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State v Tubunavau - Summing Up [2019] FJHC 940; HAC346.2018 (12 September 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 346 of 2018

[CRIMINAL JURISDICTION]

STATE

V

ALANI TUBUNAVAU

Counsel : Mr. M. Vosawale the State

Ms. L. Ratidara with Mr. Gade for the Accused

Hearing on : 10 – 12 September 2019
Summing up on : 12 September 2019
[[The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “TC”. No newspaper report or radio broadcast of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of the said complainant.]

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. Please remember that you should accept the directions on law that I will be giving you in this summing up and should apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless you agree with that opinion. You are the judges of facts.
   
2. As I have told you in my opening address, your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
3. Evidence you should assess in this case is what the witnesses said from the witness box inside this court room, the admitted facts and the exhibit tendered. A few things you heard inside this court room are not evidence. This summing up is not evidence. Arguments raised by the lawyers for the prosecution and the defence during the proceedings, their questions and comments are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only if you agree with them.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or the complainant. No such emotion should influence your decision.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behaviour when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
   
6. The complainant said that she is 15 years old and she gave evidence about an incident that had allegedly taken place last year. You may have come across children of her age. You will have an idea of the way a child of a particular age behave, think, talk and the way they describe things.
   
7. Children can be confused about what has happened to them. Sometimes children do not speak out for fear that they themselves will be blamed for what has taken place, or through fear of the consequences should they do so. They may feel that they may not be believed. They may fear they will be punished. They may be embarrassed because they did not appreciate at the time what they were doing was wrong.
   
8. I mention these possibilities because experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make.
   
9. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts. Sometimes we honestly forget things or make mistakes when recalling past events.
   
10. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies when you compare the evidence given by witnesses on the same issue. This is how you should deal with any inconsistency you may come across. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. In this regard, you may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.
    
11. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide.
    
12. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.
    
13. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
    
14. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proven facts and reasonable inferences. However, you should bear in mind that the inference you draw should be the only reasonable inference to draw from the proved facts. If there is a reasonable inference to draw against the accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
    
15. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those admitted facts. You should consider those facts as proven beyond reasonable doubt.
    
16. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of an accused beyond reasonable doubt in order for you to find him guilty. You must be sure of the accused person’s guilt.
    
17. In order to prove that an accused is guilty of an offence, the prosecution should prove all the elements of that offence beyond reasonable doubt. If you have a reasonable doubt in respect of any element of an offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in a short while.
    
18. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the charges have been proved.
    
19. Please remember that you will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion. But it is not necessary.
    
20. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offences;
    

FIRST COUNT

Statement of Offence

Rape: contrary to Section 207 (1) and (2) (b) of the Crimes Act, 2009.

Particulars of Offence

ALANI TUBUNAVAU on the 9^th of September 2018 at Naimataga Settlement, Lami, in the Central Division, penetrated the vagina of TC, with his finger without her consent.

SECOND COUNT

Statement of Offence

Sexual Assault: contrary to Section 210 (1) (a) of Crimes Act, 2009.

Particulars of Offence

ALANI TUBUNAVAU on the 9^th of September 2018 at Naimataga Settlement, Lami, in the Central Division, unlawfully and indecently assaulted TC, by fondling her breasts.

21. To prove the offence of rape in this case, the prosecution should prove the following elements beyond reasonable doubt.
    1. the accused;
    2. penetrated the vagina of the complainant with his finger;
    100. without the consent of the complainant; and
    4. the accused either;
       • (i) knew or believed that the complaint was not consenting; or
       • (ii) was reckless as to whether or not she was consenting.
         
22. The first element is concerned with the identity of the accused. In this case, the identity is not disputed.
    
23. The second element involves the penetration of the complainant’s vagina with the finger. The law states that this element is complete on penetration to any extent. Therefore, it is not necessary to have evidence of full penetration. A slightest penetration is sufficient to satisfy this element.
    
24. The third and the forth elements are based on the issue of consent. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
25. You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent and the fact that there was no physical resistance alone shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
26. Apart from proving that the complainant did not consent for the accused to insert his finger inside her vagina, the prosecution should also prove that, either the accused knew or believed that the complainant was not consenting; or the accused was reckless as to whether or not the complainant was consenting. This is the fourth element of the offence of rape.
    
27. It is not difficult to understand what is meant by the sentence “the accused knew or believed”. But you may wonder as to how you could determine whether the accused was reckless. If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vagina, you may find that the accused was reckless as to whether or not the complainant was consenting. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not.
    
28. To establish the offence of sexual assault, the second count, the prosecution should prove the following elements beyond reasonable doubt;
    1. the accused;
    2. unlawfully assaulted the complainant; and
    100. the said assault is indecent and sexual.
         
29. The first element involves the identity of the offender who committed the offence and as I have already pointed out, this element is not disputed.
    
30. Assault is the use of unlawful force. A touch constitutes an assault if it is done without a lawful excuse. The word “unlawfully” simply means without lawful excuse. However, if the complainant was touched by the accused with the complainant’s consent, then that touch will not be unlawful and will amount to an assault.
    
31. An assault is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent. You should also ask yourself, firstly, whether you consider that indecent assault could also have been sexual because of its nature; and if the answer is ‘yes’, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual.
    
32. You should also remember that no witness can look into an accused’s mind and describe what it was at the time of the alleged incident. Therefore, it is not possible to have direct evidence regarding an accused’s state of mind. Knowledge or intention of an accused can only be inferred based on relevant proven facts and circumstances.
    
33. The prosecution led the evidence of three witnesses. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving an accused’s guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to remain silent. That is his right. You should not draw any adverse inference against the accused given his decision to exercise that right.
    
34. Now let us look at the evidence. Please remember that I will only refer to evidence which I consider important to explain the case and the applicable legal principles to you. If I do not refer to evidence which you consider important, you should still consider that evidence and give it such weight you may think fit.
    
35. The complainant said in her evidence that she is 15 years old and her date of birth is 17/09/2003. She moved to Naimataga in Lami last year in order to attend a particular school from form 3. Prior to that she was living in Nabudrau where she was brought up by her grandparents. At Naimataga she was living with her aunt who was married from that village. She said that she is not yet familiar with Naimataga. On 09/09/18 which was a Sunday, she was sent by her Aunt in the morning to by potatoes. Since potatoes were not available in the shop closest to where she was residing, the aunt sent her to Jeke Store which was the furthest. On her way, she met the accused initially with another boy. The other boy left and the accused asked her questions including where she is living and where she is going. She answered his questions. She said that she recognized their faces but did not know their names by that time. When she reached the round-about near the footpath to go to the Jeke Store, he was still following her. She went up the stairs to Jeke Store and noticed that it was closed. When she came down the stairs the accused was still there.
    
36. He grabbed her hand and asked her to come with him to his house and she refused and said that she was sent to buy something and she wants to go home. Then the accused grabbed her by her shoulders and started to kiss her mouth and bit her lips. When the accused grabbed her, she could smell liquor from him. The accused also started to touch and fondle her breast from one hand and then touched her vagina with the other hand. She said that the accused put his hands under her clothes when he touched her breasts and the vagina. She said that the accused fondled her vagina using his fingers and he put his finger in and took it out. Because the accused was drunk, she felt that the accused would do something if she wanted to leave. She said that she did not agree for the accused to touch her breasts or penetrate her vagina. When the accused heard someone coming, he left her. Then she saw Sefa and his wife whose voice the accused heard.
    
37. She then went home. She told her aunty who was breast feeding when she reached home, that the man who would drink with ‘Gabi’, touched her at the Jeke’s Store. Then the aunty went with her husband to look for the accused. Later the matter was reported to the police. She was medically examined on the same day.
    
38. During cross-examination she agreed that she passed a few houses on her way to Jeke Store and also that there was a house very close to the shop. She denied kissing the accused back, when the accused kissed her. When it was suggested that she could have run away because her legs were not tied, she said that she did not run because she was afraid. She said that she was afraid to shout because she thought he could do something to her as he was drunk. She denied the suggestion that she also touched the accused when the accused touched her. When she was asked whether she told the accused to stop what he is doing, she said that she just kept quiet. During re-examination she said that she kept quiet because she was afraid.
    
39. The defence says that the accused touched the complainant’s breasts and also touched the complainant’s vagina but on top of her clothes with the complainant’s consent. So, the defence is alleging that the complainant is lying. In order to assert that the complainant is lying it was pointed out that the complainant had the opportunity to shout and runaway and also that the complainant answered the questioned asked by the accused when they met on the way to the shop.
    
40. The defence also points out that PW2 admitted that the complainant is familiar with the settlement they were living and also with the route to the shops and that the complainant said that she is not yet familiar with the place. Defence says that this is an inconsistency. I have explained to you on how to deal with inconsistencies. You may deal with the said inconsistency and any other inconsistencies you may come across, in line with those directions.
    
41. The prosecution says that the complainant was a reliable witness and that she had made a prompt complaint which is consistent.
    
42. Experience has shown that victims of sexual offences may react in different ways to what they went through. If there is a delay in making a complaint regarding a matter, that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused is charged with.
    
43. The second prosecution witness was the aunt whom the complainant was living with at the material time. She said that the complainant came to live with her in December 2017. On 09/09/18 she sent the complainant to buy potatoes from Jeke store after the complainant came back from the shop that is closest to their house saying that potatoes were not available there. The complainant came back from Jeke stores and told her that the shop was closed. But she observed from the complainant’s actions that she wanted to say something and she was afraid. She asked the complainant whether something bad happened and the complainant told her not to send the complainant again to the Jeke store. When she asked the reason, the complainant told her that “there was a man who would drink with Gabi. He had done something to me”. When she asked what he did, the complainant told her that, “he had kissed me had touched both of my breasts and he touched my vagina”. She then woke her husband up and went to look for the accused. Later the matter was reported to the police.
    
44. During cross-examination she agreed that she had sent the complainant to the shop on many occasions before the incident. She agreed that the complainant is familiar with the settlement and the route to the shop. She agreed that she would have got angry had she heard from Sefa and the wife that the complainant was kissing a man at the shop.
    
45. The prosecution says that they are relying on PW2’s evidence as evidence of a recent complaint. In this regard you should consider whether that was a prompt complaint regarding the incident and whether the complainant sufficiently complained of the offences the accused is charged with.
    
46. You should bear in mind that a recent complaint need not specifically disclose all the ingredients of the offence and describe every detail of the incident, but should contain sufficient information with regard to the alleged conduct of the accused. However, please remember that this evidence of recent complaint is not evidence as to what actually happened between the complainant and the accused. PW2 cannot confirm whether what the complainant told her is true because she was not there at the place of offence at the material time to witness what actually happened. PW2’s evidence in relation to the alleged incident is based on what she understood from the story relayed to her by the complainant and what she could remember about that conversation. Therefore remember that, recent complaint evidence may only assist you to decide whether the complainant is consistent and whether or not the complainant has told you the truth. In the end you are deciding whether the complainant has given a truthful account of her encounter with the accused.
    
47. The third prosecution witness was the doctor who examined the complainant (“PW3”). He said that he has been practicing as a medical doctor for 9 years and has been in the field of obstetrics and gynecology for the last 6 years. He recalled examining the complainant on 09/09/18. He tendered the report her prepared on the findings of his examination as PE1. He said that the medical examination was conducted at 5.45pm. As he had noted in the report, he observed 0.5cm bruise on the complainant’s lower lip. There were no visible injuries on the breasts. He found superficial bruises around the vaginal introitus. This was on both sides of labia. The hymen was dilated circumferentially. He noted that the injuries were fresh. He said that the vaginal introitus is the entry point to the vagina. In his opinion, the injury he noted could have been caused by inserting a finger. He said that these injuries can be from a possible penetration or early penetration in ‘consensual sex’. He said that fresh injury means that the injury had occurred within an hour up to 03 days and a maximum of 07 days. He was not cross-examined.
    
