THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC186 OF 2015

STATE

vs

AKARIVA QALITUIGAU

Counsel	:	Mr R. Kumar andMsU. Tamanikaiyaroifor the State
Ms T. Kean for theAccused

Hearing	:	23rdAugust – 24th August 2016
Summing Up	: 	25thAugust 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 charge against the accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty.  However, the final decision on questions of fact rests with me.  I am not bound to conform to your opinion.  However, in arriving at my judgement, I shall place much reliance upon your opinion. 
[7]	I have already told you that you must reach your opinion on evidence, and only on evidence.  I will tell you what evidence is and what is not.
[8]	The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution or defence exhibits and any admissions made by the parties.
[9]	If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration.  The reason for this exclusion is, what you have heard outside this Courtroom is not evidence.  Have regard only to the testimony and the exhibits put before you since this trial began.  Ensure that no external influence plays any part in your deliberations.
[10]	A few things you have heard in this Courtroom also are not evidence.  This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and final addresses made by 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 consistency of the complaint in her allegation, its genuineness and what weight you attach to it.
[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 offence charged. 
[24]	In determining questions of fact, the evidence could be used in the following way.  There are two concepts involved here.  Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts.  Let me further explain this to you.  Some evidence may directly prove a thing.  A person who saw, or heard, or did something, may have told you about that from the witness box.  Those facts are called primary facts.
[25]	But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence.  If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred.  That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence.  There must be a logical and rational connection between the facts you find and your deductions or conclusions.  You are not to indulge in intuition or in guessing.
[26]	In order to illustrate this direction, I will give you an example.  Imagine that when you walked into this Court room this afternoon, 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 offence charged.  The fact that the accused has given evidence 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 offence 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 offence and the other matters of which you must be satisfied, such as identity, in order to find the accused guilty.  If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty.  If you are not left with any such doubt, then your duty is to find the accused guilty.
[33]	You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else.  No such emotion has any part to play in your decision.  You must approach your duty dispassionately, deciding the facts upon the whole of the evidence.  You must adopt a fair, careful and reasoned approach in forming your opinion. 
[34]	Let us now look at the charges contained in the information.
[35]	There are two charges preferred by DPP, against the accused:

FIRSTCOUNT

Statement of offence

RAPE –Contrary to Section 207(1) and (2) (b) of the Crimes DecreeNo. 44 of 2009.

Particulars of the Offence
AKARIVA QALITUIGAU on the 6th day of May 2015 at Nasinu in the Central Division penetrated the vagina of SOKOVETI SIGA with his tongue, without her consent.
ALTERNATIVE COUNT
Statement of Offence
SEXUAL ASSAULT-Contrary to Section 210 (1)(a) of the Crimes Decree.

Particulars of Offence
AKARIVA QALITUIGAU on the 6th day of May 2015 at Nasinu in the Central Division, unlawfully and indecently assaulted SOKOVETI SIGA.

[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 SokovetiSiga’s or the complainant’s vagina, by his tongue.  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 tongue then you may find him guilty of rape.
[40]	The accused is also alternatively charged with Sexual Assault as the 2nd Count on the Information. In proving an allegation of Sexual 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 licking the vagina of the complainant after removing her pants 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 licking thevagina 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 licked it 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 Sexual Assault are obviously considered as Sexual Offences.
[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.	The complainant in this matter is one SokovetiSiga of TaciruaKoro.
2.	The accused is one AkarivaQalituigau of TaciruaKoro.
3.	The complainant, SokovetiSiga is married to one Paula Bulivou with four children.
4.	That on the 5th May 2015, the complainant and the accused drank alcohol with others at the complainant’s father’s house at TaciruaKoro.
5.	The accused was interviewed under caution by D/CPL 2561 Vinod Chand in the English Language on the 6th May 2015.
6.	The accused was formally charged by PC 4663 Taitusi in the English Language on the 7th May 2015.

Case for the Prosecution
[47]	Evidence of the complainant, SokovetiSiga
(i)	It is her evidence that she was living with her husband and their four children in her father’s house TaciruaKoro. The house had a 5 X 5 meter sitting room, two bed rooms and a kitchen. In 2015 May she was employed. She knew the accused and he was a regular visitor to her house and also used to sleep there occasionally. They lived in the same village and were also neighbours. 

(ii)	Describing the incident, the complainant said that on 5th May 2015, in the evening, after returning from work, she went shopping with her husband. Then they went to see her husband’s two other children living with his father in Delaitokatoka. Then her husband has invited his brother and another cousin to join him and all of them returned to TaciruaKoro.

