IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

							Criminal Case No.: HAC 002 of 2016

STATE

V

WAISALE ROVA LAVETA

Counsels			:	Mr. M. Vosawale with Mr. S. Seruvatufor the State
				:	Mr. M. Yunus for the Accused

Dates of Trial		:	14, 15, 16 June, 2016

Date of Summing Up	:	20 June, 2016

SUMMING UP

(The name of the complainant is suppressed; the complainant will be referred to as “SS”).

Ladies and Gentleman Assessors.

1.	It is now my duty to sum up this case to you.

ROLE OF JUDGE AND ASSESSORS

2.	In doing so, I will direct you on matters of law, which you must accept and act upon.  On matters of facts, however, which witness to accept as reliable, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves.  If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you wish.

3.	So, if I express an opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions.  You are the judges of facts.

4.	You decide what facts are proved and what inferences you properly draw from those facts.  You then apply the law as I explain it to you and form your own opinion as to whether the accused is guilty or not.

5.	State and Defence Counsels have made submissions to you about how you should find the facts of this case.  That is in accordance with their duties as State and Defence Counsels in this case.

6.	Their submissions were designed to assist you as judge of facts.  However, you are not bound by what they said.  As representatives of the community in this trial it is you who must decide what happened in this case and which version of the facts to accept or reject.

7.	You will not be asked to give reasons for your opinions and your opinion need not be unanimous.  Youropinions are not binding on me but it will assist me in reaching my judgment.

BURDEN OF PROOF AND STANDARD OF PROOF

8.	As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused.  There is no obligation on the accused to prove his innocence.  Under our system of criminal justice, an accused person is presumed to be innocent until he or she is proven guilty.

9.	The standard of proof in a criminal trial is one of proof beyond reasonable doubt.  This means you must be satisfied so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty.  If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.

10.	Your decision must be based exclusively upon the evidence which you have heard in this court and nothing else.  You must disregard anything you must have heard about this case outside of this courtroom.

11.	You must decide the facts without prejudice or sympathy to either the accused or the victim.  Your duty is to find the facts based on the evidence without fear, favour or ill will.

12.	Evidence is what the witnesses said from the witness box, documents or other materials tendered as exhibits and the Agreed Facts.  (I will address you about the Agreed Facts a bit later in my summing-up).

INFORMATION

13.	The accused is charged with the following offences: (a copy of the information is with you).

COUNT ONE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree No. 44 of
		2009.

Particulars of Offence
WAISALE ROVA LAVETA on the 4th day of December 2015, at Suva in the Central Division, penetrated the vagina of “SS” with his fingers without her consent.

COUNT TWO
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence
WAISALE ROVA LAVETA on the 4th day of December 2015, at Suva in the Central Division, unlawfully and indecently assaulted “SS” by touching her breast.

14.	To prove the offence of rape the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:

(a)	The accused;

(b)	Penetrated the vagina of the complainant “SS” with his fingers;

(c)	Without her consent;

(d)	The accused knew or believed the complainant “SS” was not consenting or didn’t care if she was not consenting at the time.

15.	The slightest of penetration of the complainant’s vagina by the accused’s fingers is sufficient to satisfy the act of penetration.

AGREED FACTS
16.	In this trial the prosecution and the defence have agreed to certain facts which have been made available to you.  This means you should consider these facts as proven beyond reasonable doubt.

17.	The Agreed Facts are as follows:
“1.	“SS” is the complainant in this matter
2.	WaisaleRovaLaveta is a school teacher in Suva
3.	WaisaleRovaLaveta knows “SS” because he was once married to her older sister
4.	The complainant came to Suva during the December school holidays in 2015
5.	Whilst the complainant was in Suva for the holidays she was residing at her aunt’s place at 72 Malau St, Vatuwaqa
6.	On the 4th of December 2015 the complainant was helping her aunt with chores around the house.”

18.	From the Agreed Facts, you will have no problems in accepting as proven beyond reasonable doubt that the accused was a school teacher in Suva, has known the complainant because he was once married to the complainant’s elder sister.  The complainant came to Suva during the December school holidays in 2015.  Whilst in Suva, she was residing at her aunt’s residence at 72 Malau Street, Vatuwaqa.  On 4th December 2015, the complainant was helping her aunt with household chores.

19.	In this trial the accused has denied all the elements of the offence of rape.  It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his fingers without her consent and the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time that is 4th December 2015.

20.	The first element of the offence is concerned with the identity of the person who committed the offence.  At trial thedefence did not dispute that it was not the accused as alleged.

21.	The second element is the act of penetration of the complainant’s vagina by the accused with his fingers.

22.	Like I said earlier, the slightest of penetration of the complainant’s vagina with the fingers is sufficient.

23.	In respect of the third element of consent, you should bear in mind that consent means to agree freely and voluntarily and out of her own free will.  If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority, then that consent is no consent at all.

24.	If you are satisfied that the accused had penetrated the vagina of the complainant with his fingers and she had not consented, you are then required to consider the last element of the offence that is whether the accused knew or believed that the complainant was not consenting or did not care if she was not consenting at the time.

25.	You will have to look at the conduct of both the complainant and the accused at the time and the surrounding circumstances to decide this issue.  

26.	If you are satisfied beyond reasonable doubt that the prosecution has proved all the elements of rape as explained above, then you must find the accused guilty of rape.  If on the other hand you have a reasonable doubt with regard to any of those elements concerning the offence of rape, then you must find the accused not guilty.

27.	The accused is also charged with a count of sexual assault.  To prove the offence of sexual assault the prosecution must prove the following beyond reasonable doubt:-

(a)	The accused;
(b)	Unlawfully and indecently;
(c)	Assaulted the complainant “SS” by touching her breast.

28.	The accused denied all of the above.  It is for the prosecution to prove beyond reasonable doubt that it was the accused who had unlawfully and indecently assaulted the complainant “SS” by touching her breast.

29.	The first element of the offence is concerned with the identity of the person. At trial the defence did not dispute that it was not the accused as alleged.  

30.	The words “unlawfully” and “indecently” in respect of the second element of the offence of sexual assault means without lawful excuse and that the act has some elements of indecency that any right minded person would consider such conduct indecent.

31.	Assault is the unlawful use of force on the complainant by the act of touching her breast.  You should ask yourself:

a)	Whether you consider the force which was used could have been sexual because of its nature; and

b)	if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual in nature.

32.	If you are satisfied that the prosecution has proved all the above elements of the offence of sexual assault beyond reasonable doubt, then you must find the accused guilty of the offence of sexual assault.  However, if you have a reasonable doubt in respect of any element of the offence of sexual assault then you must find the accused not guilty of the second count of sexual assault.

33.	In this case, the accused is charged with two offences, you should bear in mind that you are to consider each count separately from the other.  You must not assume that because the accused is guilty on one count that he must be guilty of the other as well.

34.	You must be satisfied that the prosecution has proved all the elements of both counts beyond reasonable doubt in order for you to find the accused guilty of both counts.

35.	As a matter of law, I have to direct you that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated.  This means if you are satisfied with the evidence given by the complainant and accept it as reliable and truthful you are not required to look for any other evidence to support the account given by the complainant.

PROSECUTION CASE
36.	The prosecution called four (4) witnesses to prove its case against the accused.
37.	The complainant (PW1) informed the court that she was 15 years of age, a Form 4 student of Richmond Methodist High School, born on 14 August 2000.

38.	On 4th December, 2015 she was in Suva, she had come from Kadavu to spend her school holidays.  In Suva she was staying at her grandmother’s house namely LanietaTalei.  On this day the complainant was in the house with her grandmother and Maria.

39.	The complainant was folding clothes in the house near the T.V.  After a while the accused came into the house and told the complainant that he wanted to talk to her about her sister.  The complainant agreed to talk to the accused but where she was sitting.

40.	The accused asked her to go to the bathroom to talk. According to the complainant, the accused wanted to share with her something about her sister.  The complainant noticed that the accused was drunk.  When the complainant insisted that the accused talk to her where they were, accused told her that the owner of the house meaning the complainant’s grandmother will be angry if they are seen.

41.	The complainant went with the accused to the bathroom which was about three (3) meters from where she was sitting.

42.	When they entered the bathroom, the accused told the complainant that he did not like how her father had taken away her sister from him. Thereafter he started to touch her breasts, then her vagina and he kissed her lips.  He used his left hand to touch her breasts, with the right hand he was closing her mouth as a result she was not able to raise any alarm.

43.	The accused had locked the door, pushed her against the wall, pulled up her skirt and touched her vagina.
44.	The complainant said she could feel his left hand under her skirt.  The accused used his three fingers to touch her vagina and the fingers were going inside her vagina.

45.	The accused moved closer to her as she tried to resist him.  At this time she felt his three fingers going into her vagina.

46.	She further said that she did not agree to him touching her breasts or inserting his three fingers into her vagina.  This incident did not take long.

47.	Her grandmother called and that is when the accused removed his hand from her mouth and from her vagina.Upon hearing her grandmother call her name, the complainant responded by saying “Yes”.  By this time the accused opened the door of the bathroom and went out first, the complainant followed.  As soon as she came out of the bathroom, she cried.  Her grandmother then took her to the bedroom.  The grandmother saw blood on the shoulder of her vest which she was wearing that time.  It was on the right side of the vest.  When shown the vest, the complainant pointed to the stains which she said were blood stains on the vest she was wearing.  This vest has been marked as prosecution exhibit no. 1.

48.	According to the complainant the accused had touched her vagina and then wiped his hand on the shoulder of the vest she was wearing. Upon seeing the blood on the vest, the complainant’s grandmother asked the complainant to have her shower and then get ready to go to the Police Station. On the same day the matter was reported at the Nabua Police Station and the complainant was medically examined by a Doctor at the CWM Hospital.

49.	In cross examination, it was suggested to the complainant that in the bathroom the accused had asked her age which she said was 16 years.  This was denied by her.  The complainant agreed that when they entered the bathroom, the accused drew the bathroom curtain.  
It was suggested to complainant that when the accused went to lock the door she could have called for assistance but she did not. The reason why she went into the bathroom was to hear the story the accused wanted to tell about her sister.

50.	The complainant denied the suggestion that the accused had pressed her mouth, according to her the accused had closed her mouth with his right hand.  The complainant confirmed in cross examination that the accused had touched her breasts by sliding his hand from under her clothes.  The complainant denied allowing the accused to touch her breasts, she also denied allowing the accused to touch her vagina or penetrating it. The complainant said that the clothes she was wearing that day which are exhibited in court, was given to the Police the same day.  The panty that the complainant was wearing that day was shown to her and suggested that there was no blood stains on it. To this the complainant said that after having her bath she washed her panty and later gave it to the police.

51.	It was further suggested to the complainant that she was having her menstruation to which she said “no”.When her grandmother called her name she did not respond because she was really frightened.

52.	She said that she did not make up a story to implicate the accused after her grandmother came to know she was in the bathroom with the accused.  The complainant agreed that when she went with her grandmother to the bedroom after the incident she told her grandmother that the accused had touched her vagina by forcing his finger inside her panty.

53.	She agreed at that time she had not told her grandmother that the accused had inserted his fingers inside her vagina.

54.	During the cross examination, the defence had put to the complainant a statement she had given to the police on 4th December, 2015. The defence has also exhibited this statement of the complainant as Defence Exhibit 1. 
55.	The defence suggested to the complainant that she told police one version and has given a different version in court.  In her police statement the complainant was stated as saying to the Police Officer who recorded her police statement at page 1, line 49 as follows: “After I fold the clothes, I went to the toilet to relieve myself. After relieving myself, I opened the door to come out of the toilet and Waisale was waiting outside to come in.  He was drunk. He was blocking my way and when I want to come out, Waisale pushed me back inside forcefully.”  In her evidence, the complainant had said that when folding clothes, the accused approached her to talk about her sister.  When questioned further, the complainant maintained that whatever she said in court was true.

56.	The complainant agreed there was a difference between the two versions because she consented to the acts of the accused, however, in re-examination she maintained that she did not consent to what the accused had done to her that day.

57.	Another inconsistency that the defence brought about is contained in line 25,page 2 of the complainant’s police statementwhich states “…and then he touched one of my breast. He touched my left breast.”  When the complainant was asked that she told the court the accused had touched her breasts but in her police statement she specifically mentioned the left breast, to this the complainant agreed the version in the police statement was correct.

58.	Ladies and Gentleman Assessors, the learned counsel for the accused in this regard was cross-examining the complainant about some inconsistencies in the statement she gave to the police when the facts were fresh in her mind with her evidence in court.  I will now explain to you the purpose of considering the previously made statement of the victim with her evidence given in court.  You are allowed to take into consideration the inconsistencies in such a statement when you consider whether the victim is believable and credible as a witness.  However, the police statement itself is not evidence of the truth of its contents.

59.	It is obvious that the passage of time can affect ones accuracy of memory.  Hence you might not expect every detail to be the same from one account to the next.

60.	If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the issue that you’re considering.  If it is significant, you will need to then consider whether there is an acceptable explanation for it.  If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected.  If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.

61.	The complainant also clarified to the court that when she said she did not raise any alarm, she meant she did not shout and the reason why she did not shout was because she was scared.  She also agreed that there was nothing stopping her from shouting although her mouth was not covered.

62.	Thenext prosecution witness was LanietaVasu (PW2).  She informed the
court that on 4th December, 2015 she was at her house at Vatuwaqa with her daughter-in-law, daughter-in-law’s child, complainant “SS” and her namesake who is 4 years of age.  The accused is the father of her namesake,who lives with the witness and her family and has been with them for the last 2 years.

63.	On 4th December 2015, the accused was drinking at the neighbour’s house and he would come and use the downstairs toilet in her house.  The witness saw the accused come into the house to use the toilet.  When she did see him for a while she thought he would be sleeping in the toilet.The reason why she thought the accused was sleeping in the toilet is that one of his friends had brought a glass of beer but left without giving it to the accused.

64.	The witness was sitting in the verandah of her house when her namesake came looking for her aunt the complainant.  Witness told her namesake to go upstairs and look for her there again the child came back informing her that she could not find her aunt.  Witness then started looking for the complainant when she did not find her inside the house she went to the back of the house where the toilet was.  Witness started calling the name of the accused who responded from inside the toilet.  She asked him to open the door, she further inquired if the complainant was also inside, the complainant did not respond. When the door was opened by the accused, witness saw the complainant crying, witness went and hugged her and took her to the bedroom upstairs.

65.	According to the witness the complainant looked scared and ashamed.  Witness after getting the complainant seated asked her what happenedthe reply she got was “nothing happened”.  At this time the witness saw blood on the vest of the complainant so shefurther inquired where the blood had come from. She asked whether complainant had sexual intercourse with the accused to which the complainant answered ‘yes’ and continued crying nodding her head in agreement. Upon hearing this, the witness told the complainant that they will together go and report this to the police at Nabua Police Station.

66.	At the Police Station, a woman police constable asked the complainant what had happened.  She informed the officer that the accused touched her and that there was no sexual intercourse.  Thereafter the witness and the complainant went to the CWM Hospital so that a medical examination could be carried out.  The medical examination was done by a female Doctor at the hospital.

67.	In cross examination, the witness said after she returned from the hospital with the complainant she asked her how she ended up in the toilet to which she was told that the accused wanted to have a conversation with her.  In the toilet the accused told the complainant that he was angry because her father had taken her sister back to the village away from him. In re-examination, the witness clarified that the complainant told her at the Police Station the accused had touched her.

68.	Upon questioning by the court as to whether the complainant had explained to her what she meant by “she was touched by the accused.”
The witness said at the Police Station the complainant told the witness that the accused had touched her breasts and kissed her.

69.	It was after she had seen blood on the vest of the complainant that she askedthe complainant whether she had sex with the accused.  According to the witness, the complainant told her that she was having her menses after they returned from the Police Station.  Witness agreed that although the complainant had not told her anything about the accused inserting his fingers into her vagina she came to know about it when the complainant told the PoliceOfficer in her presence.

70.	Ladies and Gentleman Assessors victims of sexual offences may react in different ways to what they may have gone through.  As members of the community, it is for you to decide whether it was acceptable for a child of 15 years to not complain fully to her grandmother.  Some in distress or anger may complain to the first person they see.  Some due to fear, shame or shock or confusion, may not complain for sometime or may not complain at all.  A victim’s reluctance to complain in full as to what had happened could be due to shame or respect for an elder or shyness when talking about matters of sexual nature.  Here according to the complainantshe had informed her grandmother that the accused had touched her vagina by forcing his finger inside her panty.

