing else. You must disregard anything you must have heard about this case outside of this court room.
  4. You must decide the facts without prejudice or sympathy to either the accused or the complainant. Your duty is to find the facts based on the evidence without fear, favour or ill will.
  5. Evidence is what the witnesses said from the witness box, documents or other materials tendered as exhibits. You have heard questions asked by the counsel and the court they are not evidence unless the witness accepts or has adopted the question asked.

INFORMATION


  1. The accused is charged with the following offences: (a copy of the information is with you).

First Count
(Representative count)
Statement of Offence


SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Act of 2009.


Particulars of Offence

BILL JACKSON, between the 11th day of July 2016 and the 12th day of July, 2016 at Mataniqara, Ba, in the Western Division, had unlawfully and indecently assaulted VACISEVA WATI.

Second Count
(Representative count)


Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act of 2009.


Particulars of Offence

BILL JACKSON, between the 11th day of July, 2016 and the 12th day of July, 2016 at Mataniqara, Ba, in the Western Division had carnal knowledge of VACISEVA WATI, without her consent.


Ladies and Gentleman Assessors


13. You will note that both counts are representative counts which covers a period between the 11th day of July, 2016 and the 12th day of July, 2016. By a representative count the prosecution alleges that more than one offence as described in the information were committed during the period specified in the counts. The law says that it shall be sufficient for the prosecution to prove that between the specified dates in the counts at least one offence was committed.


14. To prove count one the prosecution must prove the following elements of the offence of sexual assault beyond reasonable doubt:


(a) The accused;
(b) Unlawfully and indecently;

(c) Assaulted the complainant Vaciseva Wati by licking her vagina.


  1. The first element of the offence of sexual assault is concerned with the identity of the person who allegedly committed the offence.
  2. The words “unlawfully” and “indecently” in respect of the second element of the offence of sexual assault means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such conduct indecent.
  3. The final element of assault is the unlawful use of force on the complainant by the act of licking her vagina.

You should ask yourself:


(a) whether you consider the force which was used in licking the vagina of the complainant was sexual in nature; and

(b) if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, was in fact sexual in nature.


  1. If you are satisfied beyond reasonable doubt that the prosecution has proved all the elements of sexual assault as explained above, then you must find the accused guilty of sexual assault. If on the other hand, you have a reasonable doubt with regard to any of those elements concerning the offence of sexual assault, then you must find the accused not guilty.
  2. In this trial, the accused has denied committing the offence of sexual assault he has been charged with. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had unlawfully and indecently licked the vagina of the complainant between the 11th day of July, 2016 and the 12th day of July, 2016.
  3. To prove count two, the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:
  4. In this trial the accused has denied committing the offence of rape. It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his penis without her consent.
  5. The slightest of penetration of the complainant’s vagina by the accused penis is sufficient to satisfy the act of penetration.
  6. The first element of the offence is concerned with the identity of the person who allegedly committed the offence.
  7. The second element is the act of penetration of the complainant’s vagina by the penis.
  8. The third element is that of consent, you should bear in mind that consent means to agree freely and voluntarily and out of her own free will. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority, then that consent is no consent at all. Furthermore, submission without physical resistance by the complainant to an act of another shall not alone constitute consent.
  9. If you are satisfied that the accused had penetrated the vagina of the complainant with his penis and she had not consented, you are then required to consider the last element of the offence that is whether the accused knew or believed that the complainant was not consenting or did not care if she was not consenting at the time.
  10. You will have to look at the conduct of both the complainant and the accused at the time and the surrounding circumstances to decide this issue.
  11. You must be satisfied that the prosecution has proved all the elements of the offence of rape beyond reasonable doubt in order for you to find the accused guilty of the offence of rape. If on the other hand, you have a reasonable doubt with regard to any of those elements concerning the offence, then you must find the accused not guilty.
  12. As a matter of law, I have to direct you that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated. This means if you are satisfied with the evidence given by the complainant and accept it as reliable and truthful you are not required to look for any other evidence to support the account given by the complainant.
  13. In this case, the accused is charged with one representative count of sexual assault and one representative count of rape, you should bear in mind that you are to consider the evidence in respect of each count separately from the other. You must not assume that because the accused is guilty of one representative count that he must be guilty of the other as well.

