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State v Raitekiteki - Summing Up [2016] FJHC 1102; HAC285.2015 (24 November 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 285 of 2015

[CRIMINAL JURISDICTION]

STATE

V

MENI RAITEKITEKI

Counsel : Ms. K. Semisi, Ms. Tivao and Ms. S. Sharma for State

Ms. T. Kean and Mr. R. Goundar for Accused

Dates of Hearing : 17^th – 22^nd November 2016
Date of Summing up: 24^th November 2016

(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as PW)

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. However, if I express my opinion on the evidence or if I appear to do so, you are not bound to accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.

2. Evidence is what the witnesses said from the witness box in this court room and the exhibits tendered. 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 completely disregard such information.
   
3. 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 anyone else.
   
4. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the counsel for the prosecution and the counsel for defence are not evidence. A suggestion made to a witness during cross examination is not evidence unless the witness accepted that suggestion. You heard the opening address and the closing addresses. The arguments and comments made during addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only if they coincide with your own reasoning.
   
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; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. You may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
6. When you assess the testimony of each witness, you should bear in mind that witnesses may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
7. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence or whether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that previous statements made out of court are not evidence except for those parts that are put to a witness as inconsistent versions. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
   
8. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. That is, whether a particular witness has not maintained the same position and has given different versions. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
   
9. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
   
10. You may also consider the ability and the opportunity each witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a particular 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.
    
11. Based on the evidence you would consider as truthful and reliable, you should decide what facts are proved and what reasonable inferences you can properly draw from those facts. Then you should decide whether the elements of the offences the accused is charged with, have been proved considering those proven facts and the reasonable inferences. I will explain you the elements of the offences in a short while.
    
12. As a matter of law you should remember that the burden of proof always lies on the prosecution. The 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 the accused beyond reasonable doubt. In order for you to find the accused guilty of a particular offence you must be sure that he is guilty.
    
13. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. 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. However, if you find that the prosecution has proved all the elements of a particular offence beyond reasonable doubt, you should find the accused guilty of that offence.
    
14. You would remember that, when the Information is read at the commencement of the trial, the accused pleaded guilty to the third count. Your opinion is therefore not required in respect of the third count. However, you should remember that the fact that the accused pleaded guilty to the third count should not influence your opinion on the other two counts in any manner. You should not think that the accused must be guilty of the other two counts because he pleaded guilty to the third count. You should also not think that the accused must be not guilty for the other two counts and that is why he pleaded guilty only to the third count. Therefore, I reiterate that you should not take into consideration the fact that the accused pleaded guilty to the third count when you decide whether the accused is guilty or not guilty to the other two counts.
    
15. You should also bear in mind to consider the first count and the second count separately. You must not assume that the accused is guilty of the other count just because you find him guilty of one count. You must be satisfied that the prosecution has proved all the elements of each count separately in order for you to find the accused guilty of both counts.
    
16. 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 where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary.
    
17. Let us now look at the Information. First and the second counts are as follows;
    

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division, being armed with an offensive weapon, namely a dagger, stole cash in the sum of approximately $1700.00, assorted jewelries valued at $2000.00, 1 Alcatel mobile phone valued at $50.00, assorted liquor valued at $240.00, 1 Yess brand Note Pad valued at $165.00, 1 Floke model 112 multi meter valued at $1200.00, assorted biscuits valued at $10.00, all to the total value of $5365.00, the properties of PW, with the intention of permanently depriving PW of her properties and immediately before stealing, used force on PW.

SECOND COUNT

Statement of Offence

RAPE: contrary to section 207(1) and 2(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division had carnal knowledge of PW, by penetrating her vagina with his penis without her consent.

18. To prove the offence of aggravated robbery the prosecution must prove following elements beyond reasonable doubt.
    1. the accused;
    2. committed robbery; and
    100. at the time of robbery, had an offensive weapon with him.
         
19. The first element involves the identity of the offender. The prosecution should prove beyond reasonable doubt that it was the accused and no one else that committed the offence.
    
