State v Singh - Summing Up [2015] FJHC 932; HAC27.2013 (25 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 27 OF 2013

STATE

V

AMARJEET SINGH

Counsel : Mr. S.Nath for the State
Mr. J.Lagi for the Accused

Dates of Trial : 19th, 20th, 23rd, 24th of November, 2015
Date of Summing Up : 25th of November, 2015
(Names of the complainants are suppressed. They are referred to as YK and SK)

SUMMING UP

Madam Assessors and Gentleman Assessor:
1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trail, to sum up the case to you on law and evidence. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my Summing Up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

4. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

5. The State Counsel and the counsel for the defence made submissions to you about the facts of this case. That is their duty as counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.

7. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the prosecution and never shifts.

8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

9. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this courtroom.

10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

11. You were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

12. In accessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole.

13. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable. Please bear in mind that many witnesses are not familiar with Court environment and are not motivated to give evidence. You have to consider that aspect also.

14. This case involved an alleged incident of Indecent Assault and Rape. An incident of rape would certainly shock the conscience and feelings of our hearts. You must not, however, be swayed away by emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law.

15. 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.

16. 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.

17. A most important part of your task is to judge whether the child witnesses have told the truth, and have given a reliable account of the events they were describing. Some of you will have children and grandchildren who are of a similar age to the complainants who have given evidence. If so, I think you will recognise the sense of the advice I am going to offer you about your judgment of their evidence, but remember that I am speaking of an approach to the evidence and evaluation of the evidence is your responsibility. You do not have to accept my advice and if you do not agree with it you should reject it.

18. Children do not have the same life experience as adults. They do not have the same standards of logic and consistency, and their understanding may be severely limited for a number of reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. You have to be mindful about that.

19. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realise that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it, and about using words they think are naughty, and therefore find it difficult to speak. Bear in mind that they are being asked questions by an adult they see as being in a position of authority– the policeman in the interview, or a Counsel in Court. That can make it difficult for them. Remember how you normally talk to children of this age. How difficult must it be if the form in which a question put is leading or complicated or challenging or conceptual (such as "How did you feel?" or "Why didn't you?"), and you should bear those difficulties in mind when you consider the answers given.

20. All decisions about the evidence are for you to make. I only advise caution against judging children by the same standards as you would an adult.

21. In this case the Prosecution and the defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth.

22. The agreed facts of this case are:

1. YK is female. Her date of birth is 10 July 2006. Her place of birth is the Nadi Maternity Unit of the Nadi Hospital. Her parents are Sailesh Kant and Hem Lata.

2. SK is female. Her date of birth is 8 April 2004. Her place of birth is the Nadi Maternity Unit of the Nadi Hospital. Her parents are Sailesh Kant and Hem Lata.

3. SK and YK are related. They are sisters.

4. Sailesh Kant and Hem Lata have a third child, a daughter and sister to SK and YK.

5. Sailesh Kant and Hem Lata are married. They married on 7 July 1998. Sailesh Kant is a farmer by profession. Hem Lata is a stay at home mum.

6. In January 2013, Amarjeet Singh resided at Sipia, Namulomulo, Nadi as a guest at the home of Sailesh Kant and Hem Lata.

7. Amarjeet Singh was born on 14 September 1985.

8. Amarjeet Singh and SK and YK are related. They are first cousins.

9. On 31 January 2013, Hem Lata lodged a report against Amarjeet Singh at the Nadi Police Station.

10. SK was medically examined at the Nadi Hospital on 31 January 2013.

11. YK was medically examined at the Nadi Hospital on 31 January 2013.

23. According to the Information given to you the accused is charged with two counts of Attempt to Commit Rape, two counts of Rape and one count of Indecent Assault. There are two complainants in this case, SK and YK.

24. I will now deal with the elements of the offences.

25. Accused is charged with offence Attempt to Commit Rape on the first and third counts.

26. In order to prove Attempted Rape the prosecution has to prove:

(a). the accused;

(b). attempted;

(c). to have sexual intercourse with the complainant;

(d). without her consent.

27. The accused is charged with Rape on Second and Forth Counts. The offence of Rape is defined under section 207 of the Crimes Decree.

Section 207 (2) states as follows:

A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extend with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extend with the person's penis without the other person's consent.

28. Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. So, that is rape under section 207 (2) (a) of the Crimes Decree.

