State v Koroivosa - Summing Up [2015] FJHC 1007; HAC215.2014 (15 December 2015)

IN THE HIGH COURT
OF SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 215 OF 2014

STATE

vs

TOMASI KOROIVOSA

Counsel: Mr Y Prasad and Ms S Serukai for the State
Ms S Prakash for the Accused

Date of Trial : 8/12/15 & 9/12/15
Summing Up : 9/12/15

SUMMING UP

Madam and Gentlemen Assessors,

[1] We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear more. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.

[2] As the presiding judge, it is my task to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give you on matters of law. It is also important to note that, if I give you a caution, you have to take it also into consideration, in coming to your opinion.

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.

[4] During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent view.

[5] In forming your opinion, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.

[6] It is also important to note that, in forming your opinion on the charge against the Accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.

[7] I have already told you that you must reach your opinion on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution or defence exhibits and any admissions made by the parties.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness's cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and closing submissions made by State Counsel are not evidence. The closing submission made by the Defence Counsel is not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the determination of truthfulness of witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses' demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

[14] The experience of the Courts is that those who have been victims of rape react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others will not. The reason for this is that every victim has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court is not necessarily a clue to the truth of the witness's account. It all depends on the character and personality of the individual concerned.

[15] The experience of the Courts is that victims of sexual offences can react to the trauma 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. Victim's reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in their society, in relation to an open and frank discussion of matters relating to sex, with elders. There is, in other words, no classic or typical response by victims of Rape.

[16] Another consideration may be; has the witness said something different at an earlier time or whether he or she is consistent in his or her evidence? In assessing credibility of the testimony of a witness on consistency means to consider whether it differs from what has been said by the same witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.

[17] In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection; or else could there be an intentional falsehood. Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in the light of other evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory or otherwise be mistaken.

[18] Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to an exhibit.

[19] Lady and gentlemen, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[20] Having placed considerations that could be used in assessing credibility of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[21] When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the Accused is guilty or not to the single charge of Rape. I have used the term "question of fact". A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[22] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.

[23] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[24] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[25] In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that you will understand the relationship between primary fact and the inferences that could be drawn from them.

[26] It does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.

[27] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove. That burden rests on the prosecution to prove the guilt of the accused.

[28] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.

[29] I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or level of proof, as expected by law?

[30] For the prosecution to discharge its burden of proving the guilt of the Accused, it is required to prove it beyond reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I will explain these elements later.

[31] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence and the other matters of which you must be satisfied, such as identity, in order to find the Accused guilty. If you are left with a reasonable doubt about his guilt, your duty is to find the Accused not guilty. If you are not left with any such doubt, then your duty is to find the Accused guilty.

[32] You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the Accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinion.

[33] Let us now look at the information.

[34] There is one charge preferred by DPP, against the Accused:

FIRSTCOUNT

Statement of offence

Rape –Contrary to Section 207(1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

TOMASI KOROIVOSA on the 7thJune 2014, at Nakorovou Village, Nausori in the Central Division, had carnal knowledge of ILIESA TAWAKE, being a child under the age of 13 years.

[35] I shall now deal with the elements of the offence of Rape. In order to prove the count of Rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated Iliesa's or the complainant's anus, by his penis. The slightest penetration is sufficient to satisfy this element.

[36] A person of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was below 13 years of age at the time of the alleged offending and therefore, had no capacity to consent. In the circumstances, consent of the complainant is irrelevant in relation to the matter before us.

[37] Apart from these elements of the offence of Rape, the identity of the person who is alleged to have committed the offence must also be proved by the prosecution. What it means is that it was this Accused and none other had penetrated the complainant's anus on that date and time. There must be positive evidence as to the identification of the Accused.

[38] If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's anus with his penis, then you must find him guilty.

[39] In our law, no corroboration is needed to prove an allegation of Sexual Offence Rape is obviously considered as Sexual Offence.

[40] If you find that the prosecution failed to establish any of these elements in relation to the single count of Rape, then you must find the Accused not guilty to the charge.

[41] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.

[42] The parties have consented to treat the following facts as "agreed facts" without placing necessary evidence to prove them:

1. That the Accused in this matter is TOMASI KOROIVOSA;

2. That the alleged victim in this matter is ILIESA TAWAKE;

3. That the Accused and the alleged victim are cousins and are neighbours at the Village of Nakorovou in Rewa;

4. That the alleged victim's younger sister is Nanise Radakua;

5. That both the Accused and the alleged victim lived in the same Village in Rewa;

6. That the victim was under the age of 13 years at the time of the alleged offence in this matter;

7. Agreed documents to tender by consent:

(i) Birth Certificate of Iliesa Tawake

[43] The prosecution, in support of their case, called the complainant, his mother and a medical officer.

Case for the Prosecution

[44] Evidence of the Complainant IliesaTawake

(i) In his evidence he stated that he and the accused lived in adjoining houses and he had a sister called Nanise;

(ii) Describing the incident, the complainant said that on 7th June 2014, the accused called him to get a story book. He had then gone to the accused's house. When he came into the house, the accused told him to lie down on bed. He laid on the bad facing the mattress and then the accused had put his penis into his anus. He felt pain and the accused continued for about 5 minutes. The Accused threatened him with punching if he shouted;

(iii) At that time his younger sister Nanise and brother had pushed the door of the accused's house open. The accused tried to close it. Then the accused got up and said he is going to play Volleyball;

(iv) The complainant had then dressed up and went to his house. He waited till his parents were back after work in the evening to tell them what happened. He was punished by his parents and they complained to Police and later took him to hospital.

[45] Evidence of Salome Naikula

(i) This witness said that she is the mother of the complainant and when she got back home after work at about 6.30 p.m., got to know of the incident through her daughter. Then the complainant had related the incident. According to her what the complainant said on that day the accused took off his clothes and made him sit on the accused. He had threatened to punch the complainant;

(ii) When her husband was told of the situation he beat the complainant and reported the matter to Police and after that to hospital.

[46] Evidence of Dr. Merelesia Ranatawake

(i) This witness was attached to Wainibokasi Hospital as a medical officer in June 2014 and holds a M.B.B.S. degree. She examined the complainant on 8th June 2014;

(ii) During the examination, it was observed by the medical witness that there were perianal blisters. In explaining the term perianal the witness said the area around the anus is called perianal and further explained that blisters are pockets of fluid;

(iii) She was of the opinion that these blisters are could be due to friction or rubbing or penetration of an anus by an object like a penis. According to her, the injury seen on the perianal area of the complainant could have happened within 24 hours from the time of examination;

(iv) She prescribed antibiotics considering the injury in the anal area and also in the ankle of the complainant. She tendered the medical report prepared by her, marked as P.E. No. 1.

[47] That was the case for the prosecution. You then heard me explain several options to the Accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times. But he opted to offer evidence under oath.

Case for the Accused

[48] Evidence of the Accused

(i) The house of the accused had no rooms. It had two beds in the hall. In addition there are three doors. Of these three doors, there was a door facing the complainant's house. It remained closed all the time and there was a sideboard placed across.

(ii) On that day he was alone in the house. His father was employed as a taxi driver and his mother was doing marketing. He started sweeping the house. He had closed one door. He had almost finished sweeping and when he reached the door leading to the outer kitchen he saw the complainant playing with his sister whilst seated on the stairway. As he had to put the dirt through that door he asked the complainant to come in and sit at the table. The complainant came in and sat at the table.

(iii) They talked about their parents and siblings. The complainant was seated about 5 meters away from the accused. Then the complainant stood up and walked towards him. When he was about ½ meters away, he took off his clothes. The accused asked the complainant as to what he was doing. He was told to be quiet by the complainant.

(iv) The complainant was then about to sit on his lap. The accused pushed him away. At the same time, the complainant's younger sister had peeped through the door facing their house. The complainant saw his sister. Then he stood up and wrapped himself with a curtain. After that the complainant went away and the accused had gone to a Volleyball tournament.

(v) When he returned, the complainant's family called him. They asked him about the complainant's little sister said what she saw. He tried to explain things but was chased out by the complainant's mother.

Analysis of all evidence

[49] The prosecution relied on the evidence of the complainant, his mother and a medical witness to prove its case.

[50] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the single count of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of Rape and also identity of the accused, beyond reasonable doubt.

[51] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution also on the evidence of the accused. You must consider his evidence also for its consistency and also the probability of his version. If you find the evidence of the accused is truthful and reliable, then you must find the accused not guilty of the charge of Rape, since the prosecution has again failed to prove its case.

[52] However, I must caution you that if you reject the evidence of the accused as not truthful and also unreliable that does not mean the prosecution case is automatically proved. They have to prove their case independently of the evidence placed before you by the accused, and that too on the evidence they presented before you.

[53] With this caution in mind, we could proceed to consider the evidence of the prosecution as well as that of the accused for its truthfulness and reliability.

[54] At the beginning of this summing up, I described some considerations you might want to apply to the evidence in order to satisfy yourselves as to the truthfulness and reliability of the evidence. One such consideration is the consistency of the evidence.

[55] In dealing with the issue of consistency, I shall first refer to the prosecution's case and particularly to the evidence of the complainant.

[56] Evaluating the complainant's evidence for its truthfulness, you have to consider whether his allegation was consistently made. The complainant said in his evidence that the accused had asked him to lay down on a bed, face down. The accused then laid himself on top of the complainant and inserted his penis into complainant's anus. The prosecution called mother of the complainant. According to her, what the complainant said was that the accused took off his clothes and made him sit on the accused.

[57] This reporting to his mother was done by the complainant on the same evening. It is your duty to consider whether the complainant is consistent about the allegation he made before you in his evidence. His mother's evidence should not be taken as confirming the complainant's evidence. It should be used only to consider whether the complainant was consistent about the allegation he made against the accused before you.

[58] On the issue of consistency of the complainant's evidence, the following items of evidence could also be considered. During cross examination it was elicited from the complainant that though he said so in his evidence, he had not told police that;

i. about the story book,

ii. the accused pulled him to the bed,

iii. his sister and brother pushed the door open.

[59] It was also elicited that the complainant told to Police that the:

i. the accused rubbed his penis on his "bum",

ii. the accused tried to put his penis into his "bum",

iii. the accused pulled him into the sitting room,

iv. he sat on the accused lap with his back facing the accused,

v. his sister saw this when she peeped in below the door,

vi. the accused came to his house.

[60] When you consider an inconsistency in evidence of the complainant with the statement made by the complainant to the Police on the same point, you should consider what he said to the Police only to test his consistency. You should not consider what the complainant said to the Police on a particular point as evidence in the case. The statement to Police is not evidence and it should only be used to see whether the complainant is consistent on a particular point.

[61] During cross examination, when it was suggested to the complainant that the accused did not put his penis into the complainant's "bum", he admitted it. When it was further suggested to him that he changed his story because he was seen by his sister, the complainant again admitted it.

[62] The complainant in his examination in chief said there was a Settee in the accused's house. But during cross examination he admitted that there was none. In his examination in chief he referred to a bed room in the accused's house. During the cross examination he admitted that there is no separate bed room and the house had only a hall.

[63] These are the inconsistencies in the prosecution case. When you consider what the complainant told Police on a particular point and what he stated in evidence before us on the same point are different to each other, you have to consider whether it was due to his faulty memory, mistaken belief, an error in description or whether he was deliberately lying under oath. It is for you to decide the effect of these inconsistencies and the value you attach to the truthfulness and reliability of the complainant's evidence.

[64] Similarly, you have to consider any inconsistency in the accused's evidence and decide its effect on truthfulness of his evidence. During the cross examination of the complainant, the accused suggested his position to the complainant. Then he gave evidence. The prosecution did not contradict the accused. In considering the accused's evidence on consistency you will have to decide whether it is truthful or not.

[65] In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution and the accused are truthful and reliable. That is the relative probability of the conflicting versions of events as presented by the parties.

[66] The evidence of the prosecution is that the accused lured the complainant to his house with upon promise of a story book. He was alone in the house. He then got the complainant lay on a bed, face down and inserted his penis into the complainant's anus.

[67] The accused paints a different picture. He totally denied any wrong doing. It is his claim, that the complainant himself removed his clothes, came up to him and was about to sit upon his lap. He pushed the complainant away. Just then the complainant's sister peeped in.

[68] You may consider this position with the admissions made by the complainant to the suggestions put to him by the accused. The complainant admitted that the accused did not put his penis into his "bum". He further admitted that he changed his story because he was seen by his sister.

[69] The complainant in his evidence described about an incident happened on the bed. It appears that he may have described an incident happened on a chair to the Police when he made a statement. The accused said in his evidence the complainant came up to him naked when he was seated on a chair. As already noted, the complainant admitted that he changed his story when he was seen by his sister. It is therefore, your responsibility to decide whether these admissions by the complainant makes the accused's case more probable, in its truthfulness and reliability than the prosecution.

[70] There could be many other probabilities you would like to consider arising out of the evidence placed before us. You may consider all these probabilities and should decide which one is the more probable one, based on your common-sense.

[71] Another consideration in evaluating evidence for its truthfulness and reliability is the manner of each witness in giving evidence. Please consider the manner in which the complainant and the accused gave evidence and faced their cross examinations. You would have noted when they answered the questions whether they did it with confidence, without undue delay or whether they did ponder over a question for a long period thinking of an answer.

[72] I must caution you over one other important matter. When I present the Accused's version, alongside the version of the complainant, you might get an impression that the Accused must prove that it was the complainant who came towards him, naked and was about to sit on his lap. That is wrong. He is under no legal duty to disprove the case for the prosecution or to prove his innocence. He is not even under a legal duty to offer evidence. He could have remained silent. However, when he does give evidence, then, as already directed, it must first be evaluated for its credibility and reliability.

[73] During the trial it was transpired that the accused and his father were involved with reconciliation with the complainant's family. The prosecution wants you to believe the accused did this as an admission of his wrong doing. The accused says he did it as it was their custom to repair damaged relationships and he did not admit any wrong doing. Which of these explanations are valid must be decided by you considering the evidence in its totality.

[74] So far, I have directed you on the assessment of credibility of the witnesses for the prosecution and of the accused. If you reject the evidence and preferred to accept the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offence beyond reasonable doubt.

[75] As already noted the complainant had said that the accused inserted his penis into his anus and he felt pain. If you accept it as sufficient proof of penile penetration of the complainant's anus, then in addition, the prosecution must prove that it was the accused and no other who had penile penetration of the complainant's anus.

[76] I shall now direct you on a very important issue of the case. You will recall that I have already directed you on this topic by referring to the identity of the accused. It is a vital component of the prosecution case and if it had failed to prove the fact that it was this accused and no other had penile penetration of the complainant's anus, then you must find the accused not guilty of the count of Rape.

[77] The prosecution relies on the complainant's evidence to prove that it was the accused and no other who penetrated his anus. The evidence of the complainant before us is that the alleged incident took place in midday while his parents were away at work. The accused is a known person and is related. He had seen him in close proximity. Whether there was sufficient light to properly identify the person at that time and whether the complainant had clear mental comprehension to make the identity and whether there is a mistake in identifying the person are questions of fact you have to consider and decide in the light of available evidence.

[78] The prosecution has also relied upon the evidence of the medical witness. This kind of evidence is given to help you with scientific matters about the witness has expertise. As you have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefits, and to express opinions about them, because they are used to doing that within their particular field of expertise. You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.

[79] You would recall that the medical witness observed blistering in the area around the anus of the complainant. She was of the opinion that this could be due to friction or rubbing or penetration of an anus by an object like a penis. According to her, the injury seen on the perianal area of the complainant could have happened within 24 hours from the time of examination.

[80] The accused during cross examination of the medical witness sought to clarify certain positions. In relation to the blisters in the perianal area, the accused suggested that it could be due to scratching, wearing tight underwear, rubbing of an undergarment, doing rough sports, constipation or irritation for sweat and heat. The medical witness did not agree with these suggestions. It is for you to decide whether to accept her opinion on these points and whether it supports the prosecution case or the accused position.

[81] I think it is better to remind you to leave out the history given by the complainant recorded under D(10) of the medical report marked as P.E. No. 1. When the report was marked by the prosecution during the trial I have directed you to disregard it. This part of the report is irrelevant to this case and should not be used either as evidence or material to test the consistency of the complainant.

[82] In summary and before I conclude my summing up, let me repeat some important points in following form:

i. If you accept the accused's denial of the charged version of events, then you must find the accused not guilty of the single charge of Rape;

ii. If you reject the accused's denial and his version of events, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution;

iii. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charge of Rape;

iv. If you find the persecution evidence is both truthful and reliable then only you must consider the elements of the charge of Rape was proved beyond reasonable doubt. If so, then you must find the accused guilty of the count of Rape. If not, then you must find the accused not guilty of Rape.

[83] If you have any reasonable doubt about the prosecution case as a whole or an element of the offence, including identity of the accused, then you must find the accused not guilty.

[84] Any re directions the parties may request?

[85] Madam and Gentlemen assessors, this concludes my summing up of Law and evidence. Now you may retire and deliberate together and may form your individual opinions on the single count of Rape against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinion.

[86] I thank you for your patient hearing.

Achala Wengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.