Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

State v Pratap - Summing Up [2017] FJHC 36; HAC082.2016 (27 January 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 082 of 2016

[CRIMINAL JURISDICTION]

STATE

V

MICHAEL SHAILENDRA PRATAP

Counsel : Mr. M. Vosawale with Mr. S. Seruvatu for State
Mr. M. Yunus with Ms. A. Prakash for Accused

Dates of Hearing : 23^rd - 26^th January 2017

Date of Summing up: 27^th January 2017
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as IM)

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
2. Evidence is what the witnesses said from the witness box in this court room, exhibits tendered and the admitted facts. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard such information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feeling of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. You may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
6. Based on the evidence of witnesses you may decide that certain facts are proved. In addition to those facts you would consider as directly proved, you may also draw reasonable inferences from those proven facts. You should decide what happened in this case, taking into account those proven facts and reasonable inferences.
   
7. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
   
9. The complainant in this case, was 14 years old during the time of the alleged incident. You may have come across children of that age. You will have an idea of the way they think, talk and the way they describe things. The main task you have in this case therefore is to judge whether what this child witness said in her evidence is true and whether the account of the events she gave is reliable.
   
10. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused is charged with.
    
11. As a matter of law you should remember that the burden of proof always lies on the prosecution. The accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt in order for you to find him guilty of a particular offence. You must be sure of the accused person’s guilt.
    
12. If you have a reasonable doubt in respect of any element of an offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in a short while.
    
13. You are not required to decide every point which has been raised by lawyers in this case. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the charges against the accused have been proved.
    
14. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary.
    
15. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offences;
    

FIRST COUNT

Statement of Offence

RAPE: contrary to section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MICHAEL SHAILENDRA PRATAP on the 22^nd day of January 2016, at Suva in the Central Division, penetrated the vagina of IM with his penis without her consent.

SECOND COUNT

Statement of Offence

RAPE: contrary to section 207(1) and 2(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MICHAEL SHAILENDRA PRATAP on the 22^nd day of January 2016, at Suva in the Central Division, penetrated the vagina of IM with his finger without her consent.

THIRD COUNT

Statement of Offence

RAPE: contrary to section 207(1) and 2(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MICHAEL SHAILENDRA PRATAP on the 22^nd day of January 2016, at Suva in the Central Division, penetrated the vagina of IM with his tongue without her consent.

FOURTH COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MICHAEL SHAILENDRA PRATAP on the 22^nd day of January 2016, at Suva in the Central Division, unlawfully and indecently assaulted IM by sucking her breast.

16. Now I will summarise the evidence led in this case. Please remember that I will not be reproducing the entire evidence of the case. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
    
17. The complainant said that she is 16 years old. In 2016 she was living in the Police Band Barracks. She had been living there for 15 years. On 22/01/16 around 5.15pm, her mother sent her to meet her father. On her way, she saw Michael beside a container. She said that he pulled her hand and dragged her to the police gym which was about 6 metres away. She screamed for help and tried to free herself but she couldn’t.
    
18. Inside the police gym he tied her hands behind her back to a door with a computer code and went to close the door. She said she screamed but no one was there to hear her. After he locked the door he came and untied her hands. Then they went through another door where he took another electrical code and tied her hands behind her back. Then he laid her down facing upwards and took her clothes off. She asked him what he is going to do to her and he told her not to be afraid or scared of what he is going to do. She was wearing her School uniform at that time. When he was removing her clothes, she was scared. She struggled, she kicked him and screamed.
    
19. She said, after he took her dress off, he touched her vagina. She said he was touching inside her vagina and used a finger. After putting his finger inside her vagina, he licked her vagina. She said that his tongue was inside her vagina. She struggled and was trying to close her legs but he kept on parting her legs. After that he put out his penis and inserted it to her vagina. She felt his penis for about 3 minutes. After that he sucked her nipples. She said she did not agree for him to do this and she screamed and struggled.
    
20. Then she lied to him saying that a car was parked in front of the gym and told him to untie her hands. When he went to check the car, she got dressed and went home. Her mother asked her where she was and she told the mother that she was with a friend at Nasova. She was scared to tell her mother and father thinking they may beat her up.
    
