IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 181 OF 2011

BETWEEN :

STATE

AND :

AB

Counsel : Mr. Niudamu for State
Mrs. Narara for the Accused 

Date of Hearing : 3rd of February 2016
Date of Summing up : 4th of February 2016

SUMMING UP

1.	The names of the victim and the accused are suppressed. 

2.	The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions. 

3.	Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law. 

4.	You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion. 

5.	I may comment on the facts if I think it will assist you when 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 facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts. 

6.	You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits and agreed fact. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you. 

7.	If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony, agreed facts and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advice you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when deliver my judgment. 

8.	Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.

9.	Matters which will concern you are the credibility of the 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 is correctly recalling the facts about which he or she has testified. 

Burden and Standard of Proof
10.	I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing. 

11.	The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law. 

12.	The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person. 

Information

13.	The accused is being charged with one count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Decree. The particulars of the offence are that;

"AB between the 1st day and the 30th day of June 2011 at Lautoka in the Western Division penetrated the vagina of SO, aged 11 years and 11 months old with his fingers" 

14.	Section 207 ( 1) and (2) (b) of the Crimes Decree states that; 

Any person who rapes another person commits an indictable offence,
A person rapes another person if-

a)	The person penetrates the vulva, vagina or anus of the other person to any extend with a thing or a part of the person's body that is not a penis without the other person's consent"

15.	Accordingly, if a person penetrated with any part of his body into the vagina, vulva or anus of a person without that person's consent, then it constitutes the offence of rape as stipulated under Section 207 (1) and (2) (b) of the Crimes Decree. If you are satisfied that there was some penetration, however slights, that is sufficient to establish the element of penetration under Section 207(1) and (2) (b). 

16.	Section 207 (3) of the Crimes Decree states that a child under the age of 13 years is incapable of giving consent. The prosecution and the defence agreed that the victim was about 12 years old at the time of this alleged offence was committed. Hence, you are not required to consider the element of consent as the law recognises that a person under the age of 13 years is incapable of giving consent. 

17.	Accordingly, the main elements of the offence of rape as charged in the information are that;

i)	The accused, 
ii)	Penetrated the vagina of the victim with his finger,

18.	The offences of sexual nature do not require evidence of collaboration. If you are satisfied and accepted the evidence of the victim as true and reliable testimony, then you are not required to look for any other evidence to support or collaborate her evidence. 

19.	One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances or socially constructed myths for a rape or a rapist or a victim of rape. 

20.	Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course the hearing. 

21.	Any person who has been raped must have undergone trauma. It is impossible to predict how the victim react, either on the period following the incident or when speaking publicly about it either in court or in the police station. The victim's reaction to the alleged incident and subsequent behaviours could depend on various factors, such as the feeling of shame and fear, victim's relationship with the perpetrator, the control that the perpetrator had towards the victim, her social surroundings, nature of her character, and the circumstances of the offending environment, etc. Those who have been victims of rape react differently. Some may display obvious signs of distress, others may not. The reason is that every person has his or her own way of coping with such incidents. 

22.	I now kindly request you to draw your attention to the agreed facts, which are before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution. 

23.	I now draw your attention to summarise the evidence presented by the prosecution and the defence during the hearing.

24.	The first witness of the prosecution is the victim. She stated in her evidence that she was staying with her mother, grandmother, uncle and aunt at Naikabula during the period between 1st of June to 30th of June 2011. One of the nights during the said period, while she was sleeping, she felt that someone was touching her body. She saw that it was her uncle, who was sleeping on the sofa, was touching her body. It was small a house with no separate rooms. The bed and the sofa was joined together. She was sleeping on the bed with her mother, while the uncle slept on the sofa. He put his hand inside her dress and undergarment. He then started to touch her breast and private part. He then inserted his finger into her vagina. 

25.	During the cross examination, she stated that the light of the radio was on and it allowed her to recognise her uncle. She went further and explained the reason why she informed the police that the lights were off. It was because other lights in the house were off. The radio had been switch on during the night and it had a light. She stated that one of the teachers at her school overheard her when she was telling her friends about what her uncle did to her. 

26.	The second witness of the prosecution is WDC Asenaca Taufa, who is the interviewing officer of the caution interview of the accused person. She stated in her evidence that the caution interview was conducted in English language at the Crimes Office of the Lautoka Police Station on 13th of September 2011. It was recorded in question and answer format. The accused was given his right to consult a lawyer. She had further explained the accused of his other rights in caution interview. WDC Asenaca stated that the accused was not intimidated, coerce, threaten, forced or made promise before or during the record of his caution interview the accused has not made any complain to her. There is no one else present during the recording of the caution interview apart from her and the accused. The accused was looked fit for the caution interview. 

27.	During the cross examination, WDC Asenaca admitted that she did not specifically asked the accused that whether he was fit to conduct the caution interview. However, she explained that she asked him that whether he was suffering from any kind of sickness, for which the accused answered "no". She confirmed that the accused has his breakfast. She then concluded that the accused was fit to commence the caution interview. She further stated in her evidence that she over sighted to put her signature on the caution interview. However, the accused has signed on the caution interview in order to confirm that it was his own answers. 

28.	At the conclusion of the prosecution case, the accused person was explained about his rights in defence. He advised the court that he will remain in silence and does not wish to call any other witnesses for his defence. It is a right of the accused to be in silence and not to call any other witnesses for the defence. 

29.	I summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.

30.	The prosecution presented the evidence of the victim and the interviewing officer as direct evidence and tendered the caution interview of the accused and the medical report of the victim as documentary evidence. As I mentioned above, you are allowed to consider the contents of the Medical Report as proven facts beyond reasonable doubt as it was agreed by the parties. In respect of the record of caution interview of the accused person, you are allowed to take into account of it if you are satisfied with the truthfulness of the content of the caution interview. 

31.	It is for you to decide that whether the victim clearly saw the person whom she alleged that inserted his finger into her vagina in that night. 

32.	The learned counsel for the defence in her closing submissions discussed the issue of recent complaint. The victim has neither informed this incident to her mother nor any other close family members of her. It was revealed during the cross examination of the victim that one of the teachers at her school over heard her, when she was telling her friends about what her uncle did to her. There is no evidence regarding when that was happened. No evidence regarding when the matter was reported to the police. The prosecution did not call the teacher who overheard the victim when she was telling her friends about this incident to give evidence. 

33.	The evidence of recent complaint does not have the capacity to collaborate the evidence of the victim. However, it will affect the consistency and reliability of the evidence of the victim. The victim stated in her evidence that the uncle told her not to tell anyone about this incident. You must bear in mind that a sexually molested and traumatised child may not openly discuss such issues of sexual matters with others as freely as adults. Various reasons such as shame and fear, family name, cultural taboos, the control that the perpetrator had towards her in her life or within her domestic environment etc. may have prevented her complaining about this incident As the judges of facts, it is your duty to consider these issues and decide what weigh you will give to the credibility and consistency of the evidence of the victim. However, it is important to be mindful that speculation has no part in this process 

34.	You might recall that the learned counsel for the accused cross examined the victim about the inconsistency in her statement made to the police and her evidence given in the court. She stated in her evidence that the radio was switched on and it has a light, but in her statement to the police she has stated that the lights were off. 

35.	If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to 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 influence your judgment of the reliability of such witness.

36.	You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them. 

37.	Upon consideration of all evidence, if you believe that the count of rape is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty. 

38.	Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened. 

39.	Learned counsel of the prosecution and the accused, do you have any redirections to the assessors? 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
04th of February 2016

Solicitors : Office of the Director of Public Prosecutions 
Office of Legal Aid Commission