20. A person commits robbery if he immediately before, or at the time, or immediately after committing theft, uses force or threatens to use force on another person with intent to commit theft or to escape from the scene.
    
21. Theft is dishonestly appropriating property belonging to another with the intention of permanently depriving the other of that property.
    
22. ‘Appropriation of property’ means taking possession or control of the property without the consent of the person to whom it belongs. In law, property belongs to a person if that person has possession or control of the property.
    
23. The element, ‘dishonestly’ is about the state of mind of the accused. So is the element, ‘intention to permanently deprive’. Inferences may be drawn from the conduct of the accused, with regard to his state of the mind.
24. Robbery becomes aggravated robbery, if at the time of the robbery, the accused had an offensive weapon with him. Offensive weapon includes any object which can cause injury to or incapacitate a person or any object the accused threatens to use to cause injury to a person.
    
25. In order to prove the first count, the prosecution should prove all the above elements beyond reasonable doubt.
    
26. To prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused,
    2. had carnal knowledge of the complainant,
    100. without her consent,
    4. the accused - knew or believed that she was not consenting or

was reckless as to whether or not she was consenting

27. Again the first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that it was the accused and no one else that committed the offence.
    
28. Second element is having carnal knowledge of the complainant. Carnal knowledge in the context of this case is, penetrating the vagina of the complainant by the accused with his penis. The law states that this element is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.
    
29. With regard to the issue of consent; firstly, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the accused to insert his penis into her vagina.
    
30. Secondly, the prosecution should prove that the accused knew that the complainant did not consent to the act or that the accused was reckless as to whether or not she was consenting.
    
31. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the complainant may not be consenting for him to insert his penis into her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina with his penis, you may find that the accused was reckless as to whether or not she was not consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.
    
32. You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. 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 means of threats or intimidation of any kind; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       

Case for the prosecution

33. The complainant said she is 75 years old. She stays with her son at Nepani and when her son is at work she stays alone in the house. On 18/08/15, around quarter to one while she was watching Sky Pacific, someone came inside her house and covered her mouth with the hand. Then he pulled her up from the chair she was sitting on and punched her face. She had a black out as a result of the punch. Then he dragged her through the passage towards her room, took a belt from her son’s room and tied her hands. He also tied her mouth with a T-shirt. She saw him 3-4 times when he was doing this. He also showed her a dagger and told her not to shout. When this was happening she thought she would die. Then this person closed all the curtains in the house and started taking things from her son’s room. She saw him taking her son’s T-shirts, bottles of liquor, a Multimeter, and a tablet. She saw this as she was sitting in front of the doorway and the person kept on looking at her. She said she saw him packing all items that were taken inside a Sky Pacific bag. Then he went inside her room and took her jewelleries and some money. These were put inside his pocket. Her big earrings which may be about $1000, two small studs which is about $50-$70, a chain and a pendant which were bought in 1968 for $60 and $40 respectively, a gold band watch which is about $60, a small bank and $1600 were taken from her room.
    
34. After that the person went to the kitchen. He ate some biscuits that was there in the kitchen and checked all the pots and pans. Then he went to the son’s room and brought two pillows. He told her to lie on the pillows. Then he pushed her onto the pillows and told her in Hindi to take off her panty. He then removed her panty, pulled her legs up and raped her. She said he inserted his penis into her vagina. She shouted because it was very painful. She said she did not consent for him to insert his penis into her vagina. After that he went to her son’s bedroom, took all the items that were packed and went out from the back door.
    
35. Thereafter she managed to get up with the aid of the wall. She washed herself and ran outside the house. She told one ‘Asifa’ that she was robbed and raped. That night, police came to her place and showed her a stud and asked whether it was hers and she said yes.
    
36. She said the person who did this to her was not that dark, he had small hair and she can recognize him as she had seen him 3-4 times. She said in 2014 before Diwali day she saw him trying to enter from the kitchen window. She also saw him running out of the house one day when her son’s office laptop was stolen.
    