71.	The grandmother after the alleged incident had asked the complainant what happened the reply she got was “nothing happened”.  At this time the grandmother saw blood on the vest of the complainant so she further inquired where the blood had come from. She asked the complainant whether she had sexual intercourse with the accused to which the complainant answered ‘yes’ and continued crying nodding her head in agreement.The grandmother furthersaid it was at the Police Station the complainant informed her that the accused had touched her breasts and kissed her.

72.	You are entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says that the complainant’s complaint to her grandmother at the Police Station on the same day is consistent with her account of both the alleged incidents and therefore she is more likely to be truthful.  On the other hand, the defence proposed that the complainant did not inform her grandmother immediately after the incident but gave an inconsistent version to the grandmother hence she was inconsistent in her complaint so should not be believed.

73.	It is for you to decide whether the evidence of recent complaint helps you to reach a decision.The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness.  This is a matter for you to decide whether you accept the complainant as reliable and credible.  The real question is whether the witness was consistent and credible in her conduct and in her explanation of it.

74.	The next prosecution witness was Doctor AvelinaRokoduru.  She is a graduate of Fiji School of Medicine with an MBBS Degree.  She has been a Medical Practitioner for the past five (5) years, has worked at the CWM Hospital, Kabara Medical Centre and from this year she is based at the Lautoka Hospital.

75.	On 4th December, 2015 the Doctor had examined the complainant at the CWM Hospital. Her findings are noted in the Fiji Police Medical Examination Form.  The Doctor stated that the patient was not having her menstruation. The Medical Report of the complainant was exhibited as Prosecution Exhibit no. 4.

76.	In her conclusion the Doctor said that the injuries were fresh being abrasion and contusion to the external genatalia that appeared to have been sustained within the last few hours (2 – 3 hrs).  She also mentioned that the injuriesseen on the patient could be as a result of non consent.

77.	The Doctor in re-examination clarified that the vagina was an elastic tissue, if three (3) fingers were inserted it would go back to its normal size and also was able to stretch to accommodate that size.  The hymenal ring does not completely cover the vagina. It is a ring of tissue in the vagina so it will still be possible to have penetration into the vagina without breaking the hymen or causing injury to the vagina.

78.	You have heard the evidence of Dr Rokoduru who has been called as an expert on behalf of the prosecution.  Expert evidence is permitted in a criminal trial to provide you with information and opinion which is within the witness expertise.  It is by no means unusual for evidence of this nature to be called and it is important that you should see it in its proper perspective.  The Medical Report of the complainant is before you and what the Doctor said in her evidence as a whole is to assist you.

79.	An expert witness is entitled to express an opinion in respect of his or her findings and you are entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by the Doctor. When coming to your own conclusions about this aspect of the case you should bear in mind that if, having given the matter careful consideration, you do not accept the evidence of the expert you do not have to act upon it.  Indeed, you do not have to accept even the unchallenged evidence of the Doctor.

80.	You should remember that this evidence of the Doctor relates only to part of the case, and that whilst it may be of assistance to you in reaching your decisions, you must reach your decision having considered the whole of the evidence.

81.	The last witness for the prosecution was DC 3642 JosuaGagalia who was the investigating officer in this case.  This officer has 10 years of experience in the Fiji Police Force.  He interviewed the accused on 7th December, 2015 at the Nabua Police Station in the English language.  According to the officer, the accused was accorded his rights which he understood but did not wish to exercise those rights.  The accused signed to confirm his rights were given to him.

82.	The accused did not complain of anything before the interview or during the interview.  The officer confirmed that no force, threat or offer of inducement was made to the accused.  At the conclusion of the interview, the accused was given to read his interview.  Furthermore the accused was asked whether he wanted to add, delete or alter anything in the interview.  The accused did not exercise this opportunity as well.  The interview was signed by the accused and countersigned by the officer.  The interview was conducted from 9.55am to 3.00pm.

83.	In cross examination, it was put to the Police Officer that he had not correctly put to the accused before the interview commenced the cautionary words based on the guidelines contained in the Judge’s rules.  It was further suggested that the oversight has caused the caution interview to be a nullity.  The officer disagreed and clarified that such omission did not nullify the caution interview of the accused.