21. After one week she went to the police medical centre because of heavy bleeding. She asked from one Teresia at the medical centre whether it is allowed for police officers to indecently assault young girls. Then Teresia asked her whether anyone sexually assaulted her and she told her the story about the police officer who worked at the store. She said she told Teresia that one day this police officer was half naked in his office and showed her his penis. She also told Teresia that he came to her school one day with fish, chips and juice saying that her parents sent him. She saw that there was some medicine in the juice. She threw that lunch. She said she told Teresia that on another day when she was walking with Teresia’s daughter, he was calling them and she told Teresia’s daughter to ignore him.
    
22. After she spoke to Teresia, she was referred to a nurse. She went with Dr. Emosi to report the matter to the police. She said Dr. Emosi came to know about what happened from Teresia and she is the one who told Teresia all about what Michael did to her.
    
23. She said she had seen Michael she was referring to, working at the police store for about 4 months. She said they do not know each other. She identified the accused as the person she was referring to as ‘Michael’. She said that the incident inside the police gym took about one hour.
    
24. During cross examination she said 22/01/16 was a Friday. She denied the suggestion that the reason she did not tell her mother about the incident is because the incident never happened. She denied the suggestion that she never met the accused on 22/01/16 around 5.15pm. She admitted that she did not tell her form teacher or her best friend about the incident. She agreed that the sequence of events given by her in her statement to the police is different from what she said in court. She had told the police that first it was penetration by the penis, next by the finger and then the tongue. She agreed that it is not possible to completely take the clothes off if her hands were tied at the back. She admitted that she told the police that the accused had a tattoo of a rose in his leg.
    
25. During re-examination, she said that she did not inform her parents thinking that they will hate her. She did not inform the teacher thinking that the parents will get to know through the teacher. She did not inform the best friend because the best friend may spread the story. She said the version she gave in court is the correct version with regard to the sequence of events. She said the accused pulled down the zip and the sleeves of her dress when he untied her hands from the door.
    
26. Next witness was Teresia Vakayaru. She said she had been serving in the Police Medical Unit for 2 years. On 2^nd February 2016, she was on duty and IM came for a medical check-up. When IM was resting after being given the injection, IM asked her “is it allowed for police officers to harass a daughter of another police officer?” Then she asked IM what she meant. IM had told her that there is a man in the stores who always used to call her when she goes to the shop or school. When she asked IM who the police officer at the store is, she was told that this person has a dark green car with ‘angel’ printed on it. Then she told IM that she knows the car and it belongs to Michael. She said that IM also told her that he used to harass her from a long time. IM had told her that Michael pulled her, tied her hands, dragged her to the gym, closed the door and had laid her down on the bed. Then he had taken her clothes off and had come on top of her. Then she had asked IM whether he raped her, and IM had said ‘yes’. She said IM told her that Michael closed IM’s mouth when IM cried and screamed. This incident had taken place around 5.30 in the afternoon in January 2016 according to IM. She said she knew Michael before 2015 and no one else owns a green car there apart from Michael. After IM told her the story she referred IM to a male nurse named Emosi.
    
27. IM had also told her that when IM went past the stores one day, IM had seen Michael standing inside the store wearing only a white shirt but no pants and had called IM to come inside. IM had also told her that Michael came to her school one day with fish, chips and juice saying that her father had sent him. IM had noticed some white medicine in the juice and had thrown the juice and had not eaten the fish and chips. She was also told that, one morning when IM was going to school with her (Teresia’s) daughter, Michael had called IM standing beside the container at the back of the gym. Then IM had left her daughter and had gone to him. She identified the accused as the person she was referring to as ‘Michael’.
    
28. During cross examination she agreed that Initially IM told her the story and when she asked IM, IM gave her the full story. She agreed that IM came out with the name ‘Michael’ subsequently. She also agreed that she did not mention the name ‘Michael’ in her statement to police.
    
29. ASP Sunil Dutt was the next prosecution witness. In 2016 he was serving at Nasese Police store. He was working in the store with IP Jayant Kumar and Corporal Michael. On 22/01/16, he reported to the stores at 7 o’clock and reported off duty between 4.40pm and 5pm. On this day, IP Jayant left after 4pm. Corporal Michael was in office when he left.
    
