State v MK - Summing Up [2015] FJHC 784; HAC157.2012 (19 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 157 OF 2012

STATE

V

M.K.

Counsel : Mr R. Kumar for the State
Mr M Razafor the Accused
Dates of Trial : 12th, 13th, 14th, 15th and 16th October 2015
Summing Up : 19th October 2015
Names of the parties are permanently suppressed.

SUMMING UP

Ladies 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 judgment, 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 case, 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 sexual aggression 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] I will direct you in more detail on these aspects, when I deal with the evidence in the analysis section of this summing up.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated in the afternoon 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.

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

[30] 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.

[31] 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 and called witnesses does not imply any burden upon him to prove his innocence or his claim of alibi. It is not his task to prove his innocence or alibi.

[32] 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?

[33] 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.

[34] 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.

[35] 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.

[36] 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.

[37] There two charges preferred by DPP, against the accused (for convenience I will refer to the victim as S.P. and the accused as M.K.);

FIRSTCOUNT
Statement of offence

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

Particulars of the Offence

M.K. on the 18thday of October 2010atDavuilevu in the Eastern Division, had carnal knowledge of S.P. without her consent.

SECOND COUNT
Statement of offence

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

Particulars of the Offence

M.K. on the 28th day of October 2010 at Davuilevu in the Eastern Division, had carnal knowledge of S.P. without her consent.

[38] 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 S.P.'s or the complainant's vagina, using his finger on those two dates. The slightest penetration is sufficient to satisfy this element.

[39] 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.

[40] 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 over 13 years of age and therefore, she had the capacity to consent.

[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. There must be positive evidence as to the identification of the accused.

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

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

[44] Following facts are agreed amongst parties as proved.

1. That S.P. [hereinafter the complainant] resides at Lot 22 Toto Place Nadawa.

2. That the complainant was 22 years old in 2010.

3. That the accused in this matter is M.K., was 42 years old in 2010, Manager of TNT Courier of Lot 13 Shyan Lane, Davuilevu, Nausori.

4. That the accused is charged with two counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree.

5. That the complainant married the accused person's son namely V.K in August 2010.

6. That on the 28th of October 2010 the complainant was residing with her husband, the accused, mother in law and mother in law's father also known as "Tata" from Ba at Lot 13 Shyan Place, Davuilevu.

7. That the accused was arrested and caution interviewed on 4th November 2010.

8. That the accused was charged on the 23rd of April 2012.

9. It is agreed that the admissibility of the following documents are not in dispute and will be tendered in by consent:'

[a] Medical Report of S.P.

Case for the Prosecution
[45] Evidence of the complainant, S.P.
It is her evidence that she got married to accused's son and had lived with her husband, the accused and his wife since August 2010. Both her husband and the accused would leave home in the morning to work and she would do the house chores. Her mother in law stayed at home.

(i) On 18.10.2010, the accused had taken his wife to her medical clinic early in the morning. The complainant remained at home attending to house chores. The accused returned home and offered help. She refused. The accused said he washed the dishes to help her.

(ii) He told the complainant that she looked sick and needed a massage. She said she is fine. He had then grabbed her hand and took her into his room. He had thereafter removed her undergarments, held her hands up by one hand while closing her moth with the other he had inserted his penis into her vagina. He ejaculated outside on to his wife's garment.

(iii) Referring to the incidents of 28th October 2010, the complainant said that the accused left home for work in the morning. The complainant was at home with her mother in law and her father called "Tata". Around 9.00 am, her mother in law received a call from the accused requesting her to come to his work place to assist him. He told her that no one at work place to help him. She left home about 11.30 am. About 12.30 p.m. the accused returned home, spoke to "Tata" and accompanied him a neighbour's house with grog. The accused came back alone, closed the gate and main door to the house. Thereafter he had a shower. The complainant said by this time she was in her room, and was on the computer.

(iv) The accused then entered her room, closed the door, and drew curtains. The complainant attempted to go out of the room, but was prevented by the accused. He had come to massage her. He had pushed her to the edge of the bed, kissed on her lips, placed her on bed, removed her undergarment and inserted his penis into her vagina. She was in pain and tears. Thereafter, the accused left the house.

[46] Evidence of mother of S.P.

(i) This witness said in evidence her daughter was sick from the 9.10.10 and brought to her house only on the10.10.10 by the accused in his vehicle. Her husband did not come with the complainant and she was in pain. The accused massaged her using coconut oil and wanted her to boil water. The witness expressed her disapproval to the massage. He did not use hot water and later took them to a Doctor. Complainant's husband came in the evening and took her back.

(ii) On 30.10.10., the complainant phoned and asked her to keep taxi fare. She came home and when asked why she said had a fight with husband and having headache. On 31.10.10 her husband came home and talked to her and both of them left. Whilst at temple, the complainant called and said she had returned. Then she told witness that she was raped by her father in law.

(iii) On 1.11.10 they sought police assistance to retrieve her belongings and the accused's wife raised the issue of rape with the policeman. Next day they went to file a report and the complainant's statement was recorded on 3.11.2010.

[47] That was the case for the prosecution. You then heard me explain several options to the accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options because he does not have to prove anything. The burden of proving his guilt rests on prosecution at all times.

Case for the Accused
[48] Evidence of the accused M.K

(i) The accused in his evidence said that he left home at about 6.00 am with his wife to a medical clinic, proceeded to his office and had returned home only in the night at about 10.00 pm.

(ii) The accused in his evidence stated that he was at officer and returned home at about 2.45 p.m. to repair his van. By 3.30 pm the van was repaired by the mechanic Raj Dev and went back to office at about 5.00. The complainant had prepared and served tea.

(iii) He denied the allegations against him and said " I was at work".

Evidence of the witness Raj Dev

(i) This witness is a neighbour of the accused and said that on 28.10.10 the accused did not come to his house.

Evidence of the son of the accused

(i) He said his wife had taken an overdose of sleeping pills and he told his father to take her to her parents. He had returned after a party and had hangover. He visited her and fed her soup.

(ii) The reason for the complainant to attempt suicide was that she wanted to live with her parents. She did not tell him that she was raped by the accused. They had sex almost every day and had a happy marriage.

(iii) On 30.10.10 she was upset over his mother coming along with them to do shopping. She refused to go. She had locked up her room and had packed her bags. Tried to prevent her but she had left from the back door having taken money from drawer. Her phone was diverted.

(iv) She came back, went to prayer room and went back to her mother's place.

(v) In January 2011, he rented a place and lived with the complainant for 9 months. One day she had accused him of assaulting her. He had lodged a report against her but no action taken. After that incident he did not trust her.

Analysis
[49] The prosecution placed the evidence of the complainant and her mother before you to prove the two charges of rape. Complainant's mother is not a witness to the alleged acts of rape. In order to prove the elements of the two charges, the prosecution relies solely on the evidence of the complainant. That is normal practice in such cases since sexual offences are generally committed when there are no other witnesses.

[50]. Before you consider whether the complainant's evidence has established elements of the offence of rape, you must consider her evidence in its entirety and decide whether it is a truthful and also reliable narration of facts. The truthfulness or credibility of evidence could be reasonably assessed by applying certain considerations. I will explain them to you in relation the relevant evidence presented before us by the prosecution and accused.

[51]. However, before you commence the task of evaluating evidence for its credibility, I must give you a general observation on the approach you must adopt in doing so.

[52] It would be understandable if one or more of you came to this trial with assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be a rapist, or what a person who is being, or has been, raped will do or say. It is important that you should leave behind any such assumptions about the nature of the offence because experience tells the Courts that there is no stereotype for a rape, or a rapist, or a victim of rape. The offence can take place in almost any circumstances between all kinds of different people who react in a variety of ways. Please approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgement strictly on the evidence you have heard from the witnesses.

[53]. In assessing truthfulness of the complainant's evidence, I intend to offer you some considerations which I think helpful. I will first deal with the consideration of recent complaint. What it means is whether the complainant had complained about the alleged acts of rape to someone without a delay. Why this consideration is important can be explained in following manner. If the complainant had told of the alleged acts of rape to someone without a delay, then from that someone we can ask whether she said the same allegation consistently as the one she made in Court

[54] It has been said on behalf of the accused that the fact the complainant did not report what had happened to her to her husband as soon as possible makes it less likely that the complaint she eventually made was true.

[55] Whether that is so in this particular case is a matter for you to consider and resolve. However, it would be wrong to assume that every person who has been the victim of a sexual offence will report it as soon as possible. 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. It takes a while for self confidence to reassert itself and situation can become more complicated the person is a family member

[56]. There is, in other words, no classic or typical response. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is matter for you to determine whether, in the case of this particular complainant, the lateness of the complaint, such as it is assist you at all and, if so, what weight you attach to it.

[57] You need to consider what the complainant herself said about her experience and her reaction to it. The reason is with time it is possible to add details into an allegation and fabricate a false claim. However, this is neither an absolute nor a very accurate test. If you think there is some delay in making the complainant known, you could look for any evidence that would offer a reason for such a delay. Perhaps there could be an acceptable reason for delay in making the allegation is known.

[58] This consideration assumed significance in the matter before us. The complainant alleged that the accused have had forcible sexual intercourse with her on 18th October 2010 and again on 28th October 2010. She admitted that, although having had the opportunity, she did not tell this to her husband, to her mother in law, to her mother when she went to her house on 30th October 2010, or to Police when she sought assistance to retrieve her belongings. According to the complainant, her husband was the first person she told of the allegation and that too when he visited her in midday on the 31st October whilst at her mother's house.

[59] The allegation of rape re-surfaced when her mother in law tried to verify the details of her allegation from the policeman who accompanied the complainant. On her way back, she was advised to make a report. Thereafter only the complainant did tell her mother of the alleged acts of sexual aggression by the accused. Her own father was never told of the allegation, apparently due to his health condition. In was in 2ndNovember 2010, when finally she decided to complain to authorities about this incident.

[60] You will recall that the complainant offered reasons for not disclosing her ordeal to any person until she finally did to her husband. Even with her husband, she said she made an attempt after the 1st act but before the 2nd act. Initially, she said that she did not know how to bring up the topic. She also said she had no opportunity to tell him although he came home in every evening. Her relationship with her mother in law also did not offer her an opening. She did not tell her own mother until she was left at her place by the husband.

[61] The accused claimed this allegation is a result of a "figment of imagination" of the complainant. Was this delay in making the allegation known to others, due to time taken to fabricate this allegation by the complainant, so that her husband is compelled to shift their residence to her mother's house as she wanted to look after them, in the absence of her two brothers who migrated? Is this also a false complaint made by the complainant, similar to the one she made to police against her husband when they were returning from temple, as according to evidence of her husband? Is it probable for the complainant to make such a serious allegation against her father in law, to his only son with the risk of breaking her just three month old marriage, just to shift residence?

[62] Could it be due to the fact that she decided to tell mother only when it appeared to her that her marriage faced a serious threat by her mother in law's declaration that she did not wish to see the complainant on her property any longer, after her allegation was made under oath by the complainant and denied under oath by the accused in the prayer room of her matrimonial home. The complainant was then brought to her mother's place by her husband. He had left leaving the complainant behind.

[63]. Even to make a formal complaint to police, the complainant had considered her choices. Having understood it as a long process, eventually she decided to make one on 2nd November 2010 to police and only on 3rd November 2010 her statement was recorded at police station at Nakasi.

[64] These could be some of the concerns you would like to consider in addition to what you think as relevant. You are not bound to consider or to accept them unless you on your own agree with it. It is your responsibility to consider which version is more probable than the other, in your own commonsensical evaluation.

[65] The other aspect of this consideration is whether the allegation is consistently been made. There is no dispute that she did make and allegation of "rape" against the accused to her husband. In cross examination it was brought to her notice that in the medical examination form it is stated that she had said she was raped three times. In re-examination it was clarified that she had not seen what had been entered by the police officer in the first page of the examination form, but she had said she was rape twice by the accused to the medical officer who examined her. Considering these items of evidence you may come to your own conclusions whether she was consistent in her allegation.

[66] There is another aspect; I would want to address you on the issue of consistency. You will recall that during cross examination, repeatedly she was asked whether she had mentioned that particular item of evidence which she placed before you, to police in making her statement. She admitted some of these incidents she said in her evidence are not in her statement. Her explanation is this is the first time she filed a report and it was the duty of the police to record everything important. She said she said it all, she had read the statement and found they were not there. There is no evidence of the police officer who recorded her statement before us.

[67] You will also recall that the complainant has given evidence before us for three days and a great volume of evidence is placed before us. You might consider whether it is possible to record her response to all the questions raised by the accused in cross examination, when her statement is taken down by a police officer. If you think the explanation is acceptable and her evidence is consistent on material points, you may decide her evidence is credible on this aspect. If you do not accept her explanation you may decide against her evidence on this aspect and continue to consider her evidence for its truthfulness on other aspects.

[68] The third aspect to consider under consistency is whether the complainant's evidence is consistent with her own evidence during cross examination and also with her mother's evidence. Her mother said her daughter was massaged by the accused using coconut oil. The complainant did not mention of using any substance. The complainant did not mention that her mother accompanied her to retrieve her belongings. Her mother said she also went in. Whether these inconsistencies are significant ones which would render her truthfulness doubtful you will have to decide.

[69] In assessing the complainant's evidence as to its truthfulness, you could consider her version of events under the consideration of probability. In short, you will consider the version of the complainant and also of the accused and decide, in real life situation which version is more probable than the other. The complainant says "rape". The accused says it's only her imagination and it never did happen.

[70] The long evidence of the complainant could be segmented under several headings. The attempted suicide, massage by the accused in her mother's presence, the alleged rape on 18th October, the alleged rape on 28th October, leaving of matrimonial home, making the allegation under oath, retrieval of her articles, making the formal complaint, the "2nd chance" offered by her husband are among the important ones.

[71] Of these, her suicide attempt the prayer rooms episode and leaving matrimonial home by the complainant are not disputed. Whether these two undisputed events lends weight to the probability to the incidents denied by the accused are for you to decide.

[72] In assessing the complainant's truthfulness on her evidence on the issue of probability, I think I must caution you on one point. The failed attempted suicide by the complainant, less than two months from her marriage, might generate sympathy towards her in your mind. It is a natural emotion. But what you must guard against is not to have that sympathy to influence your decision in assessing her evidence for its truthfulness. However, it is legitimate to use this evidence, adduced by the accused, in assessing her evidence, by utilising it to have an idea of her personality and her character on an approach based on common-sense. That might become relevant in deciding the course of action adopted by the complainant in the situations she said she was in.

[73] During the course of her evidence it was suggested to the complainant that she could have kicked, struggled, shouted or otherwise objected to what the accused was doing. In his closing argument Counsel has submitted to you that the complainant's failure to protest demonstrates that the complainant was not telling the truth. This is an argument which you should consider with care. When you do, you should not assume that there is any classic or typical response to an unwelcome demand for sexual intercourse. The experience of the Courts is that people who are being subjected to non-consensual sexual activity may respond in a variety of different ways.

[74] The prosecution does not have to prove that the complainant communicated her lack of consent by resisting the accused physically or by shouting at him. It is not the experience of the Courts that victims of rape always have injuries to show for it. There is no classic reaction to a demand for unwanted sexual activity. Some people with physical self-confidence will protest loud and long, some will fight, and others will freeze as the realisation dawns that they are in a situation which they cannot control. Freezing is not the same thing as consent freely given. These are some of the concerns which you may utilise to assess her evidence under consideration of probability. She says she resisted the aggression of the accused in her own way, but the accused who easily overpowered her. I have already dealt with some evidence under recent complaint which could also be used under this assessment.

[75] Her evidence is that she has a degree in journalism. You saw how she gave evidence at the witness stand. You would have noted her proficiency in the language of her choice and her ability to express herself. She says after marriage, her daily routine dominated by washing, cooking, cleaning and attending to house chores. She complained that she did not get the support she expected from her husband. He spent free time partying and coming home the following day. Her husband admitted when she had attempted suicide by taking an overdose of sleeping pills, he had asked the accused to drop her at her mother's place since he was still recovering from his hangover. He says thereafter he has had a shower and his breakfast and went to see her in the afternoon.

[76]. The complainant's explanation for not disclosing of the act of rape to her husband was due to the fact that she could not find an appropriate time to tell of this incident. The admitted conduct of her husband, asking his father to take his wife who had just attempted suicide, to her mother and going to see her only in the evening supports or justifies the complainant's complaint of her husband is a consideration which you might have to take note. This is relevant, as in order to decide how she could have behaved in a given situation. Thereby you may be able to decide upon the truthfulness of her explanation.

[77] Why her marriage has failed and whether the conduct of her husband or the complainant is responsible for that are irrelevant considerations to the matter before us. I repeat here that the references to attempted suicide and to her unhappy marriage which are made here, are should not be made to evoke sympathy with the complainant, but only be used to examine her conduct during the relevant period in its proper setting.

[78] Even in the undisputed areas of evidence there are conflicting versions. There is no dispute that the complainant had returned to her mother's after leaving her matrimonial home when her husband was serving tea to his Grandfather. You will recall, her husband said in his evidence she stole 30 dollars from his wallet when she left. The complainant says her taxi fare was paid by her waiting mother, when she alerted her during journey, to keep cash for taxi. Which version is more probable is your choice.

[79]. The massaging episode and the two allegations of rape are vehemently denied by the accused. There are no specific references made by the accused in his evidence on the fact of making allegation under oath in the prayer room, retrieval of articles by the complainant and her subsequent making of a formal complaint.

[80] In relation to the initial episode of massaging by the accused, the complainant says that he did it in her mother's presence. Her mother supported this claim and added that the accused had sent her away to bring hot water he did not want to use. Whether the accused knew why the complainant was seriously ill we do not know. Instead of rushing to a medical facility and he had taken the complainant to her mother, and whilst there he kept on massaging the complainant with oil, is the claim of the prosecution. The accused says he had merely taken her to mother's place and had thereafter taken to a Doctor.

[81] Concerning the allegations of rape, the accused suggested that she could have shouted attracting attention of neighbours. She replied due to elevation it might have no effect and anyway she was prevented by the accused. In addition, she said the accused had accompanied "Tata" to one of their neighbours before the 2ndact of rape. One neighbour was called in by the accused who denied such incident. The complainant did not made any specific reference to any particular neighbour. You will recall similar suggestion was made in relation to bed room lock. Which version you accept is your responsibility.

[82] The motive relating to "2nd chance" as stated by her husband is disputed by the complainant. Having admitted that they lived away from her matrimonial home for nine months with her husband before they separated finally, she has a different reason for making this offer in the first place and ending their married life for the 2nd time. It is her husband's claim that when she admitted to him that she made a false allegation against his father, he decided to give her a "2nd chance" to revive their marriage.

[83] The complainant's interpretation of the "2nd chance" is that it is a failed attempt to pressurise her to withdraw the complaint against the accused. Her husband says he ended marriage when she made a false complaint against him. Why he decided to test her by offering a "2nd chance" when she already made a serious allegation against his father and kept its validity by maintaining her complaint with the authorities is also a valid consideration. Her husband admitted having stood surety for the accused. Obviously he did not believe in her when she made the allegation of rape against his father. If that is the case then why did he opt to offer her a "2nd chance" in these circumstances? It is your responsibility to consider these items of evidence on probability.

[84] The accused placed before you a transcript of a text message said to be sent by the complainant to her husband. She denied the contents of the message but admitted that she had used that number. Her husband says text messages could not be altered. There is no expert evidence placed before us to determine this technical issue. What weight you attached to the contents of the document marked Defence Exhibit No. 1 is up to you.

[85] Ladies and gentleman, I make 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 the truthfulness and reliability of the evidence of the complainant. You have to consider these conflicting versions of testimony and accept what seemed to you as a probable version.

[ It must be stressed here that beyond the point of assessment of the truthfulness of the complainant's version of events, the probability has no application at all. Beyond that point you have to consider whether the prosecution has proved all the elements of the offences beyond reasonable doubt. Please restrict the applicability of probability only to the evaluation of evidence for its truthfulness.

[86] If after the assessment of evidence of the complainant, if you find her evidence is not truthful and reliable, you must find the accused not guilty to the two charges of rape. If you find her evidence is truthful and reliable, then you must proceed to consider whether the elements of the two charges of rape have been separately established by the prosecution in respect of these each charges. I have already explained to you of these elements. That is, whether the accused had penetrated the vagina of the complainant with his penis without her consent on 18th October and 28th October 2010.

[87]. The evidence on the events of 18th October 2010 is that in the morning the accused had taken his wife to a medical clinic. The complainant remained at home attending to house chores. The accused returned home and offered help. He told the complainant that she needed a massage. Grabbed her hand and took her into his room. He had thereafter removed her undergarments, held her hands up by one hand while closing her moth with the other he had inserted his penis into her vagina. The accused in his evidence said that he left home at about 6.00 am with his wife to a medical clinic, proceeded to his office and had returned home only in the night at about 10.00 pm. In effect he says he was not there to commit rape.

[88] Evidence in relation to second count is on 28th October 2010, the accused left home for work in the morning. The complainant was at home with her mother in law and her father called "Tata". Around 9.00 a.m, her mother in law received a call from the accused requesting her to come to his work place to assist him. She left home about 11.30 am. About 12.30 p.m. the accused returned home, spoke to "Tata" and accompanied him a neighbour's house with grog. The accused came back alone, closed gate and main door, had a shower. The complainant by this time was in her room, and was on the computer.

[89]. The accused then entered her room, closed the door, and drew curtains. The complainant attempted to go out of the room, but was prevented by the accused. He had come to massage her. He had pushed her to the edge of the bed, kissed on her lips, placed her on bed, removed her undergarment and inserted his penis into her vagina. She was in pain and tears. Thereafter, the accused left the house. The accused in his evidence stated that he was at his office and returned home only at about 2.45 p.m. and that also to repair his van. By 3.30 pm the van was repaired by the mechanic Raj Dev and he went back to office at about 5.00. The complainant had prepared and served tea on them.

[90] If you have already concluded the complainant's evidence is truthful and reliable, then you may proceed to consider whether with this evidence the prosecution had proved the elements of the two counts of rape beyond reasonable doubt. If you entertain any reasonable doubt as to the proof of any element one charge, you must find the accused not guilty of that particular count. If you entertain a reasonable doubt about an element or elements in both these charges, then you must find him not guilty to both these counts.

[91]. In addition to these elements there is one other element that has to be established by the prosecution. That element is the identity of the accused. It is up to prosecution to prove that it was this accused and no other did commit these two specific acts of forcible vaginal penetration by penis.

[92] The accused had relied on a specific defence called alibi in his answer to the two rape counts. What he says is that he was not at his home at the time the complainant says he committed acts of rape, but was at his work place. It is up to the prosecution to disprove the alibi, and not for the accused to prove. He is under no legal requirement to prove anything. He could have even remained silent. If you find his evidence; that he was at his work place, is credible, then you must find him not guilty of the two counts, as the prosecution had failed to prove identity of the rapist.

[93] In that respect you have to consider the evidence of his neighbour Raj Dev in addition to that of the accused. He said on 28th October 2010, the accused did not come to his house. This evidence is in conflict with the complainant's evidence, if the neighbour she referred to in her evidence is in fact this witness 1.She did not mention any name of a neighbour. It is up to you to consider whether he is the neighbour that complainant referred to or not and also whether you accept his evidence which in conflict with the complainant on this point. His son is not a witness to his alibi.

[94] Even if you reject his and his witness's evidence that does not mean the prosecution case is automatically proved. The prosecution must establish his identity and presence by their own evidence. Then only, if you find element of identity is established by the prosecution beyond reasonable doubt, in addition to other elements of the offence of rape in the two counts you can find the accused guilty to these two counts of rape. If you entertain any reasonable doubt about any of the elements then you must find the accused not guilty to both charges.

[95] Any re directions the parties may request?

[96] Ladies 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.

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

ACHALA WENGAPPULI
JUDGE

At Suva
19th October 2015

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitors for the Accused : Mehboob Raza & Associates