48. The third prosecution witness gave his medical opinion based on what he said he observed and his experience. You are not bound to accept that evidence. You will need to evaluate that evidence for its strengths and weaknesses, if any, just as you would with the evidence of any other witness. It is a matter for you to give whatever weight you consider appropriate with regard to the observations made and the opinion given by the third prosecution witness. Evaluating his evidence will therefore include a consideration of his expertise, his findings and the quality of the analysis which supports his opinion.
    
49. According to the medical opinion, there was an injury, a superficial bruise that was noted around the complainant’s vaginal introitus. The doctor explained that the introitus is the entrance to the vagina. When he explained his observation ‘superficial bruise’, he said that it was just on the upper layer of the vaginal skin. Therefore, according to the medical evidence, if the injury was noted around the entrance to the vagina, it appears that the medical evidence does not support the fact that the complainant’s vagina was penetrated. However, according to law, corroboration of the complainant’s evidence is not necessary when it comes to an offence of a sexual nature.
    
50. With regard to the first count, the allegation is that the accused inserted his finger inside the complainant’s vagina without her consent. The complainant said that the accused fondled her vagina by putting his hand inside her clothes without her consent. At one point she said that the accused put his finger in and then took it out. The accused says that he did touch the complainant’s vagina on top of the complainant’s clothes and he did it with her consent.
    
51. You have to assess the evidence and decide whether you are satisfied beyond reasonable doubt that the accused inserted his finger inside the complainant’s vagina without her consent.
    
52. If you are satisfied beyond reasonable doubt that the accused did insert his finger inside the complainant’s vagina, but you are not sure that the elements relating to consent are proven beyond reasonable doubt, then you should find the accused not guilty of the first count.
    
53. If you are not satisfied beyond reasonable doubt that the accused inserted his finger inside the complainant’s vagina where you accept the accused’s version that he only touched it on top of her clothes, but you are satisfied beyond reasonable doubt that the accused did that without the complainant’s consent, then you should consider whether the accused is guilty of the lesser offence of sexual assault. That is, whether that touching was an assault which is unlawful, indecent and sexual.
    
54. With regard to the second count, the accused does not dispute that he touched the complainant’s breasts. The issue you should decide is whether the accused touched the complainant’s breasts with her consent. If you are satisfied beyond reasonable doubt that the complainant did not consent for the accused to touch her breasts and the accused knew or believed that she did not consent or that the accused was reckless as to whether or not she was consenting, then the said touching of the complainant’s breasts amounts to an assault.
    
55. Then you have to consider whether a right minded person would consider that touching, ‘indecent’. Not only that, you should also consider whether, due to the nature of that touching, that is, putting the hand inside the complainant’s clothes and touching her breasts, that touching could have been sexual. If the answer to that question is ‘yes’, then you should consider whether, given that the accused touched the complainant’s breast in that manner or the purpose he touched the complainant’s breasts, that touching is in fact sexual.
    
56. Accordingly, if you find beyond reasonable doubt that the accused’s touching of the complainant in this case was an assault and that assault was unlawful, indecent and sexual then you should find the accused guilty of the second count. On the other hand, if you find that the complainant consented or may have consented for the accused to touch her breasts, then you should find the accused not guilty of the second count.
    
57. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise;
    
    • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
      
    • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is a reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject his version. But if you disbelieve him, that itself does not make him guilty. The situation would then be the same as if he had not given any evidence at all. You should still consider whether the prosecution has proved all the elements beyond reasonable doubt.
      

If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.

58. Any re-directions?
    
59. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
60. Your opinion should be as follows;
    • First count (rape) - guilty or not guilty

If not guilty

Sexual assault - guilty or not guilty

• Second count (Sexual assault) - guilty or not guilty
  

Vinsent S. Perera
JUDGE

Solicitors;

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