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State v Verebasaga - Summing Up [2016] FJHC 213; HAC028.2014LAB (1 April 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 28 OF 2014

STATE
V
MOSESE VEREBASAGA

Counsels : Ms. A. Vavadakua for State
Mr. A. Paka for Accused

Hearings : 29th, 30th& 31st March, 2016
Summing Up : 01 April, 2016

SUMMING UP

Madam and Gentleman Assessors,

[1] We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear more. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the presiding judge, it is my task to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give you on matters of law. It is also important to note that, if I give you a caution, you have to take it also into consideration, in coming to your opinion.

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.

[4] During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent view.

[5] In forming your opinion, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.

[6] It is also important to note that, in forming your opinion on the 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 Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the 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 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 such victim has his or 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 be also 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 he 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] 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 morning, 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 of the offences charged. The fact that the accused has given evidence or not 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 offences 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 offences and the other matters of which you must be satisfied, such as identity, in order to find the Accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the Accused not guilty. If you are not left with any such doubt, then your duty is to find the Accused guilty.

[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 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)(a) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

MOSESE VEREBASAGA between the 09th day of October 2013 and the 10th day of October 2013 at Koronatoga, Cakaudrove in the Northern Division penetrated the anus of TOMASI VIDRO with his penis without TOMASI VIDRO's consent.

[36] As you would have noted there is only one count of Rape I shall now deal with the elements of the offence of Rape. In order to prove the count of Rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated the complainant's anus, by his penis without the complainant's consent. The slightest penetration is sufficient to satisfy this element of the charge.

[37] Then we must consider the important issue of consent in relation to Rape charges. It must be proved that the Accused either knew that the complainant did not consent or was reckless as to whether he consented. The Accused was reckless, if the Accused realised there was a risk that the complainant 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.

[38] A person 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, had the capacity to consent. More directions on the issue of consent will be made as we proceed.

[39] If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's anus with his penis without the complainant's consent as the information revealed, then you must find him guilty of the count of Rape.

[40] 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 anus on that date and time. There must be positive evidence as to the identification of the Accused.

[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 Sexual Offence.

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

The prosecution, in support of their case, called the complainant, witnesses Titila, Timoci and DC Saiyasi.

Case for the Prosecution

[44] Evidence of the complainant Tomasi Vidro.

It is his evidence that when his mother passed away he stayed with Titila who looked after him.

The complainant would gather coconuts and cut them for copra. On the day of the incident, being a Thursday, the complainant was gathering coconuts. About noon, the accused came there and had helped the complainant.

In describing the incident he said that he came here to tell what "Mo" did to him. According to him, the accused tied his hands with a rope to a Vutu tree in spite of telling him not to. Then the accused had put down the complainant's pants and had then mounted on top of him. The accused had applied saliva to the anus of the complainant and then inserted his penis into it. The complainant felt pain.

[45] Evidence of TitilaDiwati.

(i) This witness said in her evidence she has resided in the village of Koronatoga since her marriage in 1991. The complainant Tomasi is her husband's sister's son. She had looked after Tomasi from his childhood and it is her estimation that he is about 35 years old now.
(ii) Her assessment of the complainant is that although he walks normal and could hold things properly by hand, his vision and hearing and mental functioning appeared challenged. He could understand instructions given to him. He could understand and also could relate what has been done to him. At times he acts normal and when under a problematic situation he would wonder about away from home. She had looked after him as her own son.
(iii) She also said in her evidence that unless one is familiar in the way the complainant speaks, it might not be possible to understand what he communicates. She would get him to gather firewood and collect coconuts. The complainant also would earn some money by cutting copra. He would get coconuts from relations and also would collect nuts from the sea shore.
(iv) In relation to the incident, she stated in evidence that after three days of the incident of "Rape", Tomasi had told her about it when he returned to her house after staying with a relation in the same village
(v) The person who "Raped" the complainant is related to him through Asenaca Tivulu. She is the accused's wife. The complainant would visit the accused's house as he is aware of its location.
(vi) she also said that the accused is known in the village as "Mokoro" or "Mo" of Koro island.

[46] Evidence of Timoci Qumiverata.

(i) This witness said in his evidence that he is a member of the Crime Prevention Committee of his village and on the Fiji day in 2013, the complainant came to his house, when the witness returned to his house after the Fiji day celebrations, and told him that when the complainant was cutting copra, the accused came and tied his hands to a tree. He then pulled down the complainant's pants and had placed his penis into Tomasi's anus. At this time the witness noted the complainant's facial expression as "not stable" and further clarified that he looked tired and shocked.
(ii) Tomasi was aware that the witness is a member of Crimes Prevention Committee. He then took Tomasi to his leader who then had contacted the nearest police post which conveyed the complaint to Savusavu Police Station.

[47] Evidence of DC 3521 Sayasi Seganavanua.

(i) This witness was attached to Savusavu Police Station in 2013 and had caution interviewed the accused. His statement was recorded in iTaukei and was later translated into English. In recording the statement of the accused there was no threat, promise or inducement offered to him and his rights were explained to him. The accused had placed his signature to the statement. During the caution interview, the accused has agreed to a scene reconstruction.
(ii) He tendered the original caution interview statement of the accused recorded in iTaukei as P.E. No. 1A and its English translation as P.E. No. 1B.

[48] 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 prosecution at all times. But he opted to offer evidence of two witnesses under oath.

Case for the Accused

[49] Evidence of Pita Kasiano

(i) The accused is the father of this witness. He says that on 9th October 2013, after breakfast he had set off for their farm along with his father, Tumeli, Kiniviliame and Sekove. Their farm was located in a scheme. They reached there at about 9.00 or 10.00 in the morning. They weeded the farm and planted Yoqona cuttings. Thereafter the group had gone to two other farms and were there till about 3.00 p.m. Then they returned home. The witness and others took the lead and the accused and his wife (who later joined them) were walking behind them at a distance. Having reached home, the witness ran to play.

[50] Evidence of Tumeli Salala

(i) The accused is the father of this witness also. He says that on 9th October 2013, in the morning he had gone to gather firewood and saw the complainant gathering coconuts. Thereafter he had gone to their farm with his father and Tupai. Until 3.00 p.m. all of them were there.
Analysis of all evidence

[51] The prosecution relied on the evidence of the complainant and also on the caution interview statement of the accused to prove its case while the accused offered evidence through two witnesses in support of his alibi.

[52] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by the complainant is truthful and, in addition, reliable. You will also consider the contents of the caution interview of the accused marked as P.E. Nos. 1A and 1B. 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 reasonable doubt.

[53] 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 evidence offered by the accused also for its consistency and also the probability of his version. If you find the evidence of the accused is truthful and reliable, then you must find the accused not guilty to the single charge of Rape, since here too the prosecution has failed to prove its case. However, I must caution you that if you reject the evidence of the accused as not truthful and also unreliable that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

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

[55] 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.

[56] In dealing with the issue of consistency, I shall first refer to the prosecution's case and particularly to the evidence of the complainant.

[57] It is revealed in evidence that the complainant for the first time complained of the accused's offensive behaviour to witness Timoci in the afternoon of Fiji day in 2013. Timoci repeated what he was told by the complainant. This information was conveyed through the leader of the Crimes Prevention Committee to the nearest Police post on the same day. Then it had been conveyed to Savusavu Police Station. Officers from Savusavu visited the village and arrested the accused on 24th October 2013.

[58] According to Timoci, the complainant reported the incident to him on the 10th October 2013. The prosecution maintains that the incident took place on Fiji day 2013. The complainant admitted in his cross examination that he said in his statement to the Police that the incident took place on the 9th of October 2013.However, during cross examination, Timoci admitted that the complainant spoke to him 2 to 3 days before the Police came. In spite of this admission, this witness again insisted that the complainant revealed the incident to him on the Fiji day.

[59] it is for you to consider this evidence and decide whether there is a delay in reporting the incident by the complainant and if there is a delay, whether there is any acceptable explanation for it.

[60] Evaluating this evidence for its truthfulness, further you have to consider whether this allegation was consistently made. There is no evidence from the complainant that he revealed the incident to Timoci. However, witness Timoci said in his evidence that the complainant said the accused had inserted his penis into his anus after his hands were tied. Please consider this evidence and the evidence of the complainant before this Court and decide whether the complainant was consistent in his description of the sequence of events.

[61] In considering this evidence I must issue a caution to you. The fact that Timoci repeated what the complainant told him on the Fiji day 2013 should only be used to evaluate the consistency of the version of events. That item of evidence must not be used as supportive evidence to the complainant's evidence before this Court. That is the applicable law.

[62] In addition, you have to consider the evidence of the complainant before this Court for its consistency. During his examination in chief, the complainant said in evidence that the accused came and tied his hands together and then, having removed his pants, applied saliva to his anus and inserted the accused's penis in. During cross examination, the complainant, in response to a suggestion made to him, said the accused did not tie his hands and they were cutting coconuts together. However, when it was further suggested to the complainant that he lied to Court when he said the accused tied his hands, he denied. When asked "Mosese did not do anything to you?", the complainant answered "He did not do it".

[63] Then the accused suggested his alibi to the complainant on the basis that the he was away in his farm at that time, the complainant replied "Mosese went to the farm. Came back. He climbed up the Vutu tree. He came down. Cut copra. After that he went home." He further admitted that accused, having gone to his house, never returned.

[64] During the cross examination, another inconsistency was highlighted by the accused. The complainant denied meeting Salala, a son of the accused and a witness for him, after the incident. It was put to the complainant that according to his statement it was Salala who cut the rope tied to his hands. The complainant insisted it was the accused who cut his rope and he met Salala only on the main road.

[65] Another instance of inconsistency was highlighted by the accused during his cross examination of the witness Saiyasi. In his answer to Question No. 8, in P.E. No. 1A, it is recorded that the accused had used the words "ansegani via saini". The witness agreed that its exact translation is "I do not want to sign" and in the English translation marked as P.E. No. 1B, it is recorded as "Refuse to sign".

[66] These are the inconsistencies highlighted by the accused in the prosecution case.You have to consider these inconsistencies and also must consider the importance of them. You have to consider whether a particular inconsistency is on a trivial issue or on a fundamental issue. Then you have to consider the effect of the inconsistency in the truthfulness and reliability of the complainant. Whether the inconsistency is due to fading memory, whether the unique physical and mental condition of the complainant has a role to play in that, whether the complainant is deliberately lying on the point, whether he had correctly understood the question put to him, whether he had the ability to formulate a fitting answer are some of the concerns you could employ in this regard. You may well think of many other considerations. However, it is your responsibility to assess them by adopting a commonsensical approach and then to decide as to which extent they affect the truthfulness of the complainant's evidence.

[67] Similarly you have to consider any inconsistency in the accused's evidence and decide its effect on truthfulness of his evidence. However, the prosecution did not point out any inconsistency in the evidence led on his behalf.

[68] 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.

[69] The evidence of the prosecution is that complainant was cutting copra in an isolated place and the accused, having tied his hands together, removed his pants. He had used his saliva on the anus of the complainant before he put in his penis. Then the complainant informed this incident to Timoci as he is a member of Crimes Prvention Committee of the village.

[70] The accused denies the incident and claims that he was at his farm from morning till mid-afternoon. The accused says the allegation is a fabrication. He also says the caution interview statement marked by the prosecution as P.E. No. 1A is a fabrication by Saiyasi. The accused says that after the punching by Mosese, the he did not make any statement. Saiyasi, with the aid of the statements he had with him, had filled up the statement with fabricated material, which is in line with the rumours spread in the village about this incident. The accused says that Saiyasi admitted that he had copied material from the witnesse's statements in the caution interview statement. He also claims that he was forced to place his signature. It is for you to consider whether the Police officer had copied material from the statements of the witnesses not only in formulating questions put to the accused, but also in fabricating answers, attributed to the accused.

[71] 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.

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

[73] You will recall the complainant and the witnesses called by the accused giving evidence and how they faced their cross examination. However, a special reference to the complainant is necessary here as a caution. None of us possess sufficient medical knowledge to clearly assess the physical and mental status of the complainant. In the circumstances, it is advisable to assess the demeanour of the complainant by adopting your knowledge in the world and common sense. However, in doing so you must not pollute your judgment on his credibility with emotions or sympathy. Please consider demeanour in the witness box in relation to truthfulness and reliability of the evidence.

[74] In relation to the complainant's demeanour in Court, you will recollect how he demonstrated as to the way his hands were tied by the accused. You may have also noticed when the complainant was cross examined, how he strained to recollect the incident and also to describe the incident. He constantly turned his head to his right side as if to avoid the gaze of the others.

[75] I must caution you over one other important matter. When I present the Accused's version, alongside the version of the complainant, you might get an impression that the Accused must prove that the prosecution fabricated this case against him. 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 offered evidence through witnesses, then, as already directed, it must first be evaluated for its credibility and reliability. The fact that he was not given evidence is his right therefore should not be a basis for any adverse inference drawn on that for against him

[76] 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 offences beyond reasonable doubt.

[77] As already noted the complainant had said in relation to the count of Rape, that the accused inserted his penis into his anus. He also said he felt pain. If you accept it as sufficient proof of penile penetration of the complainant's anus on that occasion, then in addition, the prosecution must prove that it was the accused who had penile penetration and that he had no consent of the complainant or was reckless about it.

[78] I shall direct you on the issue of consent before proceeding to the issue of identity of the accused. It is our law that consent of a person must freely and voluntarily be given. He must have the necessary mental capacity to give consent.

[79] Even if there is consent, if that consent is obtained by force, threat, fear of bodily harm, or exercise of authority then also it cannot be considered as consent acceptable to law. The prosecution wants you to believe that it was due to the domination by the accused over the complainant, displayed by taking advantage of his vulnerability, the accused had subdued the complainant into submission. According to the prosecution, the complainant had silently endured the alleged sexual aggression by the accused.

[80] In relation to the issue of consent, there is another aspect you must consider. As I have already directed you earlier on my summing up, the prosecution must prove that there was no consent by the complainant or the accused was reckless about it. What that means is whether the accused realised that there was a risk that the complainant was not consenting but carried on with his act anyway when in the circumstances known to him it was unreasonable to do so.

[81] If you do not accept that the accused thought that the complainant was not consenting on that occasion but carried on regardless, when you consider all the circumstances, then you could convict him to the count of Rape, if you find the other elements also have been proved. If you accept that the accused thought that the complainant consented, then you must find the accused not guilty to the charge of Rape.

[82] The evidence in relation to this issue is that the accused had tied the hands of the complainant as the starting act. Then only he removed the complainant's pants. Then he mounted on the complainant. Consider the legal provisions in the light of these items of evidence presented by the prosecution, in order to decide whether the complainant has consented to sexual intercourse.

[83] I shall now direct you on a important 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 penile penetration of the complainant's anus without his consent on this instance, then you must find the accused not guilty to the count of Rape.

[84] The prosecution relies on the complainant's evidence to prove that it was the accused and no other who penetrated his anus.

[85] The evidence of the complainant before us in relation to identity is that the alleged incident took place in a during daytime and they knew each other for years. The accused and the complainant were alone in the lonely spot and that the accused has had helped the complainant to cut copra. Whether there was sufficient identification of the person on this occasion and 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.

[86] It is also relevant to refer to the alibi taken up by the accused in this summing up. The accused says he was not at the scene of the crime when it was committed. In law, this claim is known as an alibi. As the prosecution has to prove the presence of the accused at the scene by its evidence, the accused does not have to prove he was elsewhere at the time, even though he led evidence to that effect. The prosecution must disprove the alibi.

[87] When you consider the evidence, if you accept that the accused was in his farm, and not at the place where the alleged Rape took place as the prosecution claims or even if you are not sure of that, you must find him not guilty to the charge of Rape. Even if you reject the accused's evidence, the prosecution must prove that the accused was there with the complainant by their evidence. If you find the prosecution has failed to prove this fact beyond reasonable doubt, the accused is entitled to be found not guilty.

[88] In addition to the complainant's evidence, I have already indicated to you that the prosecution relied on the caution interview statement made by the accused to DC Saiyasi and also of the evidence of scene reconstruction. I will now direct you how to consider the admissions made by the accused in his caution statement, in relation to the charge.

[89] In considering P.E. No. 1A, the caution interview statement of the accused, it is my direction on law to you that if you believe that Saiyasi fabricated the answers to the questions contained in the caution interview statement, then you must reject this statement altogether. Even if you are not sure, you will still discard it and will not act on it. Similarly if you believe that it was the accused who made the statement P.E. No. 1A, but he did not make it voluntarily and have given them as a result of punching or due to fear of future assaults, then too you must disregard it. Even if you are not sure whether it's voluntariness, you will still discard it and will not act on it. If you accept that it was the accused who made it, and he made it voluntarily, then it is up to you how much weight you attached to it as an item of evidence.

[90] The accused sought to challenge its voluntariness on the basis that he was punched by Inspector Mosese. This position was put to DC Saiyasi by the accused, through the suggestions during cross examinations. Witness Saiyasi denied them. When a suggestion is accepted by a witness then only it becomes a fact. The accused relies on the suggestions to challenge its voluntariness and the absence of any evidence by Inspector Mosese. The prosecution says that there is no evidence before this Court to suggest that the accused was in fact been punched and thereby compelled to make the statement.

[91] In addition, the accused wants you to consider the fact that he was not explained his rights when Saiyasi took him out for scene reconstruction and the officer has acted contrary to right against self-incrimination. Saiyasi said that he had cautioned the accused in detail at the commencement of the interview and reminded him of his rights after every suspension when he resumed the interview. You may peruse the document P.E. No. 1A and 1B, and consider which version is acceptable to you, whilst keeping in mind that it is the responsibility of the prosecution to prove it's voluntariness beyond reasonable doubt.

[92] As you already know the accused is charged with a representative count of Rape. It is done when the material disclosed incidents took place over a period of time. However, the prosecution is expected to prove only one act falling within that time period.

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

i. If you accept the accused's denial and or alibi, then you must find the accused not guilty to the count of Rape;
ii. If you reject the accused's denial or alibi or both, 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 of count of Rape;
iv. If you find the persecution evidence is both truthful and reliable then only you must consider whether elements of the charge of penile Rape was proved beyond reasonable doubt. If so you must find the accused guilty to the count of Rape. If not then you must find the accused not guilty to the count of Rape.

[94] 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 of Rape.

[95] Any re directions the parties may request?

[96] Madam and Gentleman assessors, this concludes my summing up of Law and evidence. Now you may retire and deliberate together and may form your individual opinions on the single count 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.

[97] I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Labasa

01 April, 2016

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa