State v Turagabeci [1996] FJHC 173; HAC0008.1996S (27 November 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0008 OF 1996

THE STATE

V

LASARO TURAGABECI
JIUTA MATEIWAI
NEMANI CAKACAKA ROKOBULI

Counsel: Ms. L.Tabuya for the State
Accused in person.

Hearing: 19 to 27 November 1996
Summing up: 27th November 1996

SUMMING UP OF PAIN J.

Madame and Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether each accused is guilty or not guilty of the charge. I will then pronounce the verdict or judgment of the court and your opinions will carry great weight with me in deciding that judgment.

In coming to your opinions you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you and you alone. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether your opinion is guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved through the media or some other source, you must ignore that completely. The law requires that the accused are to be judged solely upon the evidence sworn to in this court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately. As I said during the trial, you must also ignore completely the comment made by Constable Waisea about one of the accused. Do not speculate on that or let it influence you in any way. Ignore it.

The charge against the accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from the beginning to end. There is no onus on the accused at any stage to prove their innocence or to prove anything else. They do not need to give evidence. In this case they have chosen to do so, but they still carry no onus. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. That is the standard of proof I mean when I say throughout this summing up, that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in circumstances of this case. If after a full consideration of the evidence and bearing in mind the directions I give to you, you find the charges proved beyond reasonable doubt, your opinion must be guilty. On the other hand, if you are left with a reasonable doubt, your opinion must be not guilty. You apply that test to the case against each accused. That is an important matter.

As you are aware, the three accused are jointly charged with the same crime. The law recognises that more than one person may commit a crime. In this case, it is alleged that the accused, each separately, committed the same crime of rape upon the complainant Unaisi on this particular night. In view of this allegation, it is convenient to deal with their cases together in the one trial.

However, they are still entitled to have their charges considered separately. You are really deciding three separate trials and you must decide each one on its own evidence. I direct you that you must consider the case against each accused separately. In doing this you must carefully distinguish between the evidence against one accused and the evidence against the others. You must not, for instance, supplement the evidence against one accused by taking into account evidence referrable only to another.

This case comes within a small compass and I do not think you will have any difficulty in keeping distinct in your minds evidence which properly and fairly relates to all of them and that which relates to one of them alone. I will refer to this when I discuss the evidence with you.

There is one matter I should emphasise however, and that concerns statements made by an accused that have not been made on oath from the witness box in the course of this trial and which involve or refer to other accused. In particular, I refer to the evidence of Constable Waisea regarding the separate interviews of each accused. It is for you to say what parts of that evidence you accept and what weight you attached to it. However, whatever statement you accept that an accused made it can only be used as an evidence against him. As a matter of law, nothing in that statement can be regarded as evidence against any other accused.

However, all three accused have given evidence on oath. The rule that I have just been telling you about does not apply to evidence given by an accused in the witness box. All that evidence becomes evidence in the case against all accused.

The three accused are charged with rape and I must explain this crime to you. You will see from the particulars in the information that the allegation is that they each had carnal knowledge of the complainant without her consent. The term "carnal knowledge" is a very old legal phrase that simply means sexual intercourse. I prefer to use that modern day term.

Under our law rape is committed by a man who has sexual intercourse with a woman or girl without her consent. There are 3 elements that the prosecution must prove:

1. That the accused had sexual intercourse with the complainant.

2. That this was done without her consent.

3. That the accused intended to have sexual intercourse without her consent.

I will explain each of these requirements:

First, sexual intercourse, as you will be aware, is the insertion of a man's penis into a woman's vagina. For the purpose of rape this act of sexual intercourse is complete upon penetration and the slightest degree of penetration is sufficient.

Secondly, the absence of consent by the woman is a crucial element in rape. It must be proved that the woman did not consent to the sexual intercourse. This is a question of fact to be determined from the evidence. The word "consent" is just given its ordinary meaning of "agreeing to" or "being willing" for something to happen. Although in the context of sexual intercourse it covers a wide range of states of mind from actual desire on one hand to reluctant acquiescence on the other. However, if consent is freely given, though it may be done hesitantly or reluctantly, the intercourse cannot be rape.

This offence of rape requires proof that the woman did not consent to having sexual intercourse. For instance if a woman does not want to have sexual intercourse and is taken by force against her will, then that is sexual intercourse without her consent. Each case must be determined on its own facts, but normally the fact that the woman has refused intercourse, or resisted by words or conduct is evidence of lack of consent.

The third and final element of the offence of rape is an intention on the part of accused to have sexual intercourse without consent. This means proof that at the time of intercourse the accused had actual knowledge of the fact that the woman was not consenting, or intended to have intercourse with her whether she consented or not. If the accused believed, or may have believed, that the woman consented then he would not be guilty of rape. He must know she was not consenting or be determined to have intercourse with her, not caring whether she consents or not.

In this case in respect of the accused Lasaro and Nemani, there was no dispute that sexual intercourse, as I have described it, took place between them and Unaisi. She said this and both these two accused have given evidence that it occurred. The issues to be determined by you are whether it is proved that such intercourse took place without her consent, and these two accused knew that she was not consenting or were determined to have intercourse with her whether she consented or not.

The accused Jiuta in his statement to the Police and in his evidence has denied that he had sexual intercourse with Unaisi as she alleges. In his case there are two issues that arise. The first is whether it is proved that he had sexual intercourse with Unaisi, if so then it would still need to be proved that she did not consent to that sexual intercourse and the accused knew that. Both those ingredients must be proved before Jiuta could be guilty of the offence.

There is a further important legal rule that you must take into account in deciding this case. It applies in all prosecutions for offences of a sexual nature. I must warn you that it is dangerous to convict a person on the uncorroborated evidence of the girl concerned. You are entitled to accept her evidence and find the charge proved on that evidence alone if you are completely satisfied that it is true. But experience has shown that it is dangerous do so.

The reason is easy to understand. Experience over many years has shown that on some occasions female complainants have made false allegations of sexual nature. This has been for a variety reasons and sometimes for no reason at all. Allegations of sexual misconduct may arise, for instance, in circumstances involving only the two people and in such cases it can be difficult for an innocent man to do anything but deny the false accusation.

For these reasons the law says that it is dangerous for you to find the charge proved on the complainant's evidence alone.

Corroboration is evidence given or facts proved by someone other than the complainant which confirms or supports or strengthens her evidence that the accused committed the offence alleged. It must be independent testimony which confirms in some material particular the complainant's evidence that the offence has been committed and also that the accused committed it. This does not mean that there needs to be independent evidence supporting everything that the complainant has said. But the corroborative evidence must confirm the commission of the offence.

For the offence of rape, this means that the corroborative evidence must confirm in some material particular that sexual intercourse took place and that it was without the complainant's consent. The corroborative evidence must also implicate the accused by confirming in some material particular that he was the person who committed the rape.

It is my duty to point out to you the parts of the evidence in this case which could properly be regarded as capable of corroborating the complainant's testimony. However, it is for you to decide whether you accept that evidence, and if you do, whether it does in fact amount to corroboration.

In this case corroborative evidence implicating the three accused as the persons involved with the complainant on that night, should cause you no difficulty. They deny the offence of rape was committed. However, there is no dispute that they were alone with the complainant in the empty house at the particular time. Corroboration is given by the accused themselves. They have admitted in their statements and in evidence that they were in the empty house with the girl.

The real issues in this case are whether sexual intercourse occurred between them, and if so, was it without the complainant's consent.

In respect of Lasaro and Nemani, there is ample corroboration that they had sexual intercourse with Unaisi as she alleges. They both agree that sexual intercourse did take place. The admissions in their Police statements, and sworn testimony are clear corroboration of that. What you need to look for in their cases is corroboration of Unaisi's evidence that this intercourse was without her consent.

In respect of Jiuta, you need to look for corroboration of Unaisi's evidence that he had sexual intercourse with her and that it was without her consent. His case is different from other two as he denies that any intercourse took place.

In respect of all accused, the only pieces of evidence that are independent from the complainant and could be capable of amounting to corroboration, are statements or admissions made by the accused themselves. The prosecutor has confirmed to me that the State relies on the evidence of admissions made that night to Isikeli and made to Constable Waisea the next day by all the accused.

Isikeli said in evidence that he asked the three accused whether they had raped Unaisi. He told you in Fijian the question that he had asked. He said that all three replied 'yes'. The three accused deny that this admission was made by them. If such an admission was made by an accused it is capable of amounting to corroboration. However, it is for you to decide what reliance you place on this evidence. You determine whether such admissions were made and if so, whether they do amount to corroboration of the complainant's testimony that all three accused had intercourse with her and it was without her consent.

Constable Waisea gave evidence of interviewing all three accused and he produced the statements that he recorded. The accused deny that they said a good number of the things recorded in the statements. It will be necessary for you to decide what has been proved.

However, if Lasaro and Nemani did say what is recorded in their statements then that evidence is capable of amounting to corroboration that the intercourse they had with Unaisi was without her consent and they knew that. It is for you to decide what reliance you place on this evidence. You determine whether such admissions were made to Constable Waisea and if so, whether they amount to corroboration of the complainant's testimony.

The position is different with Jiuta. In both his caution statement and charge statement, he denied having sexual intercourse with Unaisi. He made no admissions. His statements to Police are not capable of amounting to corroboration.

I have given you a full explanation of the principles relating to corroboration in this case. It may help if I briefly summarise the position for you but I stress that this is only a summary and you must bear in mind and apply the full explanations I have given:

1. I warn you that it is dangerous to convict on the uncorroborated evidence of the complainant.

2. Bearing in mind that warning and the reasons for it, you may nevertheless return a verdict of guilty if you are fully convinced of the truth of the complainant's testimony even if it is not corroborated and on a consideration of all relevant evidence, you find the charge proved. But I repeat you must first bear in mind the warning that it is dangerous to do.

3. Corroboration is independent testimony which supports the complainant's testimony and confirms in some material particular her evidence that the offence was committed and accused committed it.

4. In this case, Lasaro and Nemani admit that they had sexual intercourse with Unaisi. The crucial issue is whether it is proved that this was without her consent. Jiuta denies having sexual intercourse with Unaisi. The crucial issues are whether it is proved that he did have sexual intercourse with her, and if so, that it was without her consent.

5. The only evidence capable of amounting to corroboration of the complainant's testimony on these matters are: the evidence of Isikeli as to admissions alleged to have been made by all three accused and the evidence of Constable Waisea as to admissions alleged to have been made. But this relates to Lasaro and Nemani only and not to Jiuta. It is for you to determine whether such admissions were made and if so whether they amount to corroboration of the complainant's testimony.

It is appropriate at this stage to mention the evidence given by Isikeli that the complainant told him when she came home that night that she had been raped. Such evidence of what an alleged victim said in the absence of the accused would not normally be admissible at the trial. However, in prosecutions for sexual offences there is an important exception to that rule. Evidence of a complaint made by a woman promptly after the alleged commission of a sexual offence upon her, is admissible. However, that complaint is not corroboration of the facts complained of. It is only admissible as evidence of the credibility of the complainant's testimony as showing the consistency of her conduct at the time with the story told by her in the witness box and as being inconsistent with her consent to what occurred. That is the only purpose for which the evidence can be used. Not as evidence of what happened. But as a factor to be considered in determining her truthfulness. It is only evidence going to her credibility, it cannot be used for any other purpose.

In this case it would be relevant for you to consider the circumstances in which she told her uncle that she had been raped. She did not complain about it immediately she arrived home. She was late. She said that her uncle did not like her going out at night and she thought he would beat her up. When asked where she had been, she said she was with one of her uncles. She said she was afraid to say what had happened. It was only after Isikeli asked her three or four times and then slapped her that she made her complaint.

So this is not a case of an obviously distressed girl rushing home and telling her family what had been done to her. However, she did explain that she was scared. So those are all matters that you can weigh in the balance when you consider the credibility of Unaisi's evidence.

I intend now to remind you about the evidence given by the witnesses in this case. It would be quite impracticable for me to go through the evidence of each witness in detail. I can only remind you of the salient features of the evidence. If I do not refer to a particular witness or a particular piece of evidence, that does not mean it is unimportant. You must take into account and assess all the evidence of all the witnesses. You will consider the demeanour of individual witnesses when they gave their evidence and the effect of the cross examination. You determine for yourselves what evidence you accept as truthful and what you reject.

The principal prosecution witness was the complainant herself. Unaisi said that she was taking the plate of cakes to her uncle. She saw Lasaro sitting at the Lali house. She also noticed two other people sitting in a half built house. Lasaro called out to her but she carried on to her uncles. On her return Lasaro spoke to her and asked her if they could go for a chat. She said she had to return the plate. He said Nemani would do that. Then Nemani came and grabbed the plate from her. She said that Lasaro took hold of her wrist and they went to an empty house. She described the distance that they went as being from the Court where we are, to Albert Park. She said she was taken into an empty room. Lasaro walked out and left her. She went to the door and Lasaro was there and forced her back into the room. She said that when she went back in, Nemani and Jiuta were there. Nemani took off her sulu. They forced her to lie down on the floor. One of them took her panties off. She said that Nemani then had sex with her. Lasaro was sitting beside her head and Jiuta was holding her legs. She said that after that Jiuta then had sex with her while Lasaro was sitting by her head and Nemani was holding her legs. She said that after that Lasaro then had sex with her while Nemani was sitting beside her head and Jiuta was holding her legs. She said that finally Nemani had sex with her again while Lasaro was sitting beside her head and Jiuta was holding her legs.

Unaisi said that she didn't want any of them to have sex with her. At the beginning she told them to free her and let her go and she kept repeating this. She said that after Nemani had sex for second time, the three accused all left and she then went back home. She said that after she told her uncle Isikeli what had happened, the three accused were brought to the house. Unaisi said that Isikeli asked them if they were the ones who had raped her that night and they agreed.

Under cross examination by the accused Unaisi admitted that she did agree to go with Lasaro to have a chat but she said that she didn't know he was going to bring the other two. She also agreed with Lasaro that they would take different routes and then meet. She also agreed that she did not scream but said that nobody would have heard her and they all told her to relax. She said that Nemani and Jiuta came into the empty house through the window and at that time she was not having sex with Lasaro.

She at first denied that she previously had sex with Namani, then later she remembered that they did have sex in a house by the sea and she said it was a long time ago. She agreed that she only told her uncle that she had been raped because she was scared. He slapped her and then she told him everything. But she did say that she would have told him if she had not been slapped. She denied that she agreed with Nemani earlier in the day to meet him that night.

In an answer to a question from me she agreed that she had told the Police what is recorded in her statement namely "Lasaro undressed me, and after raping only one time he called Jiuta and Nemani. I comment here that her previous statement that Lasaro undressed her and raped her first is inconsistent with her evidence that she gave, that Nemani took her sulu off and was the first to rape her.

That previous statement is not evidence. You decide the case on the evidence she gave in Court. The previous statement is something you can only take into account in considering her credibility.

The next witness was Unaisi's uncle Isikeli and I have already referred to his evidence. He said that when Unaisi came into the house she was shocked. When he questioned her she didn't know what to say. It was as though she was afraid and he suspected something was wrong.

After she told him what had happened the three accused were brought to the house and he said that the three of them admitted having raped Unaisi. In cross-examination he agreed that he gave Unaisi a slap and that is why she told the whole story. He said that he was the one who questioned the accused and not someone else. He said that if they had not admitted the rape he would not have called the Police.

The prosecution produced the medical report from Dr. Moore who examined Unaisi at the hospital at 10.00 pm that night. In this report it is recorded that her mental state was calm, there were no injuries on her body, her hymen was not intact, there was no injury to her vulva and there was no bleeding.

So there was nothing in the medical report to confirm that she was forcibly raped 3 times. If the accused had counsel it would, no doubt, have been submitted to you that this examination was consistent with consenting intercourse by a girl who had previously had sexual intercourse and was not a virgin. If it was forceful rape by 3 men and she resisted some injury could be expected.

The prosecution called Dr. Kumar, who was a Registrar in the gynaecological ward at CWM Hospital when Unaisi was admitted that night. He said she was distressed, fearful and crying. This distress observed by the Doctor could not amount to corroboration of her evidence of the rape. It is not independent of the complainant and was observed some hours after the incident. By then she had been confronted by her uncle, who had slapped her, taken to the Police Station and questioned and then taken to the hospital, and then medically examined. She was not observed to be in this state immediately after the incident.

No great weight should be placed on this evidence of distress but it can be evaluated by you in determining what occurred to the complainant that night and in assessing her general credibility and consistency.

Constable Waisea gave evidence of investigating the complaint. He interviewed each of the three accused the next morning. He said that he recorded the questions asked to and answers given by each accused. Those records of interviews in Fijian have been produced and English translations have been given. I will not go through the statements in detail. They are available for your perusal.

In Lasaro's statement he is recorded as saying that he followed Unaisi because he wanted to rape her. He took her to the vacant house, and told her to take off her sulu which she did. He pulled her panties off, made her lie down and had sex with her. He agreed that he raped her and that he admitted this to Isikeli when questioned.

In Jiuta's statement, he has recorded as saying that he followed Nemani to the school. He heard voices coming from the empty house. He went in and saw Unaisi, Lasaro and Nemani. After 5 minutes he went outside. He did not plan with the other two to rape Unaisi and he did not have sexual intercourse with her. He said that they were later questioned at Unaisi's house and they admitted. He said again in his charge statement that he did not have sex with Unaisi.

In Nemani's caution statement he is recorded as saying that he admitted the allegation that he forcibly raped Unaisi. After Unaisi went with Lasaro, he followed her to where Lasaro said they would meet. He didn't see Lasaro but he heard voices inside an empty house. Lasaro was there with Unaisi. Nemani said in his statement that he lifted her legs, spread them apart and had sex with her. She was crying because she had been hurt. He said that later he wanted to have sex with her again but she didn't want it and pushed him away. He said that they were questioned at Unaisi's house about the incident and they admitted it.

In cross-examination Constable Waisea denied that the accused did not say these things, he said that the statements correctly recorded what they told him.

All three accused agreed that they voluntarily made a statement. But they said that they did not say the incriminating matters that have been recorded. All three of them deny saying anything incriminatory. If what they say is true then Constable Waisea must have deliberately written down confessions and facts that they did not say. The Constable denies this. And you might think it significant that he has recorded the exculpatory statement made by Jiuta that he did not have sex with Unaisi. If Constable Waisea was changing their statements, why didn't he change this one? So he denies that he changed any statements. He says the statements record what each accused told him. The accused say that the record is not correct.

So it is for you to decide where the truth lies. You must decide whether the statements correctly record what each accused said. Those statements are properly before you as evidence for you to consider in this trial. However the value or weight you place on them is entirely a matter for you. You can take into account the circumstances in which the statements were made. You are also entitled to weigh the statements against other evidence that has been given. It is for you to assess their value. You can accept them as true or reject them. You may accept some parts of the statements as true and reject other parts of them. It is entirely a matter for you.

All accused made the point that the statements were not read back to them. This should have been done by the interviewing officer. A set of rules has been adopted in Fiji as guidelines for Police interviews of suspects. These are known as the Judge's Rules.

Rule 4 says that when the statement has been completed the person making it shall be asked to read it, or it can be read to him, and he is asked to make any corrections, alterations or additions he wishes. After this the person making the statements is required to sign a certificate confirming it has been done.

That was not done on this occasion, it should have been.
This means that the accused and you are obliged to rely on the accuracy and honesty of Constable Waisea in recording the answers given. The accused were not given the opportunity to check what had been written before they signed their statements.

So that is a factor for you to take into account in determining the value of the statements and whether the accused did make the admissions that have been recorded.

Finally, the accused themselves have each given evidence. I must remind you that when an accused person gives evidence he assumes no onus of proof. That remains on the state throughout. His evidence must be considered, along with all the other evidence and you can attach such weight to it as you think appropriate.

Lasaro has said in evidence that he was sitting in the lali house sheltering from the rain. He whistled at Unaisi when she went past. When she returned he approached her and they had a chat. She agreed to go with him, he told her that they would go by different routes and meet at the empty house. When they got there, they went inside. He asked if they could have sexual intercourse and she agreed to this. He said that they had sex. He said in evidence that Nemani came into the room and asked Unaisi about their agreement. He realised that Nemani was also going out with Unaisi. He therefore went into the next room, put on his clothes and left. He said that Jiuta came out of the house and went with him. He denied being questioned by Isikeli and admitting the rape. He said another person Peni spoke to them and threw a newspaper at them which had a story about a rape. Lasaro said that Peni told them that they had raped Unaisi.

In cross-examination, he said that he wanted Unaisi that night and admitted that it was not important for him that she wanted sex. However, he denied that he forced her to have sex.

Jiuta said in evidence that he saw Lasaro follow Unaisi. He then went home and changed his shirt. On his way back to the village, he saw Nemani near the school. They heard voices coming from the empty house. They went in and he saw Lasaro having sex with Unaisi. He said that he went out of the house, Lasaro followed him and they went back to the village. He did not have sex with Unaisi. He also said that Isikeli did not question him. Peni threw the paper at them but they didn't say a word. In cross-examination, he denied that he and the others had forcibly raped Unaisi.

Nemani said in evidence, that after the Church service on Sunday afternoon, he was on the porch of his house with his sister. He saw Unaisi and called her over. They talked and she agreed to see him that night and they arranged to meet at the school. That night he saw her talking to Lasaro. He spoke to her and she said that she was still going to meet him as they had arranged. She then gave him the plate to take to her house. Later he went to the place where they had arranged to meet but she was not there. He heard her voice coming from an empty house. He went through the window and saw Lasaro and Unaisi having sex. Lasaro stood up and went into another room. Nemani said that he asked Unaisi if he could have sex with her and she agreed. He said that while they were having sex he saw Lasaro and Jiuta leaving the house. He said that he went home after they had sex. He also said that Peni was the person who questioned them, not Isikeli and while Peni was doing this the Police arrived.

When questioned by Jiuta, Nemani agreed that Jiuta did not have sex with Unaisi that night. In cross-examination by the prosecutor he denied having forceful sex with Unaisi and he denied holding her while the others did. He agreed that he had approached Unaisi and asked her to drop the case.

Nemani also called his sister, Asenaca to give evidence. She said that she was with Nemani on the porch. Nemani called Unaisi and had a chat with her. Asenaca said that she went inside and when she came out she heard Unaisi say "I'll be there".

That completes my summary of the law and evidence in this trial.

The prosecution case is that this was a planned group rape of Unaisi by the three accused. They were all near the lali house when Unaisi was accosted. Lasaro took Unaisi to the empty house some distance away and the other two also turned up there. That, the prosecution says, was not just a pure coincidence. That was planned. They forcibly raped Unaisi and later confessed to this.

The accused deny that this is what happened. They say that Unaisi willingly went to the empty house with Lasaro. Nemani was there because he had arranged to meet Unaisi at the school. Jiuta was just walking past on his way to the village. Unaisi consented to having sex with Lasaro. Nemani came in, reminded Unaisi of their meeting. She consented to having sex with him. Jiuta did not have sex with her. She was not raped. There was no evidence of her struggling, calling out or having injuries to support this.

Those are the two cases in brief of the prosecution and the defence.

I finally remind you of the specific issues in respect of each accused. In respect of Lasaro and Nemani, there is no dispute that they had sexual intercourse with Unaisi on that night. The issue for you to determine is whether it is proved that Unaisi did not consent and they knew she did not consent. In respect of Jiuta, the issues are whether it is proved that he had sexual intercourse with Unaisi on that night. If that is proved, is it also proved that Unaisi did not consent and Jiuta knew that she did not consent.

In deciding those issues you must consider and apply the various legal principles that I have explained to you.

Madam and Gentlemen Assessors, that concludes my summing up. We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on whether the charge has been proved against all or any of the accused. You may have with you any of the exhibits that you would like to consider. I remind you that you must consider the case against each accused separately.

When you have reached your separate decisions, we will all come back into Court and you will be asked to state your opinion as to whether each accused in turn is guilty or not guilty of the charge.

Would you please now retire to consider your opinions. When you have made your decisions would you please advise the Court Officer and the Court will re-convene to receive your opinions.

Thank you.

Justice D.B. Pain