37. When she saw him on 18/08/15 it was day time and was sunny. Inside her house, it was as bright as the court room at that time. She saw the person’s face at a short distance when he punched her, she saw him for about 15 minutes each, when he was taking the items from her son’s room and her room within a distance of about 2 metres. She saw him at a short distance when he raised her legs to rape her and saw him for about 5 minutes during the time she was being raped. She said she noticed that he had big eyes and that he was an iTaukei. She said he was wearing a black T-shirt and black pants and he was not very tall but taller than her. She said she clearly saw him that day and he is the same person that had come to her house before. She recognized the accused in court as the person she was referring to, after looking around the court house.
    
38. During cross examination, she said, after she got the black out as a result of the punch, the accused made her sit down and after a while, she could see him properly. She said her eye sight was weak but could see properly before 18/08/15. But after being punched she can’t now properly see from one eye. She said she identified the accused as an iTaukei boy. She said that the accused was wearing a black T-shirt and black shorts. It was put to her that she did not tell the police that the accused tied her hands with a black belt. She said that the accused did tie her hands with the belt. It was pointed out that the description of the clothes she was wearing recorded in her statement to police is different from what she said in evidence. She said she showed the panty she was wearing at the time of the incident to the lady police officer. She said she would have forgotten to tell the police that she went to the washroom to wash herself before she went out of the house as she was disturbed. She said she told the police whatever she remembered. She said on 18/08/15 she identified a stopper and not the stud, and that stopper was similar to the one she had.
    
39. She agreed that the police brought the accused to her house in handcuffs. When it was put to her that she only recognized the accused in court because he was the only person sitting in the box, she said she looked everywhere and recognized him, as she had seen him 3-4 times earlier. She said she is not mistaken about the identity of the accused. During re-examination she said she would have identified the accused when he was brought to her house even if he was not in handcuffs.
    
40. The second witness said that on 18/08/15, the old lady of about 74 -75 years whom she calls Nani, called her out of the house and told her that she was robbed and raped by the same person who had previously stolen things from her house. She saw that there was bleeding from the lady’s nose and that the lady’s face was swollen as if somebody had punched her.
    
41. The third prosecution witness was the complainant’s son. He said he received a call from his mother around quarter to two on 18/08/15 and she told him that there was a break-in and that she was raped. He said that the chain and the pendant that was stolen would be about $2000-$3000 now and the Multimeter is about $1200. He said, the suspect was arrested and was brought to the house by the police on the same day when the complainant was not there. When the suspect was brought again for the second time to identify the point of entry and exit, the complainant was there. He said the complainant identified the accused at that moment and then she cried covering her face.
    
42. He said he identified certain items stolen from his house on 18/08/15 at the police station on 19/08/15. He identified the said items in court. Accordingly, he identified one bottle of Whisky, one bottle of Gin which was about ¾ empty, two packets of biscuits, one chocolate, two grey colour T-shirts, and cash amounting to $35.80. During cross examination he said the accused was not handcuffed when the accused was brought to his house on the first occasion on 18/08/15 but he was handcuffed when he was brought the second time.
    
43. Fourth witness for the prosecution was one Joeli Kete. He said he was staying at Kilikali settlement in 2015. He had lived there for 36 years. On 18/08/15 after 1.00pm he was planting dalo beside the Laqere River near the house in which the robbery took place at Nepani. There was one house separating the said house from his farm. His brother’s house was beside the farm. He said he heard someone screaming from the house which the robbery took place and then he saw the accused coming down from that house. The accused was about 10 steps away. There was nothing blocking his view. He said the accused was wearing a black T-shirt and black shorts. He said he saw the accused coming down to the river, reached the other side of the river, went across the playground of Muanikoso School and then disappeared. He said he observed this for around 7 minutes. He said he knew the accused very well and he saw the accused clearly. He said the accused is short, with short hair and was carrying something wrapped in a plastic in his hand. He said he called out to the accused but the accused just looked at him and went across the river. He called out to the accused because he knew the accused very well, and had known him for about 5 years. He used to call the accused “Yanu”. He said he knows all the boys in the area. He identified the accused in court.
    
