IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO.: HAC 14 OF 2019

BETWEEN		:	STATE

AND			:	ANASA LULU VATEITEI

Counsel		:	Ms A. Vavadakua for the State
				Ms S. Devi and Ms M. Besetimoala for the Accused
					
Dates of Hearing	:	22 - 23 June 2020
Date of Summing Up	:	24 June 2020

SUMMING UP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[15]	Both sides have agreed to the following facts, which you must accept as true:

	1.	THAT Anasa  had sexual  intercourse  with  Fane  Lako on the 10th day of 		February 2019, at Bucalevu Taveuni.
	2.	THAT prior to 10th February 2019, Anasa knew Fane Lako and her family. He 		would go to Fane Lako’s house to have his meals at times.
	3.	THAT before staying in Taveuni, Anasa knew Fane Lako from when they 		used to stay together in the Island of Gau.
	4.	THAT Anasa knew that Fane Lako also lived with her older sister, Selina who 		suffered from intellectual disability and was handicapped.
	5.	THAT Anasa knew that Fane Lako and her older sister Selina are living with 		their mother.
	6.	THAT on the 10th day of February 2019, Anasa was drinking grog or kava at 		one Una’s house.
	7.	THAT after Anasa drank grog/kava at Una’s house, he went into Fane Lako’s 		house and saw that only Fane Lako and her handicapped and intellectually 		disabled older sister, Selina were present at home.	
	8.	THAT on the above date, 10/2/19, after seeing Fane Lako and his sister Selina 		inside house, Anasa then approached Fane Lako and had sex with Fane Lako 		by penetrating his penis into Fane Lako’s vagina.

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

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

[18] 	Firstly, it must be proved beyond reasonable doubt that on the said date and location 	the Accused had unlawful carnal knowledge, that is, unlawful sexual intercourse with 	the complainant, Fane Lako. The physical act of intercourse must be proved, that is 	that the Accused's penis penetrated the complainant's vagina. The Accused does not 	dispute this element. He admits having sexual intercourse with the complainant on 10 	February 2019 at Bocalevu, Taveuni.  

[19] 	Secondly, it must be proved that when the Accused had unlawful sexual intercourse with the complainant he did so without her consent. A valid consent to sexual intercourse is one that is freely and voluntarily given by the complainant with the necessary mental capacity to give the consent. The prosecution case is that the complainant was mentally impaired to freely and voluntarily give consent to sexual intercourse. The defence case is that the complainant consented to sexual intercourse and that she had the mental capacity to freely and voluntarily consent to sexual intercourse. This element is in dispute and therefore it is matter for you to decide whether the complainant consented to sexual intercourse and wehe she had the mental capacity to freely and voluntarily consent to sexual intercourse. 

[20] 	Thirdly, it must be proved that the Accused either knew that the complainant did not 	consent or was reckless as to whether she consented. The Accused was reckless as to 	whether the complainant consented to sexual intercourse if you are sure that he 	realised there was a risk that she was not consenting and carried on anyway when in 	the circumstances known to him it was unreasonable to do so. The resolution of this 	element is dependent upon whether you accept the complainant freely or voluntarily 	consented to sexual intercourse and whether she had the mental capacity to give that 	consent. 

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

[22]	The first prosecution witness was the investigating officer, DC Tomasi Tomu. He 	interviewed the Accused under caution following his arrest. The record of interview 	was tendered in evidence and is marked prosecution exhibit 1. The record of interview 	contains mixed statements from the Accused. He admits having sexual intercourse 	with the complainant on the said date and location but says she consented to it. He 	also told the police that he knew the complainant was suffering from intellectual 	disability when he had sex with her. 

[23]	The second prosecution witness was the complainant’s mother, Emily Koti. She told 	the court that the complainant suffered from a mental disability since birth. The 	complainant is now 27 years of age and under her care. Ms Koti said the complainant 	started school but dropped out because she could not cope due to her mental 	disability. She said the complainant is able to understand simple instructions but 	otherwise she is depended on her for care. Ms Koti said that the Accused was a 	regular visitor to her home as they were neighbours and that the Accused knew about 	the complainant’s mental disability. Ms Koti said that as a mother she knew the 	complainant was sexually attracted to opposite sex but she was also of the opinion 	that the complainant did not have the capacity to freely and voluntarily engage in 	sexual intercourse. She said the complainant was vulnerable due to her mental 	disability because she could be easily swayed and be persuaded by a man who is 	willing to have sexual intercourse with her. What weight you attach to Ms Koti’s 	evidence is a matter for you. 

[24]	The third witness was the complainant. You will recall she gave illogical answers to 	many questions. She either said yes or no to the propositions put to her in questions 	by counsel. For example,

Q:	You know Anasa?
A:	Yes
Q:	On the day that he came to your home, he asked you that he wanted to have 		sex with you?
A:	Yes
Q:	And you said yes when he asks you this?
A:	Yes
Q:	Did you like what Anasa did to you?
A:	No
Q:	Did you tell him that you didn’t like what he did?
A:	No
Q:	Do you like Anasa?
A:	No

[25]	In order to understand the complainant’s mental capacity, the prosecution led expert 	evidence from Dr Fatima, a medical officer for psychiatry at Labasa Hospital. On 7 	May 2019 she carried out a psychiatric assessment of the complainant at Labasa 	Hospital and recorded her findings in a Report tendered by consent of both parties and 	is marked prosecution exhibit 2. You are to disregard the history as related by the 	sister of the complainant and is recorded in Part D(10) of the Report. That part of the 	report is hearsay and cannot be relied upon as the truth when you deliberate on the 	charge. So you must disregard the history.

[26]	But you may rely on Dr Fatima’s medical findings, observations and opinion. 	According to Dr Fatima the complainant has marked cognitive impairment since 	childhood. The complainant is unable to converse relevantly or give an account of the 	alleged event. She has poor intellectual functioning and judgment.  Like the mother of 	the complainant, Dr Fatima is of the opinion that the complainant lacked the capacity 	to understand consensual sexual relationship or to give consent to sexual intercourse. 	In cross examination,  Dr Fatima said that intellectual disabilities does not preclude 	someone from having sexual urges but they have may not have the cognitive ability to 	reason the consequences of saying yes to sexual intercourse.  Dr Fatima was further 	cross examined on the complainant’s capacity to consent for the psychiatric 	assessment but the doctor explained that it was a catch twenty-two situation as she 	could not have carried out the medical assessment without her consent. 

[27]	I need to give you a further direction on law regarding Dr Fatima’s evidence.  Expert 	evidence is permitted in a criminal trial to provide you with scientific information and 	opinion, which is within the witness’ expertise, but which is likely to be outside your 	experience and knowledge.  It is by no means unusual for evidence of this nature to be 	called and it is important that you should see it in its proper perspective, which is that 	it is before you as part of the evidence as a whole to assist you with regard to one 	particular aspect of the case, namely whether the complainant had the mental 	capacity to give a free and voluntary consent to sexual intercourse with the Accused. 

[28]	Dr Fatima as an expert and Ms Koti as the mother and carer of the complainant are 	entitled to express an opinion in respect of the mental capacity of the complainant to 	give a free or voluntary consent to sexual intercourse and you are entitled and would 	no doubt wish to have regard to this evidence and to the opinions when coming to 	your own conclusions about this aspect of the case.  You should bear in mind that if, 	having given the matter careful consideration, you do not accept the evidence of Dr 	Fatima or Ms Koti, you do not have to act upon it. It is for you to decide whose 	evidence, and whose opinions you accept, if any. You should remember that this 	evidence relates only to part of the case, and that whilst it may be of assistance to you 	in reaching an opinion, you must reach your opinion having considered all the 	evidence.      

[29]	That was a summary of the prosecution case.
  
[30]	The Accused gave evidence and called a witness. The Accused was not obliged to 	give evidence. He was not obliged to call any witnesses. He does not have to prove 	his innocence. He does not have to prove anything. 
 
[31]	However, he has chosen to give evidence and to call a witness on his behalf.  You 	must take what he and his witness have said into account when considering the issues 	of fact which you have to determine. 
 
[32]	It is for you to decide whether you believe the evidence of the Accused and his 	witness or whether it may be true.  If the account given by the Accused put forward 	by the defence is or may be true, then the Accused must be acquitted. 
 
[33]	But even if you entirely reject the account given by the Accused put forward by the 	defence, that would not relieve the prosecution of its burden of making you sure by 	evidence of the Accused‘s guilt in respect of the charge which you have to consider.

[34]	The Accused in his evidence said that on 10 February 2019 he drank grog at one 	Una’s house and then went to the complainant’s place to eat. When he arrived there 	he saw the complainant and her sister alone at home. He requested the complainant 	for sex and she said yes. He said he asked her if he could remove her pants and she 	said yes. They then had sex and he said that from her actions he gauged that she 	wanted it. When questioned why he asked her for sex knowing she had a history of 	mental impairment he answered – “I was trying to test if I can get her consent, but 	when she said yes, then we had sex”.  In cross examination the Accused accepted that 	given the complainant’s mental condition there was a risk that she could not have 	understood what he had said to her on that day.

[35]	The second witness for the defence was Dr Raibili who medically examined the 	complainant at Taveuni Hospital on 11 February 2019. During that examination Dr 	Raibili found the complainant to be intellectually slow but was able to respond 	appropriately to instructions and understand everything that was explained to her for 	the purpose of physical examination of her body. In cross examination the doctor 	explained that her observations relating to the complainant were made for the purpose 	of physical examination and not for the purpose of determining the extent of the 	complainant’s intellectual disability. 

[36]	That was a summary of the evidence for the defence. 

[37]	When you deliberate on the charge, you may accept that sexual intercourse has been 	proven beyond reasonable doubt as that element is not disputed by the Accused. On 	the element of lack of consent, the issue for you to consider is whether or not the 	complainant had the capacity to give a free and voluntary consent to sexual 	intercourse due to her cognitive impairment. If she lacked that capacity then you are 	to consider whether the Accused knew that she did not have that capacity at the time 	of the act or was reckless as to whether she consented due to her mental impairment.   	If you feel sure that the complainant did not have the mental capacity to give a free 	and voluntary consent to sexual intercourse due to her cognitive impairment at the 	time of the act and that the Accused either knew that she did not have that capacity or 	was reckless as whether she had consented due to her cognitive impairment, then you 	may find the Accused guilty of rape. But if you are unsure of these two elements or 	the guilt of the Accused, then you must find the Accused not guilty.

[38]	The defence has invited you to consider a lesser offence of defilement of intellectually 	impaired person. The Accused is guilty of this offence if he had sexual intercourse 	with the complainant under circumstances which do not amount to rape but he knew 	that the complainant was suffering from a mental sub-normality at the time he had 	sexual intercourse with her. You may only consider this lesser offence if you reach an 	opinion that the sexual intercourse with the complainant do not amount to rape.  

[39]	You must consider all the evidence when deciding whether the Accused is guilty or 	innocent of the charge. Your possible opinion is either guilty or not guilty. You will 	only be asked for an opinion on the lesser charge, if you find the Accused not guilty 	of rape. When you are ready with your opinions, please advise my clerk and the court 	will reconvene to receive them. You may now retire to deliberate on your opinions.

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused