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State v Vasu - Summing Up [2016] FJHC 700; HAC172.2015 (29 July 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 172 OF 2015

STATE

vs

LORIMA VASU

Counsels : Ms S. Serukai and Mr Y. Prasad for the State

Ms L. Raisua and Mr L. Qetaki for the Accused

Dates of Trial : 25^th; 26^th; and 27^th July 2016

Summing Up : 29^th July 2016

SUMMING UP
___________________________________________________________________________

Madam and Gentlemen Assessors,

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

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

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

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

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

[6] It is also important to note that, in forming your opinion on the charges against the accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.

[7] I have already told you that you must reach your opinion on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution or defence exhibits and any admissions made by the parties.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and final addresses made by the State Counsel and final address of the Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the determination of truthfulness of witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

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

[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

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

[15] The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim’s reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. There is, in other words, no classic or typical response by victims of Rape.

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

[17] Another consideration may be; has the witness said something different at an earlier time or whether he or she is consistent in his or her evidence? In assessing credibility of the testimony of a witness on consistency means to consider whether it differs from what has been said by the same witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.

[18] In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection; or else could there be an intentional falsehood. Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in the light of other evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory or otherwise be mistaken.

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

[20] Lady and gentlemen, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

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

[22] When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[23] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged.

[24] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[25] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

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

[27] It does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.

[28] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove. That burden rests on the prosecution to prove the guilt of the accused.

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

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

[31] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offences charged. I will explain these elements later.

[32] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences and the other matters of which you must be satisfied, such as identity, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such doubt, then your duty is to find the accused guilty.

[33] You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinion.

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

[35] There are two charges preferred by DPP, against the accused:

FIRST COUNT

Statement of offence

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

Particulars of the Offence

LORIMA VASU on the 15^th day of April 2015 at Nataveya Village, Naitasiri, in the Central Division, penetrated the vagina of TIMALETI RANADIRUA with his finger, without the consent of the said TIMALETI RANADIRUA.

SECOND COUNT

Statement of Offence

INDECENT ASSAULT - Contrary to Section 212 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LORIMA VASU on the 15^th day of April 2015 at Nataveya Village, Naitasiri, in the Central Division, unlawfully and indecently assaulted TIMALETI RANADIRUA by fondling her breasts.

[36] I shall first deal with the elements of the offence of Rape. In order to prove a charge of rape, the prosecution must prove beyond reasonable doubt that the accused penetrated Timaleti Ranadirua’s or the complainant’s vagina, by his finger. The slightest penetration is sufficient to satisfy this element.

[37] Then we must consider the important issue of consent. It must be proved that the accused either knew that she did not consent or was reckless as to whether she consented. The accused was reckless, if the accused realised there was a risk that she was not consenting but carried on anyway when the circumstances known to him it was unreasonable to do so. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond reasonable doubt.

[38] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was over 13 years of age and therefore, she had the capacity to consent. More directions on the issue of consent will be made as we proceed.

[39] If you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s vagina with his finger then you may find him guilty of rape.

[40] The accused is also charged with Indecent Assault as the 2^nd Count on the Information. In proving an allegation of Indecent Assault, the prosecution must prove beyond a reasonable doubt that the accused unlawfully and indecently assaulted the complainant. The word “unlawfully” simply means without lawful excuse. An act is indecent if right minded persons would consider the act indecent. As to whether the act of touching of breasts of the complainant is indecent, you have to consider what right minded persons would think of this act. Was the act so offensive to current standards of modesty and privacy as to be indecent?

[41] In considering these questions you may consider the general nature of the relationship between the accused and the age gap between them. If you find that right minded persons would consider the act of touching of the breasts of the complainant by the accused as to be an indecent, then you may find the accused guilty to this offence. If you are not satisfied, then you must find the accused not guilty to this charge.

[42] Apart from the elements of these offences, the identity of the person who is alleged to have committed the offences must also be proved by the prosecution. What it means is that it was this accused and none other had penetrated the complainant’s vagina and touched her breasts on that date and time. There must be positive evidence as to the identification of the accused.

[43] If you find that the prosecution failed to establish any of these elements then you must find the accused not guilty.

[44] In our law, no corroboration is needed to prove an allegation of Sexual Offence and Rape and Indecent Assault are obviously considered as Sexual Offence.