30. He said he informed Michael that he had closed the doors and switched off the lights in front and that he is leaving. At that time, Michael was at his desk using the computer and replied “ok, have a nice weekend, I’m coming soon”. He said 22/01/16 was a Friday, and on Fridays regular officers sign off at 4.00pm and special constables at 5.00pm. He said that Michael owns a green color vehicle.
    
31. During cross examination, he said his office is the first building from Ratu Sukuna Road and Michael is working in the 2^nd building. Later he said they work in the same building. He admitted that he had mentioned in his statement to police that on 22/01/16, he reported off duty nearly 4.30pm. He agreed that the register should not indicate that he reported off duty at 5.00pm. However, he said it would not be a false entry if the register indicated that he reported off duty at 5.00pm because he left between twenty to 5 and 5. Then he was asked whether Michael told him that he will be leaving soon when he left and he said ‘yes’.
    
32. During re-examination, he said he signed off at 5pm in the register because he was reporting off very close to 5pm. He said he did not see Michael coming out of office even when he turned towards Ratu Sukuna road.
    
33. Next witness was Kaliova Nadumu. He said Michael called him around 5.42pm on 22/01/16 and told him that he (Michael) is still in office. That day he came from Ba to enroll his daughter at Fiji School of Nursing and had brought sugar and mango for Michael whom he knew since he was small. On that day he met Michael around 9.30pm at Michael’s house. He identified the accused as the person he was referring to as ‘Michael’.
    
34. During cross examination, he said, before leaving Ba to Suva he told Michael that he will be bringing mango and sugar and also asked for assistance regarding the location of the office he was supposed to go. He made a call to Michael at 4.22pm on mobile number 8369695 on the same day. He said he can’t recall whether Michael told him that he is still in office during this call. When it was put to him that there was no call made at 5.42pm on that day by Michael, he recalled that it was not 5.42, but was 5.50pm. Then it was suggested to him that the only call made on his mobile number 8718984 was at 5.56pm and not at 5.50pm. In reply, he said he did not have a watch with him at that time.
    
35. During re-examination he said he can’t recall how many phone calls he received from Michael on 22/01/16. He reaffirmed that Michael told him that he (Michael) is still in the office during the call Michael made to him at 5.56pm according to the phone log.
    
36. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence and to call witnesses.
    
37. The accused said that he is 43 years old, married and has 3 daughters. He had completed his Master’s in Business Administration in 2016. He said he was serving as a Corporal in the Police Force attached to the police stores at Nasese and was interdicted last year. He had been working in the police store from June 2014 till 2^nd February 2016. He said two others worked with him in the stores. That is IP Jayant Kumar and SC Anuresh. He said there was a special arrangement made for him to stay back in the office on Mondays and Wednesdays and to pick his wife on the other days. He said, he traveled to work by car and it is a green Toyota Corolla where the name ‘Michael the archangel’ is printed on the bonnet. His daughters’ names are printed on the front and rear windscreens.
    
38. On 22/01/16, he started work little after 8am. IP Jayant Kumar and Special ASP Sunil were there with him on that day. He said those officers finished work little after 4pm on that day and they left before him. He said he finished work around 5 past or 10 past 4 that day. He called his wife and informed her to be ready before he left the office. He checked the buildings whether they are securely locked before leaving. On that day he received a call from Kaliova Nadumu after 10.30am and was informed that he (Mr. Nadumu) is coming to Suva for the enrolment of his daughter at Fiji School of Nursing and also that he is bringing mango and sugar. Mr. Nadumu called him again after 4.20pm the same day when he was leaving the office. He informed Mr. Nadumu that he is just leaving the office, he is going to pick his wife from Hoodless House in Brown Street and also told Mr. Nadumu to meet him at his house. He said the first time he called Mr. Nadumu was after 4.22pm. When he made that call he was leaving the office. After that he called Mr. Nadumu again around 6pm. He said he was at his residence when this call was made. According to him, Mr. Nadumu came to his house little after 9pm.
    
