IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 273 OF 2014

STATE

vs

SHELVIN AMITESH MAHARAJ

Counsels : Ms S Puamau and Ms S Serukai for the State
Mr S Singh for the Accused 
Dates of Trial : 22nd February 2016 – 26th February 2016
Summing Up : 29th February 2016

SUMMING UP

Madam and Gentlemen 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 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 only 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 charge 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 or defence exhibits and any admissions made by the parties.

[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 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 closing submissions made by both Counsels 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 determination of 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.

[12]	Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you. 

[13]	You have seen how the witnesses' demeanour in the witness box was 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. Consider also the likelihood or probability of the witness's account. 

[14]	The experience of the Courts is that those who have been victims of Rape react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others will not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court is not necessarily a clue to the truth of the witness's account. It all depends on the character and personality of the individual concerned.

[15]	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 also be due to shame, coupled with the cultural taboos existing in their society, in relation to an open and frank discussion of matters relating to sex, with elders. There is, in other words, no classic or typical response by victims of Rape. 

[16]	A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in this matter before us, the lateness of the complaint and what weight you attach to it. It is also for you to decide when she did eventually complain as to its genuineness.

[17]	Another consideration may be; has the witness said something different at an earlier time or whether he or she is consistent in his or her evidence? 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.

[18]	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.

[19]	Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to an exhibit.

[20]	Lady and gentlemen, 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.

[21]	Having placed considerations that could be used in assessing credibility of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[22]	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 to the charge. 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.

[23]	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. 

[24]	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. Those facts are called primary facts.

[25]	But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set 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.

[26]	In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that you will understand the relationship between primary fact and the inferences that could be drawn from them.

[27]	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.

[28]	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.

[29]	This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty to the offence he is charged with. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.

[30]	I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or level of proof, as expected by law?

[31]	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 these elements later. 

[32]	It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence 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.

[33]	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. 

[34]	Let us now look at the charges contained in the amended information.

[35]	There is only one charge preferred by DPP, against the Accused:

FIRST COUNT

Statement of offence

Rape –Contrary to Section 207(1) and (2)(b) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

SHELVIN AMITESH MAHARAJ on the 16th day of September 2014, at Ross Street, Nausori in the Central Division, penetrated the vagina of Divya Sami with his finger, without the consent of the said Divya Sami.

[36]	As you would have noted the Accused is charged with only one count of Rape. I shall now deal with the elements of the offence of Rape. In order to prove a count of Rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated Divya Sami's or the complainant's vagina, by his finger. The slightest penetration is sufficient to satisfy this element of the charge. 

[37]	Then we must consider the important element of consent in relation to Rape charge. A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was over 13 years of age and therefore, she had the capacity to consent. The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. 

[38]	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. More directions on the issue of consent will be made as we proceed.

[39]	Apart from the elements of the offence, 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 during the time period mentioned in the information. There must be positive evidence as to the identification of the Accused.

[40]	If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his finger without her consent, then you must find him guilty of Rape.

[41]	If you find that the prosecution failed to establish any of these elements in relation to the count of Rape, then you must find the Accused not guilty.
[42]	In our law, no corroboration is needed to prove an allegation of Sexual Offence; Rape is obviously considered as a Sexual Offence.

[43]	These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

[44]	The parties have consented to treat the following facts as "agreed facts" without placing necessary evidence to prove them:

(i)	THAT at the time of the alleged offence, the accused, Shelvin Amitesh Maharaj was residing at Ross Street, Nausori.

(ii)	THAT the complainant, Divya Sami was also residing at Ross Street, Nausori.

(iii)	THAT the accused and complainant are married.

(iv)	THAT at the time of the alleged incident, the complainant's mother, Premila Sami was also residing with the accused and complainant at Ross Street, Nausori.

(v)	THAT a permanent domestic violence restraining order had been issued against the accused on the 20th of May 2014, the accused, the complainant and the complainant's mother were at home.

(vi)	THAT on the 16th of September 2014, the accused, the complainant and the complainant's mother were at home.

(vii)	THAT on the 16th of September 2014, the accused and the complainant had an argument.

(viii)	THAT the accused was interviewed under caution by W/D/CPL Anjaleen on the 22nd of September 2014.

(ix)	THAT the accused was formally charged on the 26th of September 2014 by WDC 4495 Senimili.

(x)	THAT the complainant was medically examined on the 19th of September 2014 at the Nausori Health Centre.

[45]	During the trial, the prosecution marked the medical report issued by Dr. Salome Daunivalu of the complainant, as Prosecution Exhibit No. 1, in support of their case.

[46]	The prosecution, in support of their case, called the complainant, her mother, and the said medical officer. 

Case for the Prosecution

[47]	Evidence of the complainant Divya Sami

(i)	It is her evidence that she is married to the accused for the last three years and had since lived in Ross Street, Nausori with him and her mother in a rented out house.

(ii)	On 16th September 2014, she was on her Facebook account while her husband was watching a movie. The accused wanted her not to be on Facebook. Then he slapped her and she got angry. The accused then pulled her to their bed. At this time she was lying on the bed and the accused was standing beside her by the bedside. He then removed her under garment and placed his hand "on top" but "not right in". He "poked" his finger. The complainant showed her distal phalange of her index finger in describing the extent to which he "poked" his finger "on top of genitals" and into her vagina. At that time the accused said since he is her husband he can do it to her. She did not feel good and was angry.

(iii)	The complainant had then called her mother who was listing to radio at the time. The complainant did not tell her mother, who came into her room, as to what happened there, in answer to her query. The complainant and the accused were continuing with their argument and her mother asked the accused to solve the problem and not to make noise. The couple continued with their arguments and then her mother called a neighbour who lived in the adjoining flat. The neighbour's advice was to solve the problem between husband and wife as it was late in the night. 

(iv)	Thereafter, the accused had called his uncle and left the house. He had then called the complainant early in the morning from the Police and wanted the complainant to come there. At the Police Station, the complainant was questioned about the argument they had and the accused's uncle made a false complaint that the accused wanted to commit suicide.

(v)	She reported about this incident on the next day. In explaining her conduct, the complainant says that there was a permanent DVRO issued against the accused in May 2014 and she did not intend to put the accused into trouble. The complainant received assistance from the DPP's office and her statement was recorded by one Susanna. 

[48]	Evidence of Premila Sami

(i)	This witness said that the complainant is her daughter and the Accused is her son in law and she lived with them.

(ii)	On 16th September 2014 at about 11.00 pm. She was listening to radio in loud volume. Then she heard the complainant calling her. When she heard the complainant calling her for the second time, she went into the complainant's room. The witness had then had seen the Accused who has placed his hands on the complainant's chest below her neck. The witness had shouted at the Accused and told him that she would call up the Police and neighbours.

(iii)	Then the witness had called up her immediate neighbour Suneetha. The Accused also had followed her and told her not to alert anyone. Suneetha also advised the witness not to call Police as it was a family dispute.

[49]	Evidence of Dr. Salome Daunivalu

(i)	She said in her evidence that she has a MBBS degree and was based at Nausori Medical Centre since 2012. On 19th September 2014 she examined Divya Sami and had prepared a report on her findings marked as Prosecution Exhibit No. 1. 

(ii)	Under the segment D(11) of her report, the medical officer has observed:	

i.	Hymen not intact;
ii.	Small bruise at the base of the posterior vaginal vault;
iii.	Dry and old scratch marks on back of her chest;
iv.	Nail of her middle finger broken;
v.	Index finger, which had no deformity, was broken. 

(iii)	She clarified in her evidence of the term "vaginal vault" and stated that it is the surrounding structure of the vagina and is located internally to hymen.

(iv)	In relation to the bruise observed in the vagina vault, the witness opined that it could be due to any force, penile or digital penetration or to any other foreign body. Her estimation of the age of this bruise was 48 to 72 hours before her examination.

(v)	She, in addition to that, stated in her evidence; based on her physical examination of the complainant, the medical treatment that was prescribed on her included treatment to possible infections due to bacteria and fungi.

[50]	That was the case for the prosecution. You then heard me explaining 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 as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on the prosecution at all times. 

Case for the Accused

[51]	The Accused opted to offer evidence and called Arveen Chand and Krisha Ben on his behalf.

[52]	Evidence of the Accused 

(i)	He says that he is 26 years old person and holds a Diploma in Tropical Agriculture. As at present he is employed as Livestock Administrator at Goodman Fielder International. He got married to the complainant in 2013 and lived with her and her mother in an apartment on rent, and it was located at Ross Street, Nausori. 

(ii)	On 16th September 2014 at night, he and the complainant were watching a movie. Towards its end the accused informed the complainant that he and his mother would go to vote the next day and invited her to accompany them. With this suggestion, the complainant got upset as there was an on-going problem with his mother. 

(iii)	They started arguing over this issue and then the complainant said that the accused had got a DVRO against him and therefore must listen to what she says. If not, she threatened him that she would go to Police and report and then accused would be in trouble. Then she called out for her mother. When she came and knocked on the door, it was the accused who opened the door to her as it was locked from inside.

(iv)	She enquired from the accused as to why and then the accused said that they were arguing about voting. His mother in law then asked the complainant whether the accused abused or hurt her. The complainant replied that he did not but they were only arguing. The mother in law was not convinced as she insisted that the accused must have done something.

(v)	According to the accused, his mother in law considered the positions that if they did not report the matter to Police the neighbours will and then had called out for neighbours. His wife brought the DVRO paper and said to the accused that he could not yell at or argue with her as she has that document.

(vi)	At that point of time the neighbours came in and the accused told them that they had an argument about voting as the complainant is stopping the accused in assisting his mother. As the complainant and her mother were talking against the accused, he felt fearful as there was a DVRO against him and had considered the possibility if they complain to the Police he will be in trouble.

(vii)	Then he called his uncle and wanted to move out of the house to think about the situation. The accused had searched for his wallet but the complainant had already kept it concealed. He did not want to retrieve it forcefully and went to Nausori Police to report.

(viii)	Whilst at the Police, the accused lodged a report and then felt depressed about his predicament as his wife prevented him in voting the next day. Why the accused made a report was that he wanted them to know that he left the house on good terms and there was no form of violence. The Police called the complainant and her mother to Station but no adverse report was made against him by them that night. The complainant wanted the accused to return home but he declined.

(ix)	On the following day, after consulting his family, the accused decided that "to live a life of fear is not a life at all" and obtained a DVRO against the complainant. He got to know about the allegation of Rape only on the 20th as the Police came in search of him at his workplace. After his interview, the accused was released by the Police without charging him as they were of the opinion there were no clear evidence on the medical report to charge him.

(x)	The accused denied each allegation made by the complainant that he stopped her accessing Facebook, that he slapped, that he threw her on bed, pulled out her undergarments, put his hand, poked his hand, put his finger.

(xi)	He maintained that they had normal sexual relations and had it in fact even on the previous night.

[53]	Evidence of Arveen Chand

(i)	This is the accused's maternal uncle. He could remember on the night of 16th September 2014, receiving a call from the accused to come to his house. The accused was crying over the phone. He went over there with another person and saw the accused who was crying even then.

(ii)	When questioned about his problem, the accused said that he wanted to go to cast his vote and also he needed to collect his polling card which was with his mother in the village. According to him, his wife is making quarrels with him over this issue.

(iii)	Then they went to Nausori Police enabling the Accused to make a report that he wanted to cast his vote and "the woman residing with him" stopping him by threatening that if he did they would put up some kind of report on him. The Police got down the complainant and her mother to the station and then they used abusive language on the Accused. 

(iv)	Thereafter, he had taken the Accused along with him. He stayed with the witness until this accusation is made.

[54]	Evidence of Krisha Ben

(i)	This witness says that she was a neighbour of the Accused and could remember that the couple used to fight and have arguments. She could hear their voices but not the words.

(ii)	Towards mid night on the day prior to elections, she was watching TV and then heard "yelling and shouting". Her mother decided to tell them "to be low" and went up to the window of the Accused's house. She saw the Accused standing by the door to the room and he was crying. The complainant was standing beside her mother near the window. They were told by the complainant's mother that the Accused was strangling his wife.

(iii)	The complainant did not cry and the witness noted few love bites on the complainant. The Accused, who was shirt less at the time, also had love bites on his body.

(iv)	The witness's mother advised them to be low but they continued their fighting and then said they would go to Police. Later a pastor came to see the complainant who was also stressed.

Analysis of all evidence

[55]	As already noted the prosecution relied on the evidence of the complainant, her mother Premila Sami and Dr. Salome Daunivalu to prove its case and the Accused, having given evidence under oath, also called his uncle Arveen Chand and Krisha Ben, a neighbour, in support of his case. 

[56]	Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the count of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of Rape and also identity of the accused, beyond a reasonable doubt.

[57]	It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution also on the evidence of the accused. You must consider his evidence for its consistency and in addition the probability of his version. If you find the evidence presented by the accused is truthful and reliable, then you must find the accused not guilty of the charge of Rape, since the prosecution has failed to prove its case. However, I must caution you that if you reject the evidence of the accused and his witnesses as not truthful and also unreliable that does not mean the case for the prosecution is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

[58]	With this caution in mind, we could proceed to consider the evidence of the prosecution as well as that of the accused for its truthfulness and reliability.

[59]	At the beginning of this summing up, I described some considerations you might want to apply to the evidence in order to satisfy yourselves as to the truthfulness and reliability of the evidence. One such consideration is the consistency of the evidence. 

[60]	Evaluating the evidence presented by the Prosecution for its truthfulness, you may like to consider whether this allegation was made on the first available opportunity or not. The complainant admitted that she did not complain of the incident to her mother when she came into their room that night hearing her call. She did not call the Police. Then she was summoned by the Police later in the same night and there too she did not complain. She had complained to Police on this allegation only on following day. The prosecution says the incident took place on 16th September 2014. The complaint was made on 19th September 2014. 

[61]	The complainant provided an explanation to her conduct resulting in this delay. She said the accused already had a permanent DVRO against him and if she made a complaint against him; that would bring further trouble to the accused. She wanted to avoid that situation. When she was served with a DVRO obtained by the accused against her, then only she had decided to complain the incident to Police. Considering all these circumstances, it is up to you to determine whether there is a delay in making the allegation and if there is a delay, whether the explanation provided by the complainant for that delay is acceptable to you.

[62]	In dealing with the issue of consistency of the allegation, I shall first refer to the prosecution's case and particularly to the evidence of the complainant. It is revealed from the evidence that she had first stated in her examination in chief that "he put his hand on top, but not inside". Again in describing the act of the accused, during her examination in chief she said "he poked his hand, but not right in". Then again, she said "just on top" and then offered a clarification as to the exact place and described it as her "genitals". Then she further used the word "vagina". 

[63]	During her cross examination, when it was put to her that she had taken three different positions as to the alleged act during her examination in chief, she admitted it. Then she was reminded of these three positions. It was put to her by the accused that firstly she said that he put his hand on top and not inside, secondly he poked with his hand and thirdly just touched the top of her genitals and then she was asked which one she wanted the Court to be believed. She answered that it was the third position. 

[64] 	In addition, the accused put to her the way she had described the incident to Police in order to show another inconsistency. She said in her evidence that only once he put his finger into her vagina. The accused elicited from the complainant that she had described the incident to Police as follows;

" ... again on last Tuesday 16.09.14 at about 11.00 pm we were home. When suddenly my husband got angry with me. As a result he strangled my neck and yelled out to my mother who was in her room. After that my mother comes and at that time he was still holding my neck. I was in pain very badly and he started to massage my neck. Also I wish to mention that after he strangled me, he also forcefully pulled my panty off and he poked his finger into my vagina, I told him that it was paining but he still doing it three to four times saying that he is my husband." 

She admitted that portion of the statement.

[65]	In this situation you must consider whether this admitted inconsistencies and its effect on the truthfulness and reliability of the evidence of the complainant. However, I must caution you here. You must however keep in mind, only what she stated before us is evidence. What she told Police is not evidence. What she said to Police could only be used in considering the complainant's inconsistency on the point by comparing the two. It should be used only to decide whether the complainant was inconsistent in making the allegation against the Accused on the issue of penetration. You should not use it to find her evidence is consistent on other points.

[66]	In addition, another instance of an inconsistency as highlighted by the Accused is that the complainant's failure to mention that the Accused had attempted to strangle her. Upon repeated questioning, the complainant said that she could not remember it as it is an incident which took place in 2014. Her mother's evidence is when she entered their room upon hearing cries of the complainant; she saw the Accused had placed his hands on the complainant's chest near her neck. This fact was not mentioned by the complainant in her evidence. A witness called by the accused Krisha Ben said in her evidence, when questioned, the mother of the complainant said the Accused had strangled the complainant. The complainant had also described an act of strangulation by the Accused in her statement to Police. It appears that on this point there are two inconsistencies. Firstly, of the evidence of the complainant for her failure to mention this fact in this Court, and secondly for the inconsistency of her evidence when compared with her mother's evidence on the same point. 

[67]	It is for you to consider the effect of this inconsistency on the credibility of the complainant. In determining that issue you may consider the fact that the complainant was in a constant argument with the accused. Whether in such circumstances, it is possible to memorise all the details of the incident? If you consider this to be a significant incident which she could not have overlooked; then in the circumstances whether she wilfully suppressed this fact for some undisclosed reason, and whether she genuinely forgot this incident during her examination in chief are some of the relevant consideration that might assist you to decide, in addition to any other consideration that you might think relevant. 

[68]	In this regard I must also caution you that the accused has not been charged by the DPP for strangulation and therefore you could utilise this factor only in assessing credibility of the complainant. You must not draw any adverse inference against the accused on account of this evidence.

[69]	These are the inconsistencies in the prosecution case. It is your responsibility to assess them and decide to which extent they affect the truthfulness of the prosecution evidence. 

[70]	Similarly, you have to consider any inconsistency in the accused's evidence and decide its effect on truthfulness of his evidence. During cross examination of the complainant, the accused suggested that she had warned the accused that if he goes and cast vote with his mother she would report to Police of breaching DVRO. The accused, also suggested to the complainant twice that it was due to his refusal to return to their home, presumably after this incident, prompted her in making up this story of Rape. 

[71]	The accused did not clarify from or suggest to the complainant the following factors;

(i)	that they were watching movies together before the argument erupted between the two,

(ii)	he invited his wife to join the accused and his mother for voting next day, 

(iii)	his wife had showed him the DVRO document and said you can't yell or argue with me as this document is with me,
(iv)	she had kept his wallet,

(v)	neighbours came into the house and talked,

(vi)	they had sexual relation in the previous night,

(vii)	he was released by the Police without charging him.

[72]	Referring to his mother in law's entry into the room and having coming into the room, what she did there thereafter, the accused attributed certain actions to that witness. He did not suggest the following to Premila Sami when she gave evidence;

(i)	that she had to knock on the door to come into the room as it was locked from inside;

(ii)	it was the accused who opened the door for her, 

(iii)	she asked the accused what happened,

(iv)	she accused him saying that he must have done something,

(v)	she also said if they did not report the matter to the Police the neighbours would.

[73]	The Accused said these only in his evidence in chief. In evaluating the consistency of his evidence, you could consider these factors to satisfy yourselves whether these were suggested to the prosecution witnesses or not. How this becomes relevant is that if he did suggest these positions when they gave evidence they could then have placed their versions for your consideration. If you think that on these items the Accused was not consistent, then you must decide what effect it would have on the truthfulness and reliability of his evidence on these points. 

[74]	In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution and the Accused are truthful and reliable. That is the relative probability of the versions of events as presented by the parties.

[75]	Here again you could consider the delay in making the complainant against the accused under the test of probability. The evidence of the prosecution is that the complainant, in order to shield her husband from the consequences of breaching DVRO conditions, did not complain of the act of sexual aggression by the Accused, until he had obtained a DVRO against her. The Accused say it is an act of revenge and also an act in retaliation. You have to consider this possibility and also must consider even if it is a result of revenge or an act of retaliation, whether the matter complained had actually occurred. I have already referred to the circumstances under which the complainant's evidence revealed ultimately leading to the reporting to Police. Please consider the relative probability of her explanation for delay in reporting and the reason for keeping it undisclosed until 19th September 2014.

[76]	The prosecution wants you to believe that on 16th September 2014 at about 11.00pm, the Accused got angry over the complainant's use of her Facebook account and had then he had slapped her. The complainant also got angry and they were engaged in an argument. They were in the bed room. Then the complainant says the Accused pulled her three times and was put on their bed. Then he had removed her undergarment and "poked" his finger in to her vagina claiming as her husband he could do it. The complainant had then called out for her mother. Even after this incident their argument was continuing, and when her mother entered their room, the Accused had his hands on the chest of the complainant, below her neck. However, the complainant could not recall an attempt by the Accused to strangle her.

[77]	As already directed t is your responsibility to consider the relative probabilities of her version of events in order to satisfy yourselves whether the evidence of the complainant is therefore credible. There is no evidence of strangulation before you. The inconsistency which we have already dealt with on this point, where she had said it to the Police, had to be considered in the light of this consideration of probability of her version. You could consider, under the circumstances as revealed by the evidence, whether the complainant could register all details of what happened during their heated argument and accurately relate them after a lapse of almost 1½ years or she deliberately alters the sequence of events to suppress an inconsistency. More importantly, you could also consider whether the complainant had fabricated this allegation since the accused refused to return to their home or whether the complainant genuinely made an effort to shield her husband from the logical and legal consequences of his action.

[78]	The Accused presents a different angle to the picture painted by the complainant. He totally denied each and every allegation levelled against him by the complainant and claimed that it is a fabrication by the complainant, since he refused to return to their house. He explains why he refused to return home as he could not bear the "quarrels" with the complainant and his mother in law. It is his claim, the complainant and her mother needed his regular financial support and, in order to ensure his continued support, she had fabricated this allegation. 

[79]	In addition, the Accused in his evidence said that the complainant had threatened him by showing the DVRO document by saying that he cannot argue or abuse her, as she could report him for breach of DVRO. The Accused felt "to live a life of fear is not a life at all" and wanted to relocate in order to sort things out. In order to minimise the possibility to a subsequently fabricated allegation against him, he wanted to report the matter to Police that he left their house on "good terms" with his wife. She did not complain of any violence by the accused to Police, and had even invited the Accused to return home.

[80]	The Accused also led evidence through his uncle and a neighbour, to the effect that soon after argument with his wife, he was seen distressed and was crying and the complainant was with her mother and had no visible signs of any emotion. The complainant also said in her evidence that at the Police the Accused claimed suicidal, according to his uncle. The witness called by the Accused, Krisha Ben said in her evidence; she saw the complainant was also stressed condition when she was visited by a pastor. It is for you to consider these items of evidence and decide the relative probability of the conduct of the Accused and the complainant after the incident, as an added factor in determining truthfulness of their evidence.

[81]	There could be many other probabilities you would like to consider arising out of the evidence placed before us. You may consider all these probabilities and should decide which one is the more probable one, based on your common-sense. 

[82]	Another consideration in evaluating evidence for its truthfulness and reliability is the manner of each witness in giving evidence. 

[83]	You will recall when the complainant, in her examination in chief, had no apparent difficulty in giving evidence. However, it appeared during examination in chief that she made a conscious effort to limit the extent of penetration by the Accused with his finger. At first she said he had put his hand "on top". Then upon seeking clarification by the prosecution, she said he "poked" his hand but "not right" in. Then being further examined by the prosecutor only she demonstrated to us the extent to which his finger penetrated her vagina by showing the length of the distal phalange of her index finger. 

[84]	Similarly, you would have noted her manner of giving evidence, when the inconsistent part of her statement was marked. Also you would have noted how prompt and forceful she denied the suggestion of fabricating this allegation and offered her explanation for the delay in reporting.

[85]	When questioned about the alleged act of strangulation, she said she cannot remember. Was she evading the questions or failed to understand the questions put to her or she had no answer to offer or she had a difficulty in expressing herself are some of the considerations you may think of. It is for you to decide the effect of the behaviour of the complainant in giving evidence and to decide the truthfulness of her evidence and the degree of reliability you should attach to her evidence. 

[86]	You also had the opportunity to observe the accused and his witnesses and consider their manner of giving evidence the same way you assessed the prosecution witnesses.

[87]	At the end of her examination in chief, the complainant made a short statement. Please disregard the contents of this statement totally as it had no relevance to the matter before you.

[88]	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 was due to seek revenge or in retaliation, the complainant made this accusation. That is wrong. He is under no legal duty to disprove the case for the prosecution. He is not even under a legal duty to offer evidence. He could have remained silent. However, when he does give evidence, then, as already directed, it must first be evaluated for its credibility and reliability. 

[89]	So far, I have directed you on the assessment of credibility of the witnesses for the prosecution and of the accused. If you reject the evidence and preferred to accept the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offence beyond reasonable doubt.

[90]	As already noted the complainant had said that the accused inserted his finger into her vagina. She demonstrated to us the extent to which his finger penetrated into her vagina. It is for you to accept it as sufficient proof of digital penetration of the complainant's vagina or not.

[91]	Then you must consider whether the prosecution has proved the complainant did not consent to digital penetration. There is no direct statement from the complainant that she did not consent. Therefore, you have to consider the circumstances under which the penetration occurred and decide whether the complainant consented or not. 

[92]	The evidence is that the couple was engaged in an argument. The accused had pulled her to the bed. He pulled away her undergarments. He then inserted his finger and said as her husband he could do it. The couple continued to argue thereafter until the accused called out his uncle and left the house. These are the items of evidence placed before you by the prosecution in order to prove beyond a reasonable doubt that she did not consent. 

[93]	It is our law that the submission without physical resistance by a person to an act of another person shall not alone constitute consent. You must also consider whether 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. It is your responsibility to decide considering all the evidence whether this element was proved by the prosecution or not.

[94]	I shall now direct you on another issue of the case. You will recall that I have already directed you on this topic by referring to the identity of the accused. It is a vital component of the prosecution case and if it had failed to prove the fact that it was this accused and no other had digital penetration of the complainant's vagina, then you must find the accused not guilty to the count of Rape.

[95]	The prosecution relies on the complainant's evidence and also of her mother to prove that it was the accused and no other who penetrated her vagina. 

[96]	The evidence of the complainant before us is that the alleged incident took place at night. The accused is her husband and he was standing her bedside. She had seen him in close proximity. There was no evidence of availability of light in the room except by defence witness Krisha Ben, but there is evidence by the prosecution only two of them were there in the room at the time. The complainant's mother also says that when she entered only two of them were there. Whether there was sufficient opportunity to properly identify the accused in these circumstances, whether the complainant had clear mental comprehension to make the identity and whether there is a mistake in identifying the person are questions of fact you have to consider and decide in the light of available evidence. 

[97]	The prosecution has also relied upon the evidence of the medical witness. This kind of evidence is given to help you with scientific matters about the witness has expertise. As you have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefits, and to express opinions about them, because they are used to doing that within their particular field of expertise. You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.

[98]	You would recall that the medical witness said in evidence that she observed a bruise in the vaginal vault of the complainant. She was of the opinion that this could be due to penetration of vagina by an object like a penis or a finger. According to her the injury seen on the vaginal vault of the complainant could have happened within 48 to 72 hours from the time of examination.

[99]	The Accused, during his cross examination of the medical witness sought to clarify certain positions. In relation to the bruise in the vaginal vault, the Accused suggested that it could also be due to sexual intercourse. The medical witness did agree with this suggestion. It is for you to decide whether to accept her opinion on these points and whether it supports the prosecution case or the Accused position.

[100]	Before, I conclude my summing up, I must caution you over one other issue. The abbreviation DVRO regularly came up during the evidence of both parties. There is evidence that a Domestic Violence Restraining Order had been issued against the accused. What you must not do is that you should not infer any violent conduct on the part of the Accused, merely because a DVRO is issued against him. We do not know the circumstances under which the DVRO was issued and that has no relevance to the case except to evaluate truthfulness of the witnesses. You should limit its consideration only to this issue.

[101]	In summary and before I conclude my summing up let me repeat some important points in the following form:

i.	If you accept the accused's denial, then you must find the accused not guilty to the charge of Rape;

ii.	If you reject the accused's denial, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution;

iii.	If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty;

iv. 	If you find the prosecution evidence is both truthful and reliable then only you must consider whether the elements of the charge of Rape was proved beyond a reasonable doubt. If so you must find the accused guilty. If not you must find the accused not guilty.

[102]	If you have any reasonable doubt about the prosecution case as a whole or an element of the offence, including identity of the Accused, then you must find the Accused not guilty of the charge.

[103]	Any re directions the parties may request?

[104]	Madam and Gentlemen 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 count of Rape against the Accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinion.

[105]	I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Suva
29th February 2016

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitors for the Accused : 	Shelvin Singh Lawyers, Level 2, Lords Bldg, Suva.