(iii)	They reached TaciruaKoroafter a 15 minute taxi journey and the time could be about 8.00 p.m. Then they consumed about 5 bags of grog in the kitchen and then by about 9.00 the complainant went to buy alcohol. They finished drinking at about 11.00 pm. Then her husband wanted to accompany his brother and cousin back toDelaitokatoka in order to consume more alcohol.

(iv)	At that time, the complainant’s four children, her 3 cousin and her grandmother were watching TVin their sitting room. Thereafter they have gone to sleep in the sitting room on their mattresses.

(v)	The accused too, having joined the drinking party, was sleeping in the same sitting room, when her husband left with his brother and cousin. Then the complainant, having locked the doors, also went to sleep near her children on the mattress laid on the opposite side to where the accused slept. Her feet were facing the accused.

(vi)	She woke up in the night and as she described it, when the accused was “on her vagina”. She first thought it is her husband. As she felt that the person was having second thoughts of doing it and seemed frightened, she realised it is not her husband. She felt his tongue and he was licking “on and into” her vagina“. Then he stopped licking as she woke up. When she woke up, she found the accused in between her legs, facing down. She felt shocked. She asked him what he was doing. He gave no answer. Then she asked him where her ¾ pants were. Then the accused pointed out to the place where her pants were.  She says the accused was identified from the light coming from the kitchen.

(vii)	The first person she thought of reporting this incident was her husband. She ran to the road and got into a taxi. She had no money and was ready to offer her wedding band as taxi fare. When she reached Delaitokatoka she found her husband had gone away but he returned a little while later. When the complainant saw him, she ran up to him. She was crying and punching her husband. The she told him that accused had licked her vagina. 

(viii)	Then they returned to Tacirua and found the accused was sleeping next to their daughter. Her husband who was angry with the accused had started punching him. Later they called Police. It could be 4.00 or 5.00 in the morning when she made a complaint to Police.

[48]	Evidence of PaulaBulivou
(i)	This witness said that he lived with his wife and their four children in her fathers’ house in Tacirua for 7 years, since their marriage.
(ii)	On 5th May 2015, at about 7.00 to 8.00 p.m. he went down to Valelevu for their family gathering. His wife, the complainant remained in Tacirua. He returned to Tacirua with his brother and a cousin, after the family gathering. After their return, the witness, his wife’s, brother and cousins have consumed 5 bags of grog. They also had beer. When they were drinking the accused too had come in and joined them. His wife also consumed alcohol as he bought her 4 bottles of Tribe.
(iii)	After the drinking session, the witness accompanied his brother and cousin back to Valelevu. The complainant stayed back. He bought 6 more bottles and went to Valelevu to drink it. While they were drinking, a taxi had parked and the complainant came out crying. When asked why she said the accused was licking her vagina.
(iv)	Then they returned to Taciruaby taxi, he woke up the accused and asked him three times what happened.  He denied it and also said “it’s not him”.  Then the witness started punching him. The witness then called the Police and the accused was taken to the Station.
[49]	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.

Case for the Accused
[50]	Evidence of the Accused AkarivaQalituigau
(i)	The accused said in his evidence that he was drinking with the complainant and the group on that day and after the 1st carton was over they finish 6 more bottles. After the drinks were over, the couple said that they will drop the others. He told them to go along and he would just lie down in their sitting room and sleep.

(ii)	Then he went into the sitting room. Already there were children and other cousins of the complainant and in total there were about six of them. The sitting room was about 4 X 4 meters and he slept close to one of the walls while the others slept closer to the opposite side wall. The house is a Tin House and the floor was wooden. If someone were to move around then others could hear it.

(iii)	He woke up in the middle of the night and saw the complainant’s husband was moving around carrying a bag. He was about to go out of the house. After that the accused again laid back and went to sleep.

(iv)	He again woke up when the complainant asked from him about her husband’s whereabouts. She only asked “Have you seen Paula?” in a soft tone. He then replied her that he had gone out with a bag. Then he laid down to sleep.

(v)	Then again he was woken up by the complainant’s husband. He was asked what he did to the complainant and was beaten up. Others who gathered around also assaulted him. Then the accused told them to call the Police and for them to go down to the Station to find out the truth. He was arrested thereafter. His statement was also recorded.

(vi)	In answering to question No. 32 in his caution interview statement which recorded “What happened next”, he replied that “I saw both went to sleep”. Since this was the first time in Police and accused of an offence, he was not in a good state of mind, did not know the meaning of the question and also did not answer the question properly.

Analysis of all evidence
[51]	The prosecution relied on the evidence of the complainant and her husband to prove its case, while the accused offered evidence under oath.
[52]	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.  The only evidence placed before you of the incident by the prosecution is that of the complainant.  If you find her evidence is not truthful and or unreliable, then you must find the accused not guilty to the charge of Rape and also to the alternative charge of Sexual Assault, since the prosecution has failed to prove its case. 
[53]	If you find the evidence placed before you by the complainant both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of Rape and in the alternative of the offence of Sexual Assault, and identity of the accused beyond reasonable doubt.  It might also be relevant to remind yourselves that no corroboration is needed for the complainant's evidence.
[54]	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. 
[55]	In relation to considering the 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.
[56]	The prosecution lead evidence from the complainant that she did describe the alleged act of sexual aggression to her husband soon after it happened and implicated the accused as the person who did it. Evidence of her husband reveals that she complained to him, after getting down from the taxi, that the accused had licked her vagina. 
[57]	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.
[58]	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.  Before I venture to refer to the inconsistencies, let me assist you by directing the manner in which you should consider these inconsistencies in determining truthfulness and reliability of a particular witness.
[59]	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.
[60]	You may have observed that when the complainant gave evidence, there were some inconsistencies between her evidence before this Court and the statement given to the police. What you have to take into consideration is only the evidence given by the complainant in Court and not any other previous statement given by the witness. The reason is what she said to Police is not evidence. The portion of the statement to Police could only be used to consider whether she said something different to what she said in Court. These portions only assist to decide whether she was consistent in that particular issue. 
[61]	In addition, the accused highlighted some inconsistencies between her evidence and the evidence of her husband. In this situation, the inconsistent parts are evidence and will therefore have equal value, quite different to a portion of the statement to the Police. 
[62]	As I have already directed you earlier on in this summing up, 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.  
[63]	The inconsistencies of the prosecution evidence as highlighted by the accused were in relation to the following:
i.	the complainant said in her evidence that she went shopping with her husband, but her husband said in evidence that he went alone,
ii.	the complainant said in her evidence that both of them visited her husband’s father’s place, but her husband said in evidence that he went alone
iii.	the complainant said in her evidence that when she got down from the taxi, her husband was not there, but her husband said in evidence that he was there when she arrived,
iv.	the complainant said in her evidence when she met her husband, she cried and also punched him, but her husband said in evidence that she only hugged him,
v.	the complainant said in her evidence that the statement was not read over to her, but she had signed it confirming that it had been read over to her.
[64]	The prosecution says that the inconsistencies that are highlighted by the accused were on ancillary matters and therefore should not affect the basic version of her evidence. The accused wants you to consider the complainant's evidence as unreliable as she was inconsistent with these details and poses the question that if she is inconsistent in these how could one rely on her evidence on the important items of evidence?He also invited your attention to the fact that she made her statement to Police when the details of the incident were fresh in her mind. The complainant said in her evidence that she was called in for a second statement by the Police after few days and you may consider this fact along with her assertion that everything she said in Court, she also said to Police.
[65]	It is for you to decide whether these inconsistencies affects the credibility of the basic version of the prosecution, having considered the above, and whether these inconsistencies makes its evidence false and unreliable.
[66]	Similarly, you also have to consider the inconsistencies of the accused's evidence.  It was pointed out by the prosecution that the accused admitted during cross examination of the fact that what he said to Police soon after the incident is different to what he has said in Court. He also admitted that he had understood the questions put to him and had answered them. When you consider his evidence as to its truthfulness and reliability you may also consider the fact that this was his first time in Police,accused of any wrongdoing.
[67]	You will have to consider these inconsistencies in the light of the abovecited evidence and decide the effect of It on the truthfulness and reliability of the accused's evidence. 
[68]	I also mentioned to 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 her husband have given evidence and faced cross examination. Similarly you should also consider the demeanour of the accused in evaluation of truthfulness and reliability of his evidence.
[69]	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.
[70]	The position of the prosecution is that the accused, having slept in the house, used the opportunity knowing well that the complainant was drunk. He licked her vagina after removing her 3/4 pants and pulling her panties to a side. The complainant was shocked to see the accused doing this to her and had then ran out of the house, got into a taxi even without having money to pay the fare, went to her husband direct and within few minutes of the incident, reported what happened to her. They also want you to consider the possibility that when the complainant's husband went out no one woke up except the accused and therefore it is also possible when she yelled at him, others who were sleeping there, did not wake up.
[71]	In challenging the prosecution version of events on relative probability, the accused wants you to consider the following:

i.	when the complainant realised it was not her husband she did not call out to any other person sleeping with her,
ii.	her yelling at the accused did not wake others up,
iii.	it is not possible to remove her pants and belt without waking herup,
iv.	it is no possible to lick her vagina without removing her panties,
v.	even if she was shocked after the incident, she was asking the accused about the money she had in her pocket, 
vi.	she had left her 10 year old daughter with the accused, soon after theincident, when she went in search of her husband,
vii.	at first she mistakenly thought it was her husband, 
		viii.	in her drunken state she may have imagined that it happened,
		ix.	the accused remained in the same house even after the incident.

[72]	In examining the accused's evidence for its truthfulness and reliability, if you find the evidence of the accused as truthful and reliable, then you must find the accused not guilty to the charge of Rape and also the alternative count of Sexual Assault, since the prosecution has failed to prove its case. If you reject the evidence of the accused as not truthful and also unreliable, that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.
[73]	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 slept in the sitting room that night. He saw the complainant's husband leaving the house. He then again woke up when the complainant asked him where her husband was. He was again woken up when the complainant's husband has confronted him. He wants you to consider if he has done this act why would he remain in the house until the arrival of the complainant's husband?He then wanted go to Police to get to the truth of the allegation.
[74]	The accused denies any wrong doing. He denies licking the complainant's vagina. It is your duty to consider the relative probability of the accused's version of events as presented before by the accused.
[75]	I must caution you over one important matter.  When I present the accused’s version, alongside the version of the prosecution, you might get an impression that the accused must prove that the complainant has fabricated this allegation by implicating him of sexual aggression and that is why he has given evidence.That is wrong.  He is under no duty to disprove the case for the prosecution.  He is not under a legal duty even 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.
[76]	So far, I have directed you on the assessment of credibility of the witnesses for the prosecution and of the accused. If you reject the evidence 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 of Rape and in the alternative count beyond a reasonable doubt.
[77]	As already noted the complainant had clearly stated that the accused licked "on and in" her vagina. If you accept it as sufficient proof of penetration of the complainant’s vagina, then in addition, the prosecution must prove that it was this accused who penetrated and that he had no consent of the complainant or was reckless about it. 
[78]	I shall now 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. 
[79]	The prosecution wants you to believe that the complainant was fast asleep when the accused licked her vagina and therefore he had no consent of her’s. They also want you to consider the conduct of the complainant soon after she realised that it was not her husband, who was licking her vagina. She was shocked but asked what the accused was doing and wanted to wear her pants that had been removed by the accused. Then she ran out of the house and took a taxi and went straight to her husband to complain. The prosecution claims that these items of evidence clearly establish the fact that there was no consent by the complainant. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented to the accused to lick her vagina.
[80]	In relation to the issue of consent, there is another aspect you must consider. As I have already directed you earlier on my summing up, the prosecution must prove that there was no consent by the complainant or the accused was reckless about it. What that means is whether the accused realised that there was a risk that she was not consenting but carried on with his act anyway when in the circumstances known to him it was unreasonable to do so.
[81]	If you 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.
[82]	I shall now direct you on another 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 penetrated 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.
[83]	When an accused has been identified by a witness and when that evidence of identification reveals that identification was made with limited availability of light 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. 
[84]	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 the complainant knew the accused for several years as he is her neighbour and a regular visitor to her house. 

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 complainant, she saw him between her legs and then had spoken to him and he pointed out her pants allowing the complainant to see and observe the accused closely in the 5 X 5 meter sitting room. 

3.	Did the witness have any special reason to remember? The complainant was shocked to see the accused doing this act to her.  Then she immediately went up to her husband to complain. 

4.	In what light was the observation made? According to the prosecution witness the accused person was identified from the light coming from the kitchen. 

5.	Whether there was any obstacle to obstruct the view?  The evidence does not reveal there was any obstacle blocking the view of the accused.
[85]	There are two charges in the information. First you must decide whether the accused guilty or not guilty to the charge of Rape. If you decide that the accused is guilty to the charge of Rape then you need not consider the other charge, since it is an alternative count. You will only proceed to consider it, if you find that the prosecution has failed to prove the element of penetrationbeyond a reasonable doubt. If you find that penetration has not been proved then while finding the accused not guilty of Rape, you should then consider whether he is guilty to the alternative count of Sexual Assault.
[86]	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.
[87]	If you find the accused not guilty to the count of Rape, and if you find that the prosecution has proved all the elements of Sexual 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 Sexual Assaultas well. 
[88]	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.
[89]	Any re directions the parties may request?
[90]	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 also on the alternate count of Sexual Assault against the accused.  When you have reached your separate opinions you will come back to Court, and you will be asked to state your opinion.
[91]	I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Suva
This 25th Day of August 2016

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