39. He said his wife works at the Fiji School of Nursing in Tamavua. On 22/01/16, he picked his wife little after 4.30pm. On that day, one Ms. Zara also came with them and he dropped Ms. Zara at the bus stop near FNU, Nasinu. He said they reached home after 5.30pm. He met his neighbor, Mr. Vijay Lal when he reached home. When he went inside the house, his three daughters, father-in-law, mother-in-law and his niece were there. He went to see Mr. Vijay Lal again around 6.30pm. Just before meeting Mr. Vijay Lal, he met one Ms. Fozia.
    
40. He said ASP Sunil spoke to him before leaving the office that day, and told him that he (ASP Sunil) is leaving. He told ASP Sunil “it’s ok”. At that time he was logging off from his lap-top.
    
41. He said on his right leg, there is a tattoo of an angel with his name and on the left leg, there is a tattoo of an arrow and the met sign. He said there is no other tattoo on his legs.
    
42. He said he does not know IM. He also said he had seen her when she goes past the stores to the residence or the shop. He said he had not spoken to IM and he does not know her parents. He denied all the allegations made against him by IM and said that they are not true. He tendered the call records for his wife’s mobile number 9345028 for the period between 22^nd January 2016 and 2^nd April 2016 as DE01. He said after making that call to the wife, he went to close the office and to check that the bulk store and the stationery are securely locked. He left the office that day a little after 4.20pm. He said he dropped Ms. Zara at FNU Nasinu around 5.15pm.
    
43. During cross examination he said he is not aware that the old gym is usually not locked. He admitted that the containers were placed close to the old gym. He also agreed that there is a path between the containers and the entrance to the gym through which people can walk to the police band bure. He agreed that there would be training equipment and mattresses in the old gym. He agreed that if someone locks the door directly behind it, that person cannot be seen by anyone from outside. When he was asked whether he had come to know the families that live in the barracks during the 18 months he worked in the police stores, he said ‘no’. He said he does not know the Baleinamau family. He admitted that he knew IM was residing in one of the police barracks. He said he did not know that IM’s father was a member of the police band. He said he did not know that IM attended Dudley High School. When he was asked whether he had seen IM walking past the police stores during his working hours, he said, ‘no’. Then again when he was reminded that during examination in chief, he had said that he had seen IM go past the stores, he said it was only in the afternoons. He agreed that he was the last person to leave the police stores on 22/01/16. He also agreed that he made final checks on the containers. He denied the allegations made by IM. He said that he was not at the scene at that time.
    
44. He said he came out of office around five past four to check all the containers and to see that the office is securely locked and left the office little after 4.20pm. He said he took about 5-10 minutes to check around. When he was asked about his evidence that Kaliova made a call to him around 4.22pm and that he also made a call to Kaliova around 4.22pm, he said first he called Kaliova but Kaliova was busy and thereafter Kaliova called him where he informed Kaliova that he is leaving the office. He denied the suggestion that the tattoo on his ankle could be taken as a rose. He agreed that the green car that he owns is not driven by anyone else. To his knowledge, he was the only one working in the police store who had a green colour vehicle.
    
45. Next defence witness was Viniana Yauva. She said she works as a security officer at the Hoodless House. She said on 22/01/16, she was standing at the main entrance around 4.30pm with Mrs. Pratap and Zara who were working in the Finance Department. She said they stood there from around 4.30pm to 4.37pm. Mr. Pratap arrived during this time. She said she cannot remember the color of Mr. Pratap’s car. She did not go anywhere else until they boarded the car. She said she is not related to Mr & Mrs. Pratap and not good friends either with Mr. Pratap or Mrs. Pratap. She also said that she does not know where Mr. Pratap is working.
    
46. During cross examination, she said she had worked as a security officer for about 3 years. She said she did not know Mrs. Pratap very well because she was new. She said she did not see Mr. Pratap often but saw him that day when he came to pick his wife. When she was asked how many times Mr. Pratap picked Asenaca that week, she said she only saw him that day. She said she could remember 22/01/16 because that was the last day for Mrs. Pratap at the Finance Department in Hoodless House. She agreed that she can’t recall the time other staff of Hoodless House boarded their vehicles. She also agreed that she do not remember the afternoon of 22/01/16 clearly. She then agreed that it was Asenaca who told her if she could remember 22/01/16 and Asenaca specifically told her to remember 4.30 to 4.37pm on 22/01/16. She agreed that Asenaca told her this to confirm that Asenaca’s husband was there. When it was suggested to her that in fact Asenaca’s husband was not there between 4.30 to 4.37pm, she said he was there. She said she wrote down the time 4.30 to 4.37pm in the log book. She agreed that she is helping her friend Asenaca Pratap when she said that she remember 22/01/16.
    
47. Asenaca Pratap gave evidence next. She said she is working for FNU since 2010. She was transferred to Fiji School of Nursing in February last year and before that she was at Fiji School of Medicine. Her last day at Fiji School of Medicine was on 22/01/16. She came to work on that day around 8.15am with her husband in the car. The car is dark green in colour. She said, that day was a busy day because of the enrolments. She said, in 2016, she was going for evening classes on Wednesdays and Fridays from 5 - 9pm. She said the class that was supposed to be on 22/01/16 was postponed. She was informed about this in the same afternoon and she informed her husband. She said on that day she signed out at 4.20pm and her husband picked her around 4.30pm. She said her husband called her around 4pm to tell her to be ready. The relevant page of the attendance register she signed on that day was tendered as DE 02.
    
48. She said she waited for her husband with Zara at the main entrance and they also met security officer Viniana on their way. When her husband came around 4.30pm, they both boarded the car and Zara was dropped at the Valelevu bus stop opposite FNU ground. They reached home around 5.30pm. When she reached home her parents, her niece and her 3 daughters were at home. She said they did not go anywhere that evening and no one came to visit them. She said she would not like her husband to go to jail and she is here today because she knows that he is not wrong.
    
49. During cross examination, she agreed that, in DE 02, the time Zara signed out on 22/01/16 is written in bold letters and the time she had signed out is not bold. She denied that she went home by herself on 22/01/16. She denied the suggestion that she is making up a story in court. In re-examination she said Zara wrote the time in the register.
    
50. Final witness for the defence was Vijay Lal. He said his house is situated next to Michael Pratap’s house at Nadawa. In between their houses there is a wire fence. He said on 22/01/16 around 5pm he was fixing his taxi and at about 5.30pm Michael and his wife came home. He offered a bowl of grog to Michael and Michael said ‘no’. Michael told him that he wants to talk to him. Later at 6.30pm Michael came to him and they discussed about taking Michael’s vehicle to the Land Transport Authority.
    
51. During cross examination, he said they were neighbours for about 7 years. He said, he stepped in to help Mr. Pratap because Mr. Pratap was talking to him on that day at that time. He agreed that he told the police that Mrs. Pratap told him that the allegation against Michael was on 22/01/16 in the evening. He said in February Asenaca called him and told him that she wants his help to bail Michael. Then when he asked her, she told him what happened.
    
52. During re-examination, he said Mrs. Pratap told him about the incident in the 3^rd week of February and he was shocked because he clearly saw Michael at 5.30pm at his house.
    
53. That is a brief summary of the evidence. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those agreed facts. You should consider those facts as proven beyond reasonable doubt. The prosecution need not prove the agreed facts.
    
54. Now, let me explain to you the elements of the offences you have to deal with. Accused is charged with the offence of rape on the first, second and the third counts.
    
55. To prove the first count, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of the complainant with his penis;
    100. without the consent of the complainant; and
    4. the accused knew or believed that the complaint was not consenting; or

the accused was reckless as to whether or not she was consenting.

56. The first element is concerned with the identity of the person who committed the offence. The Prosecution should prove beyond reasonable doubt that it was the accused who committed the offence.
    
57. Second element involves the penetration of the complainant’s vagina. The law states that this element is complete on penetration to any extent. Therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.
    
58. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
59. The prosecution should also prove either that the accused knew or believed that the complainant was not consenting; or that the accused was reckless as to whether or not the complainant was consenting.
    
60. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vagina, you may find that the accused was reckless as to whether or not the complainant was consenting. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not.
    
61. In the event you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s vagina with his penis but have a reasonable doubt as to whether the prosecution has proven the two elements based on consent beyond reasonable doubt, then you have to consider whether the accused is guilty of the lesser offence of defilement. A person who penetrates the vagina of a complainant who is between the age of 13 and 16 years with his penis is guilty of the offence of defilement under section 215(1) of the Crimes Decree. It is a defence to this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years. However, it is not a defence that the complainant consented to sexual intercourse when it comes to the offence of defilement.
    
62. To prove the second count, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of the complainant with his finger;
    100. without the consent of the complainant; and
    4. the accused knew or believed that the complaint was not consenting; or

the accused was reckless as to whether or not she was consenting.

63. Again, the first element is concerned with the identity of the person who committed the offence. The Prosecution should prove beyond reasonable doubt that it was the accused who committed the offence.
    
64. To establish the second element, the prosecution should prove beyond reasonable doubt that the accused penetrated the complainant’s vagina with his finger to any extent. A slightest penetration is sufficient to satisfy this element.
    
65. As I have explained to you, to prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
66. To prove the fourth element, the prosecution should prove either that the accused knew or believed that the complainant was not consenting; or that the accused was reckless as to whether or not the complainant was consenting.
    
67. In the event you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s vagina with his finger but have a reasonable doubt as to whether the prosecution has proven the two elements based on consent beyond reasonable doubt, then you have to consider whether the accused is guilty of the lesser offence of indecent assault.
    
68. The elements of the offence of indecent assault are;
    1. the accused
    2. unlawfully and indecently
    100. assaulted the complainant
         
69. Again, the first element involves the identity of the accused.
70. The word “unlawfully” simply means without lawful excuse.
    
71. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
72. Assault is the use of unlawful force. Accordingly, a physical contact constitutes an assault if it is done without a lawful excuse.
    
73. It is a defence to the offence of indecent assault if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years. However, it is not a defence that the complainant consented to the indecency.
    
74. To prove the third count, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of the complainant with his tongue;
    100. without the consent of the complainant; and
    4. the accused knew or believed that the complaint was not consenting; or

the accused was reckless as to whether or not she was consenting.

75. Again, the first element is concerned with the identity of the person who committed the offence. The Prosecution should prove beyond reasonable doubt that it was the accused who committed the offence.
    
76. To establish the second element, the prosecution should prove beyond reasonable doubt that the accused penetrated the complainant’s vagina with his tongue to any extent. A slightest penetration is sufficient to satisfy this element.
    
77. As I have explained to you, to prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
78. To prove the fourth element, the prosecution should prove either that the accused knew or believed that the complainant was not consenting; or that the accused was reckless as to whether or not the complainant was consenting.
    
79. In the event you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s vagina with his tongue but have a reasonable doubt as to whether the prosecution has proven the two elements based on consent beyond reasonable doubt, then you have to consider whether the accused is guilty of the lesser offence of indecent assault. I have already explained to you the elements of the offence of indecent assault.
    
80. To establish the fourth count of sexual assault, the prosecution should prove the following elements beyond reasonable doubt;
    1. the accused;
    2. unlawfully and indecently;
    100. assaulted the complainant.
         
81. Again, the first element involves the identity of the accused.
    
82. The word “unlawfully” simply means without lawful excuse.
    
83. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
84. Assault is the use of unlawful force. Accordingly, a physical contact constitutes an assault if it is done without a lawful excuse.
    
85. You should also ask yourself, firstly, whether you consider the force which was used could have been sexual because of its nature; and if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual.
    
86. In the event you are satisfied beyond reasonable doubt that there was force used which is indecent but have a reasonable doubt as to whether the complainant consented for the act, then you should consider whether the accused is guilty of the lesser offence of indecent assault.
    

Analysis

87. The prosecution says that around 5.15pm on 22/01/16 the accused penetrated the complainant’s vagina with his finger, his tongue and his penis and then sucked the complainant’s breast without her consent, knowing that she is not consenting or being reckless as to whether or not she is consenting; and these incidents took place inside the old gym near the police stores at Nasese.
    
88. Defence says that the accused was not at the aforementioned old gym around 5.15pm on 22/01/16 as he left his office around 4.20pm that day and he was near the Valelevu bus stop opposite the FNU ground.
    

Recent complaint

89. Experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all. A victim’s reluctance to complain could also be due to shame coupled with the cultural taboos existing in the society in talking about matters of sexual nature with elders. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint.
    
90. You heard in this case that the complainant had made a complaint to the second prosecution witness about the incident before the matter was reported to the police. Prosecution relies on that complaint and says that the complainant’s credibility is strengthened in view of that complaint.
    
91. You should consider whether the complainant made that complaint without delay and whether she sufficiently complained of the offences the accused is charged with. The complainant need not specifically disclose all of the ingredients of each offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that she made a prompt and a proper complaint, then and then only you may consider that her credibility is strengthened in view of that recent complaint.
    

Inconsistencies

92. Defence says that there were inconsistencies in the evidence given by the complainant and therefore her evidence is unreliable. The main inconsistency pointed out by the defence was that the sequence of events the complainant alluded to during her evidence in court is different from the sequence given in her statement to the police.
    
93. This is how you should deal with inconsistencies when you evaluate the evidence of a particular witness. First you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find an inconsistency to be material and relevant, then you must consider whether there is any explanation for that inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
94. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
95. You have to bear in mind that previous statements made out of court are not evidence except for those parts that are put to a witness as inconsistent versions. As I have already told you, evidence is only what came out from the witness box. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
    

Identification of the offender

96. You remember that the complainant said in evidence that she had seen the accused working at the police store for about 4 months. She gave evidence about certain encounters she had with the accused prior to 22/01/16. She said that the alleged incident inside the police gym took place for about one hour.
    
97. If you are not satisfied that the complainant knew the offender well enough prior to the incident in order for her to recognise him during the alleged incident, you should approach her identification of the accused in court, with caution.
    
98. Identifying an accused for the first time in court after the alleged incident when the accused is inside the accused box is known as ‘dock identification’. Dock identification is unreliable in the absence of a prior identification in the investigation stage during an identification parade or photograph identification. It is because the witness may identify the accused merely because he is in the ‘dock’. Witness may assume that the accused is the person who committed the crime because he is in the dock. In this case no formal procedure was followed to have the accused identified during the investigation stage.
    
99. Defence points out that though the complainant said that there was a tattoo of a rose on the offender’s leg, the accused does not have a tattoo of a rose on either of his legs. During his evidence the accused showed both legs below the ankle to the court.
100. Considering all the evidence you would decide to accept, you should carefully consider whether the accused’s identity has been established by the prosecution beyond reasonable doubt. Are you sure that the offender is the accused and no one else?
     
101. Please bear in mind that you should not assume that the accused might have committed the four offences he is charged with just because you accept the evidence of the complainant regarding the previous encounters with the accused.
     

Defence of alibi

102. May I now direct you on the defence of alibi. Defence of alibi means, the accused takes up the position that he was not at the crime scene but elsewhere at the time the crime was committed. His position is that he could not have committed the offences he is charged with because he was not at the place where the offences were committed at the material time. Though the accused had put forward this defence of alibi, please remember that there is no burden for the accused to prove that he was elsewhere during the time the offences were alleged to have been committed. The prosecution should still prove that it was the accused that committed each offence and that therefore the alibi is not true.
     
103. If you think that the version of the accused that the accused was not at the place the offences took place at the time the offences are alleged to have been committed is true or it may be true, then you must find the accused not guilty.
     
104. However, you should also bear in mind that you should not assume that the accused is guilty of the offences merely because you decide not to accept his version. You should remember that sometimes an accused may invent an alibi just because it is easier to do so rather than telling the truth. Main question remains the same. That is, are you sure that it was the accused who committed each offence.
105. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that always the prosecution should prove the case beyond reasonable doubt.
     
106. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
     
107. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise pertaining to each offence;
     
     • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
       
     • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
       
     • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of an offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proved all the elements beyond reasonable doubt. If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.
       
108. Any re-directions?
     
109. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. You may peruse the exhibits tendered in court if you wish to do so. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
     
110. Your possible opinion should be as follows;

1^st count Rape – guilty or not guilty
If not guilty;
Defilement – guilty or not guilty

2^nd count Rape – guilty or not guilty
If not guilty;
Indecent assault – guilty or not guilty

3^rd count Rape – guilty or not guilty
If not guilty;
Indecent assault – guilty or not guilty

4^th Sexual assault – guilty or not guilty
If not guilty;
Indecent assault – guilty or not guilty

Vinsent S. Perera
JUDGE

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