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

[46] The parties have admitted the following as proved without calling necessary witnesses:

1. THAT at the time of the alleged offence, Lorima Vasu was residing at Nataveya Village, Naitasiri.
2. THAT Lorima Vasu is a farmer.
3. THAT the victim, Timaleti Ranadirua was 14 years old at the time of the alleged offence.
4. THAT at the time of the alleged offence the victim was in Form 4 student at Lomaivuna High School.
5. THAT the victim also resides at Nataveya Village, Naitasiri.
6. THAT Lorima Vasu and the victim are known to each other.
7. THAT Lorima Vasu was interviewed under caution in the English language on the 17^th of April 2015 by WPC 3767 Maritina.
8. THAT Lorima Vasu was formally charged in the English language on the 17^th of April 2015 by WPC 3733 Kalolaini Raga.
9. THAT the victim was medically examined on the 16^th day of April 2015 by Doctor Violetia Fatiaki.
   

Case for the Prosecution

[47] Evidence of the complainant Timaleti Ranadirua.

(i) It is her evidence that she was living with her parents in the village of Nataveya. In April 2015 she was 14 years of age. She treated the accused, who is a relation of hers, as a brother. They lived in the same village and were also neighbours.

(ii) Describing the incident, the complainant said that on 15^th April 2015, at about 7.00 p.m. her father asked her to look for her younger brother. She then set out in search of her brother and on her way she met the accused on a foot path. The accused wanted her to accompany him to a nearby empty shop. The complainant declined explaining why she is there. When the accused suggested for the second time, she followed him to the empty shop. She thought he is going to tell stories.

(iii) When they were inside the shop, the accused started to touch her breasts. Then he started to touch inside of her vagina with his finger for about 10 minutes, even though the complainant did not allow the accused to do what he did. The complainant said that she wanted to come out, but the accused stopped her from leaving. She felt uncomfortable. The accused also told her not to scream or to say a word. Then he told her to go back home.
(iv) When she came out of the empty shop, she saw “Naca” (Nacanieli Liti) talking on his phone. Upon seeing the complainant “Naca” relayed what he saw to the father of the complainant. He told her father that he saw the complainant and the accused at the empty shop. The complainant was afraid to go home as her father was already told that she was with the accused. She was then assaulted by “Naca” using a stick.

[48] Evidence of Nacanieli Liti

(i) This witness said that he lives in the village of Nataveya. On 15^th April 2015, at about 7.00 to 8.00 p.m. he was standing outside of one Emori’s house. Then he saw the complainant coming out of the empty shop with the accused. He saw the accused first coming out and the complainant followed him. He saw them at a distance of about 10 meters and there was light coming from a nearby house. In addition, the witness said that he knew the complainant as she is his sister. The accused was also from the same village and he knew him.
(ii) Upon seeing the complainant and the accused, the witness became worried and decided to inform her father of what he saw. Her father then questioned the complainant and she admitted that she was with the accused but did not reveal as to how she ended up with the accused.
(iii) Hearing this, the complainant’s father got angry and told witness that he would report the matter to Police on the following day.

[49] Evidence of Dr. Violetta Fatiaki

(i) This witness testified that she holds a M.B.B.S degree and was attached to Vunidawa Hospital in Naitasiri as a medical officer. She had then examined the complainant at the examination room of the hospital and her findings are entered in the medical report, marked as P. E. No. 1.
(ii) She described the external genitalia of a female consisted of lips, clitoris, opening to urethra and vaginal opening. While giving evidence, she drew a rough sketch of the female external genitalia and pointed out relative locations of each part.
(iii) Referring to her physical examination finding, the medical witness said that she did not observe any injuries on the external genitalia of the complainant. However, she did not exclude possibility of penetration by finger without leaving tell-tale signs.

[50] That was the case for the prosecution. You then heard me explaining several options to the accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times. But he opted to offer evidence under oath and two witnesses on his behalf.

Case for the Accused

[51] Evidence of the Accused Lorima Vasu

(i) The 28 years old accused lived in the village of Nataveya with his uncle Samuela and his grandmother.

(ii) In relation to the alleged incident, the accused said that on 15^th April 2015, in the evening he was loading cargo into a carrier, which would then leave for Suva Market. He started loading cargo at about 7.00pm and may have continued until 8.00pm. He had to pick cargo from home and carry them up to the place where the carrier was parked. There were other villagers who also had loaded cargo into the carrier.

(iii) After the completion of the task of loading cargo, he returned to the house, which was about 10 meters from the place where the carrier was parked. He did not enter the house. He met Epeli and another who were smoking there. He told Epeli that loading of cargo is now concluded and the carrier was about to leave.

(iv) Then he went to the old shop to do his physical training at about 8.00 p.m. as he would do every evening. At the old shop he did his physical training for about 5 minutes. The old shop had no lights. After finishing his exercises, he sat on the door step of the shop and took a breather. He saw the complainant go past the shop. That was the only time he saw the complainant on that day. Then he went home. Samuela was there and was on his way to have a bath. After Samuela left, the accused started preparing their dinner.

(v) At that point of time, the complainant's father came in search of him and enquired as to his whereabouts. He told him that he was at the old shop. Complainant's father behaved angrily and left. When Samuela returned from his bath, the accused went over to the complainant's house. He needed to know why the complainant's father came to see him and why he was angry.

(vi) He learnt that the complainant's father was angry over the meeting of the complainant with him. The accused then begged her father to call the complainant and verify what happened. The accused denied having met the complainant at the old shop. He also denied that he touched her breast and put his finger to inside of the complainant's vagina.

[52] Evidence of Samuela Rinavuaka

(i) This 33 year old farmer lived in the village of Nataveya. The complainant's house was located immediately behind his house.

(ii) On 15^th April 2015 at about 7.00 p.m., he returned home after work from his farm. He saw the accused loading cargo into a truck. Loading of cargo was over in 40 minutes. The witness was talking to one Epeli who brought the truck, at about 8.00 pm. He got into the truck to go back. Then the witness left home to have a bath.

(iii) When he returned after his bath he spoke to the accused who was preparing their dinner. The accused did not go anywhere thereafter.

[53] Evidence of Epeli Ruivadra

(i) This 32 year old witness also lived in the village of Nataveya.

(ii) On 15th April 2015 at about 7.00 to 8.00 p.m., he was telling stories with one Samuela while smoking at his house. There were other villagers who were also waiting for the truck. The accused then came and told them that the carrier was there. Then the witness left at about 8.10 p.m.

Analysis of all evidence

[54] The prosecution relied on the evidence of the complainant, another lay witnesses and a medical to prove its case, while the accused, in addition to offering evidence under oath, had called two other witnesses.

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

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

[57] In relation to the considering consistency of the prosecution evidence, I shall first direct you with the evaluation of evidence on the aspect known as recent complaint. What this consideration is whether the complainant consistently made the allegation of sexual aggression to the person to whom she disclosed it for the first time since the alleged incident.

[58] The prosecution did not lead clear evidence from the complainant that she did describe the alleged acts of sexual aggression and implicated the accused as the person who did it. Evidence of Naca refers that she admitted the fact that she was with the accused that evening. The accused said in his evidence, that the complainant's father came in search of him and acted angrily as he got to know that they were seen together that same evening. There is no clear evidence by the prosecution that the complainant alleged that the accused touched her breasts and put his finger inside of her vagina soon after this incident when she was confronted by her elders.

[59] You could consider these items of evidence, in order to decide whether the allegation of sexual aggression is consistently made and also in what detail. However, I must caution you that these items of evidence should not be utilised by you to decide that they support the complainant's evidence led before this Court. You could only consider these items of evidence at this stage to consider whether the allegation is consistently made and made without undue delay, without leaving room for afterthought and fabrication.

[60] In addition, it is your duty to consider the evidence led before this Court for its consistency. I shall first deal with the inconsistencies highlighted in the prosecution's case.

[61] The inconsistency of the prosecution evidence as highlighted by the accused was in relation to the fact as to who came out of the empty shop first after the alleged incident. The complainant said that it was the accused who led her out and witness Naca said in his evidence that it was the accused who came out first. The accused also highlighted the inconsistency of the complainant’s evidence when she said that she is scared of the accused and later changing her stance to denote she was not scared.

[62] It is for you to decide whether these inconsistencies affects the credibility of the basic version of the prosecution and thus makes its evidence false and unreliable.

[63] Similarly you also have to consider the inconsistencies of the accused's evidence. It was pointed out that the accused said in his evidence that it was about 20 meters in estimation in relation to the distance between the empty shop and house whereas Samuela pointed out mere 8 meters during his evidence in Court.

[64] You will have to consider this inconsistency and the effect of it on the case truthfulness and reliability of the accused's evidence.

[65] I also mentioned you that the manner of giving evidence is also an applicable consideration in evaluating witnesses for their truthfulness and reliability. You would have observed how the complainant and the other witnesses for the prosecution have given evidence and faced cross examination. Similarly you should also consider the demeanour of the accused and his witnesses in evaluation their truthfulness and reliability of their evidence.

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

[67] The evidence of the prosecution is the accused, having seen the complainant walking alone in the dusk, induced her to the nearby empty shop and then touched her breast and inside of her vagina with his finger. The explanation of the prosecution for the presence of the complainant in that isolated location was that she was tasked by her father to look for her younger brother who followed the carrier. She willingly followed the accused to the empty shop as she thought he was going to tell stories. After the alleged act, when the complainant was coming out of the empty shop, they were seen by Naca, who conveyed that information to her father. She was thereafter beaten with a stick by Naca. The complainant's father got angry over the incident and reported to Police.

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

[69] You would recall that the medical witness observed no injuries in the external genital area of the complainant. She was of the opinion that there exists a possibility that penetration could occur without injuring the tissues.

[70] The accused during cross examination of the medical witness sought to clarify certain positions. In relation to the experience of the witness, it was elicited she had only little over three months of post qualifying experience, when she examined the complainant. She was also probed that she had failed to examine the complainant's vagina for signs of virginity as she failed to carry out and internal examination.

[71] In challenging the prosecution version of events on relative probability, the accused wants you to consider the fact that if not for the beating she received from Naca, she would not have revealed the allegation against the accused. It is for you to consider whether she falsely claimed sexual aggression in order to shield herself from the anger of her elders. In this regard her family background and the environment she lived in may be relevant.

[72] The accused also wants you to consider the fact there were people around the empty shop that evening including Naca. If the complainant cried out for help she would certainly have attracted attention of them. But she did not.

[73] In examining the accused's evidence for its truthfulness and reliability, if you find the evidence of the accused it is so, then you must find the accused not guilty of the two charges since the prosecution has failed to prove its case. If you reject the evidence of the accused and his witnesses as not truthful and also unreliable, that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

[74] With this caution in mind, we could proceed to consider the evidence of the accused for its truthfulness and reliability on the consideration of probability of the version. The accused said that he had loaded cargo for almost an hour. Then he went into the empty shop to do his routine physical exercises. Why he selected the empty shop is that wood is harder there. Whilst at the empty shop, he saw the complainant go past it. Then he returned home and was cooking when the complainant's father came to see him angrily. He learnt that he was angry as he was told that he and complainant were seen at the empty shop.

[75] The accused denies any wrong doing. He denies touching breasts of the complainant. He also denied touching inside of the complainant's vagina with his finger. It is your duty to consider the relative probability of the accused's version of events as presented before by the evidence of the accused and of his witnesses.

[76] I must caution you over one important matter. When I present the accused’s version, alongside the version of the complainant, you might get an impression that the accused must prove that it was due to the physical assault the complainant has received prompted her to implicate him of the sexual aggression and that is why he has given evidence and called witness. That is wrong. He is under no duty to disprove the case for the prosecution. He is not under a legal duty to offer evidence. He could have remained silent. When he does give evidence, then, as already directed, it must first be evaluated for its credibility and reliability. We are dealing only with this aspect of his evidence at this moment.

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

[78] As already noted the complainant had clearly stated that the accused touched inside of her vagina with his finger. If you accept it as sufficient proof of digital penetration of the complainant’s vagina, then in addition, the prosecution must prove that it was the accused who had digital penetration and that he had no consent of the complainant or was reckless about it. The fact that medical evidence does not reveal there were injuries will have little or no bearing as corroboration is not needed to prove an allegation of a sexual offence if you accept the complainant’s evidence as truthful. The prosecution elicited that there is also a possibility of penetration without causing any injury to the vaginal tissues.

[79] I shall direct you on the issue of consent, before proceeding to the issue of identity of the accused. It is our law that consent of the woman must freely and voluntarily be given. She must have the necessary mental capacity to give consent. It is important to note that mere submission to sexual act without physical resistance by the woman cannot be considered as consent. Even if there is consent, if that consent is obtained by force, threat, fear of bodily harm, or exercise of authority then also it cannot be considered as consent acceptable to law.

[80] The public perception of a rape victim if she did not consent, must scream, struggle and must have injuries is a rape myth and has no applicability in a Court of Law.

[81] The prosecution wants you to believe that it was due to the authority wielded by the accused over the complainant, she had silently endured the alleged sexual aggression by the accused. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented for the sexual intercourse.

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

[83] If you are not sure that he would have realised she was not consenting then you must proceed to consider whether the accused might have been reckless as to whether she consented, then you must consider whether he genuinely believed she was consenting. If you think so, then you must find the accused not guilty of rape. If you do not accept that he thought she was consenting when you consider all the circumstances, then you could convict him of rape if you find the other elements also have been proved.

[84] The accused wants you to consider the fact that at no point of time she said “No”. She willingly followed the accused to the empty shop and as she came out of it she had no indication from her behaviour of the incident that alleged to have taken place. The accused, although totally denied the incident, wants you to consider this aspect of it as he claims that the prosecution has not proved the element of consent beyond a reasonable doubt.

[85] I shall now direct you on a very important issue of the case. You will recall that I have already directed you on this topic by referring to the identity of the accused. It is a vital component of the prosecution case and if it had failed to prove the fact that it was this accused and no other had digital penetration of the complainant’s vagina without her consent, then you must find the accused not guilty of rape. The prosecution primarily relied upon the evidence of the complainant to prove identity of the accused.

[86] The prosecution also relied on the evidence of witness Naca to support the claim of the complainant that it was the accused who committed sexual aggression on her.

[87] In relation to Naca's evidence of identifying the accused and the complainant, when they allegedly were coming out of the empty shop, was challenged by the accused.

[88] When an accused has been identified by a witness and when that evidence of identification is challenged by the accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made mistaken or wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.

[89] In assessing the evidence on identification, you must take the following matters into account:

1. Whether the witness has known the accused before? In this case witness Naca said that he knows the complainant well as she is his sister and also knew the accused as he is also a fellow villager.
   
2. For how long did the witness have the accused under observation and from what distance? Was it more than a fleeting glance? In this case according to the witness Naca, the accused person was seen at a distance of 10 meters from the light coming from a nearby house.
   
3. Did the witness have any special reason to remember? Witness Naca said that he was worried to see his sister with the accused. He then proceeded immediately to warn her father.
   
4. In what light was the observation made? According to the prosecution witness the accused person was seen at a distance of 10 meters from the light coming from a nearby house. The accused led evidence that Samuela's house had no lights to its back side and had wooden windows and light would not shine on the spot where they were allegedly seen. There is no clear evidence as to the length of time the witness had observed them.
   
5. Whether there was any obstacle to obstruct the view? The evidence does not reveal there was any obstacle blocking unimpeded view of the incident.

[90] There are two separate charges in the information. You must consider them separately. If you decide that the accused is guilty on one charge, you must not find him guilty of the other charge automatically. Each charge will have to be decided on the evidence. If you find there is evidence to satisfy elements of only one charge then you must find the accused not guilty of the other charge in which you find evidence did not prove an element or elements.

[91] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements beyond reasonable doubt of rape then you must find the accused guilty of rape. If not, then you must find the accused not guilty of rape.

[92] Whether the accused is guilty or not guilty of the count of rape, If the prosecution has proved all the elements of indecent assault beyond a reasonable doubt, then you must find the accused guilty of that offence. If not, then you must find the accused not guilty of indecent assault.

[93] If you have any reasonable doubt about the prosecution case as a whole or an element of any of the offences, including identity of the accused, then you must find the accused not guilty of that particular charge or of both charges.

[94] Any re directions the parties may request?

[95] Madam and Gentlemen assessors, this concludes my summing up of Law and evidence. Now you may retire and deliberate together and may form your individual opinions on the count of rape and the count of indecent assault against the accused. When you have reached your separate opinions on each charge you will come back to Court, and you will be asked to state your opinion.

[96] I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.