State v Tikoigiladi - Summing Up [2015] FJHC 898; HAC042.2014LAB (18 November 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 042 OF 2014LAB

STATE

V

LASARUSA TIKOIGILADI

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 16 and 17 November, 2015
Summing Up : 18 November, 2015

Name of the complainant is permanently suppressed and will be referred to as S.N.M.

SUMMING UP

Madam and Gentleman Assessors,

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

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

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. 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 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 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 or defence 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 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 determination of 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. 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 matter before us, 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 compulsion by her sister 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. 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 there when you came in 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 offence 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 offence 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 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.

[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] Let us now look at the charge contained in the amended information.

[35] There is only one charge preferred by DPP, against the Accused:

FIRSTCOUNT
(Representative)
Statement of offence

Rape –Contrary to Section 207(1) and (2) (a) of the Crimes DecreeNo. 44 of 2009.

Particulars of the Offence

LasarusaTikoigiladion the 1st day of January 2014 to 31st day of January 2014 atTaveuni, in the Northern Division, penetrated the vagina of S.N.M. with penis without S.N.M.'s consent.

[36] I shall now deal with the elements of the offence of Rape. In order to prove a charge of rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated S.N.M. or the complainant's vagina, by 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 complainant in this case was over 13 years of age and therefore, she had the capacity to consent. More directions on the issue of consent will be made as we proceed.

[39] 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.

[40] Apart from the elements of the offence, 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.

[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 prosecution called the complainant, her elder sister and mother in support of their case.

Case for the Prosecution

[45] Evidence of the complainant, S.N.M.

(i) It is her evidence that she was living with her mother and not gone to a school. They lived in the house of the accused. The accused was the de facto partner of her mother at that time. She has a sister called Ana who was married at that time and lived in another house.

(ii) She described her relationship with the accused. She clearly said that she hates the accused. According to her the accused scolds her and got wild at her. He would also get angry with her. He would send her on errands and also would tell her to go to the shop. She did house chores such as cooking and washing.

(iii) Describing an incident, the complainant said that the accused had put his penis on her vagina and had sex with her. The accused had, by then already removed her undergarment, laid himself on top of her. She said this incident took place in a morning. According to her the accused had done this to her in the sitting room where she slept while her mother was in the kitchen. She said she did not tell this incident to anyone.

(iv) The complainant said she has given birth to a child about one year ago fathered by the accused.

[46] Evidence of Ana Agina

(i) This witness said that she is married and is the mother of three children. She grew up with the complainant and at a later point of time their mother lived with the accused. The complainant also lived with their mother.

(ii) Describing the complainant's personal qualities, this witness said that her sister is "weak" and "mentally slow" person. The complainant had attended school in the primary section up to Grade III and dropped out of school since 2014.The complainant had friends who are much younger to her in age. According to the witness, the complainant was beaten by their natural father, and that had resulted in the complainant's present state.

(iii) In relation to the allegation of rape, the witness said that in early 2014, her mother and the complainant came to reside with her as they were chased away by the accused from his house. In March 2014, when the complainant was showing signs of physical weakness, she had questioned the complainant whether she was pregnant. The complainant replied in the negative.

(iv) The witness had probed further and checked whether she had her periods and was told there was none for two months. She knew her sister was pregnant. When she asked who made her pregnant, the complainant said it was "Lasa", the accused.

[47] Evidence of Salote Senilagakali

(i) This witness is the mother of the complainant. According to her, the complainant is now 18 years of age. The complainant's natural father's regular physical abuse in her formative years had resulted in the complainant's present condition, described by this witness as "mentally slow".

(ii) She admitted living with the accused for some time whilst conceding that there is no legal marriage between them. She stated that at times the accused would "get wild" with her for giving food to her other married daughter.

[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 as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times. But he opted to offer evidence under oath.

Case for the Accused

[49] Evidence of the Accused Lasarusa Tikoigiladi

(i) He says that the complainant and her mother lived in his house since they moved in October 2013. At that time he had a de facto relationship with Salote. They were there until January 2014.

(ii) In describing the house they lived in, the accused stated that it is a house with a cemented floor and wooden walls. It was located in the Salialevu Estate, Taveuni and in addition to the complainant and her mother, one of his nephews called William too was living there. The house had only one bed room and a sitting area. It also had a kitchen adjacent to it. There is a door near to kitchen. It is possible to see the sitting area of the house from the kitchen since there were cracks in the wooden walls. The sitting area had no furniture. A rough sketch of the house is tendered as D.E. No. 1.

(iii) According to the accused, he and Salote slept in the bed room while the complainant and William slept on mattresses laid on the floor of the sitting area. They slept in different corners.

(iv) In relation to the allegation of rape, the accused said it is not true and the allegation is levelled against him by Ana and not the complainant. The reason is that he had firmly told Ana that her children should not be entertained or fed at his house. Ana's husband was employed at the time and with this Ana became "very angry" with him.

Analysis of all evidence

[50] The prosecution relied on the evidence of the complainant, and another two lay witnesses to prove its case.

[51] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of rape since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of rape and identity of the accused beyond reasonable doubt.

[52] At the beginning of this summing up, I described some considerations you might want to apply to the evidence in order to satisfy yourselves as to the truthfulness and reliability of the evidence. One such consideration is the consistency of the evidence.

[53] The amended information says that the alleged act of rape occurred in January 2014. The complainant in her evidence admitted that in her statement to police she said it was in 2013. You will also recall the complainant said in her evidence that she had not gone to school. Other witnesses said that she had in fact received primary education but dropped out from school in 2014. The witnesses were also inconsistent with the number of siblings they had. Ana in her evidence said the complainant is the only sister but later corrected herself indicating there are others. Their mother confirmed that another of her children is in Nandi.

[54] It is for you to decide whether these inconsistencies affects the credibility of the basic version of the prosecution and thus makes its evidence false and unreliable.

[55] I also mentioned you that the manner of giving evidence is also an applicable consideration in evaluating witnesses for their truthfulness and reliability. You would have observed how the complainant has given evidence. She was slow to answer questions put to her and used only few words in describing the events. She spoke in almost inaudible voice and displayed an appearance of a timid person. None of us are qualified to make an accurate assessment of her personality based on the science of human psychiatry, but you may use what you observed with your common-sense to decide whether she is a truthful and reliable witness or not upon your observations on her manner of giving evidence. You have also observed how her mother and sister gave evidence. These factors are mentioned because they are relevant to consider the evidence of the complainant in the proper light. It was not intended to generate sympathy or feeling of pity towards the complainant and thereby cloud your opinion in favour of the complainant.

[56] Another important consideration in the assessment of truthfulness and reliability is the nature of the relationship the complainant and her sister had with the accused. The complainant said in evidence that she "hates" the accused. Her sister also had a reason to be hostile towards the accused as when he ordered their mother not to give food items away to her children. You have to consider whether the admitted hatred entertained by the complainant resulted in a fabricated allegation of rape on the accused or the complainant hated the accused because what he had allegedly done to her.

[57] The accused's suggested to the sister of the complainant that it is upon her compulsion the complainant she implicated the accused when she was discovered pregnant. It is for you to decide whether Ana falsely implicated the accused for the pregnancy of her sister due to her own animosity towards the accused or not.

[58] Another relevant consideration in this regard would be the recent complaint evidence. It is clear that the complainant did not tell anyone of the alleged act of rape to anyone until her sister probed the issue few months later. Ana says the complainant implicated the name of the accused as her child's father. You must decide whether the delay and the reluctance of the complainant to make the accusation of rape as soon as it happened was due to the time taken to create a false story against the accused or not. The fact that she hates the accused and the other attendant circumstances coupled with her personality traits had a role to play in the delay and reluctance to make the accusation known is a consideration for you to decide. You must not take Ana's evidence to the effect that the complainant, upon questioning, named the accused as her child's father as an item of evidence which independently supportive of the allegation. It merely indicates the consistency of the allegation.

[59] In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution is truthful and reliable. That is the relative probability of the versions of events as presented by the parties.

[60] The evidence is that the complainant gave birth to her child on 11th October 2014. The accused did not challenge this fact. Judging by the natural course of human pregnancy, the prosecution wants you to accept that this child must have conceived in January 2014. In order to conceive, there must be sexual intercourse of the complainant with a male person. The prosecution says that male person is the accused and he had sexual intercourse with the complainant without her consent.

[61] The accused on the other hand placed evidence before you that there was another male also lived in his house during this time. This male, identified as William is said to be of 19 /20 years old youth. It was also placed before you that though they did not sleep together, they slept in different corners of the same sitting area of the house. It was also in evidence that the accused slept in the bed room with the complainant's mother. In effect, there was opportunity for William to indulge in sexual relations with the complainant and to father her child.

[62] In this regard you may consider the evidence of the complainant. During cross examination she without hesitation admitted that William too was there and they slept on the floor of the sitting room. She also admitted that she mentioned three names as responsible for the pregnancy. However, in Court she clearly to pointed out the accused as the father of her child. She said that he had placed his penis on her vagina. She felt pain. She also said she hated him. There was no clarification sought from the witness as to why she hated him. Ana says the complainant said she had sex only with the accused. It was suggested to her during Ana's cross examination that she was instrumental in the implication of the accused, when it was revealed her sister is pregnant. She denied the suggestion and said that it was due to her probing that the pregnancy of the complainant was revealed. When she was asked as to the identity of the person who had sex with her sister, the complainant said it was the accused. You have to consider the individual conduct of these witnesses and thereby assess which version is more probable.

[63] Similarly you must employ the same considerations on the evidence of the accused. You must consider his evidence for its consistency and probability of his version. If you find the evidence of the accused is truthful and reliable, then you must find the accused not guilty of rape since the prosecution has failed to prove its case. If you reject the evidence of the accused as not truthful and also unreliable, that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

[64] With this caution in mind, we could proceed to consider the evidence of the accused for its truthfulness and reliability. The accused said that it is not the complainant who had alleged that he had raped her, but her sister Ana. He attributed a reason why Ana wanted to implicate him falsely for the pregnancy of the complainant. The accused had prevented Salote from entertaining children of Ana at his house and feeding them using what he provided for the complainant and her mother. During cross examination, it was elicited from the accused that it was the complainant who pointed out him as the person who raped her. It was also put to the accused that he had not heard that Ana getting her sister to implicate him and it was only his assumption.
[65] In addition, it was also elicited from the accused that he had control of the affairs of his household and during January 2014, the complainant and her mother were residing with him. The accused denied he had chased the two women away as alleged by the prosecution.

[66] 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 that it was William and not him who had sex with the complainant 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, as already directed, it must first be evaluated for its credibility and reliability. We are dealing only with this aspect of his evidence at this moment.

[67] I must explain to you as to the reason for the use of screen when the complainant gave evidence. It was a normal precautionary procedure adopted in Court in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. You must not infer that such a protection to the witness was warranted due to the accused's behaviour and should not draw any adverse inference against him on that account.

[68] So far I have directed you on the assessment of credibility of the witnesses for the prosecution and of the accused. If you reject the evidence and preferred to accept the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offence beyond reasonable doubt.

[69] As already noted the complainant had given birth and that proves the fact that she has had sexual intercourse with a male at some point of time. If you accept it as sufficient proof of penile penetration of the complainant's vagina, then in addition, the prosecution must prove that it was the accused who had penile penetration and that he had no consent of the complainant or was reckless about it.

[70] I shall direct you on the issue of consent before proceeding to the issue of identity of the accused. It is our law that consent of the woman must freely and voluntarily be given. She must have the necessary mental capacity to give consent. It is important to note that mere submission to sexual act without physical resistance by the woman cannot be considered as consent. Even if there is consent, if that consent is obtained by force, threat, fear of bodily harm, or exercise of authority then also it cannot be considered as consent acceptable to law. The prosecution wants you to believe that it was due to the authority wielded by the accused over the complainant, she had silently endured the alleged sexual aggression by the accused. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented for the sexual intercourse.

[71] In relation to the issue of consent, there is another aspect you must consider. As I have already directed you earlier on my summing up, the prosecution must prove that there was no consent by the complainant or the accused was reckless about it. What that means is whether the accused realised that there was a risk that she was not consenting but carried on with his act anyway when in the circumstances known to him it was unreasonable to do so.

[72] If you are not sure that he would have realised she was not consenting then you must proceed to consider whether the accused might have been reckless as to whether she consented. You must consider whether he genuinely believed she was consenting. If you think so, then you must find the accused not guilty of rape. If you do not accept that he thought she was consenting when you consider all the circumstances, then you could convict him of rape if you find the other elements also have been proved.

[73] I shall now direct you on a very important issue of the case. You will recall that I have already directed you on this topic by referring to the identity of the accused. It is a vital component of the prosecution case and if it had failed to prove the fact that it was this accused and no other had penile penetration of the complainant's vagina without her consent, then you must find the accused not guilty of rape.

[74] The prosecution relies on the complainant's evidence to prove that it was the accused and no other who penetrated her vagina. The accused elicited evidence through the complainant herself that his nephew William, had the same opportunity as he had, to have sexual intercourse with the complainant. He also elicited evidence from the complainant herself that she mentioned three others including William as the persons who have had sexual intercourse with her.

[75] In dealing with this evidence, you have to understand one important principle. As a matter of law, I must direct you that what the complainant said on oath is only considered as evidence. What the complainant said in her statement to police, that it out of Court and therefore is not evidence. However, previous statements are often used to challenge a particular witness's credibility and reliability because a previous inconsistent statement may indicate that a witness said a different story then, and as a result her evidence might not be reliable. It is for you to decide the extent and importance of this inconsistency of making the accusation as to the person responsible for the alleged act of rape. If you find the complainant has been inconsistent on the question of identity of the person who allegedly had forceful sexual intercourse, you should treat both these conflicting accounts i.e. her previous claim made to police and the accusation made in this Court against the accused under oath, with considerable care. If you are sure that the evidence of the complainant that it was this accused who had sexual intercourse with her is true in whole or in part, then only you are entitled to consider that evidence, in forming your opinion on the guilt or innocence of the accused. In relation to this you could consider why she made reference to three different men to police. Ana's evidence is that when she questioned the complainant she named the accused as the father of her child. The complainant did not say that she said that to her sister. If she implicated the accused when questioned by her sister, then why is that she, at the time of making her statement to police, implicated three others including William. Is this an indication of the uncertainty of the identity of the person responsible for the pregnancy? Was she confused or mistaken about the issue of identity when questioned by police officers at the station, which is an unfamiliar environment as far as she is concerned? Was she motivated by her hate towards the accused, by naming him as the person? Having carefully considered these and many other possibilities that you might think relevant on this issue, you have to decide this question of fact in the context of the legal principles I have already explained to you.

[76] The evidence of the complainant before us is that the alleged incident took place in a morning while her mother was in the kitchen. The accused is a known person. She had seen him in close proximity. Whether there was sufficient light to properly identify the person and whether the complainant had clear mental comprehension to make the identity and whether there is a mistake in identifying the person are questions of fact you have to consider and decide in the light of available evidence.

[77] On the question of identity of the accused, the accused invited you to consider the failure to prove the paternity of the child of the complainant, by way of a report on DNA analysis. The prosecution sought to explain that on the basis since the complainant knew who the father is there was no need for such a test and expressed the limitation posed as it is done only at a considerable cost. What weight you attach to the absence of a DNA test to prove the allegation will have to be considered by you in the light of the legal provision that says no corroboration is needed to prove this type of an allegation.

[78] I think I must mention another relevant legal requirement concerning the charge against the accused. The charge is based on act or acts done during a specified time period and is described generally as a representative count in law. The prosecution is expected to prove just one incident which falls within this period. They need not prove a continuous or a series of incidents in support of the representative count.

[79] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements beyond reasonable doubt then you must find the accused guilty of rape. If you have any reasonable doubt about the prosecution case as a whole or an element of the offence, including identity of the accused, then you must find the accused not guilty.

[80] Any re directions the parties may request?

[81] 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 single count of rape against the accused. When you have reached your separate opinions you will come back to Court, and you will be asked to state your opinion.

[82] I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Labasa
18 November, 2015

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa