IN THE HIGH COURT OF FIJI AT SUVA
CASE NO: HAC. 25 of 2017
[CRIMINAL JURISDICTION]

STATE
V
MANIYAU MOW

Counsel	:	Ms. J. Fatiaki and S. Sharma for State
		Ms. S. Hazelman and Mr. E. Radio for Accused
				
Hearing on	: 	21st – 23rd February 2018
Summing up on	:	23rd February 2018	
(The name of the complainant is suppressed. The complainant will be referred to as “LM”.)

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 admitted facts and the exhibit tendered. As I have told you in my opening address, 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.	A statement made by a witness to the police can only be used during cross-examination to highlight inconsistencies. That is, to show that the relevant witness on a previous occasion had said something different to what he/she said in court. You have to bear in mind that a statement made by a witness out of court is not evidence. However, if a witness admits that a certain portion in the statement made to the police is true, then that portion of the statement becomes part of his/her the evidence.

5.	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.

6.	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 behaviour 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.

7.	When the complainant gave evidence she said she is 17 years old. She gave an account on an incident that took place on 13/01/17 when she was 15 years old. You may have come across children of this age. You will have an idea of the way a child of a particular age behave, think, talk and the way they describe things.

8.	Experience shows that victims of sexual offences may react in different ways to what they went through and 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 offence the accused is charged with.

9.	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.

10.	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. You may also find inconsistencies when you compare the evidence given by witnesses on 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.

11.	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 that witness is for you to decide.

12.	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 the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.

13.	You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness 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.

14.	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.

15.	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.

16.	As a matter of law you should remember that the burden of proof always lies on the prosecution. An 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.

17.	In order to prove that the accused is guilty of an 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 the 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 offence in a short while.

18.	You are not required to decide every point the lawyers in this case have raised. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge has been proved.

19.	Please remember that 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.

20.	Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offence;

FIRST COUNT
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence
MANIYAU MOW, on the 13th day of January, 2017 at Nasinu in the Central Division, had carnal knowledge of LM, by inserting his penis into the anus of LM without her consent.

21.	To prove the offence of rape in this case, the prosecution must prove the following elements beyond reasonable doubt; 
a)	the accused;
b)	penetrated the complainant’s (LM) anus with his penis;
c)	without the consent of the complainant; and
d)	the accused knew or believed that the complainant was not consenting; or
the accused was reckless as to whether the complainant was consenting or not.

22.	The first element is concerned with the identity of the person who committed the offence. In this case, the identity of the accused is not in dispute.

23.	Carnal knowledge in the context of this case is penetrating the anus by the Penis. To prove the second element of the offence, the prosecution should prove beyond reasonable doubt that the accused penetrated the complainant’s anus with his penis. The law states that this element is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration or ejaculation. 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 anus with his penis 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;
a)	by force; or
b)	by threat or intimidation; or
c)	by fear of bodily harm; or
d)	by exercise of authority.

26.	To prove a charge of rape, apart from proving that the complainant did not consent for the accused to insert his penis inside her anus, the prosecution should also prove that the accused knew or he believed that the complainant was not consenting or that the accused was reckless as to whether the complainant was consenting or not. This is the fourth element of the offence of rape.

27.	If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her anus and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s anus with his penis, 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.	In the event you have a reasonable doubt as to whether the prosecution has proven the two elements based on consent beyond reasonable doubt and therefore the offence of rape is not established, then you have to consider whether the accused is guilty of the lesser offence of defilement. A person who penetrates the anus of a complainant who is between the age of 13 and 16 with his penis is guilty of the offence of defilement under section 215(1) of the Crimes Act. 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.
29.	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.

Prosecution case
30.	The complainant said in her evidence that;
a)	Her date of birth is 12/02/01. In January 2017 she was living with her aunt Teresia. On 13/01/2017 she went to her real mother’s house to wash clothes for her on her request. It took her about 6 minutes to walk from the aunt’s house to her mother’s house. After washing clothes there she went back to the aunt’s house to wash some clothes she had earlier soaped. This was around 12.30. She came back to the mother’s place and had lunch. She helped her mother to wash the dishes and to clean the kitchen.
b)	Three friends of her father came over to the house in the afternoon. They were drinking beer in the kitchen. She was inside the room lying down with the two stepsisters. In that house there was a kitchen and there was only one room which is not really big. There was no electricity.  Her mother sent her to buy kerosene and one packet of BH. Those items were bought from the money given by the accused and when she came home, he give her $1. She did not know the accused’s name but she heard her stepfather calling him Maniyau. It was the first time for her to see him.
c)	Thereafter she went back to the mattress to sleep. After a while her mother again sent her to the shop to buy lollies for her and her stepsisters. After she came home, she changed her stepsisters’ clothes for them to go to the fundraising. She said she told her mother that she wants to go to her aunt’s house. But her mother told her to go on the next day. Thereafter all of them including the father’s friends went to the fundraising. When her two stepsisters wanted to sleep they came back. However her stepfather’s brother and another friend remained at the fundraising. On their way back the accused was walking in front of them and her mother told her to go with the accused to Nakasi to buy beer. She said even though she did not want to go her mother forced her to go with the accused.
d)	She then went with the accused to buy beer. On their way, the accused told her that he likes her. She did not say anything but was just thinking. There was no other conversation between the two of them. When they came home her mother and the stepfather called her inside the house when the accused was paying for the taxi and told her that the accused likes her. Her mother told her that she wants the accused to marry her. She was confused and she told her mother she cannot do that because she was still schooling. Thereafter her stepfather talked with the accused outside the house. She was in the kitchen with her mother and the mother was telling her that the accused works in a company and he has money. She said her mother was after ‘ring money’. Then the stepfather came inside and told her something which she could not remember. She said the accused also followed him and was standing just outside when her stepfather was talking to her.
e)	After that her mother and the stepfather went outside the house and she and the accused were in the kitchen. The accused was telling her that he likes her. She was just sitting down and listening to him. Then her mother came to the kitchen and told them to go to the room. When she asked her mother why, the mother told her that her stepfather’s brother is coming with some other friends and they are drinking outside.
f)	When they went inside the room her mother gave a lantern to either her or to the accused and then closed the door. Then the accused told her that he wants to lick her vagina. She was scared and she said she cannot give it to him. He then pushed her down and held her hands tight and told her to take off her panty. She lay down but she did not take off her panty. The accused removed it. He then lay on top of her and pulled off her panty. Then he forced his penis into her vagina. She tried to push him but he forced his body over her. He covered her mouth when she tried to shout. Because he could not insert his penis inside her vagina he tried it on her anus. She said his penis went inside her anus roughly one centimeter. She could feel the pain when he inserted the penis inside her anus. As soon as his penis went inside her anus she turned to her right and got up. She said the accused lay on her back when he inserted his penis inside her anus. She said she was facing up. When she got up after he tried to put his penis into her anus she felt pain in her anus and she started crying.
g)	She said he also made love bites on the left side of her chest. This was the first time she experienced this and she was scared. She was pushing him away when he was making the love bites because he was biting hard.
h)	When this was happening her stepsisters was sleeping at the corner of the same room. When she stood up the accused asked her why she got up. Then they heard her stepfather’s brother going to the washroom. Then the accused also got up. When the accused went out, she packed her clothes and wanted to run away. She said she was scared and also was thinking of committing suicide. She said she can’t identify the accused if she sees him again and when she was asked by the court the reason she said it is because when she saw him he got big hair with punk. 
i)	During cross examination she agreed that doing house chores both in her mother’s house and her aunt’s house sometimes made her angry and frustrated. She said 13/01/17 was a sunny day and going back and forth between houses made her little bit tired. She denied the suggestion that her mother told her to go back to her aunt after she finished the chores at her mother’s house. She agreed that she told the police that she heard her stepfather telling her mother to call his friends to drink at the mother’s place. When it was pointed out that she said in court that her stepfather told her that some of his friends are coming over when she was having tea with the stepfather and was asked which version is true she said what she said in court is true. 
j)	She agreed that the $1 the accused gave her was for going to the shop and for nothing else. When it was suggested that her mother told her to go back to her aunt after changing the two sisters she said ‘no’. She could not recall whether her mother called out to the accused when he was taking the lead on their way back from the fundraising event. She denied that her mother called out to the accused to wait for her because she wanted to eat barbeque. She denied the suggestion that the accused was sitting in the front and she was sitting at the back in the taxi when they went to Nakasi and said that both of them were sitting at the back. When it was suggested that she did not feel scared when she sat with the accused on the way to Nakasi and back she said when she was sitting in the taxi she was not herself. She agreed that she came back safely. 
k)	She denied the suggestion that the conversation she had with the accused inside the kitchen led to kissing. When it was suggested that she had not mentioned in her police statement that she questioned her mother before she went to the room she said she was very scared when she was giving the statement and that is why she told the story in a ‘fast way’. She said her aunt was at the police station but after she told the aunt what happened to her the aunt left her in the police station and went to work. 
l)	When it was suggested that she did not question her mother because she went into the room voluntarily she said she was forced by her mother to go inside the bedroom. She could not recall what time she changed her clothes that night. She denied the suggestion that she requested the accused to make the love bites on her. When it was suggested to her that she had the opportunity to yell or scream, she said she could not do anything because she was aiming at the beer bottle that was right next to the accused. When it was pointed out that it is written in her police statement that “he pushed his penis in an out of my vagina and he suddenly stopped . . . ”, she said what she told the police was that he was trying to push his penis in and out of her vagina but it never went straight inside her vagina and when he did not succeed he tried her anus. 
m)	She said what she told the police is actually what happened to her and what she told the court is what she can recall. When it was pointed out that according to her medical report she had told the doctor that her mother arranged the accused to have sexual intercourse with her against her will, her mother locked her up inside the room with the accused, he tried to insert his penis inside her vagina, but when she complained of pain the accused put it in her anus; she said what she told the doctor is the truth and her mother gave her to the accused. She said the doctor requested her just to explain what happened to her but what she told the police is all what happened to her step by step. She said she gave her second statement to police on 16/02/18 after she recalled that the accused did not put the penis into her vagina but he put it inside her anus. 
n)	During re-examination she said what she meant when she said that ‘she was not herself’ when she was inside the taxi is when she was at the fundraising her mother told her that she will marry the accused and when she gets pregnant her mother will look after the baby and she can go back to school. 
o)	She also said what she meant by saying she was ‘aiming at the beer bottle’ is that she thought the accused would take that bottle and smash it on her head because she did not satisfy him.

31.	The second prosecution witness said that;
a)	She is a medical doctor with more than thirty one years of practice and she is specialized in obstetrics and gynaecology. She said she prepared the medical report tendered as PE1. She said D10 is the history as stated by the victim. She said she missed noting down the initial expression. However, she said that the victim looked distressed but was very corporative.
b)	In her medical findings at D12, she noted two kiss marks on the left breast on physical examination. On vaginal examination she noted that there were no signs of fresh laceration. On her anal examination she noted a superficial laceration at the 12 o’clock position. She explained that superficial laceration means there was a wound noted at 12 o’clock position. She said a blunt force applied on that area like from an erect penis or fingers can cause such injuries. At D14 she just wrote the date of incident and the time as stated by the victim. At D16 she wrote her findings again. She said the injury she noted was a fresh injury. 
c)	During cross examination she said she agreed that she had not noted her initial impression at D11. She said she missed to write because she used the space at D11 for the continuation of D10.  When it was suggested that she cannot say after one year that the patient was distressed without noting it down in the report, she said she has seen and examined more than 500 sexual assault cases and all victims she had examined never came to her smiling or laughing.

32.	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 evidence on oath.

33.	The accused said in his evidence that;
a)	As at 13/01/17 he was working at Vijay Chandra Interiors. On that day he finished work at 5.30 pm. When he was waiting for his boss to collect his wages Rovuto called him and requested him to buy some grog and come over to her place to drink grog. Rovuto’s husband Karalo is related to his mother. When he went to Makoi to buy the grog he met one of his cousins and an uncle. The three of them then went to buy beer for them to drink after consuming grog. Then they went to Rovuto’s house.
b)	Rovuto, the husband, their two children and the complainant were there. He did not know the complainant by that time and he came to know her name because he heard Rovuto calling her by that name. After they finished drinking grog they drank beer. While he was there he saw the complainant going to the shop. He said the complainant was angry when the mother asked her to go to the shop but then her mother told her that she will be given a dollar. He said he gave the complainant $1 because her mother requested him. 
c)	After they had the beer they went to one Gunu Sede. It was a 5 to 6 minutes’ walk. They spent about one and half hours there. After that when he was on his way to buy some more bottles, Rovuto called him and told him that the complainant wants to eat barbeque. He told Rovuto that someone will have to come with him to buy that. Then the complainant said she will be coming. He then stopped a taxi and he sat in front and the complainant sat at the back. He said the complainant was in a happy mood while she was inside the taxi. He did not have a conversation with the complainant. They bought barbeque and five bottles of beer.
d)	When they came back to Rovuto’s house, the complainant got down first and went towards the house. While he was paying for the taxi, Karalo came and took the beer and then he followed Karalo to the house. Then Rovuto, Karalo and he started drinking the beer inside the house. When Karalo’s brother returned, Karalo said that they should drink outside the house and he said he had enough.
e)	He then started having a conversation with the complainant inside the house. When Rovuto saw them having a conversation, she told them to go to the room because Karalo’s brother was there. He then took the light and went inside the room. The complainant followed him into the room and she changed into a thin striped dress. She then lay down next to him.
f)	They started a conversation again. He asked her whether he can kiss her and after the complainant said ‘yes’, they started kissing each other. He said, at that moment the complainant was happy and he did not see any anger or scared feeling in her. He then asked her whether he could make love bites on her. She said ‘yes’ but she also told him not on where it could be seen by others. He said the complainant did not say anything when he made the love bites on her.
g)	He said he asked the complainant whether he could lick her and that the complainant said ‘no’. Then he asked her whether they could have sex and she said ‘yes’. Then she took off her panty and he took off his trouser. He lay on top of her and tried to insert his private part into her ‘mimi’. When he pushed it in, the complainant stopped him saying ‘paining’. When she said this, he stood up. Then they heard someone coming out of the toilet. They dressed up and he came outside. He denied the allegation that he inserted his penis inside the complainant’s anus.
h)	He said the houses near Rovuto’s house are situated close to each other. He said the kitchen and the room were separated by a partition.
i)	During cross-examination, he admitted that he saw the complainant properly when he was having grog and then beer. He said he told the complainant that he likes her when they were having the conversation inside the house. When it was suggested to him that when he portrayed his feelings to her, she did not say anything, he said that she was just smiling and he could see that she also liked what he told her.
j)	When it was suggested to him that the complainant was pushing him he said the complainant only pushed him saying ‘it is paining’ when his private part went inside her ‘mimi’.

34.	That is a summary of the evidence. 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.

Medical Opinion
35.	The second prosecution witness gave her medical opinion based on what she observed and her experience. You are not bound to accept that evidence. You will need to evaluate that evidence for its strengths and weaknesses, if any, just as you would with the evidence of any other witness. 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 second prosecution witness. Evaluating her evidence will therefore include a consideration of her expertise, her ﬁndings and the quality of the analysis which supports her opinion.

36.	When you consider PE 1, you should bear in mind that what is written in A(4) and D(10) are not admissible in considering whether the facts stated there are true. This is because those parts are filled based only on information received. The individual who filled A(4) and the second prosecution witness who filled D(10) did not see what actually happened. However, the complainant said that what she told the second prosecution witness is true. Therefore, what is written in D10 would be admissible with regard to the fact that such a statement was made by the complainant to the second prosecution witness and to consider whether there are inconsistencies in the evidence given by the complainant.

Analysis
37.	The accused denies the allegations that he penetrated the anus of the complainant with his penis. However, the accused admits making love bites on her with her consent. He also admits that he pushed his penis inside the complainant’s vagina but because the complainant said ‘it is paining’ he stood up. He also says that he asked the complainant before he tried to insert his penis inside the complainant’s vagina. The defence says that the complainant was not a credible witness.

38.	The defence says there are inconsistencies in the evidence given by the complainant. You should deal with inconsistencies according to the directions I have already given you.

39.	You should decide whether the prosecution has proven beyond reasonable doubt that the accused penetrated the complainant’s anus with his penis without her consent and the accused knew or believed that the complainant was not consenting or that the accused did not care whether the complainant was consenting or not.

40.	In the event you have a doubt with regard to the elements on consent, that is, whether the complainant did not consent or whether the accused knew or believed she was consenting or was reckless as to whether she consented or not, but you are satisfied beyond reasonable doubt that the accused did penetrate the complainant’s anus with his penis, you should find the accused not guilty of rape, but consider whether the accused is guilty of the offence of defilement. When you consider defilement, it is not a defence that the complainant consented to sexual intercourse. However, 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.
41.	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.

42.	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.

43.	Generally, an accused would give an innocent explanation and one of the three situations given below would then arise;

(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. 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.

44.	Any re-directions?

45.	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. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
46.	Your possible opinion should be as follows;

Rape – guilty or not guilty

If not guilty
Defilement – guilty or not guilty

				

					    Vinsent S. Perera
					JUDGE

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