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High Court of Fiji |
THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 067 OF 2013
STATE
V
SASHI SALEN BAKAYA
Counsel : Ms Navia S. & Ms Lodhia S. for the State
Ms Chand P. for the Accused
Dates of Trial : 26th October and 27th October 2015
Summing Up : 28th October 2015
Name of the victim is permanently suppressed and referred to as M.R .
SUMMING UP
Madam and Gentleman Assessors,
[1] We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear more. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2] As the presiding judge, it is my task is to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give you on matters of law. It is also important to note that, if I give you a caution, you have to take it also into consideration, in coming to your opinion.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.
[4] During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent view.
[5] In forming your opinion, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.
[6] It is also important to note that, in forming your opinion on the charges against the Accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.
[7] I have already told you that you must reach your opinion on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution and defence exhibits and any admissions made by the parties known as agreed facts.
[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you and the admissions made in this Courtroom since this trial began. Ensure that no external influence plays any part in your deliberations.
[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness's cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and final addresses made by the State Counsel and final address of the Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11] As I already indicated to you, another matter which will be of concern to you is the truthfulness of 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 correctly recalls the facts about which he or she has testified. I shall refer to this aspect in more detail; when I present the analysis of the evidence for your assistance.
[12] Having assessed truthfulness and reliability of the evidence given by witnesses, you must know how to use that credible and reliable evidence to decide the guilt or innocence of the Accused. I will explain this to you now.
[13] When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the Accused is guilty or not. I have used the term "question of fact". A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[14] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.
[15] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. The documents and other things put into evidence as exhibits may also tend directly to prove facts. Those facts are called primary facts.
[16] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from a contribution of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[17] It does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.
[18] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove. That burden rests on the prosecution to prove the guilt of the Accused.
[19] This is because the Accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence he is charged with. The fact that the Accused has given evidence and called witnesses does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.
[20] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or level of proof, as imposed by law?
[21] For the prosecution to discharge its burden of proving the guilt of the Accused, it is required to prove it beyond reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I will explain elements of the offence of Rape later.
[22] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences and the other matters of which you must be satisfied, such as identity, in order to find the Accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the Accused not guilty. If you are not left with any such doubt, then your duty is to find the Accused guilty.
[23] You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the Accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinion.
[24] I will now direct you on the applicable law. You must follow these directions.
[25] Let us now look at the charge contained in the information. There is only one charge against the Accused:
FIRSTCOUNT
Statement of offence
Rape– contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009
Particulars of the Offence
Sashi Salen Bakaya on the 22ndday of December 2012at Corbett Avenue in Nausori, in the Central Division, had carnal knowledge of M.R., without her consent.
[26] I will now deal with the elements of the offence of Rape. To prove this charge the prosecution must prove beyond reasonable doubt that the Accused penetrated M.R. or the complainant's vagina, by his penis. The slightest penetration is sufficient to satisfy this element.
[27] Then we must consider the important issue of consent. It must be proved that the Accused either knew that she did not consent or was reckless as to whether she consented. The Accused was reckless, if the Accused realised there was a risk that she was not consenting but carried on anyway when the circumstances known to him it was unreasonable to do so. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond reasonable doubt.
[28] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The victim in this case was over 13 years of age at the time of the alleged incident and therefore, had the capacity to consent.
[29] If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his penis then you may find him guilty of rape.
[30] Apart from the elements of these offences, the identity of the person who is alleged to have committed the offence must also be proved by the prosecution. What it means is that it was this Accused and none other had penetrated the complainant's vagina on that date and time. There must be positive evidence as to the identification of the Accused. This consideration too will be dealt with in detail when I analyse evidence.
[31] If you find that the prosecution failed to establish any of these elements then you must find the Accused not guilty. If you find the elements of identity, penetration and the time were proved but the complainant consented to sexual intercourse then again you must find the Accused not guilty on one count of Rape. If you find that the complainant did not consent and the Accused had penetrated her vagina by inserting his penis then you must find him guilty of Rape.
[32] In our law, no corroboration is needed to prove an allegation of Sexual Offence and Rape is obviously considered as a Sexual Offence.