29. Consent as defined by section 206 of the Crimes Decree, means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent. A person under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The complainants in this case were6 and 7 years of age respectively at the time of the alleged incident, and therefore, they did not have the capacity, under the law, to consent. So, the prosecution does not have to prove the absence of consent on the part of the complainants because law says that they, in any event, cannot consent.

30. This position with regard to consent is applicable to all the charges including charge of Indecent Assault which I will be describing in a moment. So, the elements of the offence of Rape as charged in count 2 and 4 of the Information are that the accused penetrated the vagina of the complainant, SK, to some extent with his penis on two occasions described in the Information. Insertion of penis fully into vagina is not necessary slightest penetration is sufficient.

31. I will now deal with the elements of the offence of Indecent Assault. The offence of Indecent Assault is defined under Section 212 of the Crimes Decree:

A person commits Indecent Assault if:

(a). Unlawfully and indecently,

(b). Assaults another person without her consent.

32. For the assault tobe indecent it must be accompanied by a circumstance of indecency. Conduct is indecent when it is as such that ordinary people would so describe it, in light of prevailing standards of morality and, more specifically, in light of whether the victim has consented to the conduct in question. In this case both complainants are under the age of 13 years. Therefore their consent is irrelevant.

33. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-person that connects him to the offence that he alleged to have committed.

34. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the complainants were witnesses who offered direct evidence, if you believe them as to what they saw, heard and felt.

35. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, medical report is an example if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the complainants.

36. Expert evidence is also important to be borne in mind. Usually, witnesses are not allowed to express opinions. They are allowed to give evidence on what they have seen, heard or felt by physical senses only. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid court and you to decide the issues/s before Court on the basis of their learning, skill and experience. Doctor in this case gave evidence as an expert witness.

37. In evaluating evidence, you should see whether the story related in evidence is probable or improbable; whether witness is consistent in his or her own evidence and with his or her previous statements or with other witnesses who gave evidence. It does not matter whether that evidence was called for the prosecution or for the defence. You must apply the same standards in applying them. In this case, YK and SK gave evidence about certain incidents as eye witnesses. You compare the evidence of two witnesses and see whether their evidence is consistent or inconsistent.

38. You must bear in mind that the evidence comes from human beings. They cannot have photographic or video graphic memory. The witness can be subjected to the same inherent weaknesses that you and I suffer insofar as our memory is concerned.

39. Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.

40. Now I am directing you on admissibility of recent complaint evidence in a case involving offences of sexual nature. That is whether there is a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that is alleged to have occurred. If there is delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication.

41. Recent complaint evidence is admissible so far as it is relevant to test the consistency and credibility of the complainant's story. Content of the complaint is not evidence. In other words, the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the Complainant.

42. The complaint need not disclose all of the ingredients of the offence but it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the sexual conduct, provided it is capable of supporting the credibility of the complainant's evidence.

43. In this case, YK made a complaint to her sister about an incident took place near the well. Both complainants complained to her mother Hem Lata about certain incidents. You have to consider those complaints in light of the directions I have given.

44. Bear in mind, 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 Complainants 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.

45. Please remember, there is no rule in Fiji for you to look for corroboration of Complainant's story to bring home an opinion of guilt in a case of sexual nature. The case can stand or fall on the testimony of complainants, depending on how you are going to look at their evidence.

46. You may, however, consider whether there are items of evidence to support the complainant's evidence if you think that it is safe to look for such supporting evidence to test the consistency and credibility of the complainant's story.

47. I will now remind you of the Prosecution and Defence cases. In doing this it would not be practical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

48. I will now deal with the summary of evidence in this case.

Case for the Prosecution

49. Prosecution called Hem Lata as the first witness. She is the mother of the complainants. She said that she has five children including complainants, SK and YK. She had gone to town on 23rd January leaving the complainants behind with her husband's elder brother's son Chintu in Mulomulo house.

50. Small daughter YK had reported some incidents that took place at her place while she is away. She described to us in court what she heard. Chintu had asked YK to bring a condom from the wardrobe. She had gone to the mother's room, brought a condom and given it to Chintu. Chintu had taken the two girls in the room. While Chintu was lying down on the bed he took off his trousers and underwear, wore the condom on his punnu, meaning penis and asked the two girls to take off their panties and sit on punnu, taking turns.

51. Hem Lata reported the matter to her husband on the second day and then to the police.

52. In cross examination, Lata said that she heard the story from the girls on 23rdof January, 2013 and related the matter to husband on the 30th and reported to police on 31st of January 2013. She said that she took seven days to relate the matter to her husband because she thought it is a lie and she was not assured. Husband was asking her not to report the matter to police. She did not inquire fromChintu about this before reporting to police.

53. She said that YK actually used the word condom even though she was only 6years old then. She denied having had an affair with or having any knowledge of a person by the name of Mohammed Ameem. She also denied that her husband had confronted her when Chintu informed him about the affair she had with Ameem. She denied making up a story after she was caught having an affair with Ameem.

54. Next witness was complainant, SK. She is 11 years old when giving evidence. In 2013, she was a class 4 student staying in Mulomulo with her parents, siblings and her cousin Chintu.

55. On 18th January, 2013 her parents had gone somewhere leaving her and her younger sister YK at home with Chintu. Chintu called her and her sister YK in his room. Then he asked YK to bring a condom form mother's room. Then he asked them to take off their clothes. She took off her clothes. Chintu also took off his trousers and underwear. He wore the condom on punnuand asked YK to do the sit-ups on his punnu, meaning penis. Chentu was lying down on the bed when YK was doing the sit-ups.

56. After YK had finished, Chintu called her and asked her to do the same. He was holding his punnu with one hand while she was doing sit-ups on his punnu. His punnu went inside her pupu. Pupu is the part where they urinate from. She started having pain. Blood was coming out. YK was standing beside.

57. As her mother was coming home he asked them to hurry up and wear the clothes. He asked her not to tell mom, if she does he will go to jail and no one will be there to cuddle her.

58. On the following day, 19th January 2013, Chintu went to grandma's room and asked YK to bring coconut oil and a condom. YK brought all those and gave them to Chintu. Then he asked her to take off her clothes. He gave her the oil and asked her to put it on her pupu. YK was standing beside. Then he wore the condom and applied oil on pupu. He lied down and asked her to do the sit-ups. She did the sit- ups on his punnu. She had a strange feeling. When papa was coming he asked her to wear the cloths.

59. On the 29th January, 2013, Chintu took YK to the well. YK told her what Chintu did to her near the well. Chintu had opened up his zip, took out his punnu and rubbed it on her legs. YK had felt bad. She told her mom what Chintu did to them. Mum went to police and reported the matter. Police officers took them to the hospital where medical check-up was done.

60. Under cross examination, SK said that she told mother about this on 18th and in turn mum told her father. She was not in pain. On 19th she had a headache. She did not show blood to mom. She had already washed. Blood was not on her clothes. When asked about sit- ups, she demonstrated to us how she did sit ups.

61. SK said that she knew the person by the name of Mohammed Ameem as he used to come to her house. Her mum also knew him.

62. Next witness for the Prosecution was complainant, YK. She was year one student in 2013. She said that Chintu was the person who did all bad things to her. She recognised the accused sitting in the doc.

63. Chintu went to his room and called her and sister in. He asked her to bring a condom. She brought a condom from mother's room. He wore the condom on his punnu. He took off his clothes and asked her to do the sit-ups. He was lying on the bed.She started having pain when she was doing sit ups on his punnu. She said she won't do it. Then he asked her sister SK to do the sit-ups. She saw SK doing sit ups on Chintu's punnu. Then he showed her how his punnu becomes small. Then mum was coming. He asked them to hurry up and wear the clothes.

64. On 19th January, Chintu called her and her sister SK in his room. He asked her to bring oil. She brought oil and gave it to Chintu. He then took off their cloths and applied oil on their pupus. He asked to do the sit ups on his punnu. She refused as it is painful. Then he asked her sister SK to do the sit-ups. Father was coming. He asked them to go and told not to tell anything happened. She did not tell anybody until the incident near the well happened.

65. On 29th January, 2013, Chintu took her to the well. He opened up his dress and undressed her. Then he started rubbing his punnu on her legs. She went home and told her sister, SK, what happened to her near the well. SK in turn told mother. Mother reported the matter to Police. She told Police officers what happened and showed the room and the well when police visited home. She was feeling bad and strange.

66. Under cross examination, she said she and her sister were in pain and she saw blood on her. They were able to walk after Chintu did these things.

67. She said she knew about condoms. They are round and long. Mother had told about condoms when she was given them at the hospital. She told her mother about these incidents little by little because Chintu had told her not to tell and otherwise he would go to jail and no one will be there to cuddle them.

68. Last witness, Ladies and Gentleman, for the Prosecution was Dr. Anareta. She is MBBS qualified with eight years of experience. She was attached to Nadi hospital in 2013 as a general practitioner.

69. Doctor gave evidence perusing the medical report she had prepared after examining the complainants on 31st January, 2013.

70. First she talked about the medical examination done on SK. SK appeared calm at the time of examination. Upon vaginal and rectal examination, doctor had found that SK's hymen was not intact and torn and the vaginal opening was loose and soft.

71. Vaginal opening was so soft that she could insert her one finger loosely into the vagina which is abnormal for a six year old girl.

72. Doctor was of the opinion that any kind of penetration whether penile or fingering could cause such a condition. Doctor further said she did not observe any recent injury, laceration, hematoma or abrasion. She said that it is possible that wounds being healed in a week if they are looked after well. She tendered the medical report of SK marked as PE1.

73. Referring to the second medical report she prepared after examination of YK, the doctor said that the patient was calm and her hymen was intact. Her vaginal ores was normal and no signs of injuries were observed. She had concluded that there was no visible sign of penetration.

74. Under cross examination, doctor said that a 7 year old girl would find it very difficult to walk after first penile penetration of vagina which is bound to be painful. There would be lot of bleeding also.

75. Doctor further said that history was related to her by the person who accompanied the two girls.

76. In re-examination Doctor said the virginal ores is open and loose means that the penetration has been going on for some time.

77. When the Prosecution had closed its case, you heard me explain to the Accused his rights in defence. He could remain silent and say that the Prosecution had not proved the case beyond reasonable doubt; he could give evidence and be subjected to cross examination and call witnesses on his behalf. I explained his rights because I am required by law to do so. Not because he had to prove anything in this case.

78. The accused elected to give evidence. He said that he was staying at his small father Sailesh Kant's housetill 2013, looking after his bullock. Sailesh is father of the complainants. Both complaints are his cousins.

79. He denied all the allegations levelled against him. He said that both complainants lied to Court on their mother Hem Lata's instructions. Hem Lata was jealous of him and was trying to chase him away from the house. She was not good with him as he refused to give her money although she always wanted money from him.

80. Hem Lata was having an affair with a person by the name of Mohammed Ameem. Ameem was a friend of Sailesh and was staying in the bush belonging to him. Ameem was on a bench warrant absconding arrest. Hem Lata cooked food for Ameem and took to the bush to feed Ammem.

81. Accused admitted that he was present at complainant's house with all other family members of the complainant on the 18th, 19th and 29th of January 2013.

82. Under cross examination, Accused said that Ameem was staying both in the complainant's house and in the bush. He said that he had informed his uncle Sailesh about the affair Lata was having with Ameem. But Uncle did not do anything to Lata. The whole village knew about the affair.

83. That is the case for the defence.

Analysis

84. The Prosecution called four witnesses and based its case substantially on the evidence of the complainants. If you are satisfied that the evidence complainants gave in Court is reliable and trustworthy, you can safely act upon their evidence in coming to your conclusion.

85. Considering all the evidence led in the trial, if you are satisfied that complainants had told truth and their evidence is believable, then you have to consider whether the Prosecution had discharged its burden and proved each element of the charge beyond reasonable doubt.

86. As I told you, you have to be satisfied beyond reasonable doubt that it is the accused and no one else that did each act alleged in the information.

87. Hem Lata and SK were referring to a person by the name of Chintu. There is no dispute that the accused was the cousin of complainants and he was staying with them in Sipia for a long time, particularly during the relevant time of the alleged incidents referred to in the information. Accused admitted in his evidence that he was staying at home with the complainants and their other family members although he denied the alleged acts.

88. If you look at the agreed facts, it is agreed that on 31stJanuary, 2013, Hem Lata lodged a report against the accused at the Nadi Police Station. YK identified the accused in the doc as the person she was referring to as Chintu. You consider if the identity of the accused is established.

89. Evaluation of credibility of witnesses is entirely a matter for you as judges of fact. In order to assist you, I will pick some salient items of evidence which you will analyse to test the credibility of a witness. However, you are free to use your common sense and come to your own finding.

90. You have to consider how probable or improbable is the evidence given by the witnesses. That is whether what the witness was talking about in his or her evidence is probable or improbable in the circumstances of the case.

91. Both complainants said that after the incidents they could walk properly. SK had only a slight headache. Defence Counsel argued that if SK was really raped; her situation would have been different. It is up to you to form your own opinion on that.

92. Hem Lata had not examined the complainants upon receiving the complaint. According to SK, the first incident took place on the 18thof January, 2013, the second incident on the 19th of January, 2013. Hem Lata said she received the first complaint after four days, on the 23rdof January, 2013. You consider if Hem Lata's conduct of not examining her daughters is probable in the circumstances of the case.

93. You consider whether the word condom can be familiar to a girl of 6 or 7 year old. YK said she knew about condoms. Her mother had told her about condoms when she was given them at the hospital. Mother keeps condoms in the same wardrobe where they keep their cloths. You consider whether complainant's knowledge about condomsis probable in the circumstances of the case.

94. Complainant's had not complained to her mother about the incidents at the first available opportunity. Defence Counsel argues that it is highly improbable that they waited for such a long time to complain. Chintu had asked them not to tell mom, and had cautioned that if they do he will go to jail and no one will be there to cuddle them.

95. Hem Lata reported the matter to Police on 31stof January, 2013. She said that she took seven days to relate the matter to her husband because she thought it is a lie and she was not assured. Chintu is her husband's brother's son. Husband was insisting her not to report the matter to police. YK told Hem Lata about these incidents little by little because Chintu had told her not to tell. In this context, you analyse the evidence and see whether Hem Lata has given a probable explanation for her delay in reporting to Police.

96. You will find doctor's evidence helpful to resolve the issue of rape. She had examined the complainants after two weeks. She had found YK's hymen intact and SK's hymen not intact. She had observed abnormal conditions in SK's vaginal area. She expressed her opinion after the examination of both complainants.

97. The doctor in this case, came before Court as an expert witness. Expert evidence is not accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion, if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence led in the trial.

98. The Complainants were six and seven years old at the time of the alleged incidents. You consider whether the complainants had any reason or motive to fabricate a story against the accused to put him in trouble. If there is no such motive or reason, then the credibility of his evidence should go up.

99. Version for the Defence was that Hem Lata was not on good terms with the Accused and complainants lied to Police and to Court on Hem Lata's instructions. In such a scenario you consider whether complainants had any reason to fabricate this story against the accused.

100. Hem Lata totally denied having an affair with Mohammed Ameem. She said that she did not even know such a person. SK said that Ameem used to come to her place and Hem Lata also knew him. You consider these contradictory versions affect the credibility of the prosecution version.

101. Accused did not call any witness to support his version although the entire village knew about the affair Hem Lata was having with Ameem. Accused said in evidence-in-chief that Ameem stayed in the bush evading arrest and Lata took food to him in the bush. In cross examination he said Ameem stayed in the bush as well as in the house. Accused does not have to prove anything in this case. However, you have to evaluate his evidence to see whether his version is truthful and believable.

102. You watched the accused giving evidence in court. What was his demeanour like? How he reacted to being cross examined and re-examined? Was he evasive? How he conducted himself generally in Court? Was the position taken up in his evidence different from the version his Counsel was putting to the Prosecution witnesses? In other words was his defence inconsistent.

103. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his evidence as being untrue, that does not mean that he is automatically guilty of the offences. Still the prosecution should prove its case beyond reasonable doubt. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.

104. I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

105. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt of each charge you must find him guilty of the charges.

106. In order to find the accused guilty on the 1st and 3rd counts, you have to be satisfied that the accused attempted, not merely prepared to commit rape on YK on the 18th and 19th of January 2013.

107. In order to find the accused guilty of 2ndand 4thcounts, you have to be satisfied that the accused penetrated vagina of SK with his penis on the 18thand 19thof January, 2013.

108. In order to find the accused guilty of 5th count, you have to be satisfied that the accused rubbed his penis on YK's naked legs on the 29th of January 2013.

109. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty for that charge.

110. You have to consider evidence against each charge separately. The fact that the accused is guilty of one charge does not necessarily mean that he is guilty of the other charges as well.

111. Your possible opinions are as follows:

(i) First charge of Attempted Rape accused guilty or not guilty?

(ii) Second charge of Rape accused guilty or not guilty?

(iii) Third charge of Attempted Rape accused guilty or not guilty?

(iv) Fourth charge of Rape accused guilty or not guilty?

(v) Fifth charge of Indecent Assault accused guilty or not guilty?

112. You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

113. Any re-directions?

Aruna Aluthge
Judge

At Lautoka
On the 25th of November, 2015

Solicitors: Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for the Accused