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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 18 of 2017
STATE
V
JALE RAVULA
Counsel : Ms. Amelia Vavadakua for the State
Mr. Vilisoni Tuicolo with Ms. Manisha Singh for the Accused
Dates of Trial : 27-28 February 2018
Summing Up : 1 March 2018
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “LDU”
SUMMING UP
Madam Assessors and Gentleman Assessor,
[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.
[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.
[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.
[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8] In this case, the evidence is what the witnesses said from the witness box, the documents tendered as prosecution exhibits and any admissions made by the parties by way of admitted facts.
[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission made by the State Counsel and closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11] As I already indicated to you, another matter which will be of concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.
[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.
[14] The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.
[15] According to the evidence you heard in this case, the complainant was 5 years old at the time of the alleged incident, in April 2017, and was 10 months older when she testified in Court (she will be completing 6 years on 5 March 2018). Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offence the accused is charged with.
[16] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[17] You heard in this case the evidence of Tulia Rasoro, the mother of the complainant, who said that the complainant had informed her soon after the incident that “Bu Jiale (the accused) had taken out her dress and her trousers and drank her pipi (vagina).” You should consider whether this could be regarded as a complaint made by the complainant of the alleged incident. If so you should also consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with.
[18] The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that the complainant made a prompt and a proper complaint, then you may consider that her credibility is strengthened in view of that recent complaint.
[19] It must be borne in mind that the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
[20] Ladies and Gentleman Assessor, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[21] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.
[22] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not to the charge. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[23] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.
[24] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.
[25] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[26] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this morning, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary fact and the inferences that could be drawn from them.
[27] I must emphasize, it does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.
[28] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.
[29] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.
[30] I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or degree of proof, as expected by law?
[31] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offence charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason.
[32] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[33] You should disregard all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinions.
[34] I must also explain to you as to the reason for the use of screen, when the complainant gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. Please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.
[35] The same applies for permitting a closed court proceedings and for allowing a support person (in this instance her mother) to sit beside the complainant when she gave evidence in this case; and for the other procedures that were adopted, namely for the Judge and Counsel to dispense with their wigs and gowns while she gave evidence in Court, and for Counsel to be seated while asking questions from her (and to dispense with their bar jackets as well).
[36] Let us now look at the charges contained in the Information.
[37] There is one charge preferred by DPP, against the accused:
COUNT 1
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009.
Particulars of Offence
JALE RAVULA, on the 5th day of April 2017, at Nawaca Village in Bua, in the Northern Division, penetrated the vulva of LDU, a child under the age of 13 years, with his lips.
[38] Section 207(1) of the Crimes Act No. 44 of 2009 (Crimes Act) reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
[39] Section 207(2) (b) of the Crimes Act is reproduced below.
(2) A person rapes another person if —
(a) .....................; or
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent.
[40] Therefore, when Section 207(1) is read with Section 207(2)(b) it would read as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
(2) A person rapes another person if —
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent.
[41] Section 207(2)(b) refers to a person penetrating the vulva, vagina or anus of the other person, to any extent, with a thing or a part of the person’s body that is not a penis.
[42] Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.”
[43] Therefore, in order for the prosecution to prove the count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 5 April 2017);
(iii) At Nawaca Village in Bua, in the Northern Division;
(iv) Penetrated the complainant’s vulva, with his lips; and
(v) At the time the complainant was under 13 years of age.
[44] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[45] The second element relates to the specific day on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[46] The fourth element involves the penetration of the complainant’s vulva, with his lips. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. The element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the complainant’s vulva, with his lips, to any extent.
[47] The issue of consent will not arise in this case. A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was 5 years of age at the time of the alleged incident, and therefore, she had no mental capacity to consent.
[48] It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Rape is obviously considered a Sexual Offence. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.
[49] If you are satisfied beyond any reasonable doubt that the accused, on 5 April 2017, penetrated the complainant’s vulva with his lips, then you must find him guilty of the count of Rape.
[50] If you find that the prosecution has failed to establish any of these elements then you must find the accused not guilty of Rape.
[51] However, if you find that the prosecution although failing to establish beyond any reasonable doubt that the accused, on 5 April 2017, penetrated the complainant’s vulva with his lips, has satisfied beyond any reasonable doubt that the accused, on 5 April 2017, unlawfully and indecently assaulted the complainant by putting his lips on the complainant’s vulva; as an alternative, you are then allowed to look at the lesser offence of Sexual Assault, in terms of Section 210 (1) (a) of the Crimes Act, though the accused is not formally charged in the Information for that offence.
[52] Section 210 (1) (a) of the Crimes Act reads as follows:
(1) A person commits an indictable offence (which is triable summarily) if he or she—
(a) unlawfully and intly asly assaults another person;
[53] Therefore, in order for the prosecution to prove Sexual Assault, thet establish beyond any reasonable doubt that;
(i) The accused;
(ii) On then the specified day (in this case the 5 April 2017);
(iii) At Nawaca Village in Bua, in the Northern Division;
(iv) Unlawfully and indecently assaulted LDU, the complainant.
[54] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence. The second element relates to the specific day on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[55] The accused would be guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainant. The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As such, it is for you as Assessors to consider and decide whether the act of putting his lips on the complainant’s vulva by the accused is an indecent act and thereby amounts to Sexual Assault.
[56] I wish to remind you once again that you need to go in this direction ONLY if you find that the prosecution has failed to establish any of elements constituting the offence of Rape beyond reasonable doubt. If you are satisfied that the prosecution has established all the elements constituting the offence of Rape beyond reasonable doubt, then you must find the accused guilty of Rape as charged.
[57] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
[58] In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts as “Admitted Facts” or “Agreed Facts” without placing necessary evidence to prove them:
[59] Since the prosecution and the defence have consented to treat the above facts as “Agreed Facts” without placing necessary evidence to prove them you must therefore, treat the above facts as proved.
Case for the Prosecution
[60] The prosecution, in support of their case, called the mother of the complainant, Tulia Rasoro, the complainant, and a medical officer, Dr Talei Vasuitaukei. The prosecution also tendered the following documents as prosecution exhibits:
Prosecution Exhibit P1a- Diagram drawn by the Doctor depicting the external genitalia/vulva of a female.
Prosecution Exhibit P1b- Diagram drawn by the Doctor depicting the internal genitalia of a female.
[61] Evidence of the Tulia Rasoro
(i) She testified that she is residing in Nawaca, Bua. She is married in Bua. Her husband’s name is Jepeca Ura. They have one child together, the complainant LDU. The complainant’s date of birth is 5 March 2012. Therefore, she will be turning 6 years of age next Monday.
(ii) The witness testified that on 5 April 2017, she was at home at Nawaca Village. Around 4.00 in the evening she had been baking buns. At that time Seru (Seruwaia Vunibola) had come home. She is one of the ladies married in Nawaca. Her daughter had followed Seru. Seru had told the witness to ask her daughter what she was doing in Bu Jiale’s room.
(iii) Then the witness had asked her daughter. Initially her daughter had not said anything. The witness had again asked her daughter what did you go and do in Bu Jiale’s room. Her daughter had replied as follows; “Qai tukuna vei au o LDU ni o Bu Jiale e luvata na nona i vinivo kei na nona tarausese qai gunuva na nona pipi”. Which means “Bu Jiale take out my dress and my trousers and drink my pipi (vagina)”.
(iv) The witness testified that she felt very angry when she heard this from her daughter. She had then held LDU’s hand and gone to Bu Jiale’s house. The witness said that Bu Jiale’s house was very close to her house (about 5 metres between the two houses).
(v) When she went to Bu Jiale’s house, she stated that only Bu Jiale was there. She had only seen him. She had then called Bu Jiale. Bu Jiale had stood up from his room. She had then asked him, Bu Jiale what did you do to LDU? Bu Jiale had said that LDU came and asked him if I can make one suki for her (meaning Fijian tobacco).
(vi) The witness stated that she has been to Bu Jiale’s house before this incident. It has four bedrooms. Before this incident happened she said she always used to go to Bu Jiale’s house. They were on friendly terms. Normally Bu Jiale, his wife (Bu Litia), their son Viliame (who is known as Tapili), Viliame’s wife Seruwaia and their two children – Tomasi and Ratu Viliame reside in Bu Jiale’s house. Tulia stated that her husband and Bu Jiale are related. Her husband calls Bu Jiale as grand-father. In fact her entire family calls him grand-father.
(vii) Tulia testified that thereafter she had returned to her home. She had told Seru that Bu Jiale had said that LDU was lying. Thereafter, she had called her aunty – Jepeca’s mother (actually her mother-in-law). Her aunty had then questioned LDU as to what happened. LDU had repeated the whole story. The witness had then called 911 (the Police).
(viii) The witness stated that this was the first time that her daughter had made an allegation of this nature. Her daughter had never made this type of complaint before.
[62] Evidence of the complainant LDU
(i) The complainant stated that she is 5 years of age. Her mother’s name is Tulia Rasoro and her father’s name is Jepeca Ura. She has no brothers or sisters. She resides at Nawaca Village.
(ii) The witness testified that she knows Bu Jiale and also where Bu Jiale resides. Bu Jiale’s house is near to her house.
(iii) The complainant testified that on the day of the incident, the accused had called her by waving at her. She had gone into Bu Jiale’s house. She had taken out her shoes and gone to him. Bu Jiale had taken her to his room. There was no one else in the room at the time. The accused had then laid her down. He had then taken out her dress and trousers (her three quarter trousers). She said at that time she had not been wearing any clothes. The witness said “then he drink my pipi”.
(iv) When asked what did the accused use to drink her pipi, she said he used his mouth. When asked to show what part (of the mouth) the witness demonstrated by showing her lips.
(v) When asked to show in what part of her body is her pipi, the witness pointed towards her groin area.
(vi) When asked was he drinking your pipi inside or outside, the witness said inside.
(vii) Thereafter, the witness testified that Na Seru (aunt Seru) asked her to go away. Aunt Seru had been in her room at the time. Then she had gone home with Aunt Seru. The complainant had then told her mother of what happened (what the accused had done to her).
(viii) The witness clearly identified Bu Jiale as the accused in this case.
[63] Evidence of Dr. Talei Vasuitaukei
(i) Currently she is serving as a Medical Officer at the Nabouwalu Hospital. She has been serving at the Nabouwalu Hospital from 2015 to date.
(ii) She conducted a medical examination on the complainant, on 6 April 2017.
(iii) However, in this case the prosecution was relying on the doctor’s evidence not in relation to the medical examination conducted by her on the complainant, but to explain to court the structure of the female genitalia (external and internal genitalia of a female).
(iv) The doctor testified that the female genitalia is divided into two main parts – the external genitalia and internal genitalia. The external genitalia is also known as the vulva. These parts can be seen without touching the patient. It is best seen when a person is lying down with the legs bent at the knee, like at the time of delivery (delivery position).
(v) There are several parts of the vulva – it consist of the mons pubis (the top most part of the vulva that you can see), the labia majora, labia minora, the clitoris and the opening of the vagina (the hymen). The Diagram drawn by the Doctor depicting the external genitalia/vulva of a female was tendered to court as Prosecution Exhibit P1a.
(vi) The doctor testified that the internal genitalia of a female would include the vagina, the uterus, the fallopian tubes and the ovaries. The Diagram drawn by the Doctor depicting the internal genitalia of a female was tendered to court as Prosecution Exhibit P1b.
(vii) When asked to explain in her opinion what the complainant meant when she said “the accused drank her pipi”, the doctor stated that “if you translate the word drank it would amount to sucking. When we drink we open our mouth to drink from a cup. I think she described the act of sucking”.
[64] That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could give sworn evidence from the witness box and/or call witnesses on his behalf. He could also address Court by himself or his counsel. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times. In this case, the accused opted to offer evidence under oath.
Case for the Defence
[65] The accused gave evidence in support of his case.
[66] Evidence of Jale Ravula
(i) The accused testified that he is 76 years of age. His date of birth is 4 January 1942. He is from Nawaca in Bua. Currently he resides in Lowcost, Labasa.
(ii) He testified that on the day of the incident the complainant had come to his house around 10.00 in the morning. He had been sitting in his wife’s room at the time. His grandson Tomasi has also been there. At that time his wife (who is suffering from paralysis for the past 9 years due to a stroke) had crawled out of the room. The witness said that his daughter-in-law Seruwaia (his son Viliame’s wife) was also at home at the time.
(iii) The witness testified that after that he was lying down on his bed while the two children, the complainant and Tomasi were playing in the room. He had told them to stop playing. The children had been looking at the photos that were inside the room (photo album).
(iv) At that time Seruwaia had told the complainant to go out. When asked why Seruwaia had said so, the witness said that because the children were making a lot of noise in the room.
(v) The witness testified that he does not have a room of his own in the house and that he occupies a portion of the living room, for his living purposes.
(vi) The accused totally denies the allegation against him.
Analysis
[67] The above is a brief summary of the evidence led at this trial. The prosecution led the evidence of the complainant, her mother, and the medical officer, to prove its case. The defence relied on the evidence of the accused himself.
[68] The prosecution relies upon the evidence of the medical officer. This kind of evidence is given to help you with scientific matters by a witness who has expertise. As you may have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefits, and to express opinions about them, because they are used to doing that within their particular field of expertise. However, I must remind you, in this case the prosecution was relying on the doctor’s evidence not in relation to the medical examination conducted by her on the complainant, but to explain to Court the structure of the female genitalia (external and internal genitalia of a female).
[69] You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.
[70] As I have informed you earlier, the burden of proving each ingredient of the charge rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[71] In this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved. Based on the said agreed facts the identity of the accused, the date of incident (5 April 2017), the place of incident (Nawaca Village in Bua), and the fact that the complainant is below 13 years are proved. The only element left for the prosecution to prove is that the accused penetrated the complainant’s vulva, with his lips.
[72] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[73] The accused is totally denying the allegation against him (that he penetrated the complainant’s vulva, with his lips).
[74] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the count of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offence of Rape, beyond any reasonable doubt.
[75] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence led on behalf of the accused. You must consider his evidence also for its consistency and also the probability of his version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charge, since the prosecution has failed to prove its case.
[76] If you neither believe the evidence adduced by the accused nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charge.
[77] However, I must caution you that even if you reject the evidence of the accused as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you.
[78] In summary and before I conclude my summing up let me repeat some important points in following form:
[79] Any re directions the parties may request?
[80] Madam Assessors and Gentleman Assessor, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions separately on the charge against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[81] Your possible opinions should be as follows:
Count 1
Rape- Guilty or Not Guilty
If not guilty,
In the alternative
Sexual Assault- Guilty or Not Guilty
[82] I thank you for your patient hearing.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT LABASA
Dated this 1st Day of March 2018
Solicitors for the State : Office of the Director of Public Prosecutions, Labasa.
Solicitors for the Accused : Office of the Legal Aid Commission, Labasa.
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URL: http://www.paclii.org/fj/cases/FJHC/2018/142.html