[33] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
[34] The following facts were agreed among the parties as proved without calling relevant witnesses:
1. THAT the Accused in this matter is SASHI SALEN BAKAYA.
2. THAT the Accused is charged with one count of Rape of a female named M.R. (hereinafter referred to as "Complainant").
3. THAT the Accused lived in the same neighborhood as the above named female including at around the 22nd day of December 2012.
4. THAT the Accused is known to the Complainant.
Case for the Prosecution
[35] Evidence of the complainant, M.R.
(i) It is her evidence that she was born on 9th March 1998 and was residing at Corbett Avenue with her mother. She has studied up to class 8 and given up education due to lack of financial support. The Accused is married to her mother's sister.
(ii) On 22nd December 2012 she slept on the mattress laid on the floor of the sitting area of her house. House itself is a small one with one bedroom. She had gone to sleep around 9.00 p.m. with her sisters two small children. Her mother and sister were drinking grog at the Accused's house. She was woken up when she felt the Accused on top of her inside the mosquito net. He had closed her mouth. Removed her panties and inserted his penis into her vagina. She had not consented.
(iii) She identified the Accused from the light of the candle kept on a 2 feet high cupboard. It was located about two steps form the place she had slept. During cross examination she admitted no light came to the place where she slept.
(iv) Then one of the small children started crying and the Accused wanted M.R. to go to the bed room. She refused. Then the Accused went away. She had thereafter she came out of the house and told what happened to a police officer Saula. Then she was taken to Nausori Police Station and statement was taken. She was also produced before a Doctor.
(v) On 21st March 2013 she had signed letter prepared by the Accused and his family and the letter meant to "solve this case". Wife of the Accused had talked to her mother and she was not consulted. Some payment of money was also discussed. She had not complained to Police of this interference.
[36] Evidence of Boletawa Rakala
(i) This witness is also related to M.R. and on 22nd December 2012 at about 12.30 a.m., having attended his brother's birthday party he had come to accompany his uncle who lived close to M.R.'s house.
(ii) He had seen the Accused coming behind her house. Two or four minutes later M.R. too came out of front door of the house crying. She said the Accused had held her tightly and forcefully.
(iii) He and uncle had then alerted Saula, a police officer, who questioned and later arrested the Accused.
[37] Evidence of Dr. Salome Daunivalu
(i) This medical witness had examined the complainant on 23rd December 2012 at 9.00 a.m. and recorded the history as given by M.R. Her examination of the genitals of M.R. revealed that hymen not intact. There were no acute bleeding or semen and the vagina was dry. She opined there was sign of forced entry attributed to loss of hymen. During cross examination it was clarified that M.R. could have lost her hymen on an earlier occasion. Medical report was marked as Prosecution Exhibit No. 1.
[38] That was the case for the prosecution. You then heard me explain several options to the Accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options because he does not have to prove anything. The burden of proving his guilt rests on prosecution at all times. He opted to offer evidence under oath.
Case for the Accused
[39] Evidence of the Accused Sashi Salen Bakaya
(i) He says that on 22nd December 2012 he had gone to Vikash's house at about 8.00 p.m. to get a packet of grog. He had dropped him by the main road. He had not gone to the house of M.R. and did not come behind her house. Boletawa and his uncle never questioned him. Saula has arrested him and tore his T shirt. Only at the Police he was told of the allegation of rape. He denied the allegation and marked his statement to Police as Defence Exhibit No. 1.
(ii) He denied any knowledge of the letter signed by M.R. he is not aware even the family members have spoken about the letter.
[40] Evidence of VikashLal
(i) His evidence is that on 22nd December 2012 at about 8.00 p.m. the Accused came for a packet of grog. They talked for a while and the accused went away at about 9.00 p.m. His house and M.R.'s house are separated by another house. The police did not record his statement and he told Accused he could tell him if he is needed.
(ii) During cross examination he said that he would close the front door at 10.00 p.m. and would go to sleep and would not know if the Accused had gone past his house after 11.00 p.m. when asked whether he would do anything on behalf of his friend the witness said he is not mad and would not die for him. He further said that If he has done something wrong he would not help.
Analysis
[41] The prosecution relied on the evidence of the complainant, her cousin brother and the doctor who had examined the complainant on
the following day and tendered her medical report marked as PE No. 1, to prove its case.
[42] At the outset, you must consider the evidence of the prosecution to satisfy yourselves whether their evidence is truthful and; in addition, reliable. You would have already noted that in relation to the charge of Rape, it's only the evidence of M.R. is available to the prosecution. That is to be expected in this type of cases. It is common-sense that sexual offences are generally committed in seclusion and in the absence of any witnesses. The other lay witness was called by the prosecution to support M.R.'s claim of identity of the Accused and also to show her consistency in the allegation. The medical witness was called to describe her observations on the physical examination of M.R.
[43] As I already indicated to you, it is your responsibility to decide the truthfulness of 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 correctly recalls the facts about which he or she has testified.
[44] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations which may assist you.
[45] Since the consideration of the evidence of M.R. for its truthfulness and reliability assumes the primary task for you in deciding whether the prosecution has proved its case to the required level, it might be helpful to have some general observations about the cases involving sexual offences.
[46] The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim's reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders.It takes a while for self confidence to reassert itself. There is, in other words, no classic or typical response by victims of Rape.
[47] One of the many ways you could assess the truthfulness of a witnesses' narration of events is to consider his or her evidence for its consistency. In assessing credibility of the testimony of a witness on consistency means to consider whether it differs from what has been said by the same witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.
[48] However, if there are inconsistencies and discrepancies of a testimony of a witness, and in weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection; or else could there be an intentional falsehood. Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in the light of other evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory or otherwise be mistaken.
[49] We can commence considering evidence for its consistency with M.R.'s evidence.
[50] It's her evidence that soon after the Accused left her house, she has come out of the house and told what happened to a police officer called Saula. In cross examination she said she told what happened to her cousin who was there on the foot path near her house at that time. Witness Boletawa said in his evidence his cousin M.R. came out of the house from its front door crying. When asked had told that the Accused had held her tightly and forcefully. Their uncle too was there at that time.
[51] The Accused wants you to consider the fact that she did not complain about "rape" to these two. It is their position that allegation of rape and that the Accused is responsible for it is a creation of the villagers including these two relations of hers. The prosecution wants you to consider the fact that how a 14 year old girl could tell what happened to her in detail to these two male relations upon the traditional setting of Fijian society.
[52] It was also revealed from evidence that she did complain of rape to Saula soon after the incident and also complained of rape to the medical officer who examined her. In cross examination the Accused elicited that she had failed to mention the name of the Accused when she said " ... I could feel someone on top" in her complaint to Police.
[53] In addition the Accused highlighted that M.R. has said in her evidence that she left school in 2012 but had said to police that she "left school in March last year".
[54] Another inconsistency highlighted by the Accused is that M.R. in her evidence said that when the Accused is on top of her, she had tried to wake the baby who slept besides her by elbowing. She expected the baby to cry and hoped that would attract attention of her neighbours, who were drinking grog. However, in her statement to police she said "did not kick him because I was worried about babies might wake up". She said in cross examination that she pushed the baby.
[55] The Accused, during cross examination of M.R. elicited that although she stated in her evidence before us that the Accused had kissed her lips and that she had met Boletawa her cousin soon after the incident, in her statement to the police she had failed to mention any of these two facts. She admitted in her evidence that when she made the statement the incident was fresh in her mind and after 3 years it is likely that she forget details. She also had said it only after she had seen it in her statement, when she perused it upon the Accused's request.
[56] It would thus seem that there were some inconsistencies between the evidence before this Court and the statement given to the police by M.R. You should take into consideration of the fact that such inconsistencies between the evidence before the Court and the statement to police can affect her credibility. It is for you to satisfy in view of these inconsistencies whether her evidence before us is not truthful as the Accused says or are merely inconsistent on unimportant points as the prosecution says. However I must caution you to be careful when you decide the question whether the prosecution has proved their case, for that determination you have to take into consideration is only the evidence given by M.R. in Court and not the contents of any other previous statement given by her to Police.
[57] Similarly you must employ the same considerations to assess evidence of Boletawa and decide whether it is also a truthful and reliable account. This witness has said in evidence that he has seen the Accused coming from the back side of M.R.'s house. In cross examination he frankly admitted that he had assumed that the Accused has come from M.R.'s house since he came from that direction. Although it has been suggested to him that he and his uncle have falsely implicated the Accused, no reason was attributed for it. He denied the suggestion. You may look for any reason as to why these two would falsely implicate the Accused for no apparent reason and whether any of these witnesses will be benefited personally by implication of the Accused. If you are satisfied that they have falsely made an allegation of rape against the Accused, then you must reject their evidence.
[58] You may employ these considerations for assessment of the prosecution evidence and should form your own conclusions on truthfulness of their evidence. You have to decide whether the allegation of rape by the Accused is consistently maintained by M.R. You must also consider, whether it was an after- thought and the complainant and her witness have falsely implicated the Accused. That too on the advice of the villagers, as the Accused says.
[59] It is important that you consider the evidence of the Accused and his witness too on applying the same standard. The Accused in his evidence said that he had gone to Vikash's house at about 8.30 pm. During cross examination he said it was about 9.30 pm. The prosecution also elicited that in his statement to police (this was tendered by the Accused marked Defence Exhibit No. 1) at question No. 18 he said it was about 10.30 pm. I may also tell you that any inconsistencies within the evidence of the same witness in Court also can affect the credibility of a witness. It is for you to consider this inconsistency and decide the weight you attach to his evidence.
[60] His witness Vikash, in his evidence said the Accused came to his house at about 8.00 p.m. and left by about 9.00 p.m. Whether these inconsistencies in fact affect the truthfulness of the evidence of the Accused and if so to what extent, must be decided by you. The prosecution wants you to consider the close friendship this witness had with the Accused and the possibility of uttering a lie in Court in order to help his friend. There are no inconsistencies of this witness. The Accused has mentioned his name to Police. The Police had not recorded a statement from him. He had come to Court to give evidence after 3 years since the alleged incident. It is for you to decide how much reliance you can place on his evidence.
[61] You may also consider the evidence in its totality and consider whether the narration of events revealed by evidence is a probable one.
[62] The prosecution case is the Accused knew the complainant is alone in that night as her mother and sister were at the Accused's house drinking grog. The complainant had gone to sleep at about 9.00 p.m. He had then entered into the complainant's house and had got on top of the sleeping complainant and closed her mouth. It was midnight by then. Then he had removed her panties and inserted his penis into her vagina. She had identified him in candle light. The candle was on top of a cupboard of about two feet in height and also just two steps away from the place where the complainant was sleeping. She says the Accused was identified by her. Her cousin was near her house to fetch his uncle. He had seen the Accused coming from behind of M.R's house. She also came out of front door after four minutes of seeing the Accused. She was crying. When asked she said the Accused had held her tightly and forcefully. This witness and his uncle had then questioned the Accused. They alerted Saula, a policeman known to them, who took the Accused to the Police. The Accused did not contest that he was arrested by Saula. He said he was arrested at his home.
[63] The complainant says few months after that she had signed a letter on the insistence of the Accused and his wife so that his family will have his continued support. The letter was meant to "solve the case". They promised payment to her.
[64] The Accused also challenged the evidence of the letter. He wants you to consider as to why M.R. did not complain about this act of interference to the Police or DPP. When questioned about this M.R. said she did not know. The Accused denied any involvement with getting a letter signed by M.R. to "solve the case". He also denied having any knowledge of any involvement of either him or his family member in this incident. It's up to you to decide as to how the letter was signed by M.R. and for what purpose. You may also decide the weight to be attached to its contents.
[65] The case presented by the Accused is that he was in the vicinity of the house of M.R. that night and the reason was he was to buy bags of grog from Vikash. Vikash said his house and M.R.'s house are only separated by another house and that night the Accused was with him from 8.00 p.m. to 9.00 p.m.
[66] In challenging the probability of the version of events, during the cross examination, the Accused questioned M.R. as to why she did not scream when she had opportunity to do so and how could the Accused remove her and his clothes while holding her mouth with one hand. It is for you to consider this position and assess the evidence on the point and decide whether her narration of events is a probable one.
[67] The Accused said that the villagers, Boletawa and his uncle falsely implicated him of this allegation. He did know the villagers by their names. No evidence to assess that the villagers, Boletawa or his uncle had any personal animosity towards the Accused who lived 100 meters away from them.
