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State v SBN - Summing Up [2016] FJHC 250; HAC083.2010 (7 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 083 of 2010

STATE

V

SBN

Counsel : Ms. S. Puamau for State
Ms. M. Tarai for Accused
Dates of Hearing : 04th April – 07thApril 2016
Date of Summing Up: 07thApril 2016
(The names of the accused and of the complainant are suppressed. Accordingly, the accused will be referred to as SBN and the complainant as SM)

SUMMING UP

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

1. I will now direct you on the law that applies for this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty.
   
2. During this summing up, if I express my opinion on the evidence or if I appear to do so, you are not bound accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
3. Evidence is what the witnesses said from the witness box in this court room, the admitted facts and the exhibits tendered in this case. Your opinion should be based only on the evidence presented inside this court room. That said, please remember that I will not be reproducing the entire evidence of the case in this summing up. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
   
4. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information and must not consider such information in order to come to the conclusion whether the accused is guilty or not guilty.
   
5. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening address and you heard the closing address. Those arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
6. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box, the exhibits tendered and the admitted facts. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feeling of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
7. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
8. When you assess the testimony of each witness, you should bear in mind that witnesses may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
9. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
   
10. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
11. You may also consider the ability and the opportunity each witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a particular witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony or to an exhibit.
    
12. You heard that the complainant, SM is now 9 years old and she was 3 years old at the time of the alleged incident. The main task before you in this case therefore is to judge whether this child witness has told the truth and whether the account of the events she gave is reliable. You may have come across children of that age. You will have an idea of the way they think, talk and the way they describe things. With your life experience, you have to decide whether SM was a credible witness and whether you can rely on the evidence given by her.
    
13. You heard in this case that SM had made a complaint to her elder sister after the incident. You should consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with. If you are satisfied that SM made a prompt complaint and that complaint contains sufficient information with regard to the alleged conduct of the accused, then and then only you may consider that her credibility is strengthened in view of that recent complaint.
    
14. Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. What a witness told you about what he/she saw or heard and the exhibits tendered may directly prove certain facts. In addition to those facts you would consider as directly proved, you may also draw inferences from those facts. For example, when you walk out of this court room, if you see rain water around and it was not raining when you came inside, even though you did not see, you can draw the reasonable inference that it had rained while you were inside the court room. Bear in mind that the inferences you draw should be based on facts proved by the evidence and you may only draw reasonable inferences. You should then apply the law as per my directions to those facts and inferences, to form your opinion as to whether the accused is guilty or not guilty.
    
15. You are not required to decide every point which has been raised by the lawyers in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge has been proved.
    
16. When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.
    
17. The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of an accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.
    
18. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty. However, if you find that the prosecution has proved all the elements of the offence beyond reasonable doubt, you should find the accused guilty. I will explain you the elements of the offence in a short while.
    
19. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my final decision.
    
20. Let us now look at the Information. DPP has charged the accused for the following offence;
    

Statement of offence

Rape: Contrary to Section 207 (1)(2)(c) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

SBNon the 05th day of April 2010, at Lami, in the Central Division, penetrated the mouth of SM with his penis without her consent.

21. The following facts are admitted;
    
    1. SBN was 47 years old at the time of the alleged offending.
       
    2. SBN is SM's uncle and is known to SM and her siblings as 'Tai Bili' or 'Tata Bili'.
       
    100. On the 5th day of April 2010, SBN resided at Kalekana, Lami, Suva.
         
    4. On the 5th day of April 2010, SM and her family also resided at Kalekana, Lami, Suva. Their home was near SBN's home.
       
    5. On the 5th day of April 2010, SM was a child under the age of 13 years.
       
    6. SBN was arrested by the Police on 7 April 2010 in respect of this matter.
       
22. To prove the offence of rape in this case, the prosecution must prove the following elements beyond reasonable doubt;
    
    1. the accused
       
    2. penetrated the mouth of SM with his penis
       
    100. without the consent of SM or,
         

that SM was below the age of 13 years at the time of the incident

23. The first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
    
24. Second element is penetrating the mouth of the complainant. To establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the mouth of SM with his penis. A slightest penetration is sufficient to satisfy this element.
    
