State v Kumar [2015] FJHC 185; HAC030.2012 (16 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 030 of 2012

STATE

v.

1. NITESHNI KUMAR
2. RAVINESH SINGH

Counsel: Mr. Nath S and Ms. Chowdhury M for State
Mr. Kumar S for Defence
Dates of Hearing: 9th, 10th, 11th and 12th, March 2015
Date of Summing Up: 16th March 2015

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as S.S.]

Lady Assessor and Gentlemen Assessors.

1. It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. 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.
   
2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.
   
3. The Counsel for the defence and prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and the State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.
   
6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
   
7. 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 you might have heard about this case, outside of this courtroom.
   
8. Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
   
9. There are two counts in the information. On the first count, the second accused Ravinesh Singh is charged with rape.
   
10. On count No.2, the 1st accused Niteshni Kumar is charged with aiding and abetting rape.
    
11. The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence are:
    
    1. The accused had carnal knowledge of the complainant,
    2. Without her consent,
    3. He knew or believed that she was not consenting or didn't care if she was not consenting.
       
12. For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt then you must find the accused not guilty.
    
13. Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
    
14. The law says that a child under the age of 13 years is incapable of giving consent.
    
15. In this case, the victim S.S. was 12 years of age at the time of the alleged crime was committed. Therefore she was incapable of giving consent to sexual intercourse and the prosecution need not prove that she did not consent.
    
16. The 1st accused in this case is charged with aiding and abetting rape, in that aiding and abetting Ravinesh Singh to have carnal knowledge of the victim S.S. The law says that a person who aids and abets the commission of an offence by another person is taken to have committed that offence. For the 1st accused Niteshni to be found guilty of count No. 2, the prosecution has to prove the following elements beyond reasonable doubt.
    
    1. That Ravinesh Sing did in fact commit rape on S.S.
    2. That Niteshni assisted Ravinesh in committing the offence of rape
    3. That it was the intention of Niteshni to assist Ravinesh in committing the offence and with that intention she did act which she thought would help Ravinesh.
       

The Evidence

17. The prosecution called the alleged victim S.S. to give evidence first. She said that on 07/12/2011 the 1st accused who sells watermelon came home at about 8.00am and asked her mother to send her. Her mother had refused to send her with the 1st accused. Then she had taken her and gone to the watermelon stall. She had then called her husband and had told him "come she is here". Then the husband had come, taken her to the bush beside the stall and had raped her. She said that he put his private part inside her private part. Before that he had taken off her clothes. It was painful, she said. She had wanted to hit him but couldn't as she was scared. She had screamed and it was bleeding from her private part, she said. Then he had gone and brought a bucket of water and washed her legs. When he was doing it the 1st accused had been in the stall. Then she had come and told her not to shout and "are you mad?" After that the husband had gone. The lady had told her not to tell anyone, otherwise she would smack her.
    
18. She said that she went to the stall to help the lady at her stall and also because she would give her money. She was given $20 by the 2nd accused.
    
19. Then the 1st accused had taken her to her place and bathed her and had taken her back to the stall. Because she was bleeding again 1st accused had called her mother to come and take her. On the way home she had told everything that happened to her mother. Mother had told it to their house owner and then on his advice she was taken to the police station. As she was bleeding she was taken to the Nausori hospital and then to the Suva hospital, she said.
    
20. Her birth certificate was submitted with consent. She also said that after the incident she felt bad and she had not gone to school.
    
21. In cross examination she said that she went with the 1st accused to assist her at the stall against her mother's advice because she never thought that the 2nd accused would do such a bad thing, she said. 1st accused had taken responsibility when she was taken to the stall by her.
    
22. Answering the questions by the defence counsel she said that when the 1st accused called the husband she was close to the 1st accused. She showed the distance about 1 meter in the court room.
    
23. When she was taken home for a bath, 1st accused had told her mother that she was having menses. She said that she was not having menses that day. In re-examination she said she was bleeding because of the bad thing happened to her that day.
    
24. Prosecution called the alleged victim's mother Sneh Lata to give evidence next. She said that the 1st accused came and took her daughter to assist in selling watermelon. Although she did not send the daughter, she has gone on her own. 1st accused had taken responsibility. She knew this 1st accused lady because children used to buy watermelon from her. She used to call 1st accused 'sister-in-law' and 2nd accused 'brother'. 1st accused had brought the daughter home and had wanted to bathe her to take her to hospital as she was heavily bleeding. 1st accused had taken the child back to the stall. Again 1st accused had called her saying the child is heavily bleeding. She had gone and brought the daughter back. When she asked, daughter has said that one man had done the bad thing to her. She had told the landlord and then taken the daughter to Nausori Police Station.
    
25. She said that the daughter had blood stains on her skirt. Police have told her to take her to Nausori Medical Centre. Then S.S. was taken to Suva Hospital she said. 1st accused had told the daughter to not to tell others, she said. Daughter was crying, she said.
    
26. In cross examination she said that the 1st accused came to take the daughter at 8.00am. However she had told the police that 1st accused came at 10.00am.
    
27. She also said that what she got from Social Welfare was enough to run the family. She said she discussed the case with the daughter. However when she was suggested by the defence that she tells court whatever she discussed with the daughter, she said that she did not discuss. She said that she told the truth in court.
    
28. The next witness for prosecution was DC Avinesh Maharaj who charged the 2nd accused on 09/12/2011. Charge statement was produced as Prosecution Exhibit 2. He said that the 2nd accused was never threatened nor induced. Not intimidated in any way. He said that 2nd accused was co-operative and that he made the charge statement on his own free will.
    
29. In cross examination he said that the witnessing officer has signed and that it was not necessary to put witnessing officer's name. He also said that 2nd accused understood English language.
    
30. The next witness for prosecution was DC 2598 Parmendra Singh who recorded the charge statement of 1st accused. Charge statement was produced by him as Exhibit 3. He said that no threat or promise was made to 1st accused. She was never coerced or oppressed. She appeared fine, he said.
    
31. In cross examination, when he was suggested that the 1st accused never gave the answer in question No. 10, he said that the answer was given by her. He also said that the 1st accused gave the charge statement on her own free will.
    
32. WDC Ateshni who was the Investigation Officer in the case gave evidence next. Upon receiving the report in this case she has visited the hospital to see the victim at CWM hospital. Then she had visited the crime scene. There she uplifted a plastic bag which contained blood stains, she said. The plastic had been under a breadfruit tree in the bush. That plastic was exhibited in evidence. He also has uplifted the clothes of the suspect. Those clothes were identified and exhibited. She said those exhibits were sent for forensic examination. They have received the report of the examination. Medical report of the complainant S.S. was produced in evidence.
    
33. She also said that the 2nd accused was also taken to hospital for examination because he was arrested immediately after the alleged rape as the suspect. DC Niklesh had taken the accused to doctor. Medical report of the 2nd accused Ravinesh was also produced in evidence.
    
34. She has caution interviewed the 1st accused Niteshni. The caution interview was produced in evidence. She said that 1st accused was given the opportunity to consult a lawyer. She was never threatened, no inducement or promise was made. Never intimidated, she said. She was also given breaks. She said that 1st accused made the caution interview statement on her own free will.
    
35. In cross examination she was questioned about the accused's rights. She said accused can be kept in custody for 48 hours. She said the accused could not be taken to court within 48 hours because it was a weekend. She said that the exhibits were handed over to Jolame of Forensic. She said the plastic contained blood stains when it was uplifted.
    
36. When questioned about the uplifting of accused person's clothes, she said because the accused is a male, clothes were taken by the male officer Cpl Sakenasa. She said accused Ravinesh was in custody of PC Niklesh.
    
37. She said that the 1st accused's statement was recorded by Constable Favini before she recorded her caution interview statement. She said that she could not recall whether a break was given between the recording of the statement and the recording of the interview, as she was in hospital with the victim. She said that long incarceration of a suspect amounts to oppression. Giving long breaks also amounts to oppression. She denied that she had a readymade statement and that she wanted the 1st accused to sign the same.
    
38. She denied pulling the 1st accused's hair and slapping her. She denied that the confession was obtained through assault.
    
39. In re-examination she said that 1st accused's caution interview statement was recorded within 48 hours from the time she was taken into custody.
    
40. The next witness was DC 3180 Niklesh. He has escorted the 2nd accused Ravinesh for the medical examination as he was a suspect of a rape case and to establish any blood stains in his undergarments, he said. He identified the Exhibit 9 as the medical report of the 2nd accused.
    
41. When escorting to the doctor 2nd accused had not made any complain to him. He has recorded the caution interview statement of 2nd accused which commenced at 19.00 hours same day. Caution interview statement of 2nd accused was produced in evidence. He said the 2nd accused was given the right to consult a lawyer. Accused was not threatened nor given any promise or inducement. He also said that 2nd accused was not intimidated, coerced or oppressed. 2nd accused had cooperated with him. Accused had appeared normal.
    
42. He said that after the conclusion, the statement was not read to the accused and nor accused read it. He was given the opportunity to add, alter or delete any part of the interview statement. DCpl Arvin Singh had been present during the interview, he said. Accused was given all his rights.
    
43. In cross examination, he said that they usually warn suspects when recording caution interview statement, that they can be prosecuted.
    
44. He said that he is not aware under whose custody the suspect was before he was handed over to him. Accused was given the breaks. Recording of caution interview statement has lasted 3 days. He said that he was waiting for the medical report of the victim. He said accused should be charged within 48 hours and should be produced before the Magistrate as soon as possible. He denied that the accused was systematically oppressed by giving long breaks.
    
45. He said that the accused gave the statement on his own free will. He denied assaulting the accused. He denied assaulting his private parts and stomach.
    
46. In re-examination he said that the caution interview statement was concluded within 48 hours.
    
47. The next witness was Dr. Kelera Sakumeni the medical officer who examined the alleged victim S.S. She is a qualified medical doctor with MBBS and has obtained Masters in Obstetrics and Gynecology. She is attached to the CWM Hospital. You may consider her as an expert witness who is entitled to give her medical opinion in this case.
    
48. She has examined S.S. on 09/12/2011 at the operating theater at CWM hospital with other doctors. Medical report she prepared after examination was produced. They have taken S.S. to the theater as it could be painful in the clinic and also that patient could relax. She said S.S. was calm.
    
49. She gave evidence on her observations and medical findings. She has observed the vaginal tear extended to 1cm. The tear extended into the vagina to within 1cm of the cervix. She said the injury correlated with the history given by the patient S.S. to her.
    
50. The tear was repaired and the patient was referred to the pediatrician because of her age. S.S. has related the history to her in English. The injury has caused through a vaginal penetration, she said.
    
51. In cross examination she said that she did not know where the patient S.S. was, between 7th December 2011 and 09 December 2011 until she was seen by her. If the bleeding was heavy S.S. would have been referred to her earlier, she said. She also said that in her career as a medical doctor she had seen vaginal tears before and all the time.
    
52. The next witness was Sgt. 2110 Pradeep. He has arrested the 1st and the 2nd accused persons on 07/12/2011 by touching them on their shoulders at Nadali road. He said both the suspects never retaliated, and they cooperated during arrest. Suspects were taken to Police Station by police vehicle and handed over to the Crime officer.
    
53. He said that the suspects were never intimidated or threatened at the time of arrest. They were never assaulted and no injuries caused to them.
    
54. In cross examination he said that he did not notice any blood stains on the 2nd accused trousers. He did not have any injuries, he said.
    
55. Jolame Uacyisrael was the next witness for the prosecution. He is a BSC qualified Senior Scientific officer attached to the Fiji Police Forensic Biology and DNA laboratory. He has served in the Police Forensic lab for 7 years. He has analyzed the exhibits forwarded to the laboratory and after examination he has prepared and submitted the report marked Exhibit 12.
    
56. He said that the plastic bag Exhibit 4 contained human blood, Exhibit 5 undergarment contained sperm and that Exhibit 6 shirt contained human blood. Exhibit 7 pants also contained human blood and sperm, he said.
    
57. The Exhibits had been delivered to the lab by Cpl 1928 Sakanasa. It had been properly sealed.
    
58. In cross examination he said that he cannot say that the blood and the sperm was of Ravinesh Singh. He said at that time DNA analysis had been suspended.
    
59. He also said that the police did not submit the clothes of the victim for analysis and they carried out the analysis on the exhibits submitted to them. He also said that his report was inconclusive because he cannot identify the person who relates to the blood, but only to the extent to show that it was of human origin.
    
60. That was the evidence for the prosecution.
    

Lady and gentlemen assessors,

61. At the end of the prosecution case you heard me explain several options to the accused persons. They have these options because they do not have to prove anything. The burden of proving their guilt beyond reasonable doubt remains on the prosecution at all times. Both accused persons chose to give sworn evidence and to subject themselves to cross examination. Two other witnesses were also called by the defence. You must give their evidence careful consideration.
    
62. 1st accused Niteshni Kumar giving evidence said that on the day of the alleged incident she was selling watermelon and pineapple in her stall. During the day nothing has happened. Her husband had been cutting grass. Husband did not come to the stall, she said. Afternoon at 4.30pm when she was going home, when she was about to reach her home police have arrested her. She was forced to get into the police vehicle and was taken to the police station, she said. Police officers had asked her for her husband.
    
63. Police officer Ateshni had told her that she had called a girl and told her husband to rape her. She had denied doing so. Police officer Ateshni had wanted her to admit. When she denied she was assaulted, she said.
    
64. Ateshni had read out a caution interview statement of about 11 pages. She did not tell all that to the police, she said. Questions and answers Ateshni had written herself. She was told to sign. When she asked to read it Ateshni had said, only she had to sign.
    
65. She also said that during the caution interview police officers were punching her husband in his stomach. She said she was told that if she did not admit, they would keep on punching the husband and that they would be kept away from the children. She said she had to agree. She said that she was in police custody for 6 days.
    
66. When produced before Magistrate's Court she had got bail. She had not complained to the Magistrate as the police officers threatened not to tell and if she tells that she would be remanded again.
    
67. On the 7th December 2011 she had been selling watermelon from 7am to 1pm. She said that the alleged victim complainant S.S. never came to her stall that day. She said that she never called S.S.'s mother. She never called the husband that day, she said. She also said that her evidence is different to her evidence she gave previously in court. She said that she does not know what to say about it.
    
68. In cross examination she admitted that at the voir dire inquiry when she gave evidence she said in court that on the day in question she called S.S. to the stall. She admitted that she lied in court at the voir dire inquiry. She said she lied because Ateshni told her to say like that in court so that she will be set free.
    
69. She also admitted that she told court at the voir dire inquiry that S.S. was selling watermelon at the stall that day. She again said that she lied in court at the voir dire inquiry because Ateshni wanted her to say.
    
70. She also admitted that she did not tell this court or the judge when she gave evidence previous week about what Ateshni told her. She said she was afraid. She admitted that it was unlawful to lie in court under oath. She said she lied because she was told to do so by Ateshni.
    
71. She said she was not assaulted whilst being taken to the police station, but was assaulted at the police station. Ateshni has assaulted her about 60-70 times whilst she was in custody. She said she did not receive any injuries. She said Ateshni is of same size as her but little bit taller.
    
72. She did not tell the Magistrate's Court about the assault as she was warned by the police not to. She said that she did not report to anyone about the assault, but the mother-in-law.
    
73. She admitted telling this court at the voir dire inquiry that S.S. was having menses that day. She said she told court that because Ateshni wanted to. She denied having said that in her police statement. She said that she cannot share her husband with anybody else.
    
74. She said she was not assaulted by the person who charged her. However she said that the charge statement was not read to her and she was asked to sign.
    
75. 2nd accused Ravinesh Singh gave sworn evidence in court. He said that on 07/12/2011 he put watermelon to the stall and went to cut grass at one Boya's place. Till afternoon he had been cutting grass. In the afternoon police arrested him at about 4.30pm. He was taken to the police station in a police vehicle.
    
76. At the police station they have started punching him, he said. After some time they have told him that he had raped a girl. He was taken to the hospital and they had not told as to why he was taken to hospital. Doctor had wanted to take his pants off. He said that the doctor saw it and said 'ok'. He was taken back to the police station and had started punching him again. Police have told him to admit that he raped the girl. About the caution interview statement he said that what has written there is all false. He said that he does not know English.
    
77. They have punched him and asked him to sign, he said. He had kept on signing. He said one police officer who punched him was Niklesh. He said that on the 7th December 2011 during day time he never came to his stall. He could not remember for how long he was in custody. He said after about 1 month he got bail.
    
78. He denied the evidence given by the complainant. He said that he did not do anything to her. He said she was lying.
    
79. In cross examination he said he was not selling watermelon, but his wife was. He denied his wife calling him to the stall. He said he was wearing red shirt and blue pants that day. He said, when taken to police station he was taken over by Niklesh. He said although Doctor wanted him to remove the pants, she did not examine him. He said that Niklesh was writing the caution interview statement and was assaulting him.
    
80. He said that he did not inform the Magistrate of the assault as police officers told him not to tell court, if not they will assault him again. He said that in the Magistrate's Court he was not threatened by anyone but was threatened before entering the court.
    
81. Defence called Vinesh Singh to give evidence next. He is the brother of 2nd accused Ravinesh. On 07/12/2011 his younger brother Pritesh had called him. He had gone to police station to see Ravinesh at 6.00pm on the 07/12/2011. At the police station, he was stopped by the police, but he had forced himself in. He has seen Niklesh assaulting his brother. Brother was shouting for help, he said. He was not allowed to talk to his brother. Police have threatened him to lock him up if he forces.
    
82. In cross examination he said that he did not report this to anyone because he was afraid that police would arrest him. He said that he was in the police station for 45 minutes from 6.00pm.
    
83. The last witness for Defence was the 2nd accused's mother Premila Wati. Her evidence was that she went to see Ravinesh at the police station on the 08/12/2011. Ravinesh had been in a room. She has seen from a window, Ravinesh been assaulted by police officers. She had been there from morning till afternoon. Police have not allowed her to see Ravinesh.
    
84. In cross examination she demonstrated to you the size of the window through which she saw Ravinesh. She said Ravinesh was assaulted on his stomach. The police officers have chased her. She said that she did not report about the assault to anyone. She had only told the family members.
    
85. That was the evidence for defence.
    

Lady and gentlemen assessors,

86. You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
    
87. The written agreed facts are before you. You may accept those facts as if they have been led from witnesses from the witness box unchallenged.
    
88. You may have observed that when some witnesses gave evidence, there were some inconsistencies before the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police, can affect the credibility of the witness.
    
89. You heard when the 1st accused Niteshni gave evidence; she admitted that she lied in this court at the voir dire inquiry held prior to this trial proper. She also said that she lied because the police officer Ateshni wanted her to say so. The issues or the grounds for, and the result of the voir dire inquiry are not for your concern. . You have the agreed facts before you. You may see the 3rd agreed fact where parties have agreed that S.S. was assisting the accused persons selling water melon on that day. However the 2nd accused said in evidence that she never saw the complainant S.S. that day. You may consider this when you decide on the credibility of the 1st accused as a witness.
    
90. Complainant S.S. testified as to how she was taken to the stall by the 1st accused. She also said that 1st accused called the 2nd accused. She testified as to how she was raped by the 2nd accused. She said that the 2nd accused put his private part into her private part. She said it was paining and bleeding. Mother of S.S. also said in evidence as to how the 2nd accused came and took S.S. and that the 2nd accused informed her that S.S. was bleeding saying that she got her menses. The doctor who examined S.S. testified about the vaginal tear she observed, and that vaginal penetration has caused the injury. However both accused persons denied the evidence of S.S. 1st accused said that S.S. never came to the stall that day. The 2nd accused said that he was cutting grass and that he never came to the stall during day time. It is for you to decide which witnesses you are going to accept as reliable and which are not.
    
91. Caution interview statements and the charge statements of the accused persons were submitted in evidence. The prosecution says that the accused persons made the confessions on which you can rely. The accused persons say that they were oppressed and that they were forced to sign the confessions. They say that they were assaulted. They called two witnesses who said that they saw the 2nd accused being assaulted. They say that they were kept in custody for a long period. Prosecution says that the statements were recorded within 48 hours. If you think that the confession of each accused was or might have been obtained by oppression or by assault you must disregard it even if you think that it was or may have been true. If, however, you are sure that confession was not obtained that way, and that it was true, you may take it into account when considering your opinions.
    
92. You may also remember, witness Vinesh Singh, brother of the accused said in his evidence that he went to the police station at 6pm on 7th December 2011, where he saw the police officer Niklesh assaulting the 2nd accused. He also said that he was there at the police station for 45 minutes. The medical report of the 2nd accused was admitted in evidence by consent as Exhibit 9. In section D9 of the medical report which was unchallenged, the doctor has said that she examined Ravinesh on 7th December 2011 at 6.20 pm. It is up to you to decide which evidence to rely upon and whether Vinesh could have seen the 2nd accused being assaulted at the police station if he was examined by the doctor at Nausori Health Centre at 6.20 pm the same day.
    
93. You may also remember, whatever each accused had told in his or her caution interview and charge statement is evidence only against the accused that made it and cannot be taken against the other accused person.
    
94. As a matter of law I must tell you that a witness can give evidence on his observations like what he heard, what he saw and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example you get experts in the medical field. In this case Principal Scientific Officer Jolame Uacyisrael attached to the Fiji Police Forensic Biology and DNA Laboratory gave evidence on the analysis he did on the exhibits. You heard his qualifications and experience which was unchallenged. Therefore as a forensic expert his opinion on the analysis he conducted is admissible in evidence. The same way, the opinions given by the two medical doctors who examined the victim S.S. and the 2nd accused in their medical reports are also admissible.
    
95. If you find Ravinesh not guilty of rape, then you will also find Niteshni not guilty of aiding and abetting of that rape. However if you find Ravinesh guilty of rape, then you proceed to consider whether Niteshni aided and abetted Ravinesh to commit rape. If you think that Niteshni intended to assist Ravinesh to commit rape and that she assisted him with that intention, then you may find her guilty on count No.2. If you think that she did not assist or that she never intended to assist Ravinesh in committing the offence, or if you are not sure, then you must find her not guilty.
    
96. Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you. You must decide which witnesses are reliable and which are not. You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.
    
97. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused persons has been proved beyond reasonable doubt.
    
98. Your opinions on each count will be either guilty or not guilty.
    

Lady Assessor and Gentlemen assessors,

99. This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused persons. 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.
    

Priyantha Fernando
Judge

At Suva
Office of the Director of Public Prosecutions for State
Office of Sunil Kumar Esq. for both Accused