State v Chandra [2015] FJHC 804; HAC032.2014 (12 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 032 OF 2014

STATE

vs

RAKESH CHANDRA

Counsel : Ms Madanavosa P. for the State

Mr Raman Singh. for the Accused

Dates of Trial : 5/10/15; 6/10/15; 7/10/15; 8/10/15 & 9/10/2015

Summing Up : 12/10/2015

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 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. In order to determine questions of facts, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible 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 by you.

[6] It is also important to note that, in forming your opinion on the charges 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 on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.

[7] I have already told you that you must reach your opinion on evidence, and only on evidence. I will tell you what evidence is and what is not.

[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution exhibits and any admissions made by the parties.

[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you and the admissions made in this Courtroom since this trial began. Ensure that no external influence plays any part in your deliberations.

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness's cross-examination is also not evidence of the fact suggested, unless the witness accepted the 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, 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 of these 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 due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. It takes a while for self confidence to reassert itself. There is, in other words, no classic or typical response by victims of Rape.

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

[19] 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.

[20] 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.

[21] 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 use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[22] 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 living in this society.

[23] 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.

[24] 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.

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

[26] 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.

[27] 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.

[28] 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.

[29] 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.

[30] 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 expected by law?

[31] 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 offences charged. I will explain these elements later.

[32] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences 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.

[33] 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.

[34] 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.

[35] There two charges preferred by DPP, against the Accused:

FIRST 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

Rakesh Chandra on the 1st day of January 2014 at Laucala Beach Estate, Suva, in the Central Division, had carnal knowledge of Kimberly Ragini Chris, without her consent.

SECOND COUNT

Statement of offence

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

Particulars of the Offence

Rakesh Chandra on the 1st day of January 2014 at Laucala Beach Estate, Suva, in the Central Division, penetrated the vagina of Kimberly Ragini Chris, with his fingers without her consent.

[36] I will now deal with the elements of the offence of Rape. To prove these two charges of rape the prosecution must prove beyond reasonable doubt that the Accused penetrated Kimberly Ragini Chris or the complainant's vagina, using his finger and his penis. The slightest penetration is sufficient to satisfy this element.

[37] Then we must consider the important issue of 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, 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.

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

[39] If you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his finger, and then with his penis then you may find him guilty of rape on both counts.

[40] 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.

[41] If you find that the prosecution failed to establish any of these elements then you must find the Accused not guilty. If you find the elements of identity, penetration and the time were proved but the complainant invited him to sexual intercourse and it is upon that invitation he penetrated her vagina with his finger, and by his penis then again you must find the Accused not guilty on two counts of Rape. If you find that the complainant did not consent and the Accused had penetrated her vagina by inserting his finger, and also by his penis then you must find him guilty of Rape on both counts.

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

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

[44] The following facts were agreed among the parties as proved without calling relevant witnesses:

(i) Kimberly Ragini Chris, the Complainant in this matter is 29 years old, resides at Lot 17 Votua Road, Samabula;

(ii) The Complainant was medically examined on 2nd January 2014;

(iii) That the Accused was interviewed under caution and formally charged on the 9th day of January 2014.

Case for the Prosecution

[45] Evidence of the complainant, Kimberly Ragini Chris

(i) It is her evidence that she went to the seawall at Nasese on 1st January 2014 following an emotional distress to "collect herself" and had met the Accused who introduced himself as a friend of her boyfriend. She was hurt over an issue with her boyfriend. She was without meals and the Accused invited her for dinner. She joins him in his car and looked for a restaurant. All were closed. Upon reaching city, they entered into a night club and Accused had consumed some alcohol. Then he went to another. She wanted to go home but was discouraged by the Accused. Finally they reached Princess Road in his car after refuelling at Flagstaff junction.

(ii) Instead of going home he had taken her to a cliff and said "if we can't live together we shall die together". He repeatedly called her Arthi and thereafter they proceeded on. When they passed a check point, the complainant has tried to attract attention of the Police but was prevented by the Accused who pulled her hair and hit her head on hard surface.

(iii) She could not make a phone call as the Accused had threatened to kill her and dump on road. She was thereafter taken to a dead end and having threatened her with death, the Accused had put her seat to a reclining position and had inserted his hand into her vagina. Thereafter, having removed her panties the Accused had penile sexual intercourse with her ignoring her begging him not to do so.

(iv) After that the Accused had wanted to take her to Nabua Police to make a report against her boyfriend and had thereafter had dropped her at her house with the promise he would come to pick her up on the following morning.

[46] Evidence of Dr. Suliasi Caginidaveta

(i) This medical witness had examined the complainant on 2nd January 2014 noted a slight abrasion on the posterior wall of her vagina and also noted semen in the vaginal canal. He also noted an old injury from a fall last week in addition to a bruise on her forehead. He could not tell timing of injury on the forehead. He opined that the abrasion on vaginal wall could be due to forceful sexual penetration and during cross examination accepted that it could also be due to rigorous consensual intercourse.

[47] Evidence of Kamach Murthi

(i) This witness merely says that she owned vehicle LT 2348 and on 1st January 2014 it was with the Accused.

[48] 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. He opted to offer evidence under oath.

Case for the Accused

[49] Evidence of the Accused Rakesh Chandra

(i) He says that on 1st January 2014, the complainant contacted him on his mobile and wanted him to pick her up. Having picked her up, they went to East Coast restaurant where she had chicken and chips and then proceeded to Temptation night club. They consumed alcohol and then moved on to Union club where he played billiard. Then she came with him for a ride and had parked his car upon her request at a dead end. Her boyfriend was calling but she did not want to answer his calls.

(ii) They were kissing and he was touching her body. He then asked whether to have sex, she was OK and they removed her panties and having played her vagina with his hand the Accused had vaginal intercourse with her consent. She wanted him not to tell this to her boyfriend. He had pressed answer button when boyfriend called so that the caller could hear what was going on. When the complainant learnt that she lodged a report of rape against the Accused.

Analysis

[50] The prosecution relied on the evidence of the complainant, another lay witness and the doctor who had examined the complainant on the following day and tendered his report marked as PE No. 1, to prove its case. The lay witness gave evidence claiming ownership of vehicle bearing No. LT 2348 on 1st January 2014 and that it was with the Accused on that day.

[51] Firstly, you must consider the evidence of the complainant to satisfy yourselves whether her evidence is truthful and, in addition, reliable.

[52] The Accused did not challenge the fact that there was sexual intercourse and also the fact that he touched the vagina of the complainant. He claims that she was a consenting adult and having understood her behaviour as consensual, he proceeded to have vaginal intercourse with her after he had engaged her in an act of foreplay using his hand on her vagina.

[53] The issue of identity and issue of penetration of vagina by penis are not challenged by the Accused. However, he maintains that he "played with" her vagina, before he proceeded to have vaginal intercourse with the complainant. He denied having put in his finger into her vagina. This important difference in the Accused's case in this regard must be considered separately when you consider the second count.

[54] In addition to the element of digital penetration in relation to the second count, the all-important issue for you to decide remains whether the complainant had consented for vaginal penetration by the Accused with his penis. She said in her evidence that she did not consent and it was done forcefully after threatening her with death. The Accused on the other hand says in his evidence, that she was a willing partner in sex and he had vaginal intercourse with her consent, having invited her to have sex with him.

[55] I must caution you over one important matter. When I present the Accused's version, alongside the version of the complainant, you might get an impression that the Accused must prove there was consent and that is why he has given this evidence. That is wrong. He is under no duty to disprove the case for the prosecution. He is not under a legal duty to offer evidence. He could have remained silent. When he does give evidence, then it must first be evaluated for its credibility and reliability. We are dealing only with this aspect of his evidence at this moment.

[56] The issue of consent is a vital element in both the charges. Therefore, you must consider carefully all the evidence before coming to your conclusion on the question whether there was consent or not. There is no claim by the Accused that she in uncertain terms, clearly issued a statement that she consents to have vaginal sex with the Accused. The words used by the Accused are she was "okay" with having sex. Her clear stance was that it was forced on her coupled with threats, at a point where she was physically weak and emotionally distressed.

[57] The only way for you to determine this vital element of the prosecution's case in respect of both charges, is by examining the conduct of each party before, during and after the act of sexual intercourse. I repeat. You must bear in mind that the Accused need not prove anything, and it was always on the prosecution to prove lack of consent. The Accused is not under any duty to prove that she consented. In examining his evidence if you find there is a reasonable doubt that she did consent, then you must find the Accused not guilty of both charges of penile and digital rape.

[58] That means you have to consider the evidence of the complainant and also of the Accused, in relation to each item of circumstances that are in dispute, by placing them side by side. Then you must decide which version of evidence is credible. You must also consider the circumstances that are not in dispute. In short you have to consider all evidence that is placed before you by the parties in deciding for its credibility and reliability.

[59] In order to assist you in discharging this heavy burden, I would make an effort to mention some of the important items of evidence in detail. I shall deal with both conflicting versions of evidence in my presentation and you have to decide which version is more credible and reliable. I have already mentioned some of the considerations that could be employed in determining credibility of evidence. You may apply them in addition to any other consideration that you might think relevant or useful in assessing credibility.

[60] How the complainant and the Accused came to know each other might be an appropriate starting point for your task. The complainant said that on the day before Christmas Eve, on her way to meet her boyfriend Rinesh Prasad, a taxi had stopped near her and its driver said they knew each other and gave his phone number. The Accused says he knew the complainant as Kimberly as she visited Central Police Station when the Accused worked there.

[61] In explaining how the Accused came to meet the complainant on the date of the alleged incident, she said in her re-examination that in the evening of 1st January 2014, she called his mobile number thinking he is a relation of hers she could not recognise. She says she met the Accused only at the sea wall when he came and tapped on her shoulder. The Accused says she had called up asking him to pick her up at the junction of Princess Road and Votua Road. The Accused denied having her picked up at the Nasese sea wall.

[62] The probability of these two versions could be considered in relation to other relevant circumstances. The complainant, stated that she was under severe emotional distress and had skipped meals and wanted to go to sea wall to "collect herself". She says, she left home at about 6.00 pm and having got into a bus and coming to town, she had walked up to seawall. There, the Accused met her. Having told her personal details of her boyfriend, he had built up trust. On the other hand, the Accused says that she had narrated to him how she was abused by her boyfriend on Christmas Eve and was longing for company and he obliged. The complainant in her cross examination admitted that she was in distress and was hurt due to the conduct of her boyfriend. In this regard, the Accused invited you to consider the injuries that are described in the medical report marked PE No. 1, especially the week old injury in supporting his version that there was physical abuse by her boyfriend. The complainant says she was hurt but not angry with her boyfriend Rinesh.

[63] Then the reason offered by the complainant to get into the car or taxi driven by the Accused could also be considered. She said as she was without her meals, and when the Accused insisted that she eat something and he wouldn't let go of his friend's wife without having dinner, she voluntarily got into his car. Keeping his word, the Accused searched Sports City area for a restaurant. All were closed. Then he proceeded towards the city. Having parked the car at Total Service Station, they entered into a place which she thought was a wine and dine restaurant. Only upon entry she realised it was a night club. There, the Accused consumed alcohol and then moved on to Union Club to meet up with some friends. She wanted to wait at the car, but was discouraged by the Accused as it is not safe be in the open at that time. She had to accompany him to Union Club where he played billiard. When she reminded him of her desire to go home he assured her that he would take her home.

[64] The Accused, however says a different story. He said that he had taken the complainant to a Chinese restaurant called East Coast and bought her chicken and chips which she consumed. When this fact was suggested she denied. The Accused says thereafter they had gone to Temptation One night club and had consumed alcohol. The complainant had only one glass of rum and coke. She was seated on a high stool when he was standing in front of her. Thereafter the couple shifted to Union club where he played three games of billiard.

[65] The complainant says that she wanted to get back home and reminded the Accused of her wish. However, the Accused says she was in arrears of rent to her landlord and wanted to delay going home in order to avoid the meeting of her rent collector. This position was not directly put to her during cross examination; although the Accused clarified that she had no income at that time.

[66] These conflicting versions indicate the circumstances leading to the commission of the alleged acts of rape by the Accused. In determining the consistency and probability of these versions, you should apply equal standards to both the complainant and the Accused. Then you can decide which version to accept and which version to reject.

[67] Next, I intend to deal with the evidence of arriving at the place where the sexual intercourse had taken place. The complainant says that the Accused had taken her along Princess Road and after passing Wailoku driven to a cliff where he said "if we can't live together we shall die together" having referred to her as "Arthi". He kept swearing at her boyfriend and had said weird things. She couldn't do anything as she felt weak. Then the Accused drove back towards the Police check point where she wanted to attract their attention by banging on the window. She attempted to do that when passing check point, but the Accused held her by her hair and had pushed down her head hitting a hard surface.

[68] The Accused denied having said the words attributed to him and also denied having held her by her hair and banging it. He says in addition, it was not possible when driving along that hill. According to him, there was no one at the check point and she could have opened the window using the side winder. During cross examination it was suggested to her that she could have called police emergency. She responded that her phone was a touch screen one and could not use it without seeing by the Accused who, by then had threatened her with death.

[69] According to the complainant after passing Vivaraz Plaza, he turned left and had reached a dead end and a roundabout. There were houses but the Accused parked the car in a bush. Her phone rang and when told that it was Rinesh, the Accused tried to grab it. She threatened him she would press the answer button so that caller could hear what was going on. He also threatened her not to answer and if she did, he would kill and dump her body on the road.

[70] The Accused claimed that she wanted him to park the car. They were talking to each other when the phone rang. It was Rinseh and the complainant did not want to answer, but placed the phone on dash board. He denied having attempted to grab her phone or issuing death threats to her.

[71] The complainant said in evidence that the Accused had pressed a button and her seat assumed reclining position. Then the Accused has inserted his finger into her vagina. She begged not to. She shouted and then the Accused having held her mouth tight threatened to punch her with a clenched fist. Thereafter, he pulled out her panties and then having pulled up her skirt, mounted her. He inserted his penis into her vagina. He continued for some time ignoring her pleas and had ejaculated in her.

[72] Thereafter, he dressed up, adjusted the seat upright and said "if you'd agreed we could have done it nicely" and told her to wear her undergarment properly as she would be dropped at her house. He wanted to have her statement recorded that she wanted to have sex with him. On his way he suggested to make a report at Nabua Police against Rinesh, but changed his mind saying he would have her as his mistress with the threat of accusing Rinesh for rape.

[73] During cross examination, she denied the suggestions that he did not remove her panties and he did not put his fingers into her vagina. She also denied that intercourse took place with her consent. She reaffirmed her evidence that the Accused had uttered words attributed to him.

[74] Placing her consensual behaviour to the forefront, the Accused said in his evidence that he had parked the car on her request and while talking they started to kiss. He was touching her body. When asked her to have sex she Okayed it. He was playing her vagina with his hand but did not put it in. Then both removed her panties, it was not torn and having put her skirt up, he had consensual vaginal intercourse. She only wanted him not to tell this to Rinesh. He denied having threatened her with death and explained why he would when she had agreed with him in every step.

[75] He also said that due to the restricted space in the front seat of small car, it was not possible to commit rape to a comparatively taller woman as the complainant since she said she is 5 feet 7 inches tall. He said the car was a Corolla AE 100 model manual car with the gear shaft located between the front two seats.

[76] In providing an explanation to why she had reported him, the Accused said it was due to the fact that while having sex with her, he had put her phone in answer mode when Rinesh called. The Accused did not explain why he did that. According to the Accused, since Rinesh got to know that she slept with him, the complaint of rape was made. The Accused also elicited from the Doctor that the request form for a medical examination in report PE No. 1 was in fact filled in by Rinesh, who had nothing to do with the investigation of this incident.

[77] It is the evidence of the complainant, that the Accused had dropped her at her home and promised to return in the following morning at 10.00. She said Rinesh came to see her and had already alerted Police. She made a report on following day and also was examined by the Doctor on the same day. We do not know what she told Rinesh as he was not called by the prosecution. She told her version of events to the Doctor. You have heard that from the doctor when he gave evidence before us. Whether she made an allegation without delay, generally known as recent complain, might be a factor you will consider in evaluating her evidence.

[78] The Accused said that he had dropped her off at her house and returned the following morning as promised to take her to Court house, but the house was closed down.

[79] During cross examination, the Accused elicited from the complainant that she is a divorcee and also a mother of four children. He also clarified that at present she had fallen off with Rinesh and settled with someone else. The fact that Rinesh is not called as a witness for prosecution too was clarified.

[80] You would recall that the complainant showed some hostility towards the Counsel of the Accused when she was cross examined by him. The Court had to explain the role of the Counsel for the Accused and she must answer his legally valid questions. In giving answers she posed questions back to the defence Counsel. You also observed demeanour of the Accused when he gave evidence. Although, not an accurate test for credibility, the behaviour of the complainant and the Accused in the witness box will give you a consideration in assessing their evidence for its truthfulness and reliability.

[81] It is for you to find which version of events is credible. If you find the evidence of the Accused is credible then you must find him not guilty of the two counts as the prosecution failed to establish their case beyond a reasonable doubt. If you find the Accused evidence is not credible, that does not mean the prosecution version is automatically acceptable. You have to find that the evidence of the prosecution is credible and also reliable. Then only you should proceed to consider whether by that credible and reliable evidence, the prosecution has proved the necessary elements of the two charges beyond reasonable doubt. If there is a reasonable doubt that exists in relation to an element or elements of the charges, you must find the Accused not guilty. If from the credible and reliable evidence of the prosecution, you find the complainant had not consented for sexual intercourse, then only you can find the Accused guilty of rape in the first count.

[82] In relation to the second count, if from the credible and reliable evidence you find that the Accused had penetrated the vagina of the complainant with his finger without her consent, then only you can find the Accused guilty to the second count.

[83] The fact that there are two charges does not necessarily mean that you must find the Accused guilty or not guilty to both charges. Depending on the evidence and proof of the elements you may find the Accused guilty of one count and find not guilty of the other.

[84] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements you must find the Accused guilty of Rape on both counts. If you think the prosecution has proved all elements except penetration, then you must find the Accused not guilty of second count of Rape. If you have any reasonable doubt about the prosecution case as a whole or an element of offence including penetration, then you must find the Accused not guilty.

[85] Any re directions the parties may request?

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

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

ACHALA WENGAPPULI
JUDGE

At Suva
12th October 2015

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Kohli & Singh Lawyers