ADMITTED FACTS


  1. In this trial the prosecution and the defence have agreed to certain facts which have been made available to you titled as amended admitted facts.
  2. The admitted facts are part of the evidence and you should accept these admitted facts as accurate, truthful and proven beyond reasonable doubt.
  3. I will now remind you of the prosecution and defence cases. In doing so it would not be practical of me to go through all the evidence of every witness in detail. It was a short trial and I am sure things are still fresh in your minds. I will refresh your memory and summarize the important features. If I do not mention a particular piece of evidence that does not mean it is not important. You should consider and evaluate all the evidence in coming to your opinion in this case.

PROSECUTION CASE


34. The prosecution called four (4) witnesses to prove the charges against the accused.


  1. The complainant Vaciseva Wati informed the court, on 11th July, 2016 she travelled by bus from Nausori reaching Ba Town a little after 7pm, and from there the complainant went to Vadravadra Village in a carrier. After getting off the carrier while walking home the complainant saw the accused with some others drinking alcohol outside a shop.
  2. The complainant knows the accused since they were neighbours, when the accused saw her he told her to wait so that he can accompany her home. After waiting for about 5 minutes, both the complainant and the accused took a walk following a tramline and a gravel road. On the way both were having a conversation, as they went near the house of the accused he asked the complainant to accompany him to his house for a drink. The complainant refused, saying she was going home.
  3. At this time, the accused started pulling her t-shirt, since the complainant was unable to push him away, she started to scream for help. The accused then punched her mouth and tightly held the collar of her t-shirt and forcefully took her to his house. During the struggle the zip of the complainant’s knapsack bag broke and her clothes fell on the road.
  4. As a result of the punch, the complainant kept quiet, when she reached the house of the accused she thought of escaping so she told the accused that she wanted to use the washroom. After using the washroom, the complainant ran out of the house, the accused also followed her towards the neighbour’s house. While running the complainant fell towards the fence of the neighbour’s house she screamed at the top of her voice and again she was punched by the accused. The accused then held the complainant’s t-shirt collar and brought her to his house for the second time.
  5. The complainant could not run away, because the accused had forcefully held the collar of her t-shirt, when they reached the house of the accused the complainant was frightened. The accused gave her the key to open his house, since the complainant did not know what to do she took the key and opened the door.
  6. Inside the house, the accused switched on the light, after a while he switched it off and started kissing the complainant. The complainant turned her face away, the accused then removed her t-shirt, her bra and then told her to lie down. The complainant did not scream because she was frightened the accused would punch her or even kill her. The complainant laid down face up on the mat the accused then removed her pants and started licking her vagina for 10 minutes.
  7. The complainant did not like what the accused was doing to her, after this the accused inserted his penis into the complainant’s vagina. At this time, the complainant hated the accused for what he was doing to her the accused had sexual intercourse with her for about 20 minutes.
  8. When the accused had finished, he stood up and walked around the house. After a while, the accused came and sat beside the complainant and once again started kissing her mouth and then went on to lick her vagina and then inserted his penis into her vagina and had sexual intercourse.
  9. The complainant than pretended to sleep, after a while the accused fell asleep when the accused was snoring the complainant after wearing her clothes left the house of the accused without closing the door and started running towards her house. At home, the complainant told her boyfriend Tevita Buto what the accused had done to her.
  10. The next morning, the accused and his wife came to her house the accused sought forgiveness but the complainant refused to accept his forgiveness. The matter was reported to the police and the complainant was taken to the hospital for a medical checkup. The complainant identified the accused in court.
  11. In cross examination the complainant maintained that the accused had told her that he will drop her home. She agreed that she used to drink yaqona with the accused and a week or so earlier she drank alcohol with him in a vacant house and she would always be sitting next to the accused during such occasions. The complainant disagreed that she had any feelings for the accused and that the injuries she received on her lips from the punches were not serious.
  12. The complainant agreed the accused had punched her twice. She denied the accused had refused to drop her home because he had been drinking. The complainant stated she did not call the police immediately after running from the accused house because she did not have funds in her phone which was low on battery and the phone was not with her. The complainant maintained that the accused had licked her vagina twice and had sexual intercourse with her that night. She stated that she shouted whilst on the tramline but did not shout while walking past some houses near the accused house because she was scared that he will punch her again.
  13. The complainant did not call the police when she was at Tevita’s house because it did not occur to her she only told Tevita what had happened.
  14. The second witness was Tevita Buto, he was in a relationship with the complainant on 11th July, 2016 he was working in Lautoka when he received a call from the complainant saying that she will be coming home.

49. The witness arrived home from Lautoka at around midnight after having his shower he was getting ready to have his dinner when he heard someone pushing the door. When he opened the door he saw the complainant.


  1. The complainant was crying and looked scared the witness told her to calm down and asked her what happened. The complainant told the witness when she arrived at the village and as she was walking home the accused asked her for them to go home together. When they reached the junction to the house of the accused, the accused requested her to go to his house. The complainant refused, after this the accused pulled her and punched her both were pulling each other up to the accused’s house.
  2. The complainant wanted to run away from the accused house and again she was punched since she felt weak she did not do anything thereafter the complainant told him that the accused had raped her. The witness told his parents about what the complainant told him. In the morning the accused came and asked for forgiveness, saying he did not know what had happened the previous night because he was drunk.
  3. In cross examination, the witness agreed that the accused was his cousin brother, and at times he used to drink yaqona with the complainant and the accused. The witness did not see any visible injuries on the complainant but saw injuries inside her mouth, he did not tell this to the police.

Ladies and Gentleman Assessors


  1. Victims of sexual offences may react in different ways to what they may have gone through. Some in distress or anger may complain to the first person they see. Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all. A victim’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.
  2. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for you to determine what weight you would give to the fact that the complainant during the early hours of 12th July told Tevita Buto that the accused had raped her immediately after she arrived home and saw Tevita.
  3. This is commonly known as recent complaint evidence. The evidence given by Tevita is not evidence of what actually happened between the complainant and the accused since Tevita did not see what had happened between them.
  4. You are, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told Tevita the accused had raped her in his house immediately after reaching home and therefore she is more likely to be truthful. On the other hand, defence says the incidents as narrated by the complainant did not happen, if it did happen then the complainant would have called the police when she went home, she did not since nothing had happened.
  5. It is for you to decide whether the evidence of recent complaint helps you to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. This is a matter for you to decide whether you accept the complainant as reliable and credible. The real question is whether the witness was consistent and credible in her conduct and in her explanation of it.
  6. The third witness Marisilina Liku the mother of Tevita Buto, (the second prosecution witness) informed the court that the complainant was in a relationship with her son. She knows the accused who is related to her husband.
  7. On 12th July, 2016 at about 2am the witness was awoken by her son Tevita who told her that the accused had raped the complainant. The witness and her husband went to the house of the accused as the witness entered the road leading to the accused house, she saw the clothes of the complainant scattered on the road which she collected.
  8. When the witness reached the house of the accused, she noticed that the door was open and the accused was sleeping in his underwear only. When the witness confronted the accused, he denied raping the complainant. At about 6am the accused came to her house with his wife, he asked for forgiveness and said that he did not rape the complainant. The witness did not accept the apology.
  9. In cross examination the witness disagreed that she had a dislike for the accused due to certain land issues she maintained that the accused had come to her house with his wife seeking forgiveness and also said that he did not rape the complainant. The witness stated that it was a lie that she had a dislike for the accused from the time she was married into the family.
  10. The final prosecution witness was Akashni Lata Narayan, on 11th July, 2016 at about 8pm she was at home watching a movie with her children when all of a sudden she heard a yell of a girl once only coming from the house of the accused. The yell was loud enough for her to hear since the volume of the TV was low, she thought it was the daughter of the accused who was yelling. The accused house is near to her house and she calls the accused brother.

63. This was the prosecution case.


DEFENCE CASE


Ladies and Gentleman Assessors


  1. At the end of the prosecution case you heard me explain options to the accused. He has those options because he does not have to prove anything. The burden of proving the accused guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to remain silent and not call any witness that is his right and you should not draw any adverse inference from the fact that the accused decided to remain silent.
  2. From the line of cross examination the defence takes the position that the accused did not commit the offences as alleged. He did not go anywhere with the complainant that night. The complainant had asked him to accompany her, but he refused since he had been drinking. The next morning he did not go and meet the complainant as alleged and therefore seeking forgiveness from the complainant and her family does not arise.
  3. This was the defence case.

ANALYSIS


67. The prosecution alleges, on 11th July, 2016 the accused whilst walking with the complainant forcefully took her to his house after punching her on her mouth and tightly holding the collar of her t-shirt. When inside his house the accused started kissing the complainant and then forcefully removed her t-shirt, her bra and then made the complainant lie down. The complainant did not scream because she was frightened the accused would punch her or even kill her. The accused after removing the complainant’s pants forcefully started licking her vagina. She did not like what the accused was doing to her, after this the accused forcefully inserted his penis into the complainant’s vagina and had sexual intercourse.


  1. When the accused finished, he stood up and was walking around the house, after sometime the accused for the second time started kissing the complainant’s mouth and then went on to forcefully lick her vagina and then forcefully inserted his penis into her vagina and had sexual intercourse with her.
  2. During the early hours of 12th July, Tevita Buto saw the complainant crying who looked scared when she came inside the house. The complainant told Tevita what the accused had done to her and in particular that the accused had raped her the previous night.
  3. The accused on the other hand, denies committing any of the offences as alleged. The defence contention is that the incidents as narrated by the complainant did not happen, the accused had not accompanied the complainant as stated by her. In respect of the accused seeking forgiveness he denies going to the house of the complainant as stated by the prosecution witnesses.

Ladies and Gentleman Assessors


  1. 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 straight forward? You may use your common sense when deciding on the facts. Assess the evidence of all the witnesses and their demeanour in arriving at your opinions.
  2. In deciding the credibility of the witnesses and the reliability of their evidence it is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified. You can accept part of a witness’s evidence 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 not be accurate in another.
  3. 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 proven beyond reasonable doubt. In evaluating evidence, you should see whether the story related in evidence is probable or improbable, whether the witness is consistent in his or her own evidence or with other witnesses who gave evidence.
  4. It is up to you to decide whether you accept the version of the defence and it is sufficient to establish a reasonable doubt in the prosecution case.
  5. 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 must prove this case beyond reasonable doubt. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused at any stage of the trial.
  6. The accused is not required to prove his innocence or prove anything at all. He is presumed innocent until proven guilty.
  7. In this case, the accused is charged with one representative count of sexual assault and one representative count of rape, you should bear in mind that you are to consider the evidence in each count separately from the other. You must not assume that because the accused is guilty on one count that he must be guilty of the other as well.

78. Your possible opinions are:-

COUNT ONE: SEXUAL ASSAULT ACCUSED – GUILTY OR NOT GUILTY.

COUNT TWO: RAPE ACCUSED - GUILTY OR NOT GUILTY.


Ladies and Gentleman Assessors


  1. This concludes my summing up you may now retire and deliberate together and once you have reached your individual opinions please inform a member of the staff so that the court can be reconvened.
  2. Before you do so, I would like to ask counsel if there is anything they might wish me to add or alter in my summing up.

Sunil Sharma
Judge


Solicitors

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


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