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State v Natadra - Summing Up [2019] FJHC 448; HAC137.2017 (15 May 2019)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 137 OF 2017

STATE

V

NACANIELI NATADRA

Counsel : Mr. J. Niudamu for State

Ms. S. Khan with Mr. T. Kaloulasulasu for the Accused

Date of Hearing : 13^th and 14^th of May, 2019
Date of Closing Submissions : 14^th of May, 2019
Date of Summing Up : 15^th of May, 2019

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

Burden and Standard of Proof

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

Information and elements of the offences

11. The accused is being charged with one count of Abduction of Young Person, contrary to Section 285 of the Crimes Act, one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act and one count of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act. The particulars of the offences are before you, therefore, I do not wish to reproduce it in the summing up.
12. The main elements of the offence of abduction of young person are that;
    1. The accused;
    2. Unlawfully took the complainant, out of the possession and against the will of her parents; and
    3. The complainant was a young person being under the age of 18.
13. 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.
14. The second element relates to an unlawful taking of the complainant, out of the possession and against the will of her parents. The word “unlawfully’’ simply means without lawful excuse. Therefore, the taking of the complainant must be without lawful excuse. There must also be evidence of a substantial interference with the possessory relationship between the complainant and her parents. The prosecution should prove these elements beyond reasonable doubt.
15. The final element relates to the age of the complainant at the time the offence was committed. The complainant must be a young person under the age of 18.
16. I now take your attention to the main elements of the offence of Sexual Assault.
    1. The accused,
    2. Unlawfully and Indecently,
    3. Assault the victim.
       
17. Once again the prosecution has to prove beyond reasonable doubt that it was the accused who committed this offence and no one else. The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act as indecent. It is your duty as Assessors to consider and decide whether the act of licking of the vagina of the complainant by the accused is an indecent act amounting to sexual assault.
    
18. The main element of the offence of Rape as charged are that;
    
    1. The Accused,
       
    2. Penetrated into the vagina of the complainant with his tongue,
       
    3. The complainant did not consent to the accused to penetrate into her vagina with his tongue,
       
    4. The Accused knew or believed or reckless that the complainant was not consenting for him to insert his tongue in that manner.

Accused

19. As I explained in respect of the first and second count, it is the onus of the prosecution to prove beyond reasonable doubt that it was the accused who committed this offence to the complainant.

Penetration

20. Evidence of slightest penetration of the tongue of the accused into the vagina of the Complainant is sufficient to prove the element of penetration. Hence, it is not necessarily required to adduce the evidence of full penetration.

Consent

21. Let me now draw your attention to the issue of consent. It is your duty to decide whether the prosecution has proven beyond reasonable doubt that the complainant did not give her consent to the accused to insert his tongue into her vagina.
22. Consent is a state of mind which can take many forms from willing enthusiasm to reluctant agreement. In respect of the offence of rape, the complainant consents only, if she had the freedom and capacity to voluntarily make a choice and express that choice freely. A consent obtained through fear, by threat, by exercise of authority, by use of force or by intimidation could not be considered as a consent given freely and voluntarily. A submission without physical resistance by the complainant to an act of another person shall not alone constitute consent.
23. The complainant must have the freedom to make the choice. It means that she must not being pressured or forced to make that choice. Moreover, the complainant must have a mental and physical capacity to make that choice freely. The consent can be withdrawn at any time. The consent is an ongoing state of mind and is not irrevocable once given. It should not be an optional choice. The consent of a person should not be assumed.
24. If you are satisfied, that the accused had inserted his tongue into the vagina of the complainant and she had not given her consent, you are then required to consider the last element of the offence, that is whether the accused honestly believed or knew or reckless that the complainant was freely consenting for this alleged sexual act. I must advice you that belief in consent is not the same thing as a hope or expectation that the complainant was consenting. You must consider whether the accused knew either that the complainant was not in a condition or a position to make a choice freely and voluntarily, or the complainant had made no choice to agree to sexual act. If you conclude that the accused believed or knew that the complainant was consenting, you must then consider whether such belief of the accused was reasonable under the circumstances that was prevailed at the time of the alleged incident took place.

