State v Koli [2015] FJHC 632; HAC142.2014 (31 August 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 142 OF 2014

STATE

V

TUI MATEO KOLI

Counsels : Ms S Navia and Ms U Tamanikaiyaroifor the State
Ms T Kean for the Accused
Dates of Trial : 24-28 August 2015
Summing Up : 31 August 2015

SUMMING UP

Madam and Gentleman 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 is to ensure that the trial is conducted fairly and according to law. As a 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. That involves deciding what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such 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.

[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 of facts 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 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 and the admissions made in this Courtroom 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 suggestion as true. The opening and final addresses made by the State Counsel and final address of the Defence Counsel are 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] Another matter which will be of concern to you is the 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 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? Were they argumentative? 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 person has his 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 is due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. It takes a while for self confidence to reassert itself. There is, in other words, no classic or typical response by victims of Rape.

[16] A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in this complaint, the lateness of the complaint and what weight you attach to it. It is also for you to decide when she did eventually complain whether it was due to being hurt over the assault by the accused and if it is so, as to its genuineness.

[17] 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.

[18] 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.

[20] 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.

[21] Ladies and gentleman, 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.

[22] 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 you use that evidence. These are directions of the applicable law. You must follow these directions.

[23] 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. 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 in living in this society.

[24] 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.

[25] 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. The documents and other things put into evidence as exhibits may also tend directly to prove facts. Those facts are called primary facts.

[26] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from 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.

[27] In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this morning, 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 in the morning 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.

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

[29] 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.

[30] 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 offences 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.

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

[32] 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.

[33] 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 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.

[34] 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.

[35] I will now direct you on the applicable law. You must follow these directions. Let us now look at the charge contained in the information.

[36] There is only one charge preferred by DPP, against the accused:

Statement of offence

Rape– contrary to Section 207(1) and (2)(b) of the Crimes Decree

No. 44 of 2009

Particulars of the Offence

Tui Mateo Kolion the 26thday of September 2013at Naboro, Lami in the Central Division, penetrated the vagina of Qalo Mocelolo with his finger, without her consent.

[37] I will now deal with the elements of the offence of Rape. To prove a charge of rape the prosecution must prove beyond reasonable doubt that the accused penetrated Qalo Moceloloor the complainant's vagina, using his finger. The slightest penetration is sufficient to satisfy this element.

[38] Then we must consider the important issue – consent. It must be proved that the accused either knew that she did not consent or was reckless as to whether she consented. The accused was reckless as to whether the complainant consented for the alleged act if the accused realised there was a risk that she was not consenting but carried on anyway when the circumstances known to him it was unreasonable to do so. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond reasonable doubt.

[39] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The victim in this case was over 13 years of age and therefore, she had the capacity to consent.

[40] If you are satisfied beyond reasonable doubt that the accused penetrated the complainant's vagina with his finger then you may find him guilty of rape. If you are not satisfied that penetration had occurred, you must consider the lesser or alternative offence of sexual assault, notwithstanding that the accused is not charged with sexual assault.

[41] The accused is guilty of sexual assault if he unlawfully and indecently assaults the complainant. The word "unlawfully" simply means "without lawful excuse". An act is an indecent act if right-minded persons would consider it is so.

[42] Apart from the elements of these offences, 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 vagina on that date and time. There must be positive evidence as to the identification of the accused.

[43] If you find that the prosecution failed to establish any of these elements then you must find the accused not guilty. If you find the elements of identity, penetration and the time were proved but the complainant invited him to sexual intercourse and it is upon that invitation he penetrated her vagina with his finger, then again you must find the accused not guilty of Rape. If you find that the complainant did not consent and the accused had penetrated her vagina by inserting his finger, then you must find him guilty of Rape. If you find other elements of offence Rape were proved but you are not sure whether there was penetration, then you may find the accused guilty of the alternate count of sexual assault.

[44] In our law, no corroboration is needed to prove an allegation of sexual offence and Rape and sexual assault are obviously considered as sexual offences.

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

Case for the Prosecution

[46] Evidence of the complainant, Qalo Mocelolo

(i) It is her evidence that she is a 21 year old final year student of FNU at its Nasinu Campus and at the time of the incident, she had stayed with one of her uncles at Newtown area in a top floor flat. Ground floor flat was occupied by the accused and his wife to whom the building belonged.

(ii) On 26th September 2013, the complainant met the accused on her way to school as she was coming down the stairway and he offered her a lift in his car. She got into the back seat of the car and the accused had drove on for some time and had told her that he needed to pick something. She had her lectures at 10.00 am but the accused having parked the car at Shop & Save supermarket, bought a bottle of Rum and also a 2 litre bottle of Coke. He had mixed it and told her that he wanted to go to Nasese. He offered no reason. He had then stopped the car near sea wall at Nasese.She was offered four glasses of Rum, which she consumed, and the accused had threatened her not to tell this to her uncle. When they finished drinking he proceeded to Lami Supermarket. Again he offered Rum and Coke to the complainant. This time the complainant rejected the offer.

(iii) Thereafter the accused drove his vehicle passing Naboro prisons and turned to a by-road and stopped the car, allowing a tractor following it from behind to go past them. He drove on for a while and stopped the car. The complainant thought he was to relieve himself, but the accused having got off the car had come to her door. She had locked it from inside but the accused managed to open it. He had then held the complainant by her neck by putting his arm around. He dragged her out of the car and threw to the ground. It was an unfamiliar lonely place, far from the main road, with forests and plantations. There were no houses in the vicinity.

(iv) Then he had pinned her to the ground by pressing on her chest by one hand and used the other to insert into her vagina. She struggled and begged the accused to stop but he continued for 5 to 10 minutes with his act while swearing at her. She did not tell him to do this act.

(v) Then he drove her back towards the main road and kept swearing at her to stop her from crying. Accused wanted to go to Navua but she refused. On their way to Lami, the accused has turned his car four times. A Policeman signalled but the accused did not stop. The complainant having seen a Water Authority truck coming behind threw her school bag out of the car and had then jumped out of the moving car. She had then run towards the truck, which had stopped seeing her and she had narrated what happened to her to the truck driver. They have attempted to chase after the accused, and had later handed her over to Lami Police. She gave them a statement and was later handed over to her mother. She was examined by a doctor after 7 days as she was advised by a Police woman and a doctor it is not possible to examine her as she had her menses.

(vi) She was cross examined by the accused. She denied the suggestion that it was her who mixed Rum and Coke. She also denied the suggestion that she got on to back seat to avoid being seen with the accused. When asked as to why she did not get away when he mixed Rum, she replied that she did not know anything. She admitted when the accused stopped the car she could have gotten off, could have complained to the Police post that he gave her alcohol. She clarified that the accused even offered $50 not to tell this to her uncle. She also said she trusted him and did not expect him to do this.

(vii) She further said that the accused threw her out. She denied the suggestions that she had taken the hand of the accused and put it in her pants whilst seated at the front passenger seat and she wanted to have sex with him. She also denied the suggestion that when the accused refused to have sex with her upon her invitation, she had threatened him that she would make a complaint that he had raped her.

(viii) She admitted having sustained bruises when she jumped out of the car to both her legs. When it was suggested to her that if she had any injuries she should have been examined on the same day, the complainant replied that she just listened to what the Police say.

(ix) It was also put to her that in her statement she had said to Police she rushed out of the vehicle and in her evidence she said that she had jumped out of the vehicle. The complainant maintained she had said to Police that she jumped not rushed. It was suggested that she had failed to mention the fact that the accused turned his vehicle four times on his way to Lami in her statement and she said she did.

(x) She admitted that she drank alcohol that day but denied the suggestion she made a false accusation to explain her absence at school and not to let her mother know that she had consumed alcohol. She admitted that she had a mobile phone at the time, but it was low on credit and battery. She had lost it that day.

[47] Evidence of Dr. Laisenia Taleniwesi

(i) This witness is a Senior Lecturer of the Faculty of Medicine of FNU on Obstetrics and Gynaecology and has 19 years of professional experience. He had fully examined the complainant on 3rd October 2013 and found no injuries in her vagina. Her hymen was intact and she is not a sexually active woman. He opined that if forcefully penetrated by a finger or a penis, a vagina might have a laceration or cut in the skin and the nature of the injury would depend on the force used. Healing of such an injury would occur within a week or two but a scar could be seen. In his report, marked PE No. 1,the witness testified that his conclusion "no evidence of recent penetration" means that a penetration occurred 2/4 hours prior to his examination;

(ii) In cross examination he said the complainant could have been examined despite she was having her menses and he did not advise her to return after 7 days.

[48] Evidence of D/CPL 4282 JOJI DAKUWAQA

(i) This witness is the arresting, interviewing and investigating officer of this incident. According to him, the accused was arrested on 12th January 2014 and interviewed on the same day at about 2.00pm. There were no other CID officers on duty at that time and he had proceeded to record statement without a witnessing officer. The accused had no visible injuries on him and had co-operated in the investigation. He did not make any complaints and no requests were made when his rights were explained. Interview was conducted in question and answer form and the answers were recorded and had admitted the allegation put to him. He had not threatened, assaulted or used force in recording statement and its hand written original is marked as PE No. 2A while the typed version is marked as PE No. 2B.He has forgotten to ask the accused whether he needed to read the recorded statement.

(ii) In cross examination he admitted that education level of the accused was not clarified and no one else is a witness to how the interview was conducted.

[49] 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 because he does not have to prove anything. The burden of proving his guilt rests on prosecution at all times.

Case for the Accused

[50] Evidence of the accused TUI MATEO KOLI

(i) He stated on the day of the alleged incident he had returned home in the morning after work and the complainant asked him whether he could drop her at the school. When he went to his car Qalo was already there and got into back seat. On their way, he stopped at Shop and Save Supermarket to buy drinks. He bought a ½ bottle of Rum and Coke. After that he drove the car along the stadium and had stopped the car on the road allowing the complainant to mix Rum without spilling;

(ii) The accused further testified that the he did not tell her that he is going to Nabua but to the town to bring something from town. She too wanted to go to town. At Lami town he stopped again to buy drinks. Then they proceeded to Naboro and he had stopped the car by the side of the road and both of them have mixed Rum with Coke. Whilst waiting there the complainant asked him whether he would have sex with her and he had refused. Then the complainant came to the front seat and sat beside the accused. She wanted to know his reason to refuse her offer. The accused explained that if something happened he will be taken to Police and put to Courts and charged;

(iii) Then she took his left hand and put it inside her pants while putting her legs together. He had pulled his hand out and when asked why she did that, she replied that is to tell the Police that he put his hand inside her pants. At that time she had "feelings" and pulled his neck and sucked his tongue. He had pushed her away;

(iv) Thereafter he drove along towards Naboro, turned to his right and had stopped the car again. He told her that it was her who put his hand into her pants. She told him if they have sex she would not complain, but if he didn't she would send him to prison;

(v) He had then told her to get off the car along that road near Cement factory office as she said that she would jump out of the car if he does not have sex with her. She had then walked out of the car and got into a three tonne van which came from behind. He drove straight to his home;

(vi) On Christmas day the accused was arrested by Police (later he corrected it) and at the Police station an officer named Lanyon had questioned him and when he told his story he was accused of lying. He was told of the two boys who were brought to the station the previous day. They were locked in the cell block and beaten. He was warned if he didn't own up he too would be punched on his chest and locked up;

(vii) Thereafter, another officer called Joji of CID called him to top floor. He was seated at a table and asked what happened on that day. He gave complainant's statement to read and warned if he did not go along with it he would be punched. The answers to question Nos. 41 and 42 were not given by him;

(viii) During cross examination, the accused stated that he did not know whether the complainant lived on the top flat and also to which school she attends. He admitted offering her a ride to FNU and at the Kinoya junction, instead of going to FNU he turned to right to pick something up. He admitted going to Shop & Save and told the complainant to wait in the car. She waited as she wanted to get herself dropped at school. He then bought Rum and Coke. He insisted that she had mixed the two and knew that he was going to buy drinks;

(ix) Thereafter, they proceeded to Nasese and stopped at the sea wall. He denied threatening her not to tell her uncle and offered $50.He also denied knowledge of her having no money. He admitted that he had told her after the drinks he would take her to school. From that point they proceeded to Lami and all this time he was driving and decided where to go;

(x) He said they had consumed more drinks near the Naboro prison and thereafter went further in and told her he is taking her to school. He also admitted that the complainant was not familiar with the area. He further admitted it as an isolated place with no houses. He denied seeing a tractor and stated that he had stopped the car and went to the place where the complainant was seated. He further admitted when he asked her to get out, she locked the door but thereafter opened it;

(xi) He denied that he has pushed her to the ground and inserted his finger into her vagina for 5 to 10 minutes without her consent, while she cried and pleaded with him to stop. He also denied that he had continued to insert his finger while swearing at her;

(xii) The accused agreed that thereafter he had driven the car. He admitted seeing a Policeman signalling him to slow down. But he says he was not signalled to stop. He denied the complainant threw her bag out and maintained that she took it away with her when he stopped the car for her to get off;

(xiii) He said that he did not complain to Magistrates Court or to High Court as he was not aware of the Court procedure.

Analysis

[51] The Prosecution relied on the evidence of the complainant, a Doctor and Police officer and statement of the accused to prove its case. They have placed documents marked PE No. 1, PE No. 2A and 2Bbefore you.

[52] Firstly, you must consider the evidence of the complainant to satisfy yourselves whether her evidence is truthful and reliable. She says that she had told the Water Authority vehicle people what happened to her and then has repeated her complaint to Police. Whether she has promptly reported her allegation you have to decide and if so that fact could be utilised to assess her credibility. In this regard you may consider her age, her power of observation and expression and the manner of giving evidence.

[53] You must examine whether the complainant's evidence proves the elements of the count of Rape. If you accept her evidence as credible and reliable then you must see whether that evidence has proved the elements of the offence of Rape. She has said that the accused put his hand in her vagina. She also said that she has not consented for this act. She identified the accused as the person who inserted his hand into her vagina.

[54] If you think the Prosecution has proved all elements of Rape, then you must also consider whether that evidence of prosecution proved the identity of the accused. In this case, the parties are known to each other. If you find it is so beyond a reasonable doubt, then the prosecution has proved this element of identity and other elements then you must find accused guilty of the count of Rape. If you reject her evidence as not credible and unreliable then you must find the accused not guilty as the prosecution has failed to prove the charge of Rape against the accused. Even if you find her evidence is reliable, but the prosecution has failed to prove an element or elements of the offence in relation to the count of Rape then too you must find the accused not guilty of Rape.

[55] The prosecution wants you to believe that the complainant was taken by the accused on the basis of offering her a lift to school in his car, got her to drink Rum mixed with Coke and having taken her to a lonely spot, whilst holding her down with one hand had inserted finger of the other hand to her vagina when she pleaded and cried not to.

[56] You may consider her previous and subsequent conduct as revealed in her evidence in assessing whether her evidence is truthful. She got into the vehicle with the hope of getting a lift to her school. There is no dispute over this fact. She had to drink Rum with Coke. She says the accused gave it her to drink. The accused say she drank it having mixed the two bottles. The accused challenged her she could have gotten off the vehicle when the accused gave her a drink. Whether she drank Rum and in such a situation she could have walked out of the car or to complain to the Police about the conduct of her relation's husband and whether that is a practical and possible course of action by a 19 year old girl should be considered by you.

[57] Similarly, after the alleged act, how she behaved is also a relevant consideration for you in assessing her truthfulness. She says she was crying and when she saw the Water Authority vehicle she threw her bag out and jumped out of the moving car. This was after the accused did not stop even after a Policeman signalled. The accused says he stopped the car and the complainant got off with her bag. He also has seen the complainant getting into a three tonne van. It was pointed out to her in her statement she had said that she had rushed out of accused's vehicle. She says in her evidence that she jumped out of the moving vehicle and sustained bruises on her knees. You may only consider what she said before us as evidence. The words used in the statement may be used only to consider whether she is consistent in her claim and you should not rely on it as evidence. After 8 days the Doctor has not seen any injuries or healed scars on her knees. Whether the complainant in fact jumped out or rushed out and whether that was due to the alleged act and to get away from the accused as soon as possible, whether the accused's vehicle was moving at the time, whether she sustained bruises as a result to be considered.

[58] The prosecution must establish beyond reasonable doubt there was no consent by her to the alleged sexual act by the accused. She said she pleaded with the accused to stop and she had cried. Conduct of the complainant is therefore, had to be assessed by you, in order to decide whether to accept her claim that she did not consent.

[59] In relation to the allegation of digital rape, the complainant stated that the accused had, having allowed a tractor which followed them from behind to overtake, stopped the vehicle at a lonely place, and had thereafter violently dragged her out of the car. Then the accused, having pinned her to the ground with one hand, had penetrated her with the other hand for five to ten minutes. She had cried and pleaded with the accused. The accused elicited from the Doctor that when he examined the complainant after 8 days he had not seen any injuries in her genitalia. Prosecution sought to clarify this observation by asking him whether the injuries could have healed by then. The doctor says it is possible that it could heal within the space of one to two weeks.

[60] In relation to this aspect, I must remind you that even a slight penetration is sufficient to establish rape. But when the complainant says the accused had continued to insert his finger for five to ten minutes, the accused wants you to consider why there are no tell-tale marks on her vagina, as it could reasonably be expected under such circumstances. It is for you to decide this issue on the available evidence. Whether there were injuries in her vagina and whether they were healed at the time of examination must be considered by you.

[61] His Counsel demonstrated to you the actual time interval of 10 minutes, using her mobile phone timer, when she addressed you. In assessing that issue you may also consider whether the complainant's claim that the alleged act of penetration continued for 5 to 10 minutes. In this aspect you could consider whether it is a rough or accurate estimation of time and having placed at a highly distressful situation whether she could accurately gauge time under the circumstances. If you think she is lying on this point and you have a reasonable doubt about whether there was penetration, then you must find the accused not guilty to the charge of rape. But if you consider owing to the distressful situation or some other reason which you think as valid, she had inaccurately described the time period, you could proceed to consider whether the prosecution has proved other elements of the charge of rape.

[62] Any person who has been raped will have undergone trauma whether the accused is known to her or not. It is impossible to predict how that individual will react, either in the days following, or when speaking publicly about it in Court.

[63] However, I must caution you that it is important that you do not bring to that assessment any preconceived views as to how a witness in a trial such as this should react to the experience.

[64] You are at liberty to act on a portion of the complainant's evidence, which you find credible and leave out any other portion as not credible.

[65] The accused denied the charge totally. He made a counter allegation that the complainant demanded sexual gratification from him and when he refused to give in to her demand she had taken the accused left hand and put it in her pants. When he asked for the reason for her conduct, she stated that she could now complain to police that he put his hand in her pants. She had accused the accused of having put his hand into her pants. According to the accused, she later offered a compromise, by suggesting that if he agrees to have sex with her she would not complain but if he did not, then she would. However, the accused never acceded to her demands.

[66] You might recollect as the way the complainant answered with a "No" when this suggestion was put to her. The accused submitted that she is an intelligent person studying for a university degree and therefore capable of fabrication of a false allegation. Whether the complainant, on her way to school and after four glasses of Rum mixed with Coke acted in the manner as suggested by the accused must be considered by you. The evidence of the Doctor that she is not sexually active also might be relevant in this regard. However, if you think it is possible that she made demands of sexual gratification from her relation's husband that morning and when the accused refused to give in to her demands, she concocted this entire story and falsely implicated the accused on a charge of Rape as she promised she would, then you must find the accused not guilty of the charge of Rape.

[67] The state tendered the caution statement of the accused as PE 2A. Accused disputed its voluntariness saying that he was threatened with assault if he did not make a statement along the lines of the complainant's statement. He says he was not assaulted but first threatened repeatedly by Police that he would be punched and put to cell block as the other two young suspects.

[68] In the statement, the accused has admitted the allegation. What weight you put on this confession is a matter for you. If you accept that he gave PE 2A to Police that he did it voluntarily without pressure and also he told the Police the truth then you may act on it. If you have to reject his statement you should not consider its content against the accused.

[69] The Prosecution says, no pressure was applied on the accused at the time of recording his statement. The accused says he was threatened. Which version of the facts you accept is a matter for you. However, if you accept the contents of the statement as reliable, then you should consider the contents with all the other evidence in deciding what evidence is acceptable to you.

[70] Now I intend to deal with the evidence of the accused. In relation to the accused evidence too you must employ the same approach.

[71] The accused also presented his evidence on primary facts for the defence case.

[72] The accused admitted having invited the complainant with an offer of a lift to school and without telling her going to a store to buy Ram and Coke. He says the complainant has mixed the two bottles and they consumed it. At a later point when he had parked the car by the side of the road to have a drink, then the complainant had demanded sexual gratification from him. She then put his hand inside her pants and closed her legs. The accused pulled out his hand. When he refused her offer, the complainant had revealed her plans to implicate him on an allegation of Rape. This aspect of his evidence is already dealt under the analysis of the complainant's evidence.

[73] In assessing truthfulness of the accused's evidence, I invite you to consider the conduct of the accused that with the threat of false implication for Rape, the accused had thereafter, taken the complainant on a by-road and having reached a lonely place, got out of the car and gone to the side where the complainant was seated. He admits she had locked the door but denied the allegation that he had digitally penetrated her forcefully.

[74] Why would the accused take the complainant to such an isolated spot with the full knowledge of the plans the complainant had, when he refused her offer of sex, is a relevant factor. You may consider the probability of such a scenario in real life situation by using your experience in life and common sense. On the other hand, would the complainant, when her demand for sex is bluntly refused by the accused, reveal her plans to the accused that she intends to make a false allegation? What might be the possibility of such a situation in real life? It is for you to decide whether the complainant might have thought of implicating the accused in order to punish him for his obstinacy in refusing her offer. If you believe that the accused has been falsely implicated by the complainant, as she indicated to him in the car, you have to find the accused not guilty of Rape and also of Sexual Assault as you cannot place any reliance of the complainant's evidence.

[75] You must assess credibility and reliability of the accused's evidence using the same yardstick you used with the prosecution witnesses.

[76] Even if you reject the accused evidence as not credible and unreliable that fact does not automatically prove the prosecution's case. The prosecution must stand on its own, independently of the evidence of the accused. The prosecution must prove its case beyond reasonable doubt from the evidence it has presented.

[77] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements you must find the accused guilty of Rape. If you think the prosecution has proved all elements except penetration, then you must find the accused not guilty of Rape, but you must then, and only then, must consider whether the accused is guilty of alternate count of Sexual Assault. If you have any reasonable doubt about the prosecution case as a whole or an element of offence including penetration, then you must find the accused not guilty without proceeding to consider the alternate count of Sexual Assault.

[78] Madam and Gentleman 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 charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to Court, and you will be asked to state your separate opinion.

[79] I thank you for your patient hearing to my summing-up.

Achala Wengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.