[68] Let us turn to the most disputed area of evidence. You will recall, in explaining the applicable law, I have directed you that the prosecution must prove that it was this Accused and no other had penetrated vagina of M.R. The identity of the Accused is disputed in this case. The prosecution says M.R. had identified the Accused by candle light. They also say the witness Boletawa too had identified that Accused about the same time. The Accused pointed out that M.R. did not identify the person and since he was seen in the area, he was falsely accused for this alleged act of rape.
[69] In the circumstances, I must direct you how to assess evidence on this contentious issue and why special care is needed in considering the evidence on this aspect.
[70] When an Accused has been identified by a witness and when that evidence of identification is challenged by the Accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.
In assessing the evidence on identification, you must take the following matters into account:
[71] There is a reference to identification of the Accused by his voice in her evidence. It came only during the re-examination and the Accused had no opportunity to test its veracity. If you consider that supports the visual identity by M.R. you have to consider it in the light of the fact that this claim has not been tested by cross examination.
[72] However, when you consider these questions when assessing the identification, you must also consider the reliability and the credibility of the above witnesses and also the warnings given by me.
[73] These conflicting versions indicate the circumstances leading to the commission of the alleged act of rape by the Accused. In determining the consistency and probability of these versions, you should apply equal standards to both the complainant and the Accused. Then you can decide which version to accept and which version to reject. But I must caution you to avoid a possible danger. You must limit the use of probability as a test only to decide the truthfulness and reliability of the evidence. It should never be used to decide guilt or innocence of the Accused as it was up to the prosecution to prove their allegation.
[74] Another relevant aspect in assessing truthfulness of a witness is his or her manner of giving evidence in Court. You have seen how the witnesses' demeanour 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? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. You observed demeanour of M.R., her witnesses, the Accused and his witness when they gave evidence. Although, not an accurate test for credibility, the behaviour of them in the witness box will give you a consideration in assessing their evidence for its truthfulness and reliability.
[75] I must caution you over one other important matter. When I present the Accused's version, alongside the version of the complainant, you might get an impression that the Accused must prove that it is a false allegation by M.S. on instruction of her relations and fellow villagers and that is why he has given this evidence. That is wrong. He is under no duty to disprove the case for the prosecution. He is not under a legal duty to offer evidence. He could have remained silent. When he does give evidence, then it must first be evaluated for its credibility and reliability. If you are satisfied it is truthful and reliable then you must act upon it.
[76] It is for you to find which version of events is credible. If you find the evidence of the Accused is credible then you must find him not guilty of the count of Rape as the prosecution failed to establish their case beyond a reasonable doubt. If you find the Accused's evidence is not credible, that does not mean the prosecution version is automatically becomes acceptable. You have to find that the evidence of the prosecution is credible and also reliable. Then only you should proceed to consider whether by that credible and reliable evidence, the prosecution has proved the necessary elements of the charge of Rape beyond reasonable doubt. If there is a reasonable doubt that exists in relation to an element or elements of the charges, you must find the Accused not guilty. If from the credible and reliable evidence of the prosecution, you find the complainant had not consented for sexual intercourse, then only you can find the Accused guilty of Rape.
[77] It is the evidence of M.R. that the Accused had inserted his penis into her vagina without her consent. It is for you to decide whether the prosecution has proved all the elements of the offence and identity of the Accused beyond reasonable doubt in the light of this evidence.
[78] The medical evidence reveals her hymen as not intact. The Accused clarified that it is possible that damage to hymen may have occurred on an earlier occasion. Whether the medical evidence supports the evidence of M.R. you have to decide and also the weight to be attached to medical evidence and whether it supports M.R.'s evidence and to what extent.
[79] Ladies and Gentleman, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[80] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements you must find the Accused guilty of Rape. If you have any reasonable doubt about the prosecution case as a whole or an element of offence including penetration, then you must find the Accused not guilty.
[81] Any re directions the parties may request?
[82] Madam and Gentleman assessors, this concludes my summing up of Law and evidence. Now you may retire and deliberate together and may form your individual opinions on the single charge of Rape against the Accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to Court, and you will be asked to state your opinion.
[83] I thank you for your patient hearing to my summing-up.
ACHALA WENGAPPULI
JUDGE
At Suva
28th October 2015
Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission
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URL: http://www.paclii.org/fj/cases/FJHC/2015/833.html