25. Law says that 'a child under the age of thirteen years is incapable of giving consent'. It is an admitted fact in this case that SM was under the age of 13 years at the date of the alleged incident. Therefore, you should consider that the third element above is proven beyond reasonable doubt.
    
26. Therefore, in this case, only the first two elements are in dispute. In order for you to find the accused guilty of rape in this case, you have to be sure based on the evidence presented by the prosecution that this accused, inserted his penis into SM's mouth. If you have a reasonable doubt, you should find the accused not guilty.
    
27. You have before you, PE01 which according to the prosecution is the record of the interview conducted by the police with the accused on 08/04/2010. This was recorded in iTaukei Language and PE02 is the English translation of PE01. Prosecution says that the said interview notes contain admissions and that those admissions are true. The accused says that he was threatened by the police officers who were involved with the investigation of this case before and during the interview. He said that he simply repeated the answers suggested by his interviewing officer but he did not admit the alleged offence. He said he signed PE1 because he was told to sign. He did not read PE1and PE1 was not read to him before he signed.
    
28. Prosecution also tendered the charge statement of the accused as PE03 and the English translation as PE04. This charge statement does not contain any admissions concerning the elements of the offence in this case. Therefore, you should disregard PE4 (and PE03).
    
29. In dealing with the cautioned interview tendered as PE02 PE01),E01),you must decide the following;
    
    1. Did the accused make the admissions in PE02?
       

If you are not suot sure that he did, the matter ends there. You should disregard the cautioned interview state

2. If you are sure that the accused did make the admissions, then you should decide whetherare sure that the admissionssions are true. Which means that you should consider the cautioned interview statement as youd consiconsider the evidence given by a witness. You may accept the entire statement to be true or a part of it is true or you mnsider the entire statement is not true. You may rely only on what you would consider to beto be true.
   

Case for the prosecution

30. The first prosecution witness was the mother of SM. She said AQ is her eldest daughter and her daughter SM was born on 28/10/2006 at CWM Hospital. She said her family is related to the accused and accused's house is situated about 10 metres away from her house at Kalekana settlement. She filed a report against the accused on 05/04/2010 at Lami Police Station.
    
31. In cross examination, she said on 05/04/2010 before she went to the police station, she went to the accused's house to inform him that she is going to lodge a complaint. She said the accused denied any knowledge of the allegation and told her to report the matter to the police.
    
32. In re-examination she said the accused was angry when he told her to report the matter to police.
    
33. SM gave evidence next. She said she was 3 years old in 2010. On 05/04/2010 when she was sitting outside the accused's porch, the accused called her to come inside his house. When she went inside the house he told her to suck his penis. The accused pulled his penis out and kissed her. He put his tongue inside her mouth. He pressed his penis into her mouth and the penis went inside her mouth. Then her sister came looking for her. After she arrived home with her sister, her sister told her to eat. Then she told her sister that she had already suckled from the accused referring to the accused as 'Ta Bili'.
    
34. In cross examination she said that on 05/04/2010 just before lunch, she was playing near the accused's porch and the accused came home and chased away all the children including her. She said all children went home when the accused chased and she also went home. Then she had lunch. The accused had a brush cutter with him when he came home. She said that was the only time she saw the accused that day. When she was asked whether her mother told her to tell (in court) that the accused told her to suck his penis, she said 'yes'. She said AQ smacked her with a spoon that day and she cried. She was telling AQ that she was playing with other children, but AQ kept on smacking her. When she was asked whether AQ told her to tell (in court) today and to the Police that the accused made her to suck his penis, she said 'that is true'. But when it was suggested that she started telling what AQ told her to say because AQ hit her so much that day, she said 'no'. She denied the suggestion that the accused did not make her suck his penis on the day in question.
    
35. The last 3 questions were;
    

Q: I suggest to you that on that day, Tai Bili did not make you tu tu on his polo?

A: Not true.

Q: I put to you that you did not tu tu on Ta Bili's polo? Is that true or not?

A: Not true.

Q: I suggest to you that you did not tu tu on Ta Bili's polo, because as soon as Ta Bili chased you, you went to your house?

A: Yes.

36. In re-examination she said, after the accused came home with the brush cutter, he chased the other children away but called her inside the house. Accused then told her to suck his penis and he put his tongue inside her mouth. She said the accused took out his penis and put it inside her mouth.
    
37. Third prosecution witness was AQ the elder sister of SM. On 05/04/2010, SM was sitting on the porch at the accused's house playing, while she was cooking. After cooking she called SM to come and have lunch but SM did not answer. She then sent her brother. He called out for SM and then he went away. After that she went towards the accused's house with a spoon. She saw SM coming out of Accused's house from the door leading to the porch. She smacked SM with the spoon, brought her home and told her to eat. Then SM told her 'A.. I have already suckled'. When the witness asked SM again SM said she had already suckled the accused's private part. She said SM did not cry when she hit SM with the spoon.
    
38. During cross examination she said, she held SM's hand and hit her leg twice. Witness said SM was not telling her that she was playing with other children when she brought SM home. She denied the suggestion that SM cried because she hit SM with the spoon. She said when she went to get SM, there was no one else in the accused's house. She denied the suggestion that the complaint came out only after she hit SM with the spoon.
    
39. Next prosecution witness was Police Officer Isoa Natui, who had been a police officer for 26 years. He was the investigating officer of this case. On 07/04/2010 he went to Kalekana with Constable Inoke and Constable Viliame to locate and arrest the accused. At Kalekana he remained in the police vehicle while the other two officers went in search of the accused. They returned with the accused after about 15 minutes. When he saw the accused he seemed normal and was not hand-cuffed. They took the accused and handed him over to the Totogo Police Station. It took about 10 to 15 minutes to reach Totogo Police Station from Kalekana. Accused was not threatened or ill-treated in anyway during the journey.
    
40. On the next day, he conducted the cautioned interview of the accused at the Major Crimes Unit and Constable Inoke was the witnessing officer. The interview was recorded in iTaukei language and he translated it to English. He tendered the cautioned interview of the accused recorded on 08/04/2010 as PE01 and the translation as PE 02. Then he read PE. He said at question 16 of the translation the word "know" is missing. He said the accused signed the interview 6 times and there was no threat or force used against the accused before, during or after the interview. To be fair for the accused, he tasked a woman police officer who was not part of the investigation, to formally charge the accused.
    
41. During cross examination he denied the suggestions that DC Viliame was not part of the arresting team and that he went with DC Inoke and two other officers to arrest the accused on 07/04/2010. He also denied the suggestion that the other officers in the vehicle were telling the accused to admit the allegation. He said DC Inoke Tui was not present during the entire interview. He said he informed the accused of his right to have a lawyer but did not mention about legal aid. He denied the suggestion that he told the accused to admit or otherwise other police officers will assault and torture the accused. He agreed that there were other police officers on 08/04/2010 at the Major Crimes Office. Then it was again suggested to him that the accused was scared because of his threat and because there were other police officers moving around. He denied this suggestion.
    
42. He denied the suggestion that the answers in the interview were not given by the accused but the accused simply repeated answers suggested by him. He said he and the accused read the interview before the accused signed.
    
43. During the reexamination he said DC Inoke went out of the interview room during the interview to arrange the accused's meals, but DC Inoke did not go out of the office. He said the other officers who were present in the office were doing their own work and they did not interfere with the interview he conducted.
    
44. Next prosecution witness was Corporal Inoke Tui. He accompanied Sgt Isoa and constable Viliame to Kalekana, Lami on 07/04/2010, to arrest the accused. He arrested the accused near the accused's house and escorted the accused with Constable Viliame to the police vehicle in which Sgt. Isoa remained. They handed over the accused to Totogo Police Station as it was late in the afternoon. On 08/04/2010, he escorted the accused from Totogo Police Station to the Major Crimes Unit for the cautioned interview and he was also the witnessing officer of the interview. He said PE 1 and PE 2 bears an accurate record of the interview of the accused.
    
45. In cross examination, he maintained that he went to arrest the accused with Constable Viliame and that the other officer who went with him was Sgt. Isoa who remained in the vehicle at Kalekana. He denied the suggestion that he told the accused not to deny the allegation because there is already a medical report in the station. He said the accused remained silent throughout the journey from Kalekana to Totogo Police Station. He denied the suggestion that other officers in the vehicle swore at the accused and the suggestion that he threatened the accused if the accused continue to deny, the other police officers in the station will assault the accused. He maintained that he was present during the whole process of the interview. He said the accused was not ill-treated before, during or after the interview.
    
46. DC Viliame Nagatalevu took the stand next. He said he accompanied Sgt. Isoa and DC Inoke Tuito when they went to arrest the accused at Kalekana. DC Inoke Tui made the arrest and thereafter the accused was handed over to Totogo police station. Then on the next day he escorted the accused from Totogo Police Station to Major Crimes Unit for the interview. He said the accused was not threatened or assaulted during arrest or when the accused was being taken to Totogo on 07/04/10.In cross examination he denied the suggestion to the effect that he was not part of the arresting team and maintained that he went to Kalekana with Sgt. Isoa and DC Inoke.
    
47. Next witness, Woman Police Officer Sainimili Cavauilati said on 08/04/2010, she was instructed by Corporal Isoa to charge the accused and she recorded the charge statement in iTaukei and then translated it into English. She tendered the original charge statement as PE 3 and the translation as PE 4. She said the accused did not make any complain to her. During cross examination she said she would not know if somebody threatened the accused before the accused was referred to her. She said while she was charging the accused, the other officers were moving around the office and Sgt. Isoa could see her and the accused.
    
48. Final witness for the prosecution was D/Sgt. Rupeni Taoka. On 08/04/2010, he served the lunch to the accused. At that time the accused seemed well and the accused did not make any complaint to him. Then on 09/04/2010, he and DC Inoke picked the accused from Totogo around 12.35pm and the accused was produced in court at 2.00pm. That time, the accused looked well and the interaction between the accused and DC Inoke was good. During cross examination he said he did not ask the accused whether the accused had any complaint to make.
    

Case for the Defence

49. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence.
    
50. Accused in his evidence said that on 05/04/2010 just before lunch, he was cutting grass at his front yard at Kalekana, Lami. He came home to take nylon coil because it had finished. When he came, he saw kids including SM at his house and he chased all of them away. After that he did not see SM. Then he took what he came for and went back to cut the grass. He said the police knocked at his door around 6.00pm. He said when he opened the door Inoke was standing next to the door and there were two other police officers standing in front of his yard. After he opened the door they verified his name and told him to accompany them to the police station. He complied. When he was taken to the police vehicle, he saw Mr. Isoa Natui in the vehicle. He said Mr. Natui was driving, Inoke was seated in front and he was seated in the back with two officers sitting by his sides.
    
51. On the way the police officers told him the offence he is alleged to have committed, and they started threatening and torturing. He told them that he does not know anything about the offence. Then they told him not to deny and if he does not admit, he will be assaulted. He said because he had not experienced something like that before, and because he had not committed any offence, he was afraid.
    
52. He said when he was being interviewed on 08/04/2010, Sgt. Isoa, kept on telling him to admit to the offence and if not he is going to pound chillies and rub all over his body. Sgt. Isoa told him to admit because there is a medical report with them. When Isoa was telling him this there were other officers but he could only see Sainimili Cavuilati sitting in her office. At that point, he was afraid and confused. Though Isoa told him to admit, he did not admit. He said Isoa started writing and he did not know what Isoa was writing. After looking at PE01 and PE02, he said the answers in the interview admitting the allegations were given by Mr. Isoa Natui during the interview. Then he signed the interview because Isoa told him to sign and he did not read before he signed. No one read the interview to him and he did not know what is written.
    
53. After the interview he was told by Isoa Natui to go to Sainimili and Sainimili started questioning him. He was still afraid and confused at that time. He said he did not make any complain to the police about the threats because he knew that no one will accept his version. He asked for forgiveness during the charge because Sainimili kept on telling him to do so. He said DC Inoke was not present during the interview and he only saw him bringing a carton of church clothes. He said he did not admit the offence as he has a family and he is also a grandfather. He said he is a good villager of Kalekana and had been a member of the neighborhood watch. He did not know about AQ taking SM from his house as he was not there in the house at that time.
    
54. In cross examination, de denied that he called SM into his house and that he forced SM to suck his penis. He maintained there were 3 police officers near his house at the time of arrest. He admitted that SM's mother confronted him on 05/04/2010. But thereafter when it was suggested to him that then he would have suspected the reason when the police came to arrest him on 07/04/10, he said he can't recall. He said he can read iTaukei and only some words and sentences in English. He said Sgt. Isoa did not ask him any question during the interview and Sgt. Isoa only wrote. He said officer Inoke was not present throughout the interview and he only saw officer Inoke coming with church clothes. He said he signed the interview and the charge statement because he was told to do so.
    

Analysis

55. The prosecution says that the accused on 05/04/2010 penetrated the mouth of SM at his house at Kalekana Lami. The accused totally denies this allegation.
    
56. The prosecution is relying on SM's evidence, evidence of AQ on recent complaint and the accused's alleged admissions to prove the charge.
    
57. The defence says that there are inconsistencies in SM's evidence as she had given two versions; and there are inconsistencies between SM's evidence and the evidence of her sister, witness AQ who gave evidence regarding recent complaint. The defence says SM's evidence is not credible, and SM admitted that she did not suck accused's penis because she left with the other children when the accused chased them. According to the accused the answers in the cautioned interview were not given by him but by the police.
    
58. Was SM, a truthful witness and can you rely on her evidence?
    
    • In her evidence in chief, SM said the accused pulled his penis out and pressed it into her mouth. She said the penis went inside her mouth. She also said thereafter when her sister (AQ) told her to eat; she told her sister that she had already suckled from the accused.
      
    • During cross examination, SM said "yes" to many questions asked by the defence counsel including the following;
      
      • Then Ta Bili chased all of you to go your houses?
      • As soon as Ta Bili chased everyone to go home you also went home?
      • When you went home at that time, you went and you had your lunch?
      • Did your mum, ever say to tell us that Tai Bili showed you his polo?
      • Did your mum also told you to tell us that Tai Bili told you to tutu his polo?
        
    • She also answered saying "that's true" to the following questions among others;
      
      • At any time before coming today, did Ana tell you to come and tell us today that Ta Bili has made you tutu on his polo?
      • In fact, Ana was the one who told you to say including the police that Ta Bili made you tutu on his polo?
        
    • Then when she was asked the following question, she answered "No".
      
      • Because Ana was hitting you so much that day, you started saying what Ana told you to say? That's why you are telling what Ana told you to say?
        
    • She also said "No" to the following question;
      
      • Mummy and Ana told you to say, tell the police, that Ta Bili made you to tutu on his polo?
        
    • SM responded to the following suggestion saying "Not true";
      
      • I suggest to you that on that day, Ta Bili did not make you tutu on his polo?
      • I put to you that you did not tutu on Ta Bili's polo? Is that true or not?
        
    • The final suggestion was; "I suggest to you that you did not tutu on Ta Bili's polo because as soon as Ta Bili chased you, you went to your house?". There are in fact two questions in this suggestion and SM answered "yes".
      
    • She also said during re- examination that AQ kept on hitting her with the spoon and that she cried. Whereas AQ said she hit SM only two times with the spoon and SM did not cry.
      
    • During re-examination, SM said that the accused did chase the other kids, but called her inside the house and she affirmed that the accused took his penis out and he put it inside her mouth.
      
59. Considering my directions on dealing with inconsistent evidence, you may consider whether there are inconsistencies in SM's evidences. If you find that there are inconsistencies then you should consider whether they are significant and relevant. Then you should decide what weight you give to SM's evidence.
    
60. With regard to the evidence of AQ regarding what SM related to her when she told SM to eat that day; if you accept that evidence, you should consider whether that complaint was made without delay and whether SM has sufficiently informed AQ of the alleged act of the accused. If your answer is yes to both the above questions, then you may consider that SM's credibility is strengthened in view of that evidence.
    
61. Before you consider PE02 may I remind you that you should first consider whether you are sure that the accused made the admissions in PE02. If you are sure that the accused did make the admissions in PE02, then you should decide whether they are true. You should only rely on the admissions which you would consider to be true.
    
62. Considering the evidence you decide to accept as true, you decide whether the prosecution has proved beyond reasonable doubt that this accused penetrated the mouth of SM with his penis.
    
63. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused's evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
64. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.
    
65. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each offence;
    
    • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is 'not guilty'.
      
    • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be 'not guilty'.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of an offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proven the two disputed elements beyond reasonable doubt. If you are sure that the prosecution has proved both elements, then your proper opinion would be that the accused is 'guilty' of the offence.
      
66. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
67. Your possible opinion is;

Rape– guilty or not guilty

68. Any re-directions?
    

Vinsent S. Perera
JUDGE

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