Separate Consideration

25. The accused is charged with three separate counts. You have to consider them separately. If you find the accused guilty to one count, that does not automatically make the accused guilty to the rest of the counts. Likewise, if you find the accused not guilty to one count, that does not make him not guilty to other counts. You have to give separate consideration to each of these three counts.

Corroboration

26. You must bear in mind that offences of sexual nature do not need the evidence of corroboration. It means that if you are satisfied with the evidence given by the complainant and accept it as reliable, credible and truthful; you are not required to look for any other evidence to corroborate the account given by the complainant.
27. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape, a rapist or a victim of rape.
    
28. Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses during the course of the hearing.
    
29. You must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not. Demeanours of the victim in the court while giving evidence is not necessarily a clue to the truth of the victim’s account.
    

Evidence of the Prosecution

30. Let me now remind you briefly the summary of the evidence presented by the prosecution and the defence during the course of the hearing. I trust that you can properly and correctly recall all of the evidence adduced during the hearing.
31. The complainant had gone to the shop to buy bread in the evening of 3rd of July 2017. On her way to the shop, she had seen a black colour twin cab, which was parked on the road. It has a black pipe fixed at the front of the vehicle. The complaint had not given much attention and went pass it. She could recall the number of the vehicle as HV 510. While she was walking towards to the shop, the complainant had felt that someone was behind her back. Suddenly the person who came from behind of her, had covered her mouth from one of his hands and grabbed her waist from his other hand. He had then thrown the complainant into the back seat of the said twin cab. He then tied her hands and legs with clothes. That person then went and get into driver’s seat and drove the car forward.
32. According to the complainant, he had driven the twin cab down to the Field 40, then reached the Total Service Station near Navutu and then drove into the roundabout opposite the service station and parked the car. He then came and open the back door which is near to the place where the complainant was seated. He then untied her legs and pulled her basketball pants and her undergarment. The person had told the complainant not to worry and its okay. He had separated her legs by using his two hands and started to lick her vagina. He used his tongue to lick inside her vagina. The complainant felt that he was licking inside her vagina. The complainant told him to stop but he kept on doing it. He licked it for half an hour. The complainant had screamed but nobody was there. According to her, only two of them were at that place.
33. Having licked her vagina and inside of it, the person had thrown the pants and the underwear to the complainant. He then forcefully took her to the front passenger seat. She was still naked and her hands were still tied up. The person then untied her hand, letting her to dress up her pants and undergarment. He then drew vehicle near to the Mariamman temple and pushed her out from the vehicle.
34. The complainant had observed the person from the time they reached the Total Service Station until he licked her vagina and put his head up. She has seen his face from the lights came from the street lights when they were passing the service station. The vehicle was not traveling much fast. The complainant said that she could not jump out of the car, as her legs and hands were tied up. When he was licking her vagina, his face was so closed to her.
35. When the complainant was pushed away from the vehicle, there was no one around the vicinity. The complainant was hurt and scared. She had then gone to the shop to buy bread as she knew that her siblings could be very hungry at home waiting for the bread. The complainant had not informed the seller at the shop about this incident.
36. When she went home, the complainant had related this incident to her mother. They then went to the police station and reported the matter. The police had taken her to the medical examination. The complainant made her statement to the police after the medical examination.
37. The complainant was summoned to the police post at the Lautoka market on the 5th of July 2017. She was asked to go into the market and check if the person who committed this crime to her was sitting in the market. She was accompanied by WPC Bulou. The complainant walked ahead of WPC Bulou. Once they reached to the last station of the market, where normally men drink grog, the complainant had identified the accused when he was sitting there. She had pointed out the accused as the person who committed this crime to her on the 3rd of July 2017. The complainant had later identified the said twin cab when it was parked at Coronation Church. The complainant identified the accused in the court, as the person that she identified at the market and also as the person who committed this crime to her on that particular night.
38. You have heard the learned counsel for the defence cross examined the complainant about the statement she made to the police. The complainant said that the car was not parked, but it was driving behind her when she walked past the car. According to the statement of the complainant, she has told the police that someone came behind her and covered her mouth with his left hand and then pulled her inside his car. The complainant has not stated in her statement that the accused pulled up her t-shirt and the bra. Moreover, the complainant denies that the police told her the location or position where the accused was standing or sitting in the market before she went into the market to identify the accused. The complainant further denies that she had a boyfriend at that time.
39. You have heard the evidence of the mother of the complainant, in this case it is Kinisimere. According to Kinisimere, she had told her children at around 6.45 p.m. in the evening of 3rd of July 2017, that someone has to go to the shop to buy bread. The complainant had then insisted that she would go to shop and buy bread. Her husband was not at home at that time. The complainant is her eldest daughter. About half an hour after the complainant left home to the shop, one of Kinisimere’s brothers-in-law had gone to the shop in a car to look for the complainant. He came home, saying that he could not find the complaint. Then her husband came home from work. When her husband was about to go and look for the complainant, Kinisimere saw the complainant was coming home with a plastic bag containing bread. She came to her mother crying and hug her. The complainant had told that she was feeling like to vomit. She then said that one old man kidnapped her. Kinisimere was afraid to listen or ask the complainant more details about this incident. They then left to the police station.
40. During the cross examination, Kinisimere said that the complainant usually goes to the shop. Kinisimere said the complainant had no boyfriend. She further denied that the said boyfriend ended the said relationship with the complainant on the 3rd of July 2017.
41. The next witness of the prosecution is ASP Maciu Vava. He was the crime officer of the Lautoka Police Station in the month of July 2017. He was informed by DC Paula Cata on the 5th of July 2017, that the accused had refused to stand for an identification parade. ASP Maciu had then went and explained the accused that he has another alternative, that is to stand for an identification parade at a public place, where the public has access to it. Accordingly, ASP Maciu had taken the accused to the old Lautoka Market, near the bus stand. They were accompanied by some other police officers as well. At the Lautoka Market Police Post, he had explained the accused that he can go to the market and sit anywhere he wishes. The accused was then accompanied into the market by other officers. ASP Maciu then brought the complainant to the police post and explained her to go to the market and find out if she could find the person who abducted and raped her. The complainant had gone into the market with WDC Bulou. They started from the public convenient at the market and went to right up to the end of the market, where the complainant had pointed out the accused as the person who committed this crime to the complainant.
42. During the cross examination, ASP Maciu denies that he requested the accused to sit at a particular place and advised him not to move. The accused choose the place and ASP Maciu was not aware of that location. He further said that he has no knowledge whether the complainant was shown a photograph of the accused before she went to identify the accused inside the market.
43. The last witness of the prosecution is WPC Bulou Nawalowalo. She is the investigation officer of this matter. WPC Bulou had recorded the statement given by the complainant. The complainant was shocked and crying while giving her statement. The statement was recorded after the complainant was taken to the medical examination. The complainant cried and looked sad when she gave her statement.
44. On the 5th of July 2017, WPC Bulou was instructed by ASP Maciu to escort the complainant to the Old Market of Lautoka to her to make the identification of the suspect. They have started from the police post and went up to the place where gorge are sold. At that place the complainant pointed out the suspect who was seated there. WPC Bulou said no photograph of the suspect was shown to the complainant before she made the identification at the Lautoka old market.

Evidence of Defence

45. At the conclusion of the prosecution case, the accused was explained about his rights in defence. The accused opted not to give evidence on oath but he called three witnesses for his defence. The accused does not have to give evidence. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing. It does nothing to establish his guilt.
46. The first witness of the defence is Ema Natadra. She is the wife of the accused. According to her evidence, the accused was at home when she came home from work at about 7.30 pm in the evening of 3rd of July 2017. They were having the evening devotion at home when she came home. The accused was seated on the settee with the daughter while few of them were seated on the floor. Her mother led the prayers and the accused also actively participated in the devotion. The devotion went on till 8 pm and then they had dinner.
47. During the cross examination, Ms. Ema Natadra said the accused is from Ra and they have a black colour twin cab with a pipe attached to the front bearing the registration number HV 510. The accused had told her when he left the office on the afternoon of 3rd of July 2017, that he was going to see Sam. According to her evidence, the accused had been driving the said vehicle on that day before he came home.
48. You may recall that the court put a question to Ema with the consent of the counsel for the prosecution and the defence. In her answer, Ema said that the distance between her house and the Field 40 is about five to ten minutes’ drive.
49. Miliana Natadra, the daughter of the accused in her evidence explained about the devotion that had at their home on the evening of 4th of July 2017.
50. The last witness of the defence is WDC Barbara, who has assisted WPC Bulou in this investigation. According to WDC Barbara, they have not taken any photos of the accused on the 5th of July 2017. She has further assisted WPC Bulou in recording the statement of the complainant. The complainant was in a state of shock and most of the time she was crying. WDC Barbara had to calm her down during the recording of the statement.
51. I have summarized the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.

Analysis and Directions

52. The prosecution alleges that the accused had abducted the complainant while she was going to the shop and then took her to a location in his black colour twin cab bearings registration number HV 510. He had then licked her vagina and then penetrated her vagina with his tongue. The defence denies the allegation and said that the accused was at home attending the family devotion with the family during the time material to this allegation.
53. In order to prove the case against the accused, the prosecution presented the evidence of the complainant. Moreover, the prosecution presented the evidence of the mother of the complainant, and two police officers. Three witnesses gave evidence for the defence. Accordingly, the two main issues that you have to determine are; firstly whether this alleged incident actually happened. Then you have to determine whether it was done by the accused or someone else. This alleged incident took place between the accused and the complainant.

Reliability of Evidence

54. In order to do that you have to evaluate the evidence presented by the prosecution and defence and determine the reliability and credibility of evidence given by the witnesses. You must be satisfied that you can rely on the evidence as the true, reliable, and credible evidence. In order to do that, you have to be satisfied that evidence is free from mistakes, errors and inaccuracies. If you find the evidence is free from such mistakes, errors and inaccuracies, you can take the evidence into consideration as reliable evidence.

Credibility of Evidence

55. The assessment of credibility of evidence does not concern with unintended inaccuracy, mistakes or errors. It is focused on the lies or inaccurate facts that are intentional and motivated attempts to deceive. The credibility depends on the individual who gives evidence, his or her motivations, his or her relationship to and the reaction to the particular situation.
56. Evaluation of the reliability and credibility of evidence will assist you to determine what evidence you may accept and what part of the evidence you may refuse. In doing that, you may accept or reject such parts of the evidence as you think fit. It is for you to decide whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
57. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.
58. It is your duty to consider the demeanour of the witnesses, how they react to being cross examined and re-examined and were they evasive, in order to decide the credibility of the witness and the evidence.
59. Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.

Defence of Alibi

60. Let me now take your attention to the defence of the accused, which is founded on the contention that the accused was at his home attending at the family devotion with his family members in the evening of 3rd of July 2017. His wife Ema gave evidence in that effect. However, the daughter of the accused, explained the events that took place at her home in the evening of 4th of July 2017.
61. The accused is not obliged to prove his innocence and also not required to present evidence of other witnesses on his behalf. However, in this hearing, the accused elected to adduce evidence of three witnesses. Two of them presented evidence explaining the where about of the accused in the evenings of 3rd and 4th of July 2017. Therefore, you have to take into consideration the evidence adduced by the defence when you determine the issues of fact of this case.
62. The accused’s defence is alibi. The accused claims that he was not present at the scene of the alleged crime as he was at somewhere else at the time the alleged offence took place.
63. Even though the accused have put forward the defence of alibi, the burden of proving the case against the accused still remains on the prosecution. The prosecution must prove so that you are sure that it was the accused was abducted, sexually assaulted and raped the complainant as charged in the information. In doing that the prosecution has to disprove the alibi defence put forward by the defence. That does not mean, the prosecution is required to provide specific evidence to disprove that the accused was not at his home attending the family devotion as claimed. If you believe and accept the evidence of the witnesses of the prosecution as credible, reliable and truthful beyond reasonable doubt, then the prosecution has discharged its duty of disproving the alibi defence of the accused.
64. If you conclude that the alibi of the accused is true or may be true, then the accused cannot participate in this alleged crime and you must find the accused not guilty. If, on the other hand, you are sure, having considered the evidence carefully, that the accused’s alibi is false, that is a finding of fact which you are entitled to take into account when judging whether he is guilty. But do not jump to the conclusion that because the alibi put forward is false the accused must be guilty. You should bear in mind that sometimes an alibi is invented because the accused thinks it is easier than telling the truth. The main question for you to answer is: are we sure that this alleged incident involving the accused actually took place as claimed by the prosecution.
65. In respect of the defence of alibi, the accused is not required to prove beyond reasonable doubt his alibi defences. The burden of the accused to prove his alibi is evidential burden. It means that the accused has to adduce or point to evidence that suggests a reasonable possibility that he was at somewhere else when this alleged offence took place. Such evidence that could point or suggest that the accused was somewhere else, and not at the scene of the crime, has to be credible and reliable evidence.
66. Accordingly, if you believe or may be believe that there is evidence that suggest a reasonable possibility that the accused was not present at the scene of crime and he was attending at the family devotion at home, you can find the accused not guilty.
67. You have to take into consideration the evidence of the wife and daughter of the accused. As I mentioned before, the wife gave evidence about the event pertaining to the devotion in the evening of 3rd of July 2017. However, the daughter gave evidence about the event pertaining to the devotion in the evening of 4th of July 2017. You are allowed to taken into consideration the probability or possibility of evidence given by the wife and the daughter and how those evidence become relevant to the issue of alibi.
68. Moreover, you are allowed to take into consideration the time of this alleged incident took place. The wife only saw the accused after 7.30 pm of the 3rd of July 2017. According to the mother of the complainant, the complainant left to the shop at around 6.45 p.m. Half an hour later, one of the brothers in law of Kinisimere went in his car to look for the complainant. The house of the accused is located five to ten minutes’ drive from Field 40.

Direction of Evidence of the Prosecution

69. The accused claims that he was not present at the scene of the crime and therefore, the complainant may have mistakenly identified the accused as the perpetrator who committed this crime to her. Therefore, you must determine whether the complainant has clearly and properly identified the accused as the perpetrator who committed these crimes to her as charged. In order to do that you have to determine, whether you can accept the evidence of the complainant as reliable, credible and truthful evidence. If you are satisfied, you must then proceed to determine whether what she said in her evidence is probable or improbable according to the circumstances which she was explaining.
70. The main contention of the defence is that the complainant had mistaken in her identification of the perpetrators as the accused. Accordingly, the case against the accused mainly depends on the correctness of the identification of the perpetrators by the complainant.
71. When you are considering the evidence of identification given by the complainant, you need to exercise special caution. The reason for this is that experience tells us that honest and impressive witnesses, genuinely convinced of the correctness of their identification, have in the past made mistakes, even a number of witnesses making the same identification. You cannot convict the accused unless you are sure that the complainant’s identification of the accused was accurate and, in making that judgment, you need to look carefully at the circumstances in which it was made and at any other evidence in the case which may support it. Specially you have to take into consideration the followings:
    1. How long was the suspect under observation?
    2. At what distance?
    3. In what light?
    4. Was the observation impeded in any and, if so, what way?
    5. Had the witness seen the suspect before and, if so, how often and in what circumstances?
    6. What time elapsed between the observation and the identification,
    7. Was there any material difference between the description given by the witness at the time and the suspect’s actual appearance?
    8. Any other circumstances emerging in the evidence which might have affected the reliability of the identification.
       
72. Let us consider the circumstances in which the recognition took place. The complainant had seen the black twin cab with a pipe fixed at the front when she went to the shop. She had walked past the vehicle. When she was passing the vehicle she had seen and then remembered the vehicle registration number as HV 510. You have heard the evidence of the complainant, explaining how she was abducted and forcefully taken to a location near the Total service station in the said vehicle. The complainant had seen the perpetrator from the street lights came from, when they were passing the service station. The face of the perpetrator was very close to her, when he licked her vagina and inserted his tongue into her vagina. The complainant then explained how she was forcefully taken to the front seat and her hands were untied by the perpetrator.
    
73. When you are making the decision about the evidence of identification, you can take into consideration other evidence that tends to support the reliability and credibility of the evidence of identification. In doing that you can take into consideration the evidence of Ema, the wife of the accused where she said that they have a black colour twin cab with a pipe fixed at the front of the vehicle, bearing the registration number of HV 510. According to her evidence, the accused had been driving the said twin cab in that particular evening before she saw the accused after 7.30 p.m.

Evidence of Recent Complaint

74. You have heard that the complainant had told her mother about this incident when she reached

home after encountering this incident in the evening of 3rd of July 2017. The mother of the complainant, in this case is Kinisimere, gave evidence explaining how the complainant related this incident to her and the subsequence steps that she took in this regards. This form of evidence given by the mother of the complainant is known as evidence of recent complaint. It is not an evidence as to what actually happened between the complainant and the accused. The mother of the complainant was not present and witnessed what happened between the complainant and the accused.

75. You are entitled to consider the evidence of recent complaint in order to decide whether or not the complainant has told the truth. The evidence of recent complaint assists you to determine the consistency of the complainant’s evidence and also to assess the reliability and credibility of her evidence. It is for you to decide whether the evidence of recent complaint helps you to reach a decision, but it is important that you must understand that the evidence of recent complaint is not independent evidence of what happened between the complainant and the accused.

Inconsistencies and omissions

76. Madam and Gentleman assessors, you have heard that the learned counsel for the defence cross examined the Complainant about certain omissions and inconsistencies in the statement that she had made to the police and the evidence given in the court. The Complainant admitted in her evidence that certain incidents and facts that she stated in her evidence have not been stated in the statement that she made to the Police. Moreover, she said that she was traumatised and distressed when she gave her statement to the police.
77. I now explain to you the purpose of considering the previously made statement of the Complainant with her evidence given in court. You are allowed to take into consideration about the inconsistencies and the omissions in such statements when you consider whether the Complainant is reliable and credible as a witness. However, the statement itself is not evidence of the truth of its contents. The evidence is what the witness testified in court.
78. It is 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. Moreover, as I explained above, the victims of rape react differently to the trauma and the experience they have gone through, especially in revealing those incidents to another person.
79. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.

Final Directions

80. Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of abduction of young person as charged under the count one, you can find the accused guilty to the said offence.
81. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of abduction of young person as charged, you must find the accused not guilty to the said count.
82. Likewise, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of sexual assault as charged under the count two, you can find the accused guilty to the said offence.
83. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of sexual assault as charged, you must find the accused not guilty to the said count.
84. In the same manner, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of rape as charged under the count three, you can find the accused guilty to the said offence.
85. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of rape as charged, you must find the accused not guilty to the said count.

Conclusion

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

R. D. R. Thushara Rajasinghe

Judge

Solicitors : Office of the Director of Public Prosecutions

Iqbal Khan & Associates