State v Waqabitu - Summing Up [2015] FJHC 386; HAC203.2012 (27 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 203 of 2012

STATE

V

1. LAISIASA WAQABITU
2. VILIAME VUNISINA
   

Counsel: Ms. S. Kant for State
Mr. P. Tawake for 1st Accused
Ms. E. Leweni for 2nd Accused

Dates of Hearing: 20th, 21st, 22, 25th, 26th May 2015
Date of Summing Up: 27th May 2015

SUMMING UP

Lady Assessors and Gentleman Assessor.

[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 Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence 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 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] You have a copy of the information with you. There are three counts in the information. On the 1st count the 1st accused is charged with rape. On the 2nd count the 2nd accused is charged with rape. On the 3rd count both 1st and the 2nd accused are jointly charged with rape. Both the accused persons are charged for raping the same victim Mary Maija Glayours. You must consider the evidence on each count separately and must not assume that if one accused is guilty of the count against him, that the other accused also should be guilt of the count against him. Also you must not assume if one accused is guilty of one count that he must be guilty of the other as well.

[10] Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent or if the person penetrates the vulva or vagina of the woman or girl to any extent with a thing that is not a penis without her consent. The elements of the offence that the prosecution has to prove beyond reasonable doubt in counts 1 and 2 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 did not care if she was not consenting.
   

[11] To find the accused persons guilty on count No.3, prosecution has to prove the following elements beyond reasonable doubt

1. The accused persons penetrated the vagina of the complainant with a beer bottle

2. without her consent

3. They knew or believed that she was not consenting or did not care if she was not consenting.

[12] For the accused persons 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. Also in count No.3 it is not necessary to prove that there was full penetration of the beer bottle. Extent of the penetration is immaterial.

[14] Where the consent is obtained through fear or by threat, then that is not consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

The Evidence

[15] The prosecution called the alleged victim Mary Maija Glayours to give evidence first. She said that she went to Nausori with her defactor partner Hasrat Bilal on 28/05/2012. As she had an argument with Hasrath, she had come to Suva alone and had gone to the Ritz night club. From there at about 10 – 11pm she had gone to the Deep Sea night club and had been drinking beer there. She had met Laisiasa there. She had known Laisiasa before. At about 5am she had come out of the Deep Sea club alone. There had been a taxi parked. Laisiasa had told her that he would drop her to the village where she was living. Then he had grabbed her and put her to the taxi. There had been another guy whom she did not know before, she said. That guy had blond hair and bit huge, she said. They have told her to keep her mouth shut. Without dropping her at the village she was taken to a house in Nadonumai. It had been about 6am then.

[16] They have taken her to a two story house without her consent. In evidence she called them as Laisiasa and Wiliame. She demonstrated in court how she was pulled and held by Laisiasa. Inside the house had been like a drinking room. There had been broken bottles and a spare bottle. Then Lai had spread a bed sheet on the floor and asked her to take her clothes off and lie down. She said she had no option, but to take off her clothes and lie down on the sheet as she was scared. She said that first Laisiasa had come over her and had sex with her. Laisiasa had been blocking her mouth and Willie had been telling her to keep her mouth shut and had punched her on her ribs.

[17] She had told Laisiasa not to do it but he kept on having sex, she said. After having sex with her, Laisiasa had told Willie to have sex with her. They went turn by turn having sex with her, she said. She had been crying and shivering.

[18] After that they have brought a Fiji bitter long bottle. Laisiasa had spread her legs. Willie had tried to put the bottle inside her vagina. They had put the bottle inside the vagina, she said. She had screamed as her stomach was paining. Then she had seen a boy coming down. That boy had started swearing, growling and punching Lai telling him why he was doing this kind of bad things.

[19] While the boy was punching Lai she had crawled outside the house naked. It was already daylight, she said. People had been awake and standing around their houses. One of her cousin sisters had got her a sulu to cover her body. She was taken to her home given breakfast and bus fare to go home, she said. She had a shower there, she said.

[20] She had met Lai's aunty on the way and she had gone to Lai's father with her. She had explained the incident to Lai's father. On his advice she had gone to the police and reported the matter.

[21] She was medically examined, she said. She had explained to the doctor that a beer bottle was inserted into her vagina. She said when she came out of the house where the incident happened it was little bit bright inside the house. She said that she saw the guy who was sitting in the front seat of the vehicle for about 5 hours that day. She identified the 2nd accused as the guy who came in the front seat of the taxi. She identified 1st accused as Lai.

[22] When she was asked about what she meant by sex, she said that 2 partners agree to have sex. During sex they spill the sperm. When she was asked how Lai had sex with her, she said that he was kissing her, holding her breasts and was licking her vagina. She also said that the beer bottle was the only thing that was inserted into her vagina. She demonstrated how her legs were when Lai had sex with her and how Lai held her legs. Lai had been on his knees when he had sex with her. About Lai having sex with her she said that he came on top of her, went down to the vagina, kissed the vagina and apart from licking and playing with her vagina he was just having sex with her, she said.

[23] She again said that the beer bottle was inserted right inside the vagina and then she screamed. Before the beer bottle was inserted nothing was inserted into the vagina, she said.

[24] In cross examination she said that she had two beer jugs at Ritz club. She said that at Deep Sea club she did not drink with Lai and friend. She said Lai was holding her around the ribs when she was in the vehicle. She had felt scared. When she said to stop he had stopped doing it. She had told the driver to drop her at Lami but driver had not done anything about it, she said. She denied that she was in the taxi before Lai got into the taxi. She denied that they were kissing inside the taxi.

[25] Showing the distance she said that it was about 20 meters from the roundabout to the house where she was taken. She said there were people around and although she shouted and asked for help no one listened to her. Inside the house she was forced to lie down on the bed sheet, she said. Willie had punched on her ribs and Lai had said to keep shut. She had been scared.

[26] When she was shown her statement to police that she had said Lai took her clothes off, she said that she took her clothes off and Lai took off her top. She denied lying.

[27] Answering the questions she said that after discussing the matter with Lai's father he advised her to report to police and she had agreed to report to Police.

[28 She said she had gone to see Lai twice in the remand centre with Lai's mother. Lai had asked for forgiveness. She said that she told Lai that she would withdraw the case, but denied asking to take her as his partner.

[29] She said her de-factor partner Harsat Bilal had been staying in Lai's parent's house. She denied living there for 3 months, but said that she used to visit him there.

[30] When she was shown her statement to police on 14/05/2014 she said that statement was recorded at Lami village. She said that she told the police that she was visiting her partner but never said that she lived there for 3 months. She denied that she was a willing partner along with Lai that day.

[31] She said that although she raised alarm on 3 occasions, outside the night club, inside the taxi and at Nadonumai, nobody helped her.

[32] She said that when she got to the roundabout it was still a bit dark. She said she observed the 2nd accused closely when he was getting down from the taxi, when he was telling her to keep her mouth shut, and when he was swearing at her. She had seen his face properly.

[33] When the defence counsel suggested that 2nd accused never got off at the roundabout at Nadonumai she said all 3 of them got off. She denied that 2nd accused was sleeping in the taxi.

[34] When it was shown that she had told the police in her statement that Lai held the beer bottle, and that Lai had spread the legs and shoved the bottle neck in her vagina, she said that she remember the other boy holding the bottle and trying to push it in her vagina. She said that what is written in her statement is incorrect. She said both the accused were trying to insert the bottle. She denied lying.

[35] She said although she drank alcohol she was steady. She denied that she was drunk. She said Willie punched her twice and it was hard enough to feel the pain. She said that she did not tell the police that she was punched, but informed the doctor.

[36] It was suggested to her that 2nd accused came to the house only once to get the taxi fare from Lai. Witness denying that and said that 2nd accused was there when the incident took place. She said 2nd accused had sex with her in that house. She said both accused persons tried to insert the beer bottle in her vagina.

[37] Prosecution called Dr. Litia Narube who examined Mary next. She is a MBBS graduated doctor and also she was graduated with Masters in Obstetrics and Gynecology.

[38] She has examined the victim Mary and the medical report was produced in evidence. She said that Mary was a fresh victim brought to the hospital and that usually they do not get fresh victims.

[39] The copy of the medical report is with you. The victim has related the history to her as mentioned in column D (10). She has observed abrasions as shown in the diagram. On vaginal examination she has found slight abrasions over posterior fourchette and observed tenderness. She has also found semen in vaginal vault and very tender inside the vagina. She said the examination is consistent with the history given by the patient Mary. She has prescribed medication to prevent rape pregnancy.

[40] She said forceful penetration can cause the abrasions and penetrations by a beer bottle also can cause it. She said the patient was very emotional, anxious, very expressive and nervous.

[41] In cross examination she said the abrasions in the posterior fourchette of the vagina were caused from forceful penetration and not during a normal consequence of having sex. She explained this as the lady was not ready for penis penetration and the penetration was done with a considerable amount of force and thrust. She said that small abrasions will take over 3 days to heal. She said semen can remain in the vagina for up to 12 hours. So she would have had sex from 8.45 am.

[42] She said the abrasions were not consistent with punching and it was not a direct result of punching. She had not observed any bruises.

[43] In re-examination she said that the patient had not been ready for penetration and that is why she had got the abrasions. She said that the tenderness was genuine. She also said that semen can remain in the vaginal vault for more than 12 hours if the lady did not walk around after the act. She said that the slight abrasions in the vaginal area appeared fresh.

[44] The next witness was Matia Tubamasi. He is the brother of the 1st accused. On 29/05/2012 he was woken up in the morning by his wife as she heard a noise under the house. This house is a double story house. When he went to check he heard a woman's voice saying 'No Lai'. As it was dark he had opened the curtain. He had seen a person and had punched him. Then that person had run away. He had seen Lai sleeping. Lai had woken up and had thrown a beer bottle at him.

[45] He had seen a girl lying there naked. He said that the man whom he punched was with the girl when he opened the curtain. He said it was very dark inside. When he was asked as to how he saw the girl naked he said that as he entered, he started assaulting the 2 guys there and the girl ran away. Then he had seen the girl naked. He said when the girl crawled out she did not ask for any help. He said Lai was also naked.

[46] In cross examination he said that he had seen the girl after that day as she was married to a guy at Nadonumai and she had gone back to her village. She said Lai was sleeping beside the girl. He said the distance to the house from the roundabout was about 700 meters. He described the distance from court to the main police station.

[47] He said that the house is on the hill. He said that he did not see the other man's face or the clothes, but he was clothed. He said it was beginning to get light when he went downstairs and that it was dark inside the house.

[48] The next witness was Julia Sokula who is the wife of the witness Matia. She said that they woke up early because some drunkards came to their house. She had heard a woman saying 'No Lai' and 'help Lai', she said. Husband went downstairs with the dirty dishes and came back, she said. The woman had repeated what she said. Then she had told Matia to go down and see.

[49] After that she had seen Lai and Matia fighting. She said she did not see anybody else. The woman she heard had crawled out. She did not say anything, she said. She had been naked. After refreshing the memory by going through her statement to police she said that the woman asked for help and said that somebody had done something to her.

[50] In cross examination she said she did not see that woman in Nadonumai again thereafter. She said that she told the police what is recorded in her statement.

[51] The next witness was DC Gaunavou Vakalavei. He has recorded the Caution Interview statement of the 2nd accused which was exhibited as P2. He has cautioned him. Right to consult a lawyer was given to him. DC Joji had been present at the interview. Accused had not complained of anything. Accused was not given breaks, he said. No inducement, threat or promise was given to the accused, he said. At the end of the statement accused was asked whether he wants to read the statement and whether he wanted to add or delete.

[52] In cross examination he said that he specifically told the 2nd accused about his right to Legal Aid Commission because Legal Aid is free. He said right throughout the interview, witnessing officer Joji was present.

[53] Prosecution called Asenaca Maisema to give evidence next. She has charged the 1st accused. She recorded the charge statement of 1st accused which was produced in evidence as P3. She said that 1st accused was not given his rights as he refused to exercise his rights during the caution interview.

[54] In cross examination she admitted that she failed in her duty when she charged 1st accused by not giving his rights. She said therefore proper procedure was not followed when she charged the 1st accused.

[55] The last witness for the prosecution was DC 4281 Joji Dakuwaqa. He has been the Investigating Officer and also the Interviewing Officer for 1st accused. Accused Laisiasa Waqabitu's caution interview statement was produced in evidence. Interview was conducted under caution. Nobody else was present at the interview, he said. 1st accused had not complained of anything. His answers were given voluntarily, he said. Accused was given a break after the reconstruction of the scene. Accused understood the questions and signed voluntarily, he said. Caution interview statement was read in court before you. He also has conducted the charge of 2nd accused. Charge statement of 2nd accused was produced in evidence.

[56] In cross examination he said that when he explained the allegation to 1st accused, he did not explain the legal term carnal knowledge to 1st accused. He said the accused understood carnal knowledge. He had not explained as 1st accused did not ask him. He said from questions 3 to questions 23 1st accused did not make any admission. In question 29, he said that he did not explain the word rape to 1st accused. Interview was recorded in English. He had translated certain questions in I-taukei language and that translation was not recorded. He admitted that he did not follow the procedure during the interview. He said that the 1st accused understood English but he translated to I-taukei language to make him more understanding. He said that the 1st accused signed the interview statement because he asked him to sign. He denied that question 29 was fabricated.

[57] The witness said that he failed to give the accused the right to legal aid counsel. He said that he was the witnessing officer in the interview of the 2nd accused. But he said that he was not there right throughout the interview. He had not signed as the witnessing officer although his name was mentioned in the statement P2 he said. He was not present when the interview of 2nd accused commenced. He said he was never present at the caution interview of 2nd accused.

[58] He denied that he fabricated the answer in question No. 2 of the caution interview statement of 1st accused when it is recorded that he was educated up to Form 3. He said in question 6 the 1st accused said that he was originated from Vunaniu, Serua and he never said Suvavou village. He said that 1st accused was given a break after reconstruction of the scene. The interview commenced next day after reconstruction. He said that he did not mention in the statement that the break was given.

[59] He said the sleeping bag he recovered is at the police station exhibit room and that he has not brought it. He had not recovered a beer bottle from the scene. He was not given a vaginal swab of the victim after the medical examination. He denied fabricating questions. 2 and 29. He said that the interview of 1st accused was conducted fairly. He said that he did not explain the words carnal knowledge and rape to the 1st accused. He said throughout the charge 2nd accused maintained his innocence and did not make any admission. Identification parade was not held for the 2nd accused, he said.

[60] In re-examination he said that he did not explain the word rape to 1st accused because he did not ask him. 1st accused seemed to understand the question, he said. He said that the reconstruction of the scene took about 1 hour and 1st accused was given time to rest thereafter. He said that there was no beer bottle at the scene. He said as the superior officer instructed him to lay charges on 2nd accused he was not able to carry out further investigation on 2nd accused on identification.

Ladies and Gentleman assessor,

[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 to prove their guilt beyond reasonable doubt remains on the prosecution at all times. They could have remained silent. They chose to give sworn evidence and to subject themselves to cross examination. 1st accused also called two witnesses to give evidence on his behalf. You must give their evidence careful consideration.

[62] 1st accused in his evidence said that he was drinking alcohol at Deep Sea night club on 29/05/2012. He had met Mary at about 5am. Mary had hugged him and said 'hello' and asked to join their group. When the club was closed Mary had disappeared, he said. When he came outside Mary had already been inside a taxi. Mary had called him to the taxi and he had got in. Viliame had been inside the taxi seated in the front seat.

[63] He said that they (Mary and him) were hugging and kissing inside the taxi. They had got down at Nadonumai roundabout and gone to Matia's house. He said that they decided to spend the night at brother's house when they got into the taxi. He said the distance to the house from the roundabout was three to four hundred meters. They held each other's hands and went to the house, he said. Inside the house he had spread the sleeping bag. They have laid on the sleeping bag. They had started kissing and then had sex, he said. He had not forced her during sex. He had sex only once and had slept just beside her.

[64] He had woken up when someone was stepping on his head and stomach. It had been his brother Matia. He had thrown a bottle at Matia and then they had a scuffle, he said. Then Matia had pulled him outside and had kept on punching him.

[65] The girl had gone out of the door facing the road. He had gone to his uncle to see the girl as she went naked. He denied that he grabbed the girl and forced her inside the car. He denied forcing her to have sex. He said he only had sex with her once. He denied spreading her legs for Viliame to insert the beer bottle into her vagina. He had seen Mary again thereafter at prison twice with his mother. She had told him that she has forgiven him. She had asked him to take her as his wife and that she would drop the allegation, he said. Mary had come and stayed with his father and mother at Nadonumai for 3 months he said.

[66] He said he elected to record the caution interview in I-taukei language but was conducted in English language. He had told the officer that he studied up to class 8. He had told that he originated from Suvavou. He said that he did not know the meaning of carnal knowledge when the allegation was put to him. He had signed the interview statement because police officer asked him to sign, he said. He was not explained the word 'rape' by the police officer. In answer to question 41 he had said that he did not do anything to her. When he said that he meant that he did not grab her, he said

[67] In cross examination by Counsel for 1st accused he said that he cannot recall whether 2nd accused fell asleep in the front seat of the car. He said that when they got down and walked at Nadonumai, Willie walked behind them at a distance and Willie did not come inside the house. Willie only had asked for taxi fare and he has not seen Willie again that day.

[68] In cross examination by State Counsel he said that as Mary had no money to go back home, in the night club he agreed to go together and that he paid the taxi fare. He said when they sat down in the taxi they agreed to spend the night together. He knew Mary before and they had no fights or arguments, he said. He said that at the house he took her clothes off and she took his clothes off. He said both of them consented to have sex. He denied having forceful sex with Mary without her consent.

[69] He denied forcefully spreading Mary's legs to insert a beer bottle into her vagina. He said that Mary came to the prison and told him that she has forgiven him. He denied that it was because he had forcefully sex with her.

[70] In re-examination he said that she was lying on the floor on her back and they had rough sex for about ½ hour because they were both drunk.

[71] Witness Atunaisa Mocelutu was called to give evidence on behalf of the 1st accused. He is the father of 1st accused. He is originally from Suvavou. On 29/05/2012 Mary had come with a lady and the husband to meet him. She has said that she was raped at the house of Laisiasa by another guy when Laisiasa was sleeping. Then he has advised her to report to police and had taken her to police. After that Mary had asked him to stay at his house. As he was Lai's surety he had allowed Mary to stay at his house and had asked Lai to leave home. His son Matia lives about 1 km away from his house, he said.

[72] In cross examination by Counsel for 2nd accused he said that he did not know about the incident and that he does not know whether Mary told him the truth or not. Answering the questions by Counsel for State he said that he allowed Mary to stay at his house and he was to get a job for her husband. He denied that it was an attempt to get the case withdrawn by Mary against his son.

[73] He said that if anybody comes to his house and forcefully resides he cannot send them away and that he cannot chase them. He said Mary had been in his house for at least 2 years.

[74] After showing his statement to police he denied telling the police that Mary told him that Lai and another boy went up to Nadonumai and they raped her. He denied Mary telling him that they raped her.

[75] In re-examination he said that the police did not give the statement back to him to read and that he gave the statement in I-taukei language.

[76] On behalf of the 1st accused witness Saimoni Kalidredre gave evidence. He had been training for volleyball at the Nadonumai roundabout on 29/5/2012 between 6 – 7am.

[77] He has seen Laisiasa getting off from the taxi with a girl and another boy. Laisiasa was holding the girl's hand, he said. They had walked up. He did not know where they went. The girl did not scream, complain or yell, he said. He said that the girl was not forced out of the taxi.

[78] In cross examination by Counsel for 2nd accused, he said that the other guy was walking behind Laisiasa and the girl. When he was asked about the light he said at that time it was getting light.

[79] In cross examination by Counsel for State, he said Laisiasa is his close friend. He said that he did not see the girl again after she went up. He said that Laisiasa had called his mom and asked anyone from the team could come and give evidence. He said it was normal and it was nothing odd in what he saw. He said he doesn't know any particular reason why he remembers that morning of 29/5/2012 so clearly.

[80] 2nd accused gave evidence in court. He said that after the Deep Sea night club was closed he started walking down. While walking, a taxi had been parked beside him. Lai had called him for them to go home and he had got in. As soon as he got into the taxi he knocked off, he said. The taxi driver had woken him up at Nadonumai asking him to get off.

[81] He had got off and followed Lai to ask Lai for his fare to Veisari. Lai had been holding hands with the girl and walking up the hill. When they reached the house Lai had told him to wait. After about 10 minutes he had gone to the house and when he opened the curtain he had seen Lai having sex with the girl. Then Lai had chased him. He had come down to the main road. On his way he had met Matia and had told Matia that Lai and the girl were inside the house. That day he had not seen Lai and the girl again.

[82] He said that he did not have sex with the girl. He denied punching the girl or swearing at her. He denied inserting beer bottle in her vagina. He said he never had blond hair. His weight has always been 75 kg he said. He said that when he was interviewed he was threatened and police officer was talking to him in a very rough way. When the police officer took him to the house and asked him about the house pointing to the house, he had said 'yes' to the house. He did not say about rape, he said. Before that day he had never seen Mary. He said he never laid a hand on Mary.

[83] In cross examination he said when he was taken to the scene construction Lai did not go along with him. He said that he did not know that the taxi was already paid when he was woken up. Taxi had left after he got off.

[84] He said that when he opened the curtain it was a bit dark inside and he has seen the woman from the light came when he opened the curtain. Woman did not say anything but they were having sex, he said. He denied having sex with the woman. He denied inserting a beer bottle into Mary's vagina. He said that Mary was lying in court. He said that both Lai and Mary came in the taxi and picked him, and denied Lai pulling Mary inside the taxi.

[85] In re-examination he said Mary came on her own free will and was never forced by Lai. That was the evidence for the defence.

[86] Ladies and Gentleman assessor,

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. There are two sets of agreed facts. One that the first accused agreed with the prosecution and the other that the second accused agreed with the prosecution. Those facts are agreed by the parties, and you may accept them as if you have heard them lead in evidence from the witness box unchallenged. However the facts agreed by one accused with the prosecution cannot be taken against the other accused as if the other also agreed to them.

[88] You may have observed that when some witnesses gave evidence there were some inconsistencies between 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] 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 opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case the medical doctor Litia Narube gave evidence. You heard her evidence on her qualifications and experience in the medical field. Her expertise on the relevant field was not challenged by the defence. Therefore the opinions she gave on her examination of Mary is admissible.

[90] As a matter of law I must also direct you on the law of joint enterprise. When an offence is committed, the person who actually does the act which constitutes the offence is not the only person who is deemed to have committed the offence. Anyone who does an act for the purpose of helping another person to commit the offence is also deemed to be guilty of the offence. Therefore to give you an example, a person who stands at the door of a house which is broken into, to warn those who have gone in of anyone who might disturb the burglars, is as guilty of burglary as those who broke in, even if the watchman remained outside, and never entered the house at all. He is guilty because he has aided and abetted the burglars.

[91] Furthermore, the law also says that when two or more persons form a common intention to do something unlawful together, and in the prosecution of that unlawful purpose, an offence is committed which is a probable consequence of the doing of the unlawful act, then, each of them is deemed to have committed the offence.

[92] In this case on count No. 3 the prosecution alleges that the accused persons jointly penetrated Mary's vagina with a beer bottle. Mary says that the first accused held her legs spread and the second accused inserted the bottle into her vagina without her consent and she screamed because her stomach was painful. Accused persons deny inserting a bottle into her vagina. Defence says that she said a different version to the police. So if you accept her version as true and that she is a credible witness then the accused persons have acted jointly and both are responsible for the insertion of the bottle into her vagina.

[92] The caution interview statements and the charge statements of the accused persons were produced in evidence. Remember, whatever each accused had told in his cautioned interview statement, is evidence only against the accused that made it, and cannot be taken against other accused persons.

[93] The 1st accused Laisiasa said in evidence that he was not informed of the definitions of carnal knowledge and rape during the caution interview. You heard the evidence of the witness police officer who recorded his statement. You also heard the evidence of the accused Laisiasa and other witnesses. You decide which witnesses were truthful and which evidence you are going to accept. You may decide whether the caution interview statement was recorded fairly and whether the accused understood the questions posed to him. Laisiasa also said that he never told the police officer who recorded his statement that he was educated up to form 3. He said that he never said that he originated from Vunaniu, Serua. You heard the evidence of all witnesses. You decide whether the 1st accused gave those answers or not and whether it was the truth or not.

[94] 2nd accused in his evidence said that he was threatened and yelled by the police officers. He also said that when he said 'yes' to the question put to him after the reconstruction of the scene, it was for the house he said 'yes' but not to 'rape'. You decide which witnesses are truthful and which are not.

[95] I must also give you a direction on identification. In this case the defence says that the identification of the 2nd accused as one of the persons who raped her should not be relied upon.

[96] When an accused has been identified by a witness and when that evidence of identification is challenged by the accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.

[97] In assessing the evidence on identification, you must take the following matters into account.

1. Whether the witness has known the accused before?

In this case witness Mary Maija did not know the 2nd accused before.

2. For how long did the witness have the accused under observation, and from what distance? Was it more than a fleeting glance?

In this case according to the witness Mary Maija, she was with the 2nd accused from the time she got into the car to the time he ran away after the alleged rape at Nadonumai.

3. Did the witness have any special reason to remember?
   
4. In what light was the observation made?

According to Mary it was getting day light by the time they came to Nadonumai. However inside the room it was dark. You may also consider the other evidence of the prosecution and the defence witnesses when you decide on the light at Nadonumai.

5. Whether there was any obstacle to obstruct the view?
   

[98] However, when you consider these questions when assessing the identification, you must also consider the reliability and the credibility of the above witnesses.

[99] I must also warn you about dock identification. You noticed that the complainant Mary identified the 2nd accused from the dock in court. No identification parade was conducted on accused during the investigation stage before the trial. 2nd accused was not known to the witness Mary before the incident. The law says that dock identification is completely unreliable in the absence of a prior foundation of identification parade or photograph identification. It is because the witness may identify the accused merely because he is in the dock. Witness may assume that the accused is the person who committed the crime because he is in the dock. Therefore I warn you that dock identification evidence should be approached with great care for the reasons given before. The witness Mary says that 2nd accused was the person who came in the taxi when she came with Laisiasa and then to the house at Nadonumai and had sex with her. She also said that he inserted the beer bottle inside her vagina. She said the he was bit huge and had blond hair. The 2nd accused says that came in the taxi, followed the girl and Laisiasa to the house to get the taxi fare from Lai. He said that he never touched Mary and he left the house when Lai chased him. He says that he never had blond hair and not bit huge. You may consider the evidence of all witnesses when you decide whether the identity of the 2nd accused was mistaken or not.

[100] Complainant Mary says that both accused persons had sex with her without her consent. When she was asked about the meaning of having sex she said that two partners agree and have sex. During sex they spill sperm, she said. She also said that Lai was kissing her, holding her breasts, licking her vagina and all that. Also she says that both the accused jointly inserted a beer bottle into her vagina without her consent. The 1st accused says that he had sex once with the complainant with consent. He denies inserting the beer bottle into her vagina.

The 2nd accused says that he only went up to the house in Nadonumai to get the taxi fare from the 1st accused. He denied having sex with the complainant. He also denied inserting a beer bottle into her vagina. You decide which version is correct and which is not.

[101] In this case the complainant has made the complaint on the same day. It may enhance the credibility of the complainant. However the fact that the complaint was recent cannot be taken as corroborative evidence. You decide whether Mary is a reliable witness or not. If you decide that she is a reliable and credible witness, then you need not seek for corroborative evidence.

[102] Therefore after considering all the evidence, on count No.1 you decide whether the 1st accused inserted his penis into Mary's vagina as alleged in counts No.1. If you decide that he has done so, then you decide whether Mary consented to that or not and whether the 1st accused knew or believed that she was not consenting or did not care if she was not consenting.

[103] On count No. 2 you decide whether the 2nd accused inserted his penis into Mary's vagina. If you decide that he has done so, then you decide whether Mary consented to that or not and whether the 2nd accused knew or believed that she was not consenting or did not care if she was not consenting

[104] On count No. 3 you decide whether the accused persons jointly inserted a beer bottle into Mary's vagina. If you decide that they have done so you decide whether Mary consented to that or not and whether the accused persons knew or believed that she was not consenting or did not care if she was not consenting.

[105] 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 observed all the witnesses giving evidence in Court. You decide which witnesses were forthright and truthful, and which were not. Which witnesses were evasive or straight forward? You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanor in arriving at your opinions.

[106] 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 have been proved beyond reasonable doubt.

[107] Your opinions on each count will be either guilty or not guilty.

[108] Lady Assessors and Gentleman Assessor,

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 the State.
Office of the Legal Aid Commission for 1st Accused.
Office of TL Lawyers for 2nd Accused.