State v RSN [2011] FJHC 417; HAC146.2010 (29 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 146 of 2010

BETWEEN:

STATE
Prosecution

AND:

RSN
The Accused

Dates of Trial: 25-27 July 2011
Date of Summing-Up: 29 July 2011

Ms L Vateitei for the State

Mr H A Sha for the Accused

Names of the two alleged victim-witnesses are suppressed and they will be referred to as MN and KK. The name of the accused-person is also suppressed and he will be referred to as RSN.

SUMMING UP

Madam Assessor and Gentleman Assessors

1. Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
   
2. In my summing-up of the case to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
   
3. In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly.
   
4. Your duty, therefore, is noble and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.
   

5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason of your selecting to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately could be utilized to decide the case before you.

6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected. They are matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard such opinion if that does not match your thinking on the matter. You must instead form your own opinion without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.
   
7. Counsel for the State and for the accused have made submissions to you as to how you should find the facts of the case. They have done so on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by them.
   

8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

9. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved incidents of rape of two young girls. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
   
10. Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
    
11. The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of rape. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.
    
12. In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof on the accused-person to prove that he is innocent. You will recall that the accused-person is presumed to have been innocent. Therefore, there needs not be any burden on him to prove his innocence. His innocence is presumed by law.
    
13. In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt.
    
14. Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test in a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of rape as I go on.
    

15. Lady and gentlemen, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.

16. Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.
    
17. Let us now look at the charges of rape on the information, as amended and filed on 25 July 2011, which were read over to the accused-person, upon which this trial proceeded.
    
18. There are two charges:
    

(i) The charge under count No (1) is under Section 207 (1) (2) (a) of the Crimes Decree No 44 of 2009. The particulars of the offence, as alleged by the prosecution, are:

'RSN on the 10th day of October 2010 at Nadi, Western Division had penetrated the vagina of

MN without her consent.'

(ii) The charge under count No (2) is under Section 207 (1) (2) (c) of the Crimes Decree No 44 of 2009. The particulars of the offence, as alleged by the prosecution, are:

'RSN on the 10th day of October 2010 at Nadi, Western Division had penetrated the mouth of

KK without her consent.'

19. (i) I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this court. Section 207(2) states as follows:
    
    • (a) 'A person rapes another person if the person has carnal knowledge with or of the other person without the other person's consent.; or,
      

(c ) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent

(ii) Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. Such penetration should not be to the extent of ejaculation or should not go through the full passage of the vagina. So, in simple language, to have carnal knowledge is to cause penetration of the vagina of a woman by the penis of a man. So, if penetration takes place without the consent of a woman, that is rape under Section 207 (2) (a) of the Crimes Decree.

(iii) If a person penetrates the mouth of a woman with the penis to any extent without the consent of the woman then again it becomes rape under Section 207 (2 (c) of the Decree.

(iv) Consent, as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent and you should bear in mind that the submission by a woman without a physical resistance by itself shall not mean that there was consent. A woman of or over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. He two women in this case were of 19 and 22 years of age and therefore they had the capacity to consent. So, absence of consent on the part of both women, is essential item to be proved in this case.

(v) Consent is considered not to have been given freely and voluntarily if it is obtained by force, by threat or intimidation, or by fear of bodily injury/harm or by false and fraudulent representations about the nature or purpose of the act or by a mistaken belief induced by the accused person that he was the woman's sexual partner.

20. So, the elements of the offence in count (1) are that the accused penetrated the vagina of MP to some extent, which means that the insertion of the penis fully into the vagina is not necessary. Such penetration should have taken place without the consent of MP. In count (2) if the accused penetrated the mouth of KK with his penis to any extent without KK's consent, then it becomes rape.

21. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence as to the identification of the accused-person to connect to the offences in the two counts that he is alleged to have committed.

22. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, the alleged victims are witnesses who offered direct evidence, if you believe them as to what they saw, heard and felt.

23. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, interview and charge statements, which are before you, are documentary evidence. If you believe such records were made, as the prosecution presented to you, then you can act on such evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time.

24. Expert evidence is also important to bear in mind. Usually, a witness is not allowed to give opinions on something. They are allowed to give evidence on what they have seen, heard or felt by their physical senses only as I described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid court and you to decide the issue/s before court. The doctor in this case for example came before court as an expert witness. The doctor, like any other witness, gives evidence and tells us her conclusion or opinion based on her examination of the patient. That evidence is not to be accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if her reasons are convincing and acceptable to you and if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are entitled to take into account the rest of evidence in the case.

25. Parties are free to admit facts and/or documents. Then proof of such facts or documents is not necessary through the usual means of placing evidence. Such admissions can be recorded and then they form part and parcel of evidence in the case.

26. You must consider all admissions of facts and documents, direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence and expert evidence that form the mass of evidence in this case. You must, in addition, consider circumstantial evidence that is the evidence that is not direct but you can put proved factors together and make some inferences and come to conclusions.

27. In assessing evidence of witnesses you need to consider a series of tests. They are for examples:

(a) Consistency: That is whether a witness has been saying the story on the same lines without variations and differences. You must see whether a witness is shown to have given a different version elsewhere. If so, whether what the witness has told court contradicts with her earlier version. You must consider whether such contradiction is very material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time.

(b) You must remember that merely because there is a difference, a variation or a contraction in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness.

(c) In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer insofar as our memory is concerned, the memory of a witness also can suffer same inherent weaknesses.

(d) Belatedness: That is whether there is a delay in making a prompt complaint to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication and you may also consider it as a factor to dissociate with the act/act complained of.

(e) Motive: That is whether there was some animosity or enmity or some other reason for a complaint to be made against the accused person and falsely implicate him.

You need to consider all these matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to evaluate the evidence of a witness

28. I will now deal with the evidence in this case briefly..

• WITNESS MP was a girl working as a Sales Assistant at Tappoos Outlet at the Departure Lounge of Nadi International Airport. She was waiting with KK for a bus to go to work around 7.00 am in the morning on Sunday 10 October 2010. It was a public holiday and busses were getting late and a black car driven by the accused offered a lift stating that he too was going to the airport to pick-up someone. MP got into the car followed by KK and both of them occupied the rear seat. The accused got into a conversation as the car moved on and asked about the age, name, the family, school studied and the pay etc.
  
• He took a knife and told KK to come to the front. 'If you don't come I am going to kill you', he said. The vehicle was then stopped and KK got into the front through the two seats. The accused did not take them to the Airport but to an apartment close to McDonald's in Nadi after about 20-30 minutes' drive.
  
• The accused told them to open their tops and if they did not they would be killed. As they were passing Lomolomo, he started touching KK. KK begged not to touch her. But, he did not stop and went on touching her breast. They were afraid and asked him to leave them and to drop them off. He said 'no' and asked 'whether you wanted life or whether you wanted just to die'. .
  
• As they came to a apartment, he parked the car in front of the entrance. KK was locked inside and MP was asked to lean against the car. 'If you go off, I will kill you', he said. The accused then went inside the apartment leaving two of them. They could still see him. He just went in and came back. He was just standing there. MP could not run. 'It was for about 2 – 3 minutes not long enough to escape', MP said.
  
• The accused asked KK to get out of the car. He put the knife at the back of MP and asked to go inside. Inside the apartment, they were taken to a room and the door was locked and told them to sit on a bed. The accused told KK to stand up and dance. But she did not. He pointed the knife and said' if you don't dance, you know what would happen.' Then she danced a bit. While KK was dancing, the accused wanted to take her tops off. KK begged that she could not dance and she could not remove the topping clothes. .
  
• The accused then pointed the knife to MP and wanted her to do the same. He stood up and asked whether MP wanted him to kill her. When she took off her top, he forcefully pushed her to the bed and he took off her clothes. He took off her pants, panties and her bra. Then he pushed her to the bed. She started to cry and begged not to do and he said 'no' and said MP had to do what the accused was asking.
  
• Then he took out his clothes and asked KK to suck his penis. She then proceeded to suck his penis. MP was on the bed and she saw it. He then pulled my legs and had sex with me. He was holding the knife.
  
• 'Court : What do you mean by having sex?'
  
• Witness sobbed and said 'He had intercourse.' He put his penis into my vagina. He then told me to go and have a shower.
  
• Then he told KK to take pantie off. She said 'no' she was having menstruation.
  
• MP just put water and got dressed. He told KK get her hair set. He said that he was going to kill them and throw away. MP cried and wanted him to leave them. He said that he was going to kill them if they were going to tell other people about the incident.
  
• The accused then asked how much money they had. MP said no extra money but the bus fare. He wanted to open the wallets and asked for extra money and took $2.00. Then he asked KK the same thing. KK gave him the change. Then they begged him to leave them. The accused said that he wanted no tears and asked them to go and sit in the car and they came out together to the car.
  
• The accused said that he could kill them and throw them somewhere that no one could find them, while driving the car. He then took them to the airport and said that they had to pretend that nothing had happened.
  
• MN went straight to the Manager-Ranjit and I told him. Then he went to another supervisor to find whether it was true. They all KK, MP's Manager and KK's Manager went to the police on the same day. The matter was reported to police and told the police everything. Police asked for the description of the man and they described him as dark, short, bit fat around 30 – 40.
  
• The police took them to the scene and MP showed the bedroom where they were taken to in the apartment by the roadside of McDonald's and showed police how it happened. MP was medically examined by taking her from Police Station to the hospital at Nadi by a female doctor on the same day. MP told the doctor what had happened and identified her signature on the Police Medical Examination Form dated 10 October 2010.
  
• Police again called MP when she was at work and got her to identify the accused among few men at an identification parade. She had identified him at the parade by pointing her finger at him in the same that she did in court to identify him
  
• 'It was a kitchen knife, small, handle brown, 6 –7 inches in length', she said and said that he was wearing black shirt and blue jeans, denim long.
  
• Answering cross examination of the learned defence counsel, witness MP admitted after getting into the car the accused started a conversation and asked personal details. Learned counsel put that the accused suggested having sexual contact to which she said 'No'. It was also put to the witness that KK said 'No' because she was having her menstruation and MP would be a willing party as she has already had sexual contact. MP answered 'No'.
  
• Answering further she said that the accused threatened them with a knife of which the blade was about 2-3 inches in length in his right hand while keeping it on the steering wheel. He one stage started to fondle the breasts of KK with the left hand. Learned counsel suggested that it was not possible to have driven a car like that with other accessories beneath the steering wheel. MP said that the accused was holding the knife high and that she saw the accused doing that.
  
• It was suggested to the witness that she had lots of opportunities raise cries and alarm the people around. She answered 'yes' and said that they were asked to turn off the mobile phones and that they were under the threat of harm and death.
  
• Further, witness MP was asked whether she told the police that there was a receptionist. She said she did not. She said that there was n Indian man there. She was confronted with her statement to police on 10 Oct. 2010 where she said '...when this man went towards the receptionist...' (Line 23/24 of the statement) she admitted having said that. Then she was asked why she lied to court on the issue of receptionist. She did not answer the question.
  
• Answering further, she said that she told police what she had seen and that she was so frightened at the time of incident.
  
• It was put to her that there were three people but she said that there were only two. When she was asked again why she lied to court she did not answer. It was further suggested that the accused could not have easily caught them if they attempted to run by going around the car as the accused could not reach anyone of them across the car and that could have alerted the ones around. She answered 'Yes' and said that they were under threat of harm.
  
• Learned counsel put to her that the accused did have sexual intercourse after paying $ 80.00 with her consent. She denied. It was suggested that making KK to suck the accused's penis was a fabrication and she said 'No'.
  
• She denied that it was a missionary position and said that she was made face down when he inserted his penis. It was suggested on behalf of the accused that they made up a story against the accused in fear of loss of their job as they were late to work. She said 'No'.
  

Dr Ms LOSANA NATUWA giving evidence said that she has had about four years' experience as a Medical Officer. She was at the Nadi Hospital by 10 October 2010 and that she was on 'on call' duty on that day. She had examined MN who was a short and small girl as escorted by police. Having refreshed her memory over the report prepared by her, she said that it was MN to ascertain whether there was recent sexual intercourse.

The doctor said that MN, whose date of birth was 07 November 1991, was scared and emotional. She sat down and took the history of MN as she usually used to do. MN had said that she was forced to have sexual intercourse with someone at an apartment. 'He tried and succeeded in penetrating' according to MN, the doctor said.

Dr Losana observed redness and abrasions on the opening and through the vagina. She said it was consistent with the history given by MN.

In cross-examination by the learned counsel for the defence, it was suggested that the element of force is injected when police bring patients. She said 'no'. The doctor was asked where had she got the word 'force' from. The doctor answered that it was why she had written that MN was 'sexually assaulted' in her report. She said in answer to learned defence counsel that the vaginal opening is consisted of a skin tissue and if something is rubbed against it one would observe 'redness' and mere rubbing alone would not make 'abrasions'. She said that if a penis is rubbed, it may cause redness on the vagina and abrasion was due to 'sexual activity'.

WITNESS KK 22 yrs. A resident in SAWENI said that she was working at Tappoos at Nadi Airport International Airport as a sales assistant

She said that she and MP were waiting around 7.15 a.m. on 10 Oct. 2010 to go to work at a bus stand. She was talking to her boyfriend when a black brand new car with tinted glasses stopped and asked MP where they were going to. MP replied that they were going to the airport and they went and sat inside the car as the accused was willing to take them over there.

As the car moved on, windows went up and the radio started sounding. At Vuda by-pass road, he stopped the car and told KK to come to the front. He then took the the knife out and asked her to come to the front or else he would kill KK. As KK was trying to open the door, he threatened and she then went to the front seat. He then started asking questions about father, mother, age, etc.

When they were passing Lomolomo, he asked KK to open the buttons of the top. He was holding the knife and driving with it. When KK did not, the accused said that he would kill her. She did one and but he wanted to open all buttons. Then he started touching her breasts.

The accused said that they would go to work half an hour late. If they did not listen, then he would kill them. He stopped the car at the apartment and asked MP to get out and stand by the side of the car and for KK to be inside and put the alarm on. He said if they tried to run, he would kill them. She remained in the car only for 2-3 minutes.

The accused then came back and told them to follow him into a room, took their phones after opening the door and locked other doors and put down the curtains. He wanted us take off clothes and KK was begging to let them go. KK had to take off her top and her bra.

The accused forcefully took clothes of MP off. He asked KK to take all her clothes off and pushed MP on bed and took her clothes off. He put knife on her neck and told her to suck his penis. She said she had not done it before, but he said that she had to do it then. KK said she could not; but, as the accused was about to scratch her neck then she proceeded to do it and took his penis into her mouth.

He put MP upside down and started sex with her. She saw him putting his penis into her vagina. MP was then asked to go and have a bath.

KK was asked to come and lie on the bed to have sex with him. He started touching her, she said she was having menses.

They were there for about 20 mts.

They were taken out to car and asked not to run if they did they would be killed.

The accused then dropped them at the airport, Nadi. When they went in, they complained to their managers as to what happened.

KK identified the accused first at an Identification Parade who was sitting in the dock.

Answering cross-examination of the learned counsel, the witness said that as they got into the car there was no knife in his hand and that he had got the knife as they passed Vuda by-pass Road. Learned counsel put to the witness that the car could not have been driven with a knife in one hand. KK said that but he did it.

Answering the question that the story was made up to overcome their delay in getting to work, KK said it was the accused who mad them late.

Sales Assistants at Tappoos need to presentable and counsel suggested that managers did not find anything wrong in their appearance when they got to work late. KK said that they did not ask about make-ups but about delay in reporting to work. She admitted having taken the penis of the accused into her mouth.

Answering further, she said that when the manger questioned her, she started crying and denied that MP had consented to have sexual intercourse with the accused.

NARAYAN GOUNDAR, in his evidence said that he was an employer at Kasthri Apartments for 8 months from 18 August 2010. He knew that he was before court to give evidence on an incident involving one boy and 2 girls who came over there on 10 Oct. 2010. They came around 8.00 o'clock in the morning. The boy was identified as the person who was in the dock. He said that 'They came well'. The boy paid the money in $ 25 for two hours. He saw one girl inside the car and one outside the car. It was a black car, which was about 10-12 meters away from the place where he was in. The accused went and called the girls and I gave them the key of the room. They stayed in the room for about ½ an hour. They also went together in and came back together. Boy was in the middle, girls on either side. I had not seen them before. It was 10 October 2010. Boy paid $25.00 for two hours. He said that girls did not talk to him when going in and going out.

Mr Narayan Goundar was not cross-examined on behalf of the accused.

RANJIT KUMAR giving evidence said that he had been at Tappoos for 15 years and presently he was at Nadi International Airport Outlet as a Category Manager. He was at work on 10 Oct. 2010 and MP was not there at the time of starting work at 8.00 a.m. She came after 8.30am. As she spoke to her he saw that she looked different and scared as something had happened to her.

The witness asked why she was late and what had happened. Then she said "Sir I want to talk to you'. He took her to a side. She said that while they were coming from home somebody gave a lift to her and KK and took them down to somewhere and raped before they were letting off at the airport. She said 'This guy showed them a knife and that's how all that happened'.

Witness felt that it was a serious matter and forwarded her to Rohaslin Lata, another Category Manager and also the Manager of KK.

This witness was not cross-examined.

ROSHLIN LATA, in her evidence said that she was with Tappoos for 17 years before she joined Jacks of Fiji in late March 2011. She was a Category Manager. KK had worked under her at Tappoos. She recalled an incident concerning KK on a Sunday when she was having a department meeting. The staff should be present at 8.00am; but, KK was not present. She said that it was after 8.30 a.m. when she was at the meeting which started at 8.30 a.m. that KK came to work. She was not normal. She talked different, eyes with tears and she noted that something had happened. After the meeting she had a message to see Manager Ranjit. She went from the meeting to see Ranjit. She called MP and KK to the administration office to talk about the incident where both of them narrated the incident.

MP said that she was raped and KK was forced to have put his penis into her mouth with a knife in hand.

The witness was not cross-examined.

29. The prosecution closed its case with the evidence of above witnesses and presented the documents with the consent of the learned defence counsel. They were Identification Parade Notes (PE-1), Caution Interview Statement of the accused (PE-2), the Charge Statement (PE-3) and the statement of Vinisila Rakadra (PE4).

30. The caution interview statement is the one made by the accused to police under caution that his statement shall be given in evidence. His statement was admitted MARKED 'PE-2' without any objection from the accused. The prosecution presented as part of its evidence what the accused had got to say no sooner the allegation was made to him on 27 October 2010 after his arrest by police. He said:

'Q 138: Where were you between 7.20 a.m. to 9.00 a.m. on 10 /10/10?

Ans: I was at home sleeping with my wife.'

31. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under a duty to do so. You must not misunderstand that the exercise of my power under law as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and that he can exercise options available under law. The accused decided to give evidence. That is his legal right and you must consider that evidence too in the way you consider the evidence of the prosecution.

ACCUSED - RSN – giving evidence said that he gave lifts to two girls MP and KK around 0720 from Saweni as he was going to Nadi. He said that KK got in the front and MP sat in the back. His car was with a central locking system and a passenger was free to open a door independent of the driver.

They got into a casual conversation where they exchanged names. They were conversing and he asked for the place of work. They were working at Tappoos. Casual conversation got little intimate. The girls asked whether he was married; if he had any girlfriends. They talked about sex and finally proposed to have sex with girls. Girl sitting beside me, KK, refused saying that she was having her monthly period but said that he should consider MP because she was very outgoing and sexually active. MP, however, did not respond with 'Yes' or 'No'. At that point, he said that he took $ 80. 00 from his wallet and gave it to MP. She took it. It was for the lunch and he had wanted her out for lunch and she agreed, the accused said.

He said he did not stop at Vuda Junction by-pass. He did not carry a knife in his car and he did not hold a knife and threaten KK or MP. He did not drive the wheel with the knife in hand, and that he did not threaten KK to come to the front seat and she was already sitting there. He also did not threaten to undo the button tops and did not touch KK's breasts while driving the car and holding the knife. He also did not tell either of the girls whether they wanted life or they wanted to die.

By the time they were about to reach the airport, he suggested to MP, whether she could go to a motel that belonged to a friend of his. She agreed and went to that motel. That was Kastri Apartment.

After parking the car, he got off from the car and told girls that he was going to book a room and went to the reception. He did not have a knife in the pocket when he went to Reception. Two girls were left in the car and he did not threaten them to remain, lean on the car until I came back. The accused admitted that the car did have an alarm system.

He said that Mr. Narayan Goundar was there at the reception. There was another and he saw two people, a man and a woman but on the corridor.

He went back to the car after paying Mr. Goundar to get MP. MP insisted that KK too come with them. KK did not say you two go and have your fun, and she will wait in the car. As he approached the reception he was at the middle and girls on either side but did not have a knife. He had no reason to carry a knife in his car or on him. He denied MP going in front, he at middle, and KK behind – that version is incorrect.

They had their phones with them in the room and they had the occasion to use their mobile phones and one of them even used it.

He did not threaten either of the girls to dance for him and he had no musical instruments to make them dance. He did not use a knife on KK's neck to have oral sex with me and he did not put penis inside KK's mouth.

He did not use knife to threaten MP to take clothes off and to have sex with MP. She agreed on having sex with him and it was consensual. No complaints from any girl at the apartment and Mr. Goundar was still at the reception. He was in the middle and girls beside me.

On their way back, KK sat in the front and MP at the back. They went to the airport from the apartment and dropped them off at Departure area. There were people at departure area. I noticed cars at departure area, taxi drivers, hotel transport, travelers and traffic was present in the morning . I dropped them and went away.

Cross Examination.

Q. Most of what you said today was consistent with what girls said in court before you?

Yes.

Q. Car is black and tinted glasses?

Yes.

Q. What you dispute is that you did not have consent to have sex?

Yes.

Q. You stood in the same position as you went in and came out?

Yes.

Q. You chose to stand in the middle because you wanted to guard the girls?

Incorrect.

Q. You stood in the middle?

Yes.

Q. MP was standing outside?

Yes.

Q. You could have waved and asked the girls to come but you chose to go and pick them up?

Yes they were not exactly looking at me.

Q. If you just call them they could not raise alarm.

Yes.

Q. If you had just called they would have come to you?

Incorrect.

Q. You went and pick them. Was there a reason for you to go and take the girls to the room?

No particular reason.

Q. Because they were being held against their will?

Incorrect.

Q. You knew they had to get off at the airport?

One girl told me.

Q. But you did not take them there?

No.

Q. KK refused to go with you?

Yes.

Q. MP did not respond

Yes.

Q. She did not say yes?

Yes.

Q. You proposed before you went past the airport and the refusal came before you went past the airport

Yes.

Q. You took notice of mobile phones?

Yes.

Q. You threatened 'if you use phones, you will be killed'?

Incorrect.

Q. She had a call from her Supervising Officer and she lied, reason was you threatened her to lie.

Incorrect.

Q. You had a knife in your hand?

Incorrect.

Q. You still had the knife when you went to Kashtri Apartment?

Incorrect.

Q. You had two girls in the room?

Correct.

Q. You just had sexual intercourse with MP while someone was watching.

Yes.

Court: It was KK.

It was not my choice for her to be in the room.

Q. In the room, with a knife you made KK to suck your penis?

Incorrect.

Q. Were you married?

I got married on 12.12.2010.

Q. You are a graduate of U.S.P.?

Yes.

Q. You know that the penalty for the offence is high?

Yes.

Q Denial is to save yourself?

That's correct.

Re examination:

No truth in the allegation.

32. The accused person in his evidence before this court admits taking the two girls into the Kastri Apartment on the day of the incident in his car and dropping them off at the airport thereafter. He states that it was only after they got into an intimate conversation. He said that he has had sexual intercourse with MP with her consent. He did not cause penetration into the mouth KK with his penis. But KK was witnessing the act of sexual intercourse with MP.

33. The identity of the accused in light of the evidence of the accused is not in dispute as the accused admits the taking of the two girls to the apartment and having sexual intercourse with MP as witnessed by KK.

34. The act of sexual intercourse with MP also is not in dispute as the accused accepts the act of sexual intercourse with MP but with consent. He, however, disputes, the act of putting his penis into the mouth of KK.

35. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

36. The prosecution presents the evidence of two witnesses who allegedly became victims of the offences in the two charges, the evidence of Goundar who said that the accused with two girls came to the apartment on the date of incident and they left after about half an hour, and the evidence of two managers to show that the two girls came late to work and that they promptly reported the incidents. The prosecution also presents the evidence of the doctor and documentary evidence.

37. You must consider the evidence of MP and KK closely. In summary, they said that they were taken to the apartment against their will by the accused under the threat of bodily harm and death and MP was forced to have penal penetration in the vagina and KK was forced to have put the penis of the accused in the mouth. You must consider whether the incidents of rape did occur in the way the two witnesses narrated beyond a reasonable doubt.

38. If the evidence of the accused is accepted that he had sexual intercourse with the consent of MP then the prosecution case fails. Or, if you feel that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted of the charge in count (1). Similarly, if you accept the version of the accused that he did not penetrate the mouth of KK with his penis, the case for the prosecution fails. Or, if you think that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted of the charge in count (2).

39. In assessing the evidence of the accused, you must apply the same rules as you did for the prosecution witnesses. You must consider his position as given in the statement of 27 October 2010 marked 'PE-2' that he was at home sleeping with his family on 10.10.10 and decide for yourselves.

40. Please remember, even if you reject the version of the accused that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has established its case beyond a reasonable doubt that the accused did put his penis into the vagina of MP without her consent for the prosecution to succeed in the charge of rape on MP in first count.

41. Similarly, you must satisfy yourselves that the accused put his penis into the mouth of KK without her consent for the prosecution to succeed in the second count on the charge of rape on KK.

42. So you must consider the evidence of witness MP very closely in relation to the issue of absence of consent and must be satisfied beyond a reasonable doubt after considering the evidence of the accused too in order to come to a conclusion on first count. You must also consider the evidence of witness KK very closely for you to be satisfied on issues of penetration of mouth with the penis and the absence of consent beyond a reasonable doubt after considering the evidence of the accused too in order to come to a conclusion on second count.

43. You can also consider whether the evidence is consistent and corroborative of each other or whether they fall apart. That is, whether the evidence of the two witnesses support each other fully or in material parts or whether they go in two opposite directions. Also, whether surrounding circumstances also reveal the same line of events as narrated by the witnesses or whether they do not match each other. Even though the corroboration is not required as a matter of law, it is always safe to consider evidence of corroboration if you have them and if you believe them to be safe to act on.

44. If you believe that the charge of rape only in count (1), after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty of count (1) and you must then acquit the accused of count (2). On the other hand, if you believe that the charge of rape only in count (2), after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty only of count (2) and acquit the accused of count (1). If you believe that both charges, after consideration of all evidence, are proved beyond reasonable doubts, then only you can find the accused guilty of both counts. If you believe that both charges, after consideration of all evidence, are not proved beyond reasonable doubts, then you can find the accused not guilty of both counts.

45. In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed away by emotions, speculations, your imaginations or wishful thinking. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society.

46. Madam assessor and Gentleman assessors, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.

47. I thank you for your patient hearing to my summing-up.

You may retire for your opinions now.

Priyantha Nawana
Judge

High Court
Lautoka
29 July 2011