84.	The caution interview is before you, the answers in the caution interview are for you to consider as evidence but before you accept the answers, you must be satisfied that the answers were given by the accused and they are the truth.  It is entirely a matter for you to accept or reject the caution interview.  There was no suggestion by the defence that the answers given by the accused were not given voluntarily.

Ladies and Gentleman Assessors
85.	At the end of the prosecution case you heard me explain to the accused his options.  He has these options because he does not have to prove anything.  The burden to prove his guilt beyond reasonable doubt remains with the prosecution at all times.
He could have remained silent but he chose to give sworn evidence and be subjected to cross-examination.

DEFENCE CASE
86.	The accused in his evidence informed the court that on 4th December, 2015 he was living with his aunty LanietaVasu (PW2) and her family at Vatuwaqa.  He was staying there for two (2) years.  On this date he was drinking alcohol at his neighbour’s house.At around 10.00am he slept at the neighbour’s house, woke up at 2.00pm in the afternoon, went to use the washroom in his aunt’s house.  When he reached home, he saw his aunty sitting in the verandah of the house with his five (5) year daughter from his ex-wife.

87.	When he went inside the house, he saw the complainant.  The complainant is his ex-wife’s sister.  He has been separated from his wife since 2011.  He saw the complainant folding clothes so he went past her to the washroom.  After relieving himself he went outside the house.  From there he saw the complainant sweeping the kitchen she was looking at him so he called her by waving his hand.  The complainant came to him he asked her if they could talk about her sister.  She agreed and asked where they could talk because aunty was around.

88.	The accused suggested the bathroom he went in first followed by the complainant.  In the bathroom the accused was talking about what had happened to his relationship with her sister.  After this, he asked the complainant her age to which she said 16 years.  He then asked her if he could have a relationship with her to which she agreed.  He asked her if he could kiss she agreed and then they kissed.  He asked her if he could touch her breast, she agreed then he touched her breast.

89.	According to the accused, he only touched one breast.  He touched her breast from outside her bra.  He asked her again if he could touch her private part, her vagina to which she agreed, so he touched her vagina.  When the accused put his hand inside her panty and touched her vagina, he could feel wetness so he lifted his hand out and then wiped his hand on the back of the vest the complainant was wearing.  The accused saw it was blood.  Upon inquiry, the complainant told him she was having her menstruation.

90.	At this moment he heard his aunty calling him and the complainant.  The accused opened the door and went out of the bathroom he did not talk to his aunty.  Aunty took the complainant with her and the accused went to the neighbour’s house. He said he was in the bathroom with the complainant for about five (5) minutes.

91.	In respect of his caution interview, the accused said he was given to read his interview but he did not read it because the interview was lengthy and he believed the Police Officer had written the correct version of what he had said.  The interview was conducted in English language.

92.	In cross-examination the accused said he has been a teacher for nine (9) years.  In those 9 years, English was the mode of communication in school.  The accused agreed if I-taukei language was interpreted into English language he would understand clearly.

93.	When he went to the washroom on 4th December, he was not completely sober. The accused said he could have taken the complainant to his bedroom but he did not, he took her to the bathroom so that no one else in the house would know what was happening in the bathroom if the door was closed.

94.	The accused denied that the complainant cried because he had forced himself on her or because he had touched her breast or he had used his left finger inside her vagina.

95.	The accused agreed that the complainant was alone in the house at the time when they went into the bathroom.  He further agreed that the complainant agreed to talk to him after he told her that he wanted to talk to her about what had happened to her sister.  It was not about the accused wanting to have a relationship because the thought about having a relationship only came to his mind when he was with the complainant in the bathroom.

96.	In re-examination, the accused denied lying to the complainant to get her into the bathroom with him.

97.	That was the evidence for the defence.

Ladies and Gentleman Assessors

98.	You heard the evidence of all the witnesses.  If I did not mention a particular piece of evidence that does not mean it’s unimportant.  You should consider and evaluate all the evidence in coming to your decision.	

ANALYSIS

99.	The Prosecution says in respect of the rape count that the accused forced his three (3) fingers into the vagina of the complainant without her consent and in respect of the sexual offence count the accused unlawfully and indecently assaulted the complainant by touching her breast.  It is not in dispute that it was the accused and nobody else.  What is in dispute is whether he had penetrated the vagina of the complainant with his three (3) fingers without her consent.  In respect of the second count, it is not in dispute that it was not the accused. What is in dispute is whether he had unlawfully and indecently assaulted the complainant by touching her breast.  You have heard two (2) different versions of an incident which took place in private between the complainant and the accused.

100.	The complainant stated in her evidence that she did not consent to the accused to insert his three (3) fingers into her vagina on 4th December 2015. She further said that she did not consent to the accused to unlawfully and indecently assault her by touching her breast.  The accused says that he touched the vagina of the complainant and also touched her breast with her consent.  The complainant said she was asked by the accused to follow him to the bathroom since he wanted to share with her something about her sister.  The complainant followed the accused into the bathroom.

101.	The complainant’s grandmother who is also the owner of the house where the alleged incident took place started looking for the complainant.  When the complainant’s grandmother called the name of the accused and the complainant from near the bathroomthe accused opened the door and came out followed by the complainant. The grandmother saw the complainant crying. She hugged the complainant and took her to her bedroom.  She observed the complainant was scared and ashamed.  When the grandmother inquired whether the accused had done something to her, the complainant replied “nothing happened”. 

102.	It was when the grandmother saw blood on the vest of the complainant that she asked the complainant whether she had sexual intercourse with the accused. The complainant said yes.The grandmother took the complainant to Nabua Police Station.  At the Nabua Police Station upon questioning by police in the presence of the grandmother, the complainant told the Police Officer that the accused had inserted his three (3) fingers into her vagina and had touched her breast and kissed her.

103.	On the day of the incident, the complainant was medically examined by a Doctor.  The Doctor testified that in her professional opinion there were fresh injuries to the external genatalia being abrasion and contusion which appears to have been sustained within the last few hours that is two (2) to three (3) hours before she was brought to the hospital.  There was a fresh abrasion in towards the hymen and a fresh contusion on the opening of the vagina.  She further said that the complainant was not menstruating and also forceful penetration into the vagina could not be ruled out.  Although the hymen ring was intact, it did not mean that there was no penetration.

104.	The Police Officer who interviewed the accused tendered the caution interview of the accused.  You are to consider the answers contained in the caution interview and what weight you give is entirely upon you.

105.	There were some inconsistencies with the evidence the complainant had given at the trial. The defence says such inconsistencies affect her credibility and that she should not be believed. It is for you to decide whether the inconsistencies were significant and whether it affects adversely the reliability and credibility of the complainant.

106.	The accused in his evidence told the court that he touched only the left breast of the complainant and her vagina with her consent.  He further informed the court that he took the complainant to the bathroom and not anywhere else in the house so that nobody can see them in the bathroom if the door was closed.

In the bathroom whilst he was talking to the complainant about what her father had done in taking her sister away from him it came to his mind that he wanted to have a relationship with her. 

107.	It was upon her consent that he touched her breast and her vagina.  When he touched her vagina, he felt blood in his hand which he had wiped on the vest she was wearing.  According to the accused, the complainant told him that she was having her menses.  The accused denied that he forced his three (3) fingers into the vagina of the complainant and/or that he unlawfully and indecently touched her breast.  However, he maintained that he only touched her left breast but with her consent.

Ladies and Gentleman Assessors.
108.	Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you.  You must decide which witnesses are reliable and which are not.  You observed all the witnesses giving evidence in court.  You decide which witnesses were forthwith and truthful and which were not.  Which witnesses were evasive or straight forward?You may use your common sense when deciding on the facts.  Assess the evidence of all the witnesses and their demeanour in arriving at your opinions.

109.	You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused have been proven beyond reasonable doubt.

110.	Your possible opinions are:-

Count One: 	RAPE:  GUILTY OR NOT GUILTY

Count Two:	SEXUAL ASSAULT: GUILTY OR NOT GUILTY

Ladies and Gentleman Assessors.

111.	This concludes my summing up you may now retire and deliberate together and once you have reached your individual opinions please inform a member of my staff so that the court can be reconvened.

112.	Before you do so, I would like to ask Counsel if there is anything they might wish me to add or alter in my summing up.

Sunil Sharma
Judge

At Suva
20 June 2016

Solicitors
Office of the Director Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused