IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 57 of 2018

STATE

vs.

1.	JOELI TAGO SOKOBULI
2.	ONISIMO TAUKEISOLO
3.	RUSIATE KOTOBALAVU
4.	KEMUELI NOKONOKOVOU

Counsel:				Ms. K. Semisi for the State
					Mr. F. Vosarogo with Mr. Cakau for all Accused Persons
			 
Date of Hearing:			11th, 12th, 13th and 17th September 2019	 
Date of Closing Submissions:	18th September 2019
Date of Summing Up:		19th September 2019

SUMMING UP

1.	The name of the complainant is suppressed. 

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 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.  However, 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 witness said from the witness box.  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. 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, the complainant 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 persons are presumed to be innocent until they are proven guilty. The presumption of innocence is in force in respect of each accused until you form your own opinion that the said accused guilty of the offence. 

9.	The burden of proof of the charge against the accused persons is on the prosecution.  It is because the accused persons are presumed to be innocent until they are proven guilty.  In other words there is no burden on any of the accused 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. 

Information and elements of the offences

11.	Each of the four accused are individually and separately charged with one count of rape contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act. The particulars of the offences are stated in the information which is before you. Hence, I do not wish to reproduce it in my summing up. 

12.	The main elements of offence of Rape as charged under count 1, 2, 3 and 4 of the information are that:

	i)	The accused,
	ii)	   Penetrated into the vagina of the complainant with his penis.

13.	The complainant was eleven years old at the time of these offences took place. The defence has not disputed the age of the complainant.  Hence, she was incapable of giving consent to any kind of penetration into her vagina during the month of May 2012. Therefore, the consent of the complainant is not relevant for these offences. 

Agreed Facts

14.	I now take your attention to the agreed facts. They are the facts that the prosecution and the defence agreed on without any dispute. Hence, you are allowed to consider the agreed facts as proven facts beyond reasonable doubt by the prosecution.

Separate Consideration

15.	Each accused is charged with separate individual count of Rape. You have to consider each of the count separately. If you find one accused guilty of one count, that does not automatically make the remainder of accused guilty of the other remaining counts. Likewise, if you find one accused not guilty of one count, that does not make remainder of the accused not guilty of other counts. You have to give separate consideration to each of the accused and the counts. 

The Accused

16.	It is the onus of the prosecution to prove beyond reasonable doubt that each accused had penetrated into the vagina of the complainant as charged in the information. According to the admitted facts, the complainant knows each of the four accused. It is your duty to determine whether the complainant had correctly recognized the four accused as the four perpetrators who sexually assaulted her on four separate occasions on the 4th, 8th and 9th of May 2012 respectively. 

Penetration

17.	I will now explain you the element of penetration.  Evidence of slightest penetration into the vagina of the complainant by the Accused with his penis is sufficient to prove the element of penetration.  Hence, it is not necessarily required to adduce the evidence of full penetration. 

Evidence of Corroboration

18.	You must bear in mind that offences of sexual nature as of these four counts 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 support the account given by the complainant.

Alternative Count

19.	You have heard the evidence of the complainant, where she said that Onisimo tried to penetrate into her vagina with his penis, but failed to do so as she was moving.  Onisimo is charged with one count of Rape under count two of the information.  If you find Onisimo not guilty of the offence of Rape, then you are allowed to consider an alternative count that is Attempt to Commit Rape, though it is not charged in the information.  The main elements of the offence of Attempt to Commit Rape are that:

	 i)	  The Accused, 
	 ii)	  Attempted to 
	 iii)  Penetrate into the vagina of the complainant with his penis.
  
20.	In order to establish that the accused attempted to commit Rape, the prosecution is required to prove beyond reasonable doubt that the accused have done something in order to actually execute his intention of penetrating into the vagina of the complainant with his penis and not something that amount to mere preparation to execute the said intention.

21.	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. 

22.	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 witness during the course of the hearing. 

23.	It is your duty as judges of facts to assess the evidence in order to determine whether the prosecution has proven the charges beyond reasonable doubt. In doing that, you must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not.  Demeanours of the complainant in the Court while giving evidence is not necessarily a clue to the truth of the complainant’s account.

Evidence of Prosecution

24.	Let me now remind you briefly the summary of the evidence presented by the prosecution during the course of the hearing. This is a very short hearing with one witness giving evidence. Therefore, I trust that you can properly and correctly recall all the evidence adduced during the hearing. 
 
25.	The Complainant had been living with her maternal grandparents at Mau Village since she started schooling at class one. She had been attending to Mau Primary School.  In the year 2012, she was in class six and eleven years old. During that time, her parents and siblings were living in Lautoka, while she was with her grandparents. 

26.	On the 4th of May 2012, she had gone to a concert organized by the rugby team of John Wesley College at the Mau Primary School. The ruby team was camping at the Primary School. The complainant had gone to the concert with her cousins Silivia, Rosi, Rosalina and Lavenia. Having watched the concert, she had looked for her cousins. Time was around 10 p.m. She found her cousins near the classroom of class six.  One of her cousins told her to go away.  The complainant then started to walk back home. While she was walking back, she saw Onisimo, as he was calling her by waving his mobile phone at her. He then pulled her and cover her mouth with his hands, telling her not to shout. He pulled her to go to the ladies washroom.  Onisimo did not say anything but only said that for her to go to the back of the classroom and then took her to the girls’ washroom. 

27.	At the ladies washroom, Onisimo started to touch the breast of the complainant and kissed her. While he was touching and kissing the complainant, Onisimo had removed her clothes. He then took off his pants and pushed the complainant down to the floor. Onisimo came on top of the complainant. The complainant was wearing a wrapped around “sulu”, singlet and a pants. When he came on top of the complainant, Onisimo pulled her undergarment down and tried to penetrate into her vagina with his penis. However, he was not able to penetrate into her vagina with his penis as she moved. Onisimo then pulled his pants up and walked away. 

28.	The complainant knew Onisimo as both of them have grown up in the village together since they were small. The tube light from the veranda of the school building, which was seven to eight meters away from the ladies washroom, came through to the washroom, lighting inside the washroom. The light came from the tube light of the veranda of the school building was not really bright. Moreover, the light came from the mobile phone of Onisimo also lighted inside the washroom. The complainant said that she clearly saw it was Onisimo as he was just half a meter away from her, when he tried to penetrate into her vagina. Nothing was blocking her view of Onisimo during that time. The complainant said that she was scared during all this time.

29.	After Onisimo left, the complainant pulled her undergarment up and tried to get dress. She then saw another person walked into the washroom. It was Tukai.  His surname is Tago. The complainant knew him as he is also from the same village.  Tukai just walked in and pushed her down on the floor. The complainant said that she saw his face when he opened the door and walked in. Tukai then took off her undergarment and came on top of her. He then penetrated into her vagina with his penis. The complainant did not do anything as she was scared.  Having done that, Tukai then pulled up his pants and went outside. During the course of these alleged events the complainant clearly saw the person as Tukai as he was very close, facing to each other. The complainant said the light came from outside into the washroom was not really bright. But she clearly saw it was Tukai who came into the washroom and penetrated into her vagina with his penis. Tukai was short and bit board. The complainant knew him as both of them have grown up together in the village. 

30.	On the 8th of May 2012, around 7.00 p.m. the complainant had gone to visit one of her grandmothers. Her name is Miriama Leno. After visiting the grandmother, the complainant walked back to her home. While she was walking back home, she met one Juta. He is a boy from the village. Juta told her that Sukulu wants to see her. They then went to the house of Sukulu. The complainant found Eremasi, Ravu, Lorima and Sukulu at the Sukulu’s house. No one from Sukulu’s family or his parents present at the house. 

31.	Once she went into the house of Sukulu, she was asked by Sukulu to remove her clothes. Once she took off her clothes, Sukulu pushed her down to the cement and came on top of her. He then penetrated into her vagina with his penis. This incident took place in the kitchen of the house. The light from the sitting room area came to the kitchen, but the light was not bright. The siting room was just three meters away from the kitchen. There was no partition between the living room and the kitchen. The complainant knew Sukulu as they both lived in the same village. The complainant said that she saw Sukulu clearly when he penetrated into her vagina with his penis as he was just half meter away from her.  The complainant said that she removed her clothes as asked by Sukulu because she was scared. Once Sukulu done his penetration into her vagina with his penis, he got up and told the complainant to get dress and go home. 

32.	During the evening of the 8th of May 2012, the Complainant waked around the village with three of her friends. They were Miriama, Ivamere and Matelita. While they were walking around, they came across Kemu’s house. Kemu asked the complainant to come into his house. Her friends left when she went to Kemu’s house. When she entered into Kemu’s house, she found Apenisa was inside the house.  Kemu’s parents were not in the house. 

33.	When the complainant went inside the house, Kemu told her to take off her clothes. She had taken off her clothes as she was scared. They then told her to lie down which she did. This incident happened in the room of Kemu’s parents. Once she lied down, Kemu came on top of her and penetrated into her vagina with his penis. No lights were switched on at the house. But the complainant had clearly saw Kemu as he was very close, approximately half a meter away from her when he penetrated into her vagina with his penis. The complainant has known Kemu since she was small as they have grown up together in the village. She had spoken to Kemu before and knew him for a long time. The complainant had seen Kemu in the village many times before this incident. Having penetrated into her vagina with his penis, Kemu had told her to get dress and go. He has further told her not to tell anyone about this incident. 

34.	You have heard the evidence of the complainant that she said that she was scared and ashamed of what happened. Therefore, she was scared and ashamed to tell anyone else about these incidents. You saw that the complainant identify the first accused as Tukai, the second accused as Onisimo, third accused as Sukulu and the fourth accused as Kemu during the course of her evidence.

35.	You have heard that the learned counsel for the defence cross examined the complainant. Her grandparents’ house was situated around 100 meters away from the school. The village is situated about 200 meters away from her grandparents’ house. 
36.	You have seen that the learned counsel for the defence cross examined the complainant showing her two photographs. The two photographs are not tendered in evidence. Hence, you are not allowed to take into consideration the two photographs. 

37.	The complainant said there was no light inside the washroom. The only source of light inside the washroom was the light came from Onisimo’s mobile phone. Once he left, the washroom did not fall into total darkness. The complainant said that according to the photos, there is no possibility that light could emit into the washroom. However, she explained during the re-examination that the tube light was not located at the same place in 2012 as pictured in the photo. Therefore, the light from the tube light came through into the washroom. 

38.	Moreover the complainant said that she did not tell anyone about this incident because she felt scared and ashamed of what had happened to her. She did not tell her grandparents because she thought they would feel ashamed about what had happened to her. She could not tell her friends about this. Furthermore, she denied the suggestion of the defence that she named the names of these accused because of the threats made by the village headman who is a cousin of the complainant. The complainant further denied of having a meeting with the village headman, his wife and a police officer regarding these incidents. 

Right to Remain Silent

39.	At the conclusion of the prosecution case, the four accused were explained about their rights in defence.  The accused opted not to give evidence on oath and exercised their rights to remain silent.  The accused persons do not have to give evidence.  You must not assume that they are guilty because they have not given evidence.  The fact that they have not given evidence proves nothing.  It does nothing to establish their guilt.

40.	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

41.	The prosecution alleges that the four accused had penetrated into the vagina of the complainant with their penis on four separate occasions. The first and the second accused have allegedly penetrated into the vagina of the complainant with their penis on the 4th of May 2012. The third accused have allegedly penetrated into the vagina of the complainant with his penis on the 8th of May 2012.  The alleged incident involved with the fourth accused had occurred on the 9th of May 2012. The complainant claims that she knew all of the four accused prior to these four alleged incidents and properly recognized four of them when they committed these alleged crimes on her on the 4th, 8th and 9th of May 2012 respectively. 

42.	The leaned counsel for the defence cross examined the complainant about the lighting conditions at the time of these four incidents took place. The defence suggested to the complainant that she did not properly recognize the four perpetrators due to the poor lighting conditions, which she denied in her evidence. 

43.	Accordingly, the main issue that you have to determine in this matter is whether the complainant has properly and clearly recognized the four accused persons as the four perpetrators that have committed these crimes on her on the 4th, 8th and 9th of May 2012 respectively. 

Evaluation of the Evidence 

44.	I now take your attention to the direction of evaluation of the evidence. The evolution of evidence consists with two main steps, the determination of the reliability and the credibility of the evidences and the witness. 

Reliability of Evidence

45.	You must be satisfied that you can rely on the evidence as reliable 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

46.	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.

47.	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 she has testified. 

48.	In assessing evidence of the witness, 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 with her own evidence.

49.	It is your duty to consider the demeanour of the witness, how she react to being cross examined and re-examined and was she evasive, in order to decide the credibility of the witness and her evidence.

50.	Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; she may be accurate in saying one thing and not accurate in another thing. 

Presentation of the Evidence of the Child Complainant

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

52.	The most important part of your task is to judge whether the complainant has told the truth, and has given a reliable and credible account of the events that she was describing. These four alleged incidents have taken place in May 2012, nearly over seven years ago. The complainant was eleven years old at that time. According to the admitted facts, the first accused was 17 years old, the second accused was 14 years old, the third accused was 20 years old and the fourth accused was 16 years old in 2012. 

53.	Some of you may have children, grandchildren, nieces or relatives who are of a similar age to the complainant as she was in 2012. If so, I think you will recognize the sense of the advice that I am going to offer you about your opinion of the evidence of the complainant, but remember that I am speaking only about an approach to consider the evidence. Still the evaluation of the evidence is your responsibility. You do not have to accept my advice, if you do not agree with it. 

54.	Children do not have the same life experience as adults. They do not have the same standards of logic and consistency. Their ability to understand certain events may be severely limited for a number of reasons such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realize that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it. They might think that using of some words are naughty, and therefore find it difficult to speak. 

55.	Experience has shown a number of things. A child may not fully understand the significance of sexual activities and that may be reflected in the way they remember it or describe it. A child’s perception through the passage of time is very likely to be different from that of an adult. A child’s memory can fade even in the short term. When recounting events later, even a fairly short time later, a child’s recall of when and in what order events occurred may not be accurate.
56.	Remember how you normally talk to children of this age. You should bear those difficulties in mind when you consider the evidence given by the complainant. All decisions about the evidence are for you to make. 

Evidence of Recognition

57.	The main contentions of the defence are that the complainant had mistaken in her recognition of the four perpetrators as the four accused. Accordingly, the case against the four accused mainly depends on the correctness of the recognitions of the perpetrators by the complainant. The complainant in her evidence said that she knew all four accused persons as they all have grown up together in Mau village. Both the prosecution and the defence have admitted in the admitted facts that the complainant knew all four accused. 

58.	When you consider the recognition evidence 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 recognition, have in the past made mistakes, even a number of witnesses making the same recognition. You cannot convict the accused unless you are sure that the complainant’s recognition of each of the four accused were 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:

i)	How long were the accused under observation? 
ii)	At what distance? 
iii)	In what light?
iv)	Was the observation impeded in any and, if so, what way?
v)	Had the witness seen the suspect before and, if so, how often and in what 
circumstances? 
vi)	Was there any material difference between the description given by the 
	witness at the time and the suspect’s actual appearance?
vii)	Any other circumstances emerging in the evidence which might have 
	affected the reliability of the recognition.
59.	Let us consider the circumstances in which the recognition took place. In respect of the two alleged incidents that took place on the 4th of May 2012, the complainant said that she saw Onisimo as he was calling her with his mobile phone. It was on the veranda of the school building and the place was lit with the tube light. He then took her to the ladies washroom which is located about 7 to 8 meters away from the veranda. The light from the tube light came through to the washroom. Moreover the light of the mobile phone of Onisimo was there as well. The complainant knew both Onisimo and Tukai, whom she identified as the first accused Joeli Tago as all of them have grown up together in the village. Both of the accused were very close to her when they committed the two respective alleged crimes to her. 

60.	In respect of Sukulu, the complainant said that she went to his home and saw him very closely when he penetrated into her vagina with his penis. The kitchen had no lights at that time, but a light was on at the sitting area, which was few meters away from the kitchen. She recognized the third accused as Sukulu. She knew Sukulu as they have grown up together in the village. 

61.	The complainant said that Kemu called her into his house. The house had no light but she knew him as she grown up with Kemu in the same village. 

62.	You have to take into consideration all of these circumstances when you determine the reliability, credibility and truthfulness of the evidence of recognition. 

Delay in Reporting

63.	You may recall that the learned counsel for the Defence suggested to you to consider that the complainant had not reported about these incident immediately. She had not informed about any of these incidents to her grandparents with whom she had resided at that time. Having said that the learned counsel for the Defence suggested to you that the delay or the not reporting of these incidents immediately creates a doubt about the truth of the complaints made against the four accused.  It is a matter for you to consider and resolve.  However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the courts is that victims of sexual offences can react to the trauma that they have faced in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. It takes a while for self-confidence to reassert itself.   There is, in other words, no classic or typical response. A late complaint does not necessarily signify a false complaint; likewise an immediate complaint does not necessarily demonstrate a true complaint.

Final Directions

64.	Ladies and Gentleman, I now take your attention to the final directions of the summing up.
 
Count One

65.	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 first accused has committed the offence of Rape as charged under count one,  you can find the first accused guilty of the said offence of Rape. 

66.	If you are not satisfied or have doubt whether the Prosecution has proven beyond reasonable doubt that the first accused has committed the offence of Rape as charged under count one, you must find the first accused  not guilty of the said count of Rape. 

Count Two

67.	If you are satisfied that the Prosecution has proven beyond reasonable doubt that the second accused has committed the offence of Rape as charged under count two,  you can find the second accused guilty of the said offence of Rape.
 
68.	If you are not satisfied or have doubt whether the Prosecution has proven beyond reasonable doubt that the second accused has committed the offence of Rape as charged under count two, you must find the second accused not guilty of the said count of Rape. 

69.	If you find the second accused not guilty of Rape as charged under count two, you are then allowed to consider the alternative count of Attempt to Commit Rape.  If you are satisfied that the Prosecution has proven beyond reasonable doubt that the second accused has committed the offence of Attempt to Commit Rape, you can find him guilty of the alternative count of Attempt to Commit Rape.

70.	If you are not satisfied or have doubt whether the Prosecution has proven beyond reasonable doubt that the second accused has committed the offence of Attempt to Commit Rape, you must find the second accused not guilty of the said alternative count of Attempt to Commit Rape.

Count Three

71.	If you are satisfied that the Prosecution has proven beyond reasonable doubt that the third accused has committed the offence of Rape as charged under count three,  you can find the third  accused guilty of the said offence of Rape. 

72.	If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the third accused has committed the offence of Rape as charged under count three, you must find the third accused not guilty of the said count of Rape. 

Count Four

73.	If you are satisfied that the Prosecution has proven beyond reasonable doubt that the fourth accused has committed the offence of Rape as charged under count four,  you can find the fourth accused guilty of the said offence of Rape. 

74.	If you are not satisfied or have doubt whether the Prosecution has proven beyond reasonable doubt that the fourth accused has committed the offence of Rape as charged under count four, you must find the fourth accused not guilty of the said count of Rape. 

Conclusion

75.	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.

76.	Learned counsel of the prosecution and the accused, do you have any redirections to the assessors? 

R.D.R.T. Rajasinghe
Judge

 At Suva
19th September 2019

Solicitors
Office of the Director of Public Prosecutions for the State.
Vosarogo Lawyers for all Accused Persons.