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State v Waikelia - Summing Up [2017] FJHC 711; HAC223.2016 (22 September 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 223 of 2016

[CRIMINAL JURISDICTION]

STATE

V

SANAILA WAIKELIA

Counsel : Ms. K. Semisi for State

Ms. T. Kean and Mr. S. Kumar for Accused

Hearing on : 19^th-21^st September 2017
Summing up on : 22^nd September 2017
(The name of the complainant is suppressed. The complainant will be referred to as “NE”.)

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 in this case is what the witnesses said from the witness box inside this court room, the 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 that 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, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
   
6. Experience shows 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 others.
   
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. Sometimes we honestly forget things or make mistakes regarding what we remember.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected.
   
9. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by him/her is for you to decide.
   
10. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his/her evidence is inaccurate; or you may accept the reason he/she provided for the inconsistency and consider him/her to be reliable as a witness.
    
11. 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.
    
12. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that that inference is the only reasonable inference to draw from the proved facts. If there is a reasonable inference to draw against the accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
    
13. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those admitted facts. You should consider those facts as proven beyond reasonable doubt.
    
14. 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. You must be sure of the accused person’s guilt.
    
15. In order to prove that the accused is guilty of a particular offence, the prosecution should prove all the elements of that offence beyond reasonable doubt. 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.
    
16. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not those charges have been proved.
17. I must explain to you as to the reason for the use of a screen when the complainant gave evidence. It was a normal procedure adopted in courts on the request of the prosecution to make a particular witness relatively more comfortable when giving his/her evidence. You must not infer that such a protection to the witness was warranted due to the accused’s behaviour and should not draw any adverse inference against him on that account.
    
18. 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. But it is not necessary.
    
19. 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(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SANAILA WAIKELIA on the 8^th day of June 2016 at Galoa village, Navua in the Central Division penetrated the vagina of NE with his finger, without her consent.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SANAILA WAIKELIA on the 8^th day of June 2016 at Galoa village, Navua in the Central Division unlawfully and indecently assaulted NE by kissing her.

20. Though the accused is charged with two counts you should remember to consider each count separately. You must not assume that the accused is guilty of the other count just because you find him guilty of one count.
    
21. To prove the first count where the accused is charged with the offence of rape, 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.

22. 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 offences. In this case, there is no dispute about the identity.
    
23. The second element involves the penetration of the complainant’s vulva or vagina with the finger. The law states that this element is complete on penetration to any extent. Therefore, it is not necessary to have evidence of full penetration. A slightest penetration is sufficient to satisfy this element.
    
24. The third and the forth elements are based on the issue of consent. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vulva or vagina without her consent.
    
25. You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent and the fact that there was no physical resistance alone shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
26. Apart from proving that the complainant did not consent for the accused to insert his finger inside her vulva or vagina, the prosecution should also prove that, either the accused knew or believed that the complainant was not consenting; or the accused was reckless as to whether or not the complainant was consenting. This is the fourth element of the offence of rape.
    
27. 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 vulva or vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vulva or 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.
    
28. Please remember that knowledge and intention of the accused can only be inferred based on the other proven facts because you will not find direct evidence regarding same.
    
29. In the event you find the accused not guilty of the offence of rape for the reason that you are not sure whether there was penetration of the complainant’s vulva or vagina, you may consider whether the accused is guilty of the lesser offence of sexual assault.
    
30. The accused is charged with the offence of sexual assault on the second count. To prove the offence of sexual assault, the prosecution should prove the following elements beyond reasonable doubt;
    1. the accused;
    2. unlawfully assaulted the complainant; and
    100. the said assault is indecent and sexual.
         
31. The first element involves the identity of the offender who committed the offence. There is no issue on the identity of the accused.
    
32. Assault is the use of unlawful force. A touch constitutes an assault if it is done without a lawful excuse.
33. The word “unlawfully” simply means without lawful excuse.
    
34. An assault is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent. You should also ask yourself, firstly, whether you consider that indecent assault could also 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.
    

Prosecution case

35. The complainant said in her evidence that;
    1. She is 20 years old. She is from Tasmania, Australia. From February 2016 to June 2016 she lived at Galoa village. During that period she was working as a volunteer teacher at Pacific Harbor International School.
    2. She was staying at the 2^nd prosecution witness’ house at Galoa village on 08/06/16. The 2^nd prosecution witness was the local representative for the organization she was with and the said witness worked in the same school with her. She did not go to school on 08/06/16 because she was sick. On this day the villagers were preparing to go to Sigatoka for a funeral. While she was saying ‘goodbye’ from the front of the 2^nd prosecution witness’ house, the accused who was inside (neighbour) Asavina’s house called her to say ‘goodbye’. So she went to that house. There were around four women in the house getting ready to go for the funeral. They told her that the accused is in the bedroom and she went to the bedroom. When she went inside the room they greeted each other.
    100. Then the accused came closer to her, put his arms around her and started kissing her on her lips. She did not kiss him back. She said ‘no’ and tried to push him away. The accused kept on doing it and forced her to sit on the bed by pushing her onto the bed with his arms around her. She could not push him away because his arms were around her.
    4. He then sat on her right side and put his right hand on her thigh through her shorts and her underwear into her vagina. It was quick and then he stood up to undo his belt or buttons of his pants. She said it took only a couple of seconds for the accused’s hand to go through to her vagina. Then a lady walked into the room and he pretended like nothing happened. The lady packed up her bag and walked out. After the lady walked out, he told her “we will continue after I come back”.
    5. She said, at that time she was wearing ‘flowy’ shorts and the accused could easily put his hand. There were two door-ways to that room which had curtains drawn down all the way to the ground. While she was inside the bedroom there was no one else in that room apart from the accused. The others were in the main living area.
    6. After the accused told her “we will continue after I come back”, they both walked out of the room. At this point in time she was shocked and couldn’t believe what had happened to her. She went back to the grass area in front of the houses, watched them get into the truck, said good-bye and went to 2^nd prosecution witness’ house. The 2^nd prosecution witness came home around 7.00 o’clock that evening. They had dinner and went to bed. The next day she went to school and then stayed at Felicia’s house. Felicia was a friend of her who also worked at the same school.
    7. She went to school on the next day which was Friday and told the 2^nd prosecution witness about what happened to her on Wednesday. She said the reason she did not go back to the village on Thursday night was because she did not want to be in the village when the accused got back from the funeral as the accused told her he would continue.
    8. On that day they got back to the village around eleven in the night. When they got out from the taxi the accused was on the street and he called out to them. But they went straight to the house and went to bed.
    9. The next day she called her country manager and told her what happened to her on Wednesday. The country manager came over to Suva on Monday and she reported the matter to the police.
    10. She said she did not consent to what the accused did to her on 08/06/2016. She said the accused was aware that she was not consenting because she said ‘no’ and tried to push him away. She said she went to that house just to say good-bye as they were going for a funeral. She said the accused was the policeman in the village. She did not initially tell the 2^nd prosecution witness and then Felicia about what happened because she was in shock and did not know what to say. She said it was part of her personality to keep things to herself until she feels comfortable to talk. She did not call out to the four women in the house because she was in shock and could not believe what happened to her and she didn’t know what to do.
    11. During cross examination she agreed that she met the accused during kava sessions. She said it was only once or twice. She agreed that she went to the house willingly and voluntarily and the accused did not force her to come into the house. She agreed that she walked straight into the bedroom. It was suggested to her that on the day of the incident the curtains in the two door-ways into the bedroom were tied up into a knot. In response she said that she remember walking through a closed curtain. When it was suggested to her that there was another boy sitting in the room on the right side, she denied.
    50. She denied the suggestion that the accused only kissed her on her cheeks to say ‘hello’ and said that the accused kissed her on her lips. Then it was suggested to her that the accused only hugged her to say ‘hello’. She denied this suggestion. She said her mouth was covered when the accused forced her to sit down as he was still kissing her on her lips. When it was suggested to her that she could have shouted or asked for help from the lady who walked in, she said she could have but she was in shock. She agreed that she did not try to escape while the accused was unzipping his pants.
    13. When she was asked whether she discussed with Felicia about her future plans in Fiji, she said she cannot remember the specific conversation she had with Felicia that night. She denied the suggestion that she told Felicia that her future is in Fiji and nowhere else. She agreed that she would share stories about who she went out with and who she kissed, with Felicia. She said ‘yes’ when she was asked whether she told Felicia that she had a boyfriend at Kundan Singh. However she said there was nothing serious and they would talk as friends. She said she did not tell Felicia about the incident because she was still in shock. She admitted that she could have called the country manager on the date of the incident but she didn’t.
    14. During re-examination she said she returned to the village with the 2^nd prosecution witness on Friday night because she did not have any clothes with her and therefore she could not go anywhere else. She said she cannot give a specific reason as to why she did not call her country manager soon after the incident.
        
36. The second prosecution witness said that;
    1. On 08/06/16 no one else were living with her apart from her brother and sister. On 10/06/16 the complainant told her that she was kissed and touched by her private part by the accused. She had known the complainant from the time the complainant started working with her in the same school. She said the complainant was crying when she was telling about what the accused did to the complainant. She said that the complainant told her that the complainant was raped by the accused. She called the country manager and the country manager told her not to stay in the village. Then she took the complainant out of the village and stayed at the Uprising Resort for two days.
    2. During cross examination she agreed that the complainant would share stories with her, would drink kava and socialize together. She said the complainant is a very respectful person. When she was asked whether the complainant looked upset on Wednesday she said ‘yes’. When she was asked whether the complainant used the word ‘rape’ or she just said ‘touched by private part and kissed . . .’, she said “she is being kissed and touched by her private part”.
       
37. The third prosecution witness was Dr. Elvira Ongbit. She said that;
    1. She has specialized in Obstetrics and Gynecology. On 14/06/16 she medically examined the complainant. The medical report was tendered as PE 1. She had noted that the complainant looked relaxed and was cooperative. During the vaginal examination she had noted an old healed hymenal laceration at 9 o’clock position. The hymen elastic, folded and redundant. There were no signs of bruises or abrasion and no signs of fresh lacerations. She had been informed that the complainant had previous sexual intercourse in Australia. In D-14 of the medical report under the heading ‘Professional Opinion’ she had mentioned that she did not see any fresh lacerations and no signs of bruise or abrasions. As her findings she said that old healed hymenal laceration at 9 o’clock position meant that there was penetration of the vagina. She said if there was penetration about six days ago it is possible for that injury to be noted.
    2. During cross examination she said that the laceration she noted could have been caused within a period of one to six days. She also agreed that it can be the result of a penetration of any object including tongue, penis or finger.
       
38. 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.
    

Defence case

39. The accused said in his evidence that;
    1. On 08/06/16 he went to his cousin sister Asivina’s house. He wanted to rest there for a while as they were preparing to go for a funeral at Sigatoka. When he went there Asivina, Sera Moli who is his niece, and one of his brother’s daughter were there inside the house. He was resting on the bed inside the room. His nephew Nemia was also inside the room lying on the bed on the left side. He was yarning with Nemia on the bed. He saw the complainant who was a friend of his sitting outside the 2^nd prosecution witness’ house. He then called her and she came straight away inside the room. When she came in, Nemia was still lying down on the left side of the bed because he was also waiting for the truck to come to go down to Sigatoka. The complainant sat beside him and they were sharing jokes and stories like normal friends.
    2. He said he did not do anything when the complainant entered the bedroom. He said they usually socialize together, share jokes during grog sessions and youth group sessions. When the complainant entered the room the curtains were tied up with a ring to hold the curtains together. He said they were sitting and were just sharing jokes and nothing else happened. When he and the complainant were sharing jokes and laughing, Sera Moli entered the room to pack her clothes. She packed the clothes for 1 to 2 minutes and then left the room. Nothing else happened after Sera Moli left the room.
    100. He said the complainant was in the room with him for 5 minutes. After sharing jokes they both came out of the room together and he boarded into the carrier. When they left the room, his brother’s daughter, Sera Moli and Asivina were calling him saying that the carrier was ready and they were inside the living room. Nemia was still inside the room preparing his clothes. He denied the allegations made against him. He said when he meet the complainant they usually shake hands and hug each other as friends.
    4. During cross examination it was suggested that the curtains in the two door-ways to the bedroom were of the same length as the door-way from top to the bottom. He said he cannot recall because the curtains were tied with a ring. He denied the suggestion that both curtains were closed on 08/06/16. When it was suggested that the complainant was shocked and then both of them stood up to leave the bedroom he said she was not shocked and they both walked out of the door together. It was suggested to him that he told the complainant that he would continue after returning from the funeral and the complainant was still in shock and left the house. He denied this suggestion and said that the complainant was not shocked and they both left the room. He agreed that on 10/06/16 he saw the 2^nd prosecution witness and the complainant getting off a taxi. He said he was waiting with his cousin as the cousin was leaving. When it was suggested to him that at the time the complainant was inside the bedroom with him no one else was present, he said Nemia was inside the room.
       
40. The second defence witness was Sera Moli. She said that;
    1. On 08/06/16 while she was sitting inside the sitting room, the accused came inside the house and went to the bedroom. She heard the accused calling the complainant who was standing beside the neighbour’s house. Then the complainant came and without asking her permission to come inside, the complainant straight away went to the bedroom and sat beside the accused. She went inside the room to pack her clothes. She saw the complainant and the accused telling stories to each other and laughing. She saw the accused hugging the complainant. She said that hug was not for long. She did not pay attention to what they were doing inside the room. When the accused was hugging the complainant he was seated. She said when these two were inside the room, her brother Nemia was also there. Nemia had passed away.
    2. After packing her clothes she came inside the house and finished her tea. Thereafter she could hear noises coming from the side of their house as they were happy seeing the complainant. She could also hear the complainant and the accused sharing jokes and laughing. After she heard someone saying that the carrier has arrived, she saw the accused coming out with the complainant. Then she took the lead towards the carrier with her mother and the accused followed them.
    100. She said that day the curtains in the bedroom were tied up and they were not drawn down. She said when the complainant left the house that day the complainant was smiling and did not see any anger in her. The complainant also waved at her.
    4. During cross examination she agreed that she is accused’s niece and that she had come to court to give evidence on his behalf. She agreed that the accused had told her what to say. She said she saw the complainant going inside the bedroom but did not see what happened. When it was suggested to her that the reason that she did not see what happened is because she was not there at that time, she said she was there. She agreed that, when she went into the room she was there for a short time. When it was suggested that her brother was not there in the bedroom at that time she maintained that he was inside the room.
    5. She said though she could hear the accused and the complainant sharing jokes and laughing she could not exactly hear what they were saying. When it was suggested to her that all evidence she gave are lies and only what the accused asked her to say, she said everything she ‘saw was the truth’ and the main reason she is in court is to tell the truth about what she saw that day and she does not care that the accused is her uncle.
       
41. The third defence witness was Felicia Kayes. She said that;
    1. She knows the complainant and she met the complainant at the Pacific Harbor Multicultural School. At that time she was the chairperson of the school. She said the complainant is a good friend.
    2. On 09/06/16 she met the complainant in the morning at the school. The complainant looked normal. That afternoon she went to a salon and the complainant met her there. It was 8 o’clock when her hair was done. As they were leaving, the complainant said that she missed her bus to the village. She offered the complainant to stay with her. The complainant stayed with her that night. She said the complainant was normal. They had dinner, watched TV and went to bed. On the next morning when she called out to the complainant to wake up to go to school the complainant sent her a text message saying that she was not feeling well.
    100. Thereafter they had coffee sitting outside, where they were chatting about everything. The complainant told her about her boyfriend and how the complainant love Fiji, that the complainant wants to come back. She said the complainant told her about being in love with this boy and wanting to settle down with him. She said the complainant was open about everything in her personal life. The complainant had told her about anything and everything the complainant had done while she was in Fiji, about her boyfriend, her sexual life and about meeting friends.
         
42. That is a summary of the evidence adduced by the prosecution and the defence. Please note that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I have not referred to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit.
    
43. The prosecution says that they are relying on recent complaint evidence. You heard in this case that the complainant had made a complaint to the second prosecution witness. This complaint was made on the 10^th June whereas the alleged incident had taken place on 08^th June. In this regard you should consider whether that was a prompt complaint regarding the incident and whether the complainant sufficiently complained of the offences the accused is charged with.
    
44. Such complaint need not specifically disclose all the ingredients of the offence and describe every detail of the incident, but should contain sufficient information with regard to the alleged conduct of the accused. However, please remember that this evidence of recent complaint is not evidence as to what actually happened between the complainant and the accused. The second prosecution witness cannot confirm whether the content of that complaint is true because she was not there. It may only assist you to decide whether the complainant is consistent and whether or not the complainant has told you the truth. In the end you are deciding whether the complainant has given a truthful account of her encounter with the accused.
    
45. On the other hand the defence says that there is a delay in making the complaint and there is no reasonable explanation to the delay. The defence points out that there were many opportunities for the complainant to make a complaint soon after the incident but she didn’t. It was highlighted by the defence that the complainant did not shout or cried for help while she was inside the room with the accused; she did not complain to the second defence witness who entered the room; she did not complain to the women who were in the living room in Asavina’s house; she did not complain to the second prosecution witness on the day of the incident; she did not complain to the third defence witness on the second day after the incident with whom the complainant had shared many things regarding her stay in Fiji; and the complainant did not complain to the country manager until Saturday.
    
46. On this issue, the prosecution wants you to consider the fact that the complainant is a foreigner who had been in this country only for couple of months before the alleged incident in deciding whether there is a reasonable explanation for her not making a complaint soon after the incident. According to the complainant she was in shock and she did not know what to do or how to react. She said she is a person who would keep things to herself until she finds it comfortable to talk.
    
47. As I have said earlier experience has shown that victims of sexual offences may react in different ways to what they went through. Some may complain to the first person they see. Some may not complain for some time or may not complain at all. However, if there is a delay in making a complaint, that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay. Please remember that 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.
    
48. You heard the evidence of the third prosecution witness, the doctor who examined the complainant. She gave her opinion based on what she observed when she examined the complainant after 6 days. You are not bound to accept that evidence. It is a matter for you to give whatever weight you consider appropriate with regard to the observations made and the opinion given by the doctor.
    
49. With regard to the first count, the prosecution says that the accused penetrated the complainant’s vulva or vagina with his finger without the consent of the complainant and the accused knew that the complainant was not consenting or the accused was reckless as to whether the complainant was consenting or not.
    
50. According to the complainant, the accused kissed her on her lips and then forced her to sit on the bed by pushing her onto the bed while having his arms around her. Then he put his right hand through the shorts she was wearing and the underwear into her vagina. The complainant said that she said ‘no’ and tried to push the accused away when the accused kissed her and also tried to push him away while the accused pushed her down onto the bed. After that he stood up to undo his pants. At this moment the lady who gave evidence as the second defence witness walked in to pack her bags. After the lady walked out, the accused told her that ‘we will continue after I come back’ and then both of them left the room at the same time. According to the complainant no one else apart from the accused was there inside the room when the alleged incident took place and there were curtains on the two door-ways to that room which were drawn down.
    
51. The second prosecution witness who was the first person the complainant complained of what happened to her on the second day after the incident said that the complainant told her that the complainant ‘was kissed and touched by her private part by the accused’.
    
52. According to the doctor who examined the complainant after 6 days, there was an old healed laceration in the hymen which means there was penetration of the vagina. She said in her evidence that the complainant has had sexual intercourse before in Australia. According to her opinion, that old healed laceration could have been caused by a penetration of the vagina within 6 days before the examination. Further, according to her evidence, this laceration could have been caused by any object. During cross examination she admitted that the said injury would have been caused within a period of one to six days.
    
53. The accused denies this allegation. According to the accused he was just sharing jokes with the complainant while they were seated on the bed inside the room in question. There was a boy named Nemia in the room while the complainant was there. The second defence witness who was the lady who walked into the room to pack her bags said that she saw the complainant going inside the room and the complainant sat down on the bed. She also saw the accused hugging the complainant. She said the complainant was smiling when she left the room. She also said that her brother Nemia who is now deceased was inside the room.
    
54. Therefore, according to the defence, the allegation made by the complainant is not true. The defence points out that the complainant had not shown any sign of distress during or after being with the accused in the bedroom in question.
    
55. Considering all the evidence you should decide whether the prosecution has proved all the elements of the offence rape beyond reasonable doubt.
    
56. In the event you find the accused not guilty of rape for the reason that you are not sure whether there was penetration or not, you should consider whether the accused is guilty of the offence of sexual assault based on the evidence presented on the first count.
    
57. With regard to the second count, the prosecution relies on the complainant’s evidence that the accused kissed her on her lips. The accused denies this allegation.
    
58. The defence suggests that complainant’s evidence is not probable and reliable. The defence points out to the complainant’s evidence during cross examination where she said that her mouth was covered when she was pushed onto the bed because the accused was kissing her on her lips and says that if that is the case the complainant could not have said ‘no’ as she testified during her examination in chief.
    
59. Based on the evidence presented in this case, first you should decide what facts are proven and what reasonable inferences you can draw from those proven facts. Then, based on those proven facts and reasonable inferences you should decide whether the elements of each offence have been proven beyond reasonable doubt.
    
60. 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 against the accused beyond reasonable doubt.
    
61. 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. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
62. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of 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, or his witnesses, that itself does not make him guilty. 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.
      
63. Any re-directions?
    
64. 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 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.
    
65. Your possible opinion should be as follows;

1^st count (rape) – guilty or not guilty

If not guilty
sexual assault – guilty or not guilty

2^nd count (sexual assault) – guilty or not guilty

Vinsent S. Perera
JUDGE

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