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State v SR - Summing Up [2017] FJHC 632; HAC163.2016 (21 August 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 163 of 2016

STATE

Counsel: Ms. K. Semisi for State
Ms. L. Manulevu for Accused

Hearing: 15^thto 18^th August 2017

Summing Up: 21^st August 2017

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SUMMING UP

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The name of the victim and the accused are suppressed.
The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
You are to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the judges of the facts.
You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purposes of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advice you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.

Burden and Standard of Proof

I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence.
The burden of proof of the charge against the accused is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.

Information

The Accused is charged with three counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act and two counts of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act. The particulars of the offences are before you. Hence, I do not wish to reproduce them in my summing up.
The Prosecution alleges that the accused unlawfully and indecently kissed the cheeks and neck of the victim while she was sleeping in the night of 29th of March 2014 at his house. He then forcefully inserted his penis into her vagina without her consent. The victim is the biological daughter of the accused. Again on the 13th of April 2014, the accused unlawfully and indecently kissed her lips while she was lying on the bed. He then forcefully inserted his penis into her vagina without her consent. In respect of the fifth count, the Prosecution alleges that the accused again forcefully inserted his penis into the vagina of the victim while she was lying on the bed on the 16th of April 2014.
I now take your attention to the main elements of the offences of Rape and Sexual Assault.
The main elements of the offence of rape as charged in the information are that:
1. The Accused,
2. Penetrated into the vagina of the victim with his penis,
3. The victim did not consent to the accused to penetrate into her vagina with his penis,
4. The Accused knew or believed that the victim was not consenting for him to insert his penis in that manner.
The main elements of the offence of Sexual Assault are that:
1. The accused,
2. Unlawfully and Indecently,
3. Assault the victim,
The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act as indecent. It is your duty as Assessors to consider and decide whether the acts of kissing the cheek, neck and lips of the victim by the accused is an indecent act amounting to sexual assault.
The accused is charged with three separate counts of Rape and two separate counts of Sexual Assault. It is your duty to consider each of these five counts separately. If you found the accused is guilty for one count, that does not automatically make him guilty for the remaining counts for which he is charged with.

Admitted Facts

I now request you to draw your attention to the agreed facts, which are before you. They are the facts that the prosecution and defence have agreed without dispute. Hence, you are allowed to consider them as proven fact by the prosecution beyond reasonable doubt.
The accused has admitted in the agreed fact that he had sexual intercourse with the victim on the 29th of March 2014, 13th of April 2014 and 16th of April 2014 respectively. The prosecution alleges that the victim did not give her consent for the accused to have such sexual intercourse with her on these three occasions. However, the accused claims otherwise. Accordingly, the main dispute in this matter is the consent of the victim in respect of the three counts of Rape.
In view of the admitted fact, the first two elements of the offence of Rape, the identity of the accused and the penetration into the vagina of the victim by his penis, are not disputed by the Prosecution and the Defence.

Consent

Let me now draw your attention to the issue of consent. It is your duty to decide whether the prosecution has proven beyond reasonable doubt that the victim did not give her consent to the accused to insert his penis into her vagina.
Consent is a state of mind which can take many forms from willing enthusiasm to reluctant agreement. In respect of the offence of rape, the victim consents only, if she had the freedom and capacity to voluntarily make a choice and express that choice freely. A consent obtained through fear, by threat, by exercise of authority, by use of force or by intimidation could not be considered as a consent given freely and voluntarily. A submission without physical resistance by the victim to an act of another person shall not alone constitute consent.
The victim must have the freedom to make the choice. It means that she must not being pressured or forced to make that choice. Moreover, the victim must have a mental and physical capacity to make that choice freely. The consent can be withdrawn at any time. The consent is an ongoing state of mind and is not irrevocable once given. The consent for sexual intercourse must be comfortable to the person who made such choice. It should not be an optional choice. The consent of a person for sexual intercourse should not be assumed.
If you are satisfied, that the accused had inserted his penis into the vagina of the victim and she had not given her consent, you are then required to consider the last element of the offence, that is whether the accused honestly believed or knew that the victim was freely consenting for this alleged sexual intercourse. I must advice you that belief in consent is not the same thing as a hope or expectation that the victim was consenting. You must consider whether the accused knew either that the victim was not in a condition or a position to make a choice freely and voluntarily, or the victim had made no choice to agree to sexual intercourse. If you conclude that the accused believed or knew that the victim was consenting, you must then consider whether such belief of the accused was reasonable under the circumstances that was prevailed at the time of the alleged incident took place.
You must bear in mind that offences of sexual nature do not need the evidence of collaboration. It means that if you are satisfied with the evidence given by the victim and accepts it as reliable and truthful; you are not required to look for any other evidence to support the account given by the victim.
One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape, a rapist or a victim of rape.
Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. You heard that the accused is the biological father of the victim. As I said above, it is your duty to determine the legal culpability of the alleged act committed by the accused according to law and not the moral or emotional culpability. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course of the hearing.
It is your duty as judges of facts to assess the evidence in order to determine whether the victim gave her consent to the accused for this alleged sexual intercourse. In doing that, you must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not. Demeanours of the victim in the court while giving evidence is not necessarily a clue to the truth of the victim’s account.

Alternative Offence

If you found that the accused, being the father of the victim, had sexual intercourse with the victim with her consent, you are then allowed to look at lessor offence of “Incest by other Relative” though it is not formally charged in the information. The main elements of the offence “ Incest by other Relative” are that:
1. The Accused,
2. Being the Father of the victim,
3. Had Carnal Knowledge/ Inserted his penis into the vagina of the victim.
It is immaterial that the carnal knowledge was had with the consent of the other person.
Let me now remind you the evidence presented by the prosecution and the defence during the course of the hearing.

Evidence of the Prosecution

The first witness of the Prosecution is the victim. In her evidence the victim said that she was living in Nasalia in Kadavu in 2014. Her Aunty called her to come to Soso village. The Aunty told her to come and meet her father. She met her father at Namalata on the 29th of March 2014. He then took her by boat and went to Lauwaki. She found her father’s younger brother Michael at her father house. He told them to go to Soso village as she supposed to go there. However, her father refused to go. She then had dinner with her father and went to sleep. The house of the father is an open house and had no separate rooms. She slept on the bed and her father went to sleep on the floor, few meters away from her bed.
While she was sleeping on the bed, her father called her to come to him. She said “no”. He then came and sat on the bed. He removed her clothes and tried to touch her body. He then kissed her cheek and neck. He touched her breast. She tried to push him away, but he was too heavy for her to push away. She was scared. The victim then felt that the penis of the accused was inside her vagina. She felt pain when he put his penis into her vagina. She told him that you are my father and she is his daughter. He told her that she is not his child and he is not her father. She did not agree or consent for him to put his penis into her vagina. She told him “no" when he did that. But he continued to put his penis into her vagina. There is only one house situated close to her father’s house. Apart from that, no other houses are situated around that area. The closest village is about twenty kilometers away behind the forest. It would take about four hours to reach there by foot.
On the 13th of April 2014 the accused came and took off her clothes while she was lying on the bed. There was no one present in the house apart from the victim and the accused. After taking off her clothes, he came on top of her. He grabbed her hand and put her down to the floor. He then touched and kissed her lips. She was scared. She tried to push him away, but he was too heavy. She kept pushing him away. The accused then inserted his penis into her vagina. She told him “No”. He asked her whether Qasiva would come and try you out. She asked him “are you mad”? Qasiva is her cousin.
The accused asked the victim to give him her vagina. She said “no”. He then said that he will hang himself if she did not give it. He was angry.
On the 16th of April 2014, she was still staying with her father at his house. In that evening, she was lying on the bed; the accused was also lying on the same bed beside her. He then pulled her by the collar of her t-shirt. He then kissed her cheek and neck. He touched her breast. He then took off her clothes and penetrated his penis into her vagina. She felt scared. She pushed him away but he was too heavy. He pushed himself towards her.
The victim in her evidence explained that she did not agree or consent to the accused to insert his penis into her vagina in that manner. She was scared as he threatened her that he will kill her if she tells anyone about this incident.
After the third incident, she had gone to Pastor Bai’s house with her brother. She stayed there on Sunday. The Pastor, her uncle Michael and Aunty Arieta had asked her to seek forgiveness from her father, which she denied. She did not meet her father for reconciliation. Her uncle then asked her to go back to Nasalia. She then went back to Nasalia and stayed at her mother’s place. She did not go back to Sogo village again.
At Nasalia she did not tell anyone about this incident. Her mother did not ask her about this incident. Neither she did tell her mother about this incident.
The victim further explained in her evidence that her aunty Bulou Milika asked her whether her father had sexual intercourse with her in the forest. The Aunty asked her about it when she went to Vukavu with the Aunt. The victim had told her “yes”.
The victim in her evidence said that she made a statement to the police regarding this incident in 2016. Subsequent to making of the Police Statement, she was taken for medical examination.
The victim explained that there was no boat for her to go back when her father first had this forceful sexual intercourse. It is too far for her to go back on foot. If she wants to go back on foot, she had to go through the forest, which she could not do it alone. When her brother came, she went back with him. The neighboring house was always empty as the owner always resides at Vukavu. The victim said that she was scared and that was the reason she did not tell her mother about this incident. She did not tell this to Police till 2016 as she was scared.
During the cross examination, the victim said that her parents got separated even before she was one year old. Since then the victim has grown up with her mother and her father had played no part in her growing up. The father was never a part of her life when she was growing up. She only found out about her father when she finished her school.
On the 29th of March 2014, she met her father at Maraia’s house at Namalata, Vunisea. That was the first time she met her father. She was nineteen years old at that time. Her father was also happy to see her. They then went to Lauwaki. On their way he bought some stuff from a shop. Once they reached home, her father prepared dinner. They then had dinner. Apart from the victim and her father, no other person was present at home. She then went to have her bath. When she returned from her bath, she found that her father was washing dishes.
Ladies and gentleman, you have heard the evidence given by the victim by denying the proposition put to her by the learned counsel for the defence in respect of these three alleged sexual encounters with the accused. She said that she did not scream when the accused had sexual intercourse with her. The victim had told Kalou about this forceful sexual intercourse by her father on the next day after the first alleged sexual intercourse. The neighbour had told her that her father was stupid.
You may recall that the learned counsel for the defence asked the victim about the positions that she had when having sexual intercourse with the accused. She denied all the positions proposed by the learned counsel apart from the position that she came on top of the accused when they had sexual intercourse. She however, denied all the proposed positions in respect of the third sexual encounter. Moreover, during the re-examination she explained that she did not come on top of the accused when he had sexual intercourse with her. Only the accused came on top of her. The victim denied that she had agreed or consented to have sexual intercourse with the accused on the 29th of March 2014, 13th and 16th of April 2014 respectively.
The victim explained that she was scared of the accused as she thought that he was still following her, even though she lived in Nasalia village. She had told about this incident to Nurse Iva at Soso village. Nurse Iva then had spoken to the accused. Nurse Iva then took her to Nasalia village.
The victim said that she only told Aunty Bulou that the accused had sexual intercourse with her and never told her that he raped her. Aunty Bulou asked her whether the accused had sexual intercourse with her. The victim said that she wanted to report the matter to Police but her uncle Michael, Aunty Arieta and Pastor Bai told her not to do such.
In the re-examination, the victim said that she did not scream as no one was around. Only the accused and the victim were there during the time of these three incidents took place. Furthermore, the victim said that she told Aunty Bulou that the accused raped her.
The second witness of the Prosecution is Daiana Naikanitoba. She is the aunty of the victim. She is one of the cousins of the accused. She could recall that on the 24th of August 2014, she went to choir practice at Vukavu village. She was accompanied by the victim. At that time Ms. Naikanitoba was living in Soso village, Kadavu. The victim was at Soso village during that time, staying at the family house of her father’s younger brother. His name is Waisale Osea.
On their way back to the village, she had asked the victim whether the accused had sexual intercourse with her. She had asked the victim four times as first two times she denied it and the third time she took a long breath but did not answer. The victim only answered to the fourth time by nodding her head and raising her eyes. They then talked for a while and walked back to the village. Ms. Naikanitoba had asked the victim why did she never tell this to them on the first time when it happened. The victim had told her that she was scared to tell. She then did not discuss it further with the victim. She did not tell anyone about this and kept it to her as she wanted to find out the truth of it. On their return to the village, the victim stayed with her on Sunday and went back to her uncle’s place.
During the cross examination, Ms. Naikanitoba said that the reason she asked the victim about this incident because of the rumour she heard in the village. She had only asked the victim whether her father had sexual intercourse with her. The victim never told her that the accused forced her to have sexual intercourse with him. The victim answered by only nodding her head. She did not inform about this to anyone including the Police. The reason that she did not tell anyone about this as the victim never told her that the accused forced her to have sexual intercourse with him.
The next witness of the Prosecution is Sergeant Moape. He is presently based at Kadavu Police Station. He is the investigation and interviewing officer of this matter. He was instructed by the director CID to investigate this matter and conduct the caution interview of the accused. He has conducted the caution interview on the 19th of April 2016 and concluded it on the 20th of April 2016. There was no witnessing officer present during the recording of the caution interview. He did not want to have a witnessing officer as the accused did not behave violently. The caution interview was conducted in the room of the Station Sergeant. It was conducted in i-taukei language as the accused chose the said language. It was recorded by him. He then translated the caution interview into English language. The accused confirmed about his educational level and his ability of reading and writing of i-taukei language. During the recording of the caution interview the accused was given sufficient breaks, rest and meals. Sergeant Moape tendered the original copy of the caution interview as Prosecution Exhibit one and the translated copy of the caution interview as Prosecution Exhibit two.
The accused was given his right to counsel and he then freely and voluntarily signed on the caution interview in order to acknowledge it. Sergeant Moape asked the questions and the accused answered to them accordingly.
Sergeant Moape further said that he properly explained the accused about the allegation during the conduct of the caution interview. He in his evidence then explained about the breaks given to the accused during the recording of the caution interview. The accused was reminded and informed about his rights at the end of each and every break. The accused has signed the caution interview at the end of each break in order to acknowledge that he was reminded and informed about his rights.
According to evidence given by Sergeant Moape, the accused answered each and every question freely and voluntarily. He has recorded those questions and answered as the same manner that he asked and the accused answered. He recorded them to the best of his ability and knowledge. The accused understood each and every question he asked. Sergeant Moape then translated them into English to the best of his knowledge and ability. Neither Sergeant Moape nor other police officers fabricated any of the answers given by the accused.
The accused freely and voluntarily pointed out all the relevant places in respect of these offences during the reconstruction. He was not forced to do so. Sergeant Moape found that the house of the accused and one more house were situated in the farm of Lauwaki. The nearest two villages are Soso village and Vukavu village. It would take about two-three hours to go there from Lauwaki. Once the reconstruction is completed they came back to the Police Station. The accused was given his rights to read the caution interview at the conclusion of the recording of it. However, the accused chose not to exercise that right. Moreover, he did not ask Sergeant Moape to read it over to him.
Sergeant Moape explained that all Police Officers in the Police Station were engaged in two other investigations pertaining to some other serious crimes at the time of the recording of this caution interview. Only Sergeant Moape and the Station Orderly were present in the Police Station. Therefore, he had to continue the recording of the caution interview without a witnessing officer.
During the cross examination, Sergeant Moape said that it was important to have a witnessing officer during the recording of caution interview of a serious offence such as this offence. He was then questioned by the learned counsel for the defence regarding the answers given by the accused in respect of the following questions in the caution interview. They are that: Q&A 53-80, 99-108, 114-120, 122-134, 139, 147, 149, 151, 154, 156, 158. The learned counsel proposed to Sergeant Moape that many of the answers that have been recorded in the caution interview pertaining to those questions were fabricated, which Sergeant Moape denied in his answers.
Moreover, Sergeant Moape in his evidence said that he received the medical report of the victim. The Medical Report of the victim was tendered as Defence Exhibit one during the cross examination.
During the re-examination Sergeant Moape said that it is not a requirement to have a witnessing officer during the recording of the caution interview.

Evidence of the Defence

At the conclusion of the prosecution’s case, the accused was explained about his rights in defence. The accused opted to give evidence on oath. However, he advised the court that he does not wish to call any other witnesses for his defence.
The accused in his evidence explained that he had divorced the mother of the victim when the victim was few months old. The accused looked after their son and the victim was raised by the mother. On the 29th of March 2014, he went to Nasalia village to see the victim. It was the first time he met the victim after they were separated when she was few months old. They met at the house of Maraia. They then went to his house at Lauwaki. They had dinner together. Subsequent to the dinner, the victim went to have her bath. She came and went into the bedroom which was separated by a tarpaulin from the sitting area. He saw she was naked and drying her body in the room while he was washing dishes in the sitting area. He told her not to act like that as people in the village can see what she was doing. He then went to have his bath. He wanted to get a stick and hit her for what she did, but he did not execute that idea as she met him after long separation.
When he came back to the bedroom after having his bath, he found the victim was lying on the area where he used to sleep. She was naked. She was fondling her nipples from one hand while touching her private parts from her other hand. He sat on the bed and talked to her. He told her off knowing their relationship. He had tears in his eyes when he talked to her at that time. All of the sudden, she stood up and came towards him. She then pushed him down and sat on top of him, rubbing her vagina on his private part. She did it until he got arose. His penis got erected and it went inside her vagina. She was on top of him until he ejaculated. They then got dressed and went to sleep. He slept on the floor and she slept on the bed. She was relaxed and quiet when they were having sexual intercourse. The accused said that he did not threaten her to have sexual intercourse with him. He further said that he did not threaten her that he will kill her if she tells anyone else about this incident.
The accused could recall that on the 13th of April 2014, they were lying down in the bedroom in the evening. He told her that what they were doing is scary and wrong. It will affect one of them in the future. At that time she rubbed her hand on the front part of his trousers. She then put her hand inside his pants and rubbed. His penis got erected. Once she felt that, she put her hand inside his underwear and holds his penis. They both got arose and then agreed to have sexual intercourse. She then took off her clothes and so did the accused. They had sexual intercourse in different positions. First, he came on top of her. She then bent over towards her front and he entered his penis into her vagina from behind. After that position, he lifted her legs up to his chest and had the sexual intercourse. She then came on top of him when he ejaculated. They then dressed up and went to sleep. The accused said that he did not grabbed and pulled her down from her hand. He denied that he kissed her lips and forcefully took off her clothes. He further said that he did not threaten to kill her if she tells anyone else.
The accused said that they had a sexual intercourse on the 16th of April 2014 in the same manner as of the 13th of April 2014 in his bedroom with the victim. According to the evidence given by the accused, the victim behaved normally as nothing happened. He denies that he told her that she is not his child. He did not tell that they have to get married. He said that he did not force her to have sexual intercourse with him on the 29th of March 2014, 13th and 16th of April 2014 respectively.
After the third incident, they made a promise to end these activities. By then the accused felt that people in the village were suspicious on them. The victim stayed with him on the 16th of April 2014. They then went to the village to spend Sunday. On Monday morning he found that she had gone to Nurse Ro Iva’s house. He met Ro Iva. Ro Iva told him that she knows everything happened between the accused and victim. He felt guilty. Ro Iva told him that she will take the victim back to her mother at Nasalia village. Since then he did not see the victim.
In respect of the caution interview, the accused said that some of the answers as recorded in the caution interview are incorrect. He said that he never used the word “rape” in his answers to the questions put to him during the caution interview. He trusted the Police Officer, that he would accurately written down the answers. That was the reason he did not want to read it back or read it over to him by the Police Officer at the conclusion of the recording of the caution interview.
In the cross examination, the accused said that he could read and write i-taukei language. He understands the language well. The accused said he understood the question asked by Sergeant Moape in i-taukei language during the caution interview. Having understood the questions, he answered to them in i-taukei language. He was treated well and felt fine throughout the caution interview. He signed the record of the caution interview on his free will and voluntarily. He was aware about what was happening during the caution interview. No forced used against him. The accused said that the real answers that he gave to the Police Officer have not been properly recorded in the caution interview.
The accused did not agree with the version of the prosecution and said that he did not force the victim to have sexual intercourse with him. He said that she consented to have sexual intercourse with him. He was worried and upset when he was taken to the Police Station as he knew that he had sexual intercourse with his own daughter. The accused knew very well that the victim is his biological daughter. He further said that he knew about Police, assaulting offenders and that was one of the reasons made him worried and upset when he was taken to the Police Station.
I have summarized the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and reminded yourselves of all of them. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.

Analysis

The prosecution and the defence presented conflicting versions of events, which took place in private between the victim and the accused. The victim claims that the accused forcefully had sexual intercourse with her without her consent on three different occasions. Two of those occasions, he unlawfully and indecently kissed her cheek, neck and lips. The accused claims that it was a consensual intercourse. Both the prosecution and the defence did not dispute having sexual intercourse on the 29th of March 2014, 13th and 16th of April 2014.
The issue of the existence of consent for an alleged sexual intercourse that took place in private between two persons is always involving with believing of the version of a person against another’s. Hence, in order to determine whether the victim gave the consent, it is important to consider how the victim and the accused behave before and after the alleged sexual intercourse.
As I mentioned above, there is no stereotype of circumstances for a rape, a rapist, or a victim of rape. You are required to consider all the circumstances of this incident. Having considered all the circumstances as a whole, if it leads to an indisputable and inescapable conclusion that she had not given her consent freely and voluntarily to have sexual intercourse with the accused, you can then conclude that the victim has not given her consent to the accused to insert his penis into her vagina.
The Prosecution mainly relies on the evidence of the victim and the confessionary statement made by the accused in his caution interview made to the police.

Evaluation of Evidence

In order to determine whether the prosecution has proven beyond reasonable doubt that the victim did not give her consent, you have to consider the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified. You can accept part of a witness’s evidence and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is testifying in the evidence. You then should consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that, you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.
It is your duty as judges of facts to consider the demeanours of the witnesses, how they react to being cross examined and re-examined, were they evasive, in order to decide the credibility of the witness and the evidence. Moreover, you have to consider the knowledge of the witness on the facts that he or she is testifying, his or her disinterestedness, his or her integrity, and his or her veracity in order to determine the credibility of the witness and his evidence.

Presentation of the Evidence by the Victim

You have seen that the victim gave evidence behind a screen. Giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness to feel more at ease when giving evidence. It is not intended to prejudge the evidence which the witness gives. The fact that the evidence has been so given must not in any way be considered by you as prejudicial to the accused.

Caution Interview of the Accused

I now draw your attention to the confessionary statement made by the accused in his caution interview.
The prosecution presented in evidence the record of the caution interview that the police was conducted with the accused. The prosecution contends that the accused in fact made the admissions that he committed these offences as charge and those admissions have been recorded in the caution interview accurately and truly. The prosecution says the accused was treated well and he gave those answers in the caution interview freely and voluntarily. The Interviewing Officer in his evidence said that he recorded those answers in the caution interview as it was given by the accused.
Meanwhile the accused claims that most of the answers in the caution interview were fabricated by Sergeant Moape. The accused agreed with the Prosecution that he was treated well and felt fine during the recording of the caution interview. He did not want to read it or read over to him by the Interviewing Officer at the conclusion of the recording as he trusted that the Police Officer had recorded his answers correctly. He claims that certain answers that actually incriminate him to this crime have been fabricated.
In order to determine whether you can safely reply upon the admissions made by the accused in the caution interview, you must decide two issues.
Firstly, did the accused in fact make the admissions? Having considered the evidence presented during the course of the hearing, if you are not satisfied or not sure of that the accused has actually made the confessions in his caution interviews, you must ignore the admission made in the caution interview.
Secondly, if you are satisfied, that the accused has made the admission in his caution interview, then it is for you to decide whether the contents of the caution interview are truthful, and what weight you give them as evidence. It is for you to decide whether you consider the whole of the caution interview or part of it or none of it as truthful and credible. You must consider all other evidence adduced during the course of the hearing in deciding the truthfulness and the reliability of the confessions and it acceptability.
You have heard that the Sergeant Moape was cross examined by learned counsel for the defence in respect of the inconsistencies of the English translation of the caution interview with the original record of the caution interview. You are not required to determine whether the translation was properly and correctly done by Sergeant Moape. The issue that you have to determine is whether the accused in fact made this confessionary answers and those answers were properly recorded in the original record of the caution interview.

Delay

It has been said on behalf of the accused that the fact the victim did not report what had happened to her as soon as possible makes it less likely that the complaint she eventually made was true. It is a matter for you to consider and resolve. However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. 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. It takes a while for self- confidence to reassert itself. There is, in other words, no classic or typical response. A late complaint does not necessarily signify a false complaint, likewise an immediate complaint does not necessarily demonstrate a true complaint.
The Victim in her evidence said that she wanted to report this, but her Uncle Michael, Aunty, the Pastor told her not to do so. She told Nurse Ro Iva about this incident soon after she came to Soso village from the house of the accused. However, it is not sure whether she complained about the Rape or merely stated that her father had sexual intercourse with her. The Victim further said that the accused threatened her that he will kill her if she tells anyone about this incident. She was scared as she thought that the accused was still coming after her. She explained that even though she stayed at Nasalia Village, far from the house of the accused, she was still scared about the accused.
During the course of evidence given by the victim, the learned counsel for the defence suggested to the victim that she could have shouted for help. In her closing address the learned counsel for the defence has submitted to you that the victim’s failure to shout demonstrates that the victim was not telling the truth. This is an argument which you have to consider with care. When you do, you should not assume that there is any classic or typical response to an unwelcome demand for sexual intercourse. The experience of the courts is that people who are being subjected to non-consensual sexual activity may respond in a variety of different ways.
In doing that you have to consider the evidence given by the Victim and Sergeant Moape, where both of them said that there is only one house situated near to the house of the accused. It is a forest farm and away from other villages. The victim in her evidence said the family living in that nearby house was not at home during the period pertaining to this crime. Moreover, she said that she tried to push him away, but he was too heavy. She was scared and said “no” to the accused when he tried to have sexual intercourse with her.

Inconsistency Nature of the Evidence

You may recall that the learned counsel for the Defence proposed to you to consider the inconstancy nature of the evidence given by the victim. As I said before, you can consider the consistency of the evidence given by a witness with his or her own evidence and also with other evidence adduced in the hearing. In doing that you must bear in mind that some witnesses are not used to giving evidence and may find the different environment distracting.

Evidence of the Accused

I now take your attention to the evidence adduced by the defence. The accused elected to give evidence on oath. The accused is not obliged to give evidence. He does not have to prove his innocence. However, the accused decided to give evidence. Therefore, you have to take into consideration the evidence adduced by him when determining the issues of fact of this case.
Accordingly, it is for you to decide whether you believe the evidence given by the accused. If you consider that the account given by the accused is or may be true, then the accused must be acquitted.
If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.
Even if you reject the version of the accused that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.

Directions

Ladies and gentleman, I now take your attention to the final directions of the summing up.

First Count

Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under the first count, you can find the accused is guilty for the said offence of Rape.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under the first count, you must find the accused is not guilty for the said count of Rape and acquit him accordingly.
If you found him not guilty for the offence of Rape as charged under the first count, you are then allowed to consider the alternative count of Incest by Any Relative. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Incest by Any Relative, you can find him guilty of the alternative count of Incest by Any Relative.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Incest by Any Relative, you must find the accused is not guilty for the said count of Incest by Any Relative.

Second Count

Likewise, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Sexual Assault as charged under the second count, you can find the accused is guilty for the said offence of Sexual Assault.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Sexual Assault as charged under the second count, you must find the accused is not guilty for the said count of Sexual Assault and acquit him accordingly.

Third Count

In the same way if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under the third count, you can find the accused is guilty for the said offence of Rape.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under the third count, you must find the accused is not guilty for the said count of Rape and acquit him accordingly.
If you found him not guilty for the offence of Rape as charged under the third count, you are then allowed to consider the alternative count of Incest by Any Relative. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Incest by Any Relative, you can find him guilty of the alternative count of Incest by Any Relative.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Incest by Any Relative, you must find the accused is not guilty for the said count of Incest by Any Relative.

Fourth Count

If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Sexual Assault as charged under the fourth count, you can find the accused is guilty for the said offence of Sexual Assault.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Sexual Assault as charged under the fourth count, you must find the accused is not guilty for the said count of Sexual Assault and acquit him accordingly.

Fifth Count

In the same way if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under the fifth count, you can find the accused is guilty for the said offence of Rape.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged under the fifth count, you must find the accused is not guilty for the said count of Rape and acquit him accordingly.
If you found him not guilty for the offence of Rape as charged under the fifth count, you are then allowed to consider the alternative count of Incest by Any Relative. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Incest by Any Relative, you can find him guilty of the alternative count of Incest by Any Relative.
If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Incest by Any Relative, you must find the accused is not guilty for the said count of Incest by Any Relative.

Conclusion

Madam and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?

R.D.R.T. Rajasinghe

Judge

At Suva
21^st August 2017

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

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