44. Thereafter the police arrived and his statement was taken. He described the accused to them. The same day the police brought the accused and called him to identify the accused who was inside the vehicle. There, he noted that the accused had changed his clothes. The accused was telling the police that it was not him and he was returning from school. The accused was also carrying a bag.
    
45. During cross examination he admitted that he did not tell the police that the accused reached the other side of the river. He said he informed the police that he saw the accused coming down, that he called out to the accused, and the accused was trying to cross the river. He admitted that all the details are not there in his statement. He agreed that he did not inform the police that he used to call the accused “Yanu”. He agreed that he told the police that it was “one young iTaukei boy, dark and slim built and short hair”. He said he told the police that the accused was short and a bit broad, but agreed that it is not written in his statement. He also agreed that he did not tell the police that he knew the accused for about 5 years, even in his second statement. He said the accused was not holding a plastic bag when he saw the accused inside the police vehicle. He did not see the accused change clothes. He said he also told the police that the accused lives in Muanikoso. He agreed that he told the police that he lived in Kilikali settlement for 20 years because he lived there permanently for 20 years. But before that he was there temporarily. He said they were the first people to reside there. He said he calls the accused ‘Yanu’ because the accused is from Kadavu and he is from Lau. They call each other “Yanu” for that reason. He said he was a youth leader and used to work with the Muanikoso youth group and that’s how he knows the accused. He said he is not mistaken that he saw the accused as he knows the accused very well.
    
46. During re-examination he said “Yanu” is between the accused and him because the accused is from Kadavu and he is from Lau. He said the police did not ask him whether he knows the accused.
    
47. The doctor who examined the complainant on 18/08/15 gave evidence next. He noted that the complainant’s nasal bridge is broken. According to the doctor, this injury could be caused by a forceful blunt trauma. There were injuries on the wrists which were very painful to her that could have been caused by being tied with something. He noted a black eye on the right side. He said there was an injury on her back in the size of an open palm which he had forgotten to mark in the diagram at appendix 1. The injury he noted at the bottom of the vagina was quite big. This could have been caused by forceful penile penetration. He said there was active bleeding from the vaginal injuries. He said the complainant was worried and she said that she will commit suicide. During cross examination, he said he cannot say who caused the injuries.
    
48. The next witness was DC Makutu. He said he conducted a search on the accused and he found a stud and some cash from the accused.
    
49. The last witness for the prosecution was the investigating officer of the case. He said he recovered certain items based on the information received from Joeli Kete about the track the accused followed. Upon following this track, he found a white Sky Pacific plastic bag underneath the grass at the edge of the Narere Primary School playground. This bag had two T-shirts, two liquor bottles and some biscuits inside it. He identified the items in court. He said the accused was taken to the complainant’s house and as they entered, the complainant pointed at the accused and she started crying covering her eyes saying that she does not want to see the accused. She was also shivering. He said an identification parade was not conducted thereafter as they didn’t want to put her on more stress. He identified the accused in court.
    
50. During cross examination, he said that Joeli Kete did not inform him on 19/08/15 where the accused lived. He said that the accused was not handcuffed when the accused was taken to the complainant’s house. During the re-examination, he said there were other officers involved with the questioning and recording the statement of Joeli Kete.
    

Case for the Defence

51. 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 his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence.
    
52. The accused said in his evidence that on 18/08/15, he was weeding at home with his younger brother. Around midday he changed into casual clothes and went to the bus stop to go to the town. This was the bus stop in Narere. He was wearing blue long pants, desert boots and a white T-shirt. He was also carrying a bag which belonged to his brother. He said the police arrested him at the bus stop. He said he was handcuffed to another police officer when he was taken to the complainant’s house.
53. He said he was searched by the police at the police station and found some money and an earring stopper inside the bag he was holding. He said the money belongs to him and he does not know who owns the stopper as the bag he was holding belonged to his brother. He said he is not known by the name “Yanu”, and he does not know Joeli Kete. During cross examination, he denied the allegations against him.
    

Analysis

54. In relation to the first count, the prosecution says that the accused stole items from the complainant’s house armed with a dagger and at the time he was stealing he used force on her.
    
55. In relation to the second count, the prosecution says that the accused penetrated the complainant’s vagina with his penis without her consent and he knew or was reckless as to the fact that she was not consenting.
    
56. The defence says that it was not the accused who committed the two offences and the complainant and prosecution witness Joeli Kete are mistaken.
    
57. When the defence challenges the evidence on identification saying that it is mistaken, you are required to assess the evidence pertaining to identification with special caution. That is because an honest and a convincing witness can still be mistaken and even a number of witnesses can be mistaken. The reason for directing you to be cautious in this regard is not because I have formed any view. It is because the law requires the evidence on identification to be closely examined and received with caution when the defence alleges mistaken identity.
    
58. Therefore, you should closely examine the following circumstances among others when you evaluate the evidence given by a witness pertaining to identification;
    1. Duration of observation;
    2. The distance within which the observation was made;
    100. The lighting condition at the time the observation was made;
    4. Whether there were any impediments to the observation or was something obstructing the view,
    5. Whether the witness has seen the accused before? How often? Whether there was any special reason to remember?;
    6. Duration between original observation and identification; and
    7. Whether there is any material discrepancy between description given to the police and the appearance of the accused.
       
59. The complainant was 74 years old when the incident took place. She said her eyesight was weak but she could see properly. She also said that she had a blackout after the accused punched her but after a while, she could see properly. According to the complainant’s evidence, she saw the accused for about more than 35 minutes at close range on the day of the incident in question. It was daytime and she said the house was as bright as the court room.
    
60. She said she had seen the accused 3-4 times before the incident relevant to this case and she related two incidents. One instance was in 2014 before the Diwali Day where she saw the accused trying to enter through the kitchen window. She also said that on another day, she saw the accused running out of the house and her son’s office laptop was stolen. You should remember that there is a possibility that the complainant can be mistaken about the identity even if you accept her evidence regarding these two previous incidents. On the other hand, even if she did identify the accused on the two occasions, still there is a possibility that she is simply assuming that it was the accused that came to her house on 18/08/15.
    
61. You heard the complainant’s evidence that she was shown an earring stopper which she said was same as the one that was taken from her room. The relevant police witness said he recovered an earring stud and not a stopper from the accused. You have to carefully examine whether there was evidence to show that the stopper the complainant was shown was recovered from the accused or not when you decide what weight you give to this evidence in relation to the stopper.
    
62. Identifying an accused for the first time in court after the alleged incident when the accused is inside the accused box is known as ‘dock identification’. Dock identification is unreliable in the absence of a prior identification in the investigation stage during an identification parade or photograph identification. It is because the witness may identify the accused merely because he is in the ‘dock’. Witness may assume that the accused is the person who committed the crime because he is in the dock. In this case no formal procedure was followed to have the accused identified during the investigation stage. The first time the complainant in this case formally identified the accused after the incident is during the trial when the accused was in the accused box or the dock.
    
63. The investigating officer in this case said in his evidence that the police decided not to conduct an identification parade because the complainant identified the accused when the accused was taken to her house on the same day the incident took place and the complainant started shivering and crying covering her eyes saying that she does not want to see the accused. The defence says that the reason that the complainant identified the accused at that time was because the accused was handcuffed. Considering all the evidence, you decide what weight you would give to the dock identification made in this case. I warn you again, that dock identification evidence should be approached with great care.
    
64. In the event you are not satisfied that the identity of the accused is established by the direct evidence of the complainant, you may consider whether the identity of the accused is proved beyond reasonable doubt through circumstantial evidence. However, in relation to circumstantial evidence, you should first consider whether the evidence relating to the circumstances is credible and reliable and if so, you should then consider, when taken together whether those circumstances will lead to the only inescapable conclusion that it was the accused who committed the crimes.
    
65. Witness Joeli said that he knew the accused for about 5 years. He also said that they call each other “Yanu” as he is from Lau and the accused is from Kadavu. This information was not there in the statements recorded by the police. The accused said that he does not have a name like “Yanu” and he does not know Joeli Kete. In the event you decide to accept the evidence of Joeli Kete in this regard, you should keep in mind that mistaken recognition can occur even of close relatives and friends.
    
66. Witness Joeli saw the accused coming from the direction where the robbery took place when he heard someone screaming from that house. He observed the accused for about 7 minutes. He spoke to the accused where the accused looked at him and went across the river. Accordingly, first you have to closely examine the evidence of Witness Joeli in relation to his identification of the accused.
    
67. You may then consider the following among other circumstances;
    1. Complainant said that the offender was wearing a black T-shirt and black shorts and took the items stolen in a Sky Pacific plastic;
    2. Witness Joeli said he saw the accused coming from the direction of the house when he heard the screaming from the house wearing a black T-shirt and black shorts and carrying something wrapped in a plastic bag;
    100. Certain items alleged to have been stolen was recovered by the police after following the track shown by Witness Joeli as the route taken by the accused on the day of the incident;
    4. Accused said that he was weeding with his brother on the day in question and around midday he went to the Narere bus stop where he was arrested by the police.
       
68. When it comes to circumstantial evidence, it is important that you examine it with care as with all evidence and consider whether the evidence upon which the prosecution relies to proof its case is reliable and whether it does prove the guilt of the accused, or whether on the other hand it reveals any other circumstances which cast doubt upon or destroy the prosecution case.
    
69. I must also educate you on what is known as bad character evidence. During her evidence the complainant said that she had seen the accused trying to break-in to her house before and that the accused had stolen the office laptop of her son. She also said that there is no other thief except the accused at Nepani. Witness Joeli mentioned something about the accused being in prison prior to this incident. You must remember to ignore and not to take into consideration this evidence and any other evidence on the bad character of the accused. The issue you should decide in this case is whether or not the prosecution has proven all the elements of the offences in this case. Whether or not the accused had committed any other offence prior to this incident is not relevant and should not be taken into consideration in deciding whether the elements pertaining to the offences in this case have been proved.
    
70. The defence says that there are inconsistencies in the evidence given by the prosecution witnesses. I have explained to you how to deal with inconsistencies. Inconsistencies may be found within the evidence of a particular witness given in court; between the evidence given in court and previous statements made out of court by the witness; or between the evidence of the witnesses. It is a matter for you to decide what weight you give to the evidence of a particular witness in the event you find that there were inconsistencies relevant to his/ her evidence, based on my directions on dealing with inconsistencies.
    
71. When you consider the elements of the first count, you should remember that any variation between the particulars of the offence and the evidence given in court with regard to the description of the property stolen or the value of the property is not material in deciding whether the charge of aggravated robbery is proven.
    
72. May I again remind you that you should first decide on the credibility and reliability of the witnesses who gave evidence in this case and accordingly what facts are proven and what are the reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of the two offences have been proven beyond reasonable doubt. You should take into account the directions I have given where relevant, in deciding whether the prosecution has proved all the elements in each offence.
    
73. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.
    
74. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
75. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each offence;
    
    • (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 reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of an offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether 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.
      
76. Any re-directions?
    
77. 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. You may peruse the exhibits if you wish to do so. When you have reached your separate opinion you will come back to court and you will be asked to state your opinion.
    
78. Your possible opinion should be as follows;

1^st count (aggravated robbery) – guilty or not guilty
2^nd count (rape) – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Office of the Legal Aid Commission, Suva