State v Singh - Summing Up [2015] FJHC 730; HAC134.2014 (5 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 134 OF 2014

STATE

vs

MAAN SINGH

Counsel : Mr R. Kumar for the State
Mr Reddy for the Accused
Dates of Trial : 28th; 29th; 30th September – 1st and 2nd October 2015
Summing Up : 5 October 2015

SUMMING UP

Madam and Gentlemen Assessors,

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

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

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. 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 that particular 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] As I already indicated to you earlier in my summing up, 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? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

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

[15] The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim's reluctance to report the incident could be also 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 the time interval taken to carefully fabricate anallegation of Rape against the accused or whether it was due to the reason attributed by the complainant for such delay. The age of the complainant could also be considered in this regard. It is for you to decide the genuineness of the reason offered by the complainant for the delay.

[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 credible and reliable 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 in the morning, you saw a particular person seated on one of the back benches. 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 of the Court room although you have not seen that. I think with that you will understand the relationship between primary facts and the inferences that could be drawn from them.

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

[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, as dictated 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 are two charges preferred against the accused by DPP, in the information:

FIRST COUNT
Statement of offence

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

Particulars of the Offence

MAAN SINGH on the 2nd day of April 2014 at Nakasi, Nasinuin the Central Division, had carnal knowledge of PRIYA PRAKASHNI CHAND, a child under the age of 13 years.

SECOND COUNT
Statement of offence

Sexual Assault – contrary to Section 210(1)(a), and (2)of the Crimes Decree No. 44 of 2009

Particulars of the Offence

MAAN SINGH on the 2nd day of April 2014 at Nakasi, Nasinuin the Central Division, unlawfully and indecently assaulted PRIYA PRAKASHNI CHAND, by touching her breast and vagina.

[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 had carnal knowledge of the complainant. In other words, the prosecution must prove that the accused had penetratedthe complainant's vagina, with his penis. The slightest penetration is sufficient to satisfy this element.

[38] Whether there was consent by the complainant for the alleged act or not has no relevance to this case. Only a woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was below 13 years of age at the time of the alleged offence and therefore, she is incapable of giving consent.

[39] The elements of the offence of Sexual Assault are as follows:

i. the accused;

ii. unlawfully;

iii. indecently assaulted; and

iv. the complainant

[40] The accused is guilty of sexual assault if he unlawfully and indecently assaults the complainant. The word "unlawfully" simply means "without lawful excuse". "Assault" in law, means "unlawful application of force to the person of another". An act is considered indecent act, if right-minded persons would consider it is so.

[41] 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 and also committed Sexual Assault. There must be positive evidence as to the identification of the accused.

[42] If you are satisfied beyond reasonable doubt that the accused penetrated the complainant's vagina with his penis then you may find him guilty of Rape. If you are not satisfied that penetration had occurred, then you must find the accused not guilty of rape.If you are satisfied that the accused had touched the breasts, legs and hands and committed other sexual acts attributed to him by the complainant and that is indecent act to right minded persons you must find the accused guilty of Sexual Assault.

[43] 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.

[44] If you find that the prosecution failed to establish any of these elements of the charge of Rape, then you must find the accused not guilty. If you find other elements of offence Rape were proved but you are not sure whether there was penetration, then you must find the accused not guilty of Rape. Similarly, if you find the elements of the offence of Sexual Assault are proved you must find him guilty. If you think the elements of the offence of Sexual Assault are not made out, then you must find the accused not guilty to this charge.

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

[46] The following facts are agreed among parties as proved, without calling witnesses:

1. It is agreed that the complainant, Priya Prakashni Chand, was 10 years old at the time of the offence and her date of birth is 7th July 2004.

2. It is agreed that the complainant was residing at Lot 125 Vishnu Deo Road, Nakasi.

3. It is agreed that the complainant was medically examined on 25th April 2014 by Doctor Miliakere Dewainakali.

4. It is agreed that the accused, Maan Singh, was cautioned interviewed by D/Sgt 3149 Viliame Maivusa on 27th April 2014. There is no dispute between the State and the Defence about the authenticity, content and admissibility of the accused's cautioned interview.

5. It is agreed that the accused was charged by A/D/Cpl 3541 Isikeli on 29th April 2014. There is no dispute between the State and the Defence about the authenticity, content and admissibility of the accused's charge statement.

Case for the Prosecution
Evidence of the complainant, Priya Prakashni Chand

[47] I commence with the complainant's evidence. This is not a full reproduction of her evidence but just to refresh your memory to its salient features:

1. In her evidence Priya said that she has two younger siblings and is 13 years of age at the time of giving evidence. Last year she attended school and during Ram Naumi festival she was taken to an empty house by the accused. She had met him at Ram Pati canteen.
   
2. In this empty house, the accused had showed her bad things from his tablet and did what was shown in the tablet to her. She says she was also shown bad photos from his tablet.
   
3. The accused had taken her to this empty house for three days. When in this empty house he would say bad things. On the third day, she had gone to the Shop to buy sugar and the accused was there. He had dragged her along a short cut to the empty house. While inside the house he had laid her on the floor, forcibly removed her dress and touched her thighs, hands and breasts. He was on top of her and had only his shirt on. He sat on her thighs and touched her breasts. He had shown bad videos and pictures and they showed a man and a woman doing bad things. The bad things her mom and dad would do. The accused said he wanted to do the same thing.
   
4. One day the accused threatened to cut her brother if this was told to someone and another day he had threatened to cut her mom, dad and brother.
   
5. She wanted to escape and did not like what the accused did. But she couldn't. When she returned home her mom asked why her clothes are dirty. She said it got dirty in the wash room. On that day she met the accused in the morning, she was late for school. When her teacher asked she said the bus got late.
   
6. She repeatedly said the accused did "bad things" and did "sex" with her. She also said the accused "put his private part on my private part". On the third day of her evidence, she told the accused had "raped" her. She did not know the meaning of the words "sex" and "rape". She learnt these words from the aunt. He aunt did not explain to her what happens in sex.
   
7. Thereafter, she had returned home. Her Aunt had got to know from uncle that her grades have gone down and she draws bad pictures in school. Her aunt had taken her to a room and closed the door. She was sacred. She admitted that when people are scared they would tell lies. When asked whether she made up this story of rape, in order to escape scolding for going down in her school grades, she said yes.
   

[48] Evidence of Dr. Miliakere Baleilevuka

1. This MBBS qualified medical expert is presently attached to CWMH as head of its child care department and had examined Priya on 25th April 2014.

2. The medical witness expressed the child was distressed (not a medical opinion) and she resisted examination of her genitals. The external examination revealed no injuries to her crescentric hymen and there were no visible injury in her vagina. The witness was of the opinion, the interviewing time since the incident may have healed any injury, and she would not expect to see signs of abuse if examined after two weeks.

3. She admitted in cross examination that any absence of injuries could also be due to the fact that the alleged abuse did not take place.

[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 the law says so. He does not have to prove anything. The burden of proving his guilt rests on prosecution at all times.

[50] The accused opted to remain silent and it is his right to do so. You must not draw any adverse inference from his choice to remain silent.

Analysis of the evidence
[51] In this case, the only witness to the incident presented by the prosecution is the complainant. She is 12 years of age when she gave evidence before us. As she is the only witness to the incident, her evidence had to be evaluated by you, for its truthfulness and also for its reliability. The witness could be truthful if she tells us what she believes and remembers as a true account of the alleged incident. But her memory or description of the incident might not be what exactly happened. That is why it is important for you to assess her evidence for its truthfulness and also for its reliability. There could be a situation where a truthful account might not necessarily be a reliable account. It is dangerous to rely on unreliable evidence.

[52] Having cautioned you to assess the complainant's evidence for truthfulness and reliability, I thought I must offer some thought that might be of some assistance.

[53] Some of you will have or known children who are of a similar age to the child who have given evidence for the last three days before us. If so, I think you will recognize the sense of the advice I am going to offer you about your judgment of her evidence. However, it is important to remember that evaluation of her evidence is your responsibility. You do not have to accept my advice and if you do not agree with it, you should reject it.

[54] Children do not have the same life experience as adults. They do not have the same standards of logic and consistency, and their understanding may be severely limited for a number of reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child seem very different from the life viewed by an adult. Children may not fully understand what is that they are describing, and they may not have the words to describe it. They may, however, have come to realise that what they are describing is, by adult standards, bad or in their perception, naughty. They may be embarrassed about it, and about using words they think are bad or naughty, and therefore find it difficult to speak. Bear in mind that they are being asked questions by an adult they see as being in a position of authority, the Policeman at the interview, the Counsel in Court or the Judge. That can make it difficult to them. Remember how you normally talk to children of this age. How difficult it must be if the form in which a question is put is complicated or challenging or conceptual. You should bear those difficulties in mind when you consider the answers given.

[55] Children can be confused about what has happened to them; sometimes children blame themselves for what has happened. Sometimes children do not speak out for the fear that they themselves will be blamed for what had taken place or through the fear of the consequences should they do so. They may feel that they may not be believed. They may fear them and will be punished. They may be embarrassed because they did not appreciate at the time that what they were doing was wrong.

[56] I must repeat that all decisions about the evidence are for you to make. I only advise caution against judging children by the same standards as you would an adult. Now I will invite your attention to the assessment of the evidence of the child witness, Priya.

[57] Earlier on, in this summing up, I mentioned the assessment of evidence for its consistency. I will now point out where there are some inconsistencies of her evidence. During evidence Priya said that the accused had done bad things for three days commencing on a Monday and continued through Tuesday and Wednesday. In cross examination, it was elicited that to her statement to Police, she had stated that it was Monday, Tuesday and Thursday. It was also her general evidence that bad acts were done inside of a white empty house. However, she also said that only in the first day she was taken into a house. Whether these apparent contradictions seriously affect her credibility and turn her evidence to an untruthful account or it was due to her immaturity or difficulty in recalling the exact sequence or due to some other reason, is for you to decide.

[58] Then there are two instances where it was revealed that she had not told the truth. These were uttered to her teacher and mother respectively and she was not under an oath to tell the truth as in the Court. Priya said in her evidence on the first day when she got late to attend class, the teacher asked her for a reason. She had said the bus was late. She said she walks daily to the school. The second instance is when she returned home, after the bad thing with the accused, her mother asked her why her clothes got dirty. She said it happened in the wash room.

[59] The prosecution relies on Priya's evidence to prove its case on the two charges of rape and sexual assault against the accused.

[60] I have already explained to you the elements of these two charges. I have also explained to you since the child is under 13 years of age at the time of commission of alleged offences, her consent or lack of it has no relevance and no corroboration of her evidence is needed.

[61] In order to establish a charge of rape, the prosecution must prove beyond reasonable doubt that there was penetration of Priya's vagina by penis of accused. The penetration need not go into the full passage of the vagina.

[62] The only item of evidence on this vital element is this. She said "He was on top of me. He laid me down. He put his private part on my private part". The prosecution wants you to convict the accused for rape on this evidence as according to them, it had proved penetration. This is a question of fact and you have to decide it on available evidence.

[63] Even if you accept this full sentence that "He put his private part on my private part" the word used by Priya is "on" and not "in" as you would expect to prove penetration. Whether placing of private part of the accused on Priya's private part is penetration you must decide. If you have a reasonable doubt about that, then it's benefit should go to the accused.

[64] On the question of penetration, I must invite your attention to the fact that when the prosecutor asked Priya to explain her statement that "He put his private part on my private part" she had no answer to offer. She clearly stated in her examination in chief that although she felt "bad" in her chest, in no other part of her body she felt "bad". She also stated that the accused only touched her breasts and specifically "no other part". She was clear when she said "he did nothing else". When she was asked a direct question by the prosecutor as to "how do you know he put his private part on your private part" she had answered "I was pushing away his hands". No explanation to the question.

[65] The prosecution say it established penetration. The accused says it failed. In view of these items of evidence, it must be observed there is no clear evidence before us on penetration other than the solitary phrase "He put his private part on my private part". Whether that is sufficient to establish penetration beyond reasonable doubt, you must decide.

[66] In relation to the sexual assault count, the prosecution has placed evidence of Priya on several acts attributed to the accused. He had forcibly removed her cloths. He had shown her "bad videos", in which a man and woman did "bad" things and he showed her "bad photos". In addition, he sat on her legs with only a shirt on his body and touched her legs, hands and breasts. He had kissed her and having shown "bad videos and photos and "told her that he wanted to do the same with her". As to whether one of, some of or all of these acts could be called indecent, you must ask yourselves what right minded persons would think of these acts. Would right minded persons think one or some or all of these acts is or are so offensive to current standards of modesty and privacy as to be termed as indecent? If you think the answer is yes, then the prosecution has proved elements of the offence of sexual assault. If not, it had failed in establishing sexual assault charge.

[67] Learned Counsel for the accused, in his closing address to you, highlighted that Priya had created this story of rape as an answer to her failing grades and accusations by teachers of drawing bad things in school. He also wants you to consider the fact that she had identified the first person who was arrested by the Police as the rapist and later changed her position when the accused was arrested and produced.

[68] This raises several issues for your consideration. Firstly, whether Priya had created a story of rape when she was questioned by her aunt as an excuse for her failing grades? Secondly, whether she had identified the accused in order to give credence to her story of rape? Thirdly, whether she had mistakenly identified the accused as the rapist?

[69] I will address these issues in detail, in this analysis of evidence.

[70] The defence elicited through Priya that her Uncle came from school and told Aunt that her grades are down. Shewas scared when her aunt called her into a locked room to question her for the reason for falling grades and drawing bad pictures at school. She admitted that one would tell a lie when scared. She answered the question put by the accused admitting she did. In order to properly consider the evidence in the proper context, I will reproduce the question and answer from the cross examination, as I have recorded it, for your consideration:

Q. Uncle came and told Aunt your marks are down?

A. Yes

Q. That is the reason for your Aunt to close the door and ask questions?

A. Yes

Q. You have to give some reason?

A. Yes

Q. Suggest to you that is the reason you said you were raped?

A. No

[71] However, upon further cross examination of Priya, she gave the following answers:

Q In fact on the day of allegation of rape, you were taken to a closed room by Aunt?

A. Yes

Q. Then she pressed you to explain why you are poor in class, why you stare at people and why draw bad drawings?

A. Yes

Q. She made you feel very afraid?

A. Yes

Q. Because you had no option you made up this story to escape scolding?

A. Yes

[72] She also said the following after 18 more questions:

Q. At the times people get afraid and say something not true?

A. Yes

[73] In her re-examination, Priya; in answering to a leading question by the learned State Counsel, said:

Q. You told Aunty the truth?

A. Yes

[74] It is for you to decide whether Priya has made up this story of rape in order to avoid scolding by her Aunt and possible physical abuse by her angry parents over her poor performance in studies and drawing bad pictures at school.

[75] Priya said in evidence that the accused had "sex" with her. In evidence she admitted that she does not know the meaning of the word "sex". It was told to her by her Aunt, who questioned her on that day. The word "rape" also was told to her by the same Aunt.

[76] You would have noted when she was confronted by the Counsel for the accused by a suggestion she would immediately change her version of evidence and agree with him. Was her aunt too had suggested whether she was raped by someone to which she had merely said yes to get out of a difficult situation having to find a valid answer to failing grades and bad pictures? Please consider these possibilities as when you consider the following evidence, as given by Priya.

[77] She already had some knowledge of intimacy among adults as she had referred to her parents as they were doing bad things. She once described the act of the accused as "bad thing mom and dad used to do". Her father was always angry with her and accused her of getting involved with boys and said she would "runaway/elope". The prosecution did not clarify as to why a father of a 12 year old girl would be accused her that she would "runaway/elope".

[78] She repeatedly describes the act attributed to the accused as "bad". According to her, she was shown "bad things" a man and woman would do in a video. She was shown "bad" photos. In spite of the voluminous examination in chief, not once she described what exactly the accused did "bad" in her own words. She admitted that she does not know the meaning of the word "sex" which she learnt from her Aunt. Her Aunt did not tell her what happened in "sex". Could that be the reason for her failure to describe the offending act committed by the accused in relation to the charge of rape? These are questions of fact and it is your responsibility to consider them, in order to reach a conclusion. I am in no way suggesting that it could be the case, but upon evidence, I thought it might be a relevant consideration. You may consider it or leave it.

[79] On the 3rd day of her evidence, Priya used the term "rape" for the first time. She told in evidence that she told Police that she was "raped" and it was the man in Court who "raped" her. In limited cross examination permitted by Court, the defence clarified that she did not know the meaning of the word "Rape". This word, according to Priya, is learnt from her Aunt. Her Aunt has not given evidence before us. When the learned Counsel for the accused asked why is that she used words without knowing their meaning, Priya offered no answer.

[80] I drew your attention to these items of evidence, so that you could consider the point made by the accused that Priya made this story of rape, in its proper light. It is your responsibility to consider the evidence in its entirety and come to the conclusion in relation to the guilt or innocence of the accused. The prosecution wants you to consider that she is narrating the exact incident that took place at the hands of the accused.

[81] You would recall that I have already directed you that the prosecution must, in addition to all the elements of the two offences, prove beyond reasonable doubt that it was this accused and no other who committed these acts on Priya.

[82] The prosecution says Priya identified the accused firstly on the days he committed these alleged offences. Secondly, she identified him at the Police Station when he was shown to her. Thirdly, as you would recall she had identified the accused, in Court even before the prosecution asked her to point the person who did "bad things" and had "sex" with her.

[83] The accused on the other hand wants you to accept his claim that it is all a mistaken identity. She had identified the 1stperson who was arrested and shown as the rapist. Then she was recalled to show the accused, who had been subsequently arrested by the Police. Then she had said it was the accused, and not the other person whom she earlier pointed out as the rapist, responsible for the alleged acts.

[84] 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 a wrong identification. In this case it once happened to Priya. I give you this warning not because of I have formed opinion that Priya has made a mistake in identifying the accused at the Police, but inviting you to assess her evidence on this aspect with special care. The law requires me to give this caution in every case, where identification evidence is disputed.

[85] In assessing her evidence of identification, you would have to consider the following aspects of her evidence, in order to satisfy yourselves whether Priya has properly identified the accused and there was no mistake, honest or otherwise. In order to assess reliability of her identification of the accused you may consider the following:

1. You must consider the length of time the time period during which she claims to have identified the accused. Priya had three days and had seen him at very close distance in daylight. There is no evidence that the face of the accused was covered and having a proper view of it made impossible. There is clear evidence that she had seen him prior to the incidents, as she said in cross examination that "he is always there at the shop" referring to the Ram Patishop where she had gone to buy sugar. Thus it appears that Priya, having seen him on the previous several days, had identified him positively when she saw him at the shop when he had allegedly dragged her through a short cut to the empty house.
   
2. It was after a lapse of over two weeks; the accused was again shown and identified by Priya at the Police station. You would recall that during cross examination it was elicited from Priya that in her statement, the description of the alleged rapist is given to Police by her as "tall in height, dark in colour, short black straight hair". And then his Counsel asked the accused to step outside the dock, enabling Priya to have an unobstructed view of his physical features. She was asked in separate questions whether the accused is tall, whether he is dark and she answered "I don't know."
   

100. If she has not given the description of the person who allegedly raped her, then who did? Was it inserted by the Police officer who interviewed Priya or now she changes her position when confronted with it? According to Priya, she had the opportunity to see the naked body of the accused as he had only his shirt on. No special marking was seen by Priya such as scars, tattoos, deformities on the accused. The description given to Police is obviously a very general one, which would match with many.
     

4. She admitted having already made a mistaken identity. If she is correct, an innocent man was first identified as the rapist, until the accused was arrested and shown to Priya. She denied the suggestion, that her identification of the accused is also a mistaken identity. However, she admitted why she made the mistake. According to her his "face was similar".
   
5. It was further clarified that the 1stperson arrested by the Police and the accused were not shown to her by placing them side by side. She once said it was, but later corrected that they were shown separately. There was no line up conducted by the Police, in which the accused was shown with few other men for Priya to make identification.
   
6. You might have to consider the position, if the Police did not arrest the accused as a suspected rapist. Perhaps, it might also be relevant to consider what might have been the result, if the police were to make a third arrest on this allegation.
   
7. I have already mentioned that when Priya claimed she saw the accused at Ram Pati shop on the third day she had identified him. Then he had dragged her through a short cut to the empty house. If she could identify the accused on the third day, why she made a mistake little over two weeks later at the Police. Has the memory of the facial details faded so fast or could there be any other reason, you may consider.
   
8. In relation to the mistaken identity, the accused wanted you to consider whether Priya had made up this story of rape. It is her evidence that the moment she told Aunt of rape, he Aunt rushed to the Police even without informing her mother. Had she anticipated that her made up story as suggested by the accused would go this far? Her father too had come to Police only subsequently. He was not happy of reporting the incident to Police as his reaction was to "go home and talk". He roomed carrying a knife looking for an unknown rapist.
   
9. If she made up this story then there must be a person who did it, in order to give credence to it. Did she identify the first man, simply because she needed someone to prove her made up story? When the accused was shown as the second man did she change her identification to accused, as he was seen before at the shop? Did she preferred to identify a man she had already seen at the shop, to a total stranger already identified as the rapist, in order to support her made up story? Has she mistakenly identified the accused, a totally innocent man as he says, who had nothing to do with this case, simply because she had seen him at the shop? The prosecution wants you to believe that she told her Aunt the truth. Consider evidence relied on by both the prosecution and the defence, very carefully especially on this aspect, before you take a decision.
   
10. It is your responsibility to consider these considerations, in addition to the others which you might think relevant, in coming to a conclusion on this vital aspect, whether the prosecution has established beyond reasonable doubt that it was this accused and no other committed rape on Priya and she made no repetition in making a mistake in identifying the accused, having already made one.
    

[86] The fact there are two charges against the accused does not necessarily means you have to convict or acquit the accused on both of them. You must consider each charge separately and may convict him on one and acquit on the other, if you think the evidence only establish one charge. Similarly, if you find both charges are proved beyond reasonable doubt, you must convict him on both charges and if not proved, then you must acquit the accused on both.

[87] I will now summarise the directions already given to you.

[88] Your first task to assess truthfulness of Priya's evidence. If you find her evidence is not truthful then you must find the accused not guilty of both charges.

[89] If you find Priya's evidence as truthful then you should proceed to consider whether it is reliable. If you find her evidence truthful but not reliable, you should find the accused not guilty of the two charges.

[90] After a careful assessment, if you find Priya's evidence both truthful and reliable, then you must consider whether her evidence has proved the elements of rape and sexual assault beyond reasonable doubt. In addition you must consider whether the prosecution has proved the fact that it is this accused and none other who penetrated Priya's vagina and or committed sexual assault on her. If you find there is evidence of penetration and also penetration by the accused beyond reasonable doubt, then only you must find the accused guilty of rape. In relation to the second count if the acts attributed to the accused by Priya are considered as indecent by right minded persons then you must find him guilty of Sexual Assault.

[91] Having considered her truthful and reliable evidence, if you find that the prosecution failed to prove penetration then you must find the accused not guilty of rape. If you find penetration had been proved but the prosecution failed to prove the identity of the accused beyond reasonable doubt, then too, you must find him not guilty of rape.In relation to the second count if the acts attributed to the accused by Priya are not proved by the prosecution or not considered as indecent by right minded persons then you must find him not guilty to the charge of sexual assault.

[92] Any re directions sought by the parties?

[93] Madam assessor and Gentleman assessors, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charges 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.

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

AchalaWengappuli
JUDGE

At Suva
5th October 2015

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Reddy and Nandan Law, Suva.