State v Vueti - Summing Up [2015] FJHC 999; HAC248.2015 (4 December 2015)

IN THE HIGH COURT
OF SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 248/2015

STATE

vs

ESALA VUETI

Counsel: Ms S Lodhia & Ms U Tamanikaiyaroi for the State
Mr A Paka for the Accused

Date of Trial : 1/12/15; 2/12/15; and 3/12/15
Summing Up : 4 December 2015

Name of the complainant is permanently suppressed and will be referred to as T.B.

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

[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. 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 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 closing submissions made by both Counsels 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 their 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 her renewed anger against the accused for over controlling her life 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 to the three charges. 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 offences 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 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 allegations. 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] Let us now look at the charges contained in the information.

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

FIRST COUNT

(Representative)

Statement of offence

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

Particulars of the Offence

ESALA VUETI between the 20th day of January 2015 and the 24th day of April 2015, at Maumi Village, Tailevu in the Central Division, penetrated the vagina of T.B. with his penis without her consent.

SECOND COUNT

(Representative)

Statement of offence

Sexual Assault –Contrary to Section 210(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

ESALA VUETI on the 5th day of July 2015 at Maumi Village, Tailevu in the Central Division, unlawfully and indecently assaulted T.B. by fondling the vagina of the said T.B.

THIRD COUNT

(Representative)

Statement of offence

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

Particulars of the Offence

ESALA VUETI on the 5th day of July 2015, at Maumi Village, Tailevu in the Central Division, penetrated the vagina of T.B. with his finger without her consent.

[36] As you would have noted there are two counts of Rape. There is a slight difference in the wording of these two charges. I shall now deal with the elements of the offence of Rape in general and also will explain the slight difference between these two charges. In order to prove the first count of Rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated T.B.'s or the complainant's vagina, by his penis. In relation to other charge of Rape, the prosecution must prove beyond reasonable doubt that the Accused penetrated the complainant's vagina, by his finger. The slightest penetration is sufficient to satisfy this element of the both charges.

[37] Then we must consider the important issue of consent in relation to Rape charges. 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 without her consent, then you must find him guilty of first count. Similarly if you are satisfied beyond reasonable doubt that the Accused penetrated the complainant's vagina with his finger without her consent, then you may find him guilty of third count.

[40] The Accused is guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainant. The word "unlawfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. It is for you to consider and decide whether the act of fondling of the complainant's vagina by the accused is Sexual Assault.

[41] 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 and assaulted her sexually. There must be positive evidence as to the identification of the Accused.

[42] If you find that the prosecution failed to establish any of these elements in relation to any of the three counts, then you must find the Accused not guilty to all three charges.

[43] In our law, no corroboration is needed to prove an allegation of Sexual Offence; Rape and Sexual Assault are obviously considered as Sexual Offences.

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

[45] The parties have consented to treat the following facts as "agreed facts" without placing necessary evidence to prove them:

1. It is agreed that the complainant in this matter is T.B. of Maumi Village, Tailevu.

2. It is agreed that Esala Vueti is aged 65 years at the time of the alleged offence.

3. It is agreed that the accused is the complainant's step-father.

4. It is agreed that at the time of the alleged offence, the complainant resided with the accused.

5. It is agreed that the complainant was medically examined on the 5/7/2015.

[46] During the trial, the parties further consented to have the following additional facts also to be treated as "agreed facts" of the case;

1. 5th July 2015 is a Sunday,
2. Caution statement of the accused.
   

[47] The prosecution, in support of their case, called the complainant, her step mother and a medical officer.

Case for the Prosecution

[48] Evidence of the complainant T.B.

(i) It is her evidence that she lived with the accused and his wife since her birth although they were not her biological parents. She called the accused Dad and his wife, Mom. She also had an elder brother and a small sister. She is 17 years old and studying at Nausori High School in Grade 5. They lived in Maumi Village, Bau, Tailveu. The accused, at the time, was employed as a security guard and would return home only in the morning.

(ii) Describing the incident relating to the 1st Charge she said that on a Saturday morning, during the 1st term of the year, her mom had left for work at about 6.30 a.m. She was with her small sister and the accused returned home from work. The accused has asked the small girl to go and play somewhere else. Small girl had gone out as was told.

(iii) The accused had then asked the complainant to close the door and stand besides the bed. He asked her to remove her pants, lie down on bed. She complied. The accused too removed his pants, put his penis out and inserted it into her vagina. She tried to prevent the act but failed. The accused ejaculated. She felt pain in her vagina. She did not scream nor called out for help fearing a beating by the accused. She did not tell about this incident to anyone.

(iv) In relation to the second count, the complainant said in her evidence that on 5th July 201 at about 8.00 a.m. her mom was at home, but was making pan cake in the kitchen for breakfast. She was with her. The accused returned home from work with a "Tablet". The accused was drunk and had a bottle of beer with him.

(v) The accused called out to her. When she went to the accused, he wanted her to show him how to open Facebook. When she was showing him how, the accused has put his hand through her panties and "moved his hand" touching her vagina.

(vi) Continuing her evidence in reference to the third count, the complainant then said the accused wanted her to go near the bed. The accused too came there. He then tried to remove her panties and had "started poking" her vagina with his finger. At that time her small sister came in with a plate of pan cakes. The accused then pulled his hand out.

(vii) The complainant had signalled her sister to call their mom. When her mom came in, she signalled her as to what the accused did. Her mom returned to the kitchen. Then the complainant had described what happened her to mother and wanted to go to Police. She said she did not like any of these acts of the accused.

[49] Evidence of Paulini Vacoga

(i) This witness said that she is the step mother of T.B and also the wife of the accused. She is employed as a waitress and also as a cook in a restaurant located in Nausori. She would work there from 7.30 a.m. to 5.30 p.m. up to 7 days of the week.

(ii) They have 5 children and the couple had adopted T.B.

(iii) On 5th July 2015 at about 8.00 a.m. she was in the kitchen with T.B. and others making pan cakes. They were getting ready to go church as it was a Sunday. The accused was late to return home after work. When he did return, he appeared excited. He did not say good morning to anyone and had gone straight into the house, passing them. Witness had then told one of her daughters, Ofa, to take his breakfast.

(iv) The accused had called T.B. into the house to check a phone. Ofa returned to take his cup of tea and informed witness that T.B. was crying. Then the witness has called out for T.B. After sometime only T.B. returned and she was hiding her tears. When the witness tapped her shoulder T.B. started crying. After repeatedly asking why, T.B. told witness that her father did something to her. The witness was told by T.B. that the accused had touched her private parts when he was sitting and also at the bedside. T.B was crying and was hurt. She also said that she is afraid of her father. Then the two got dressed up and went to Nausori Police. T.B. told the rest of her story at the Police.

(v) Describing the relationship between T.B. and the accused, the witness said it was good and added that he is "rough and tough at times". She also said that she visited him twice as he is in remand since his arrest and he enquired about kids from the witness.

[50] Evidence of Dr. Salome Daunivalu

(i) This witness was attached to Nausori Medical Centre in July 2015 and holds M.B.B.S. degree. She has examined about 30 females with a history of sexual violence. She also examined T.B. in her mother's presence on 5th July 2015.

(ii) During the examination, T.B. appeared calm and was able to relate history. Her body had no external injuries. Upon examination of her genitalia, the witness has observed abrasion with redness in the wall of her vaginal vault. She explained that vaginal vault is the visible area of the vagina and abrasion is a sign of an injury on soft tissues. It is her opinion such injury could have occurred within 12 hours of examination and generally would take about 5 days to heal. In clarifying her reasons for this opinion, the witness said that judging by its change of colour due to passage of time, she could form her opinion.

(iii) Referring to her observation that "hymen is not intact", the witness explained that hymen is an elastic soft tissue located in the vagina and opined that its damage could be due to forceful sexual intercourse.

(iv) She tendered her report of the medical examination and was marked as P.E. No. 1.

[51] 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

[52] Evidence of the Accused

(i) He says that he is a resident of Maumi village and had lived there with 9 of his family members. He was employed as watchman and used return home in the morning from work.

(ii) He taught all his children all the good things and did not want any of them to get involved with bad things. If any of them committed any wrong he would beat them. He did not punish any of his children for doing something right.

(iii) When T.B's mother got pregnant she stayed with them and after giving birth, the accused and his wife took over the responsibility of looking after the child. He paid for T.B.'s welfare and her school fees up to High School. She was allowed to go to church every Sunday and did not stop her at any point of time. T.B. would go to school in the 1st term of 2015. Having returned from the night shift, the accused would sleep at home. When he reached home in the morning, it is empty.

(v) On Sundays the family would prepare to go to church and sometimes his wife and eldest son's wife would remain at home to cook for the family.

(vi) When T.B. informed him of her menstrual period is on, he would buy tampons for her. In the last week of June, she requested for tampons before her periods started. He purchased it and gave it to T.B.

(vii) On 5th July 2015, he finished work at about 7.00 a.m. and reached home after 8.00 a.m.in a taxi. He had a bag and a tablet. While in town, he saw T.B.'s photos on Facebook in the tablet. He had already prohibited T.B. to be on the Facebook. When he reached home he saw his two grandchildren and kissed them. Then he called T.B. to show the tablet and he wanted to show the photos on Facebook. The accused did not like the way T.B. was dressed in those photos. She knew it was wrong but she did not like the accused confronting her.

(viii) While seated at the table, he told T.B. that he did not allow her to be on Facebook and wanted her to tell him what is on Facebook. She looked guilty as he caught her doing a wrong thing. When T.B. came near him it was at full open arms length. He then asked for his breakfast. He then let T.B. to play with the phone. T.B. went outside. Then he had his breakfast and gone to sleep. He did not know what happened and when he woke up the house was empty. He was later arrested by the Police. When he heard the allegation against him, he became angry. The following day he made a statement in his wife's presence.

(ix) When his wife visited him in remand, she started crying. He thought she regretted what happened but did not ask her. He told her it's too late and everything's under the law now. She visited him once more with some of his children and grandchildren. He denied having said to her change statement.

(x) The accused said that he did not threatened T.B. with her life and denied the three separate allegations made against him.

Analysis of all evidence

[53] The prosecution relied on the evidence of the complainant, her step mother and a medical witness to prove its case.

[54] 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 all three counts, 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 offences of Rape, Sexual Assault and also identity of the accused, beyond reasonable doubt.

[55] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution also on the evidence of the accused. You must consider his evidence also for its consistency and also the 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 all three charges, since the prosecution has failed to prove its case. However, I must caution you that 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.

[57] With this caution in mind, we could proceed to consider the evidence of the prosecution as well as that of the accused for truthfulness and reliability.

[58] 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.

[59] In dealing with the issue of consistency, I shall first refer to the prosecution's case and particularly to the evidence of the complainant. It is revealed in evidence that she for the first time complained of the accused's offensive behaviour to her mother soon after the alleged incident on Sunday the 5th July 2015. Then the two females made a report to Police on the same day. However, the complainant said that, in relation to the first count, that the accused had penile penetration of her vagina during the 1st term of 2015. She did not complain of this incident to her mother, teacher, pastor, or to police even though she had the opportunity to do so.

[60] In relation to the 2nd and 3rd counts, the prosecution led evidence of the complainant to the effect that the accused had touched her vagina with a moving hand and had thereafter "poked" her vagina with a finger. She had within minutes disclosed about this to her enquiring step mother. Her mother, in her evidence said what she learnt from T.B. that morning. Then they reported the matter to Police.

[61] Evaluating this evidence for its truthfulness, you have to consider whether these three allegations were consistently made. The complainant admitted that she did not complain of the 1st incident, until her report of the matter to the authorities. She provided an explanation to this delay. She said the accused had threatened her not to reveal it to others. Out of fear to the accused, she did not.

[62] During cross examination it was elicited from the complainant that she had the opportunity to complaint to her mother, teacher, church member, church pastor, or to Police. The accused also elicited that she had the opportunity to complain about the penile rape during the time period commencing from the first term and ending with second term. You are to consider whether the delay in making this allegation affects her consistency on the allegation of penile rape and if so to what extent. Similarly you have to consider whether to accept her claim that out of fear to the accused she did not tell anyone as an acceptable explanation for delay in reporting.

[63] On the 2nd and 3rd charges of insertion of a finger into vagina and of Sexual Assault, she had reported the offensive conduct of the accused to her mother and within few hours of its happening, to the Police. As you would recall, her step mother said what was told to her by the complainant on that Sunday morning. She was told by the complainant that the accused had touched her private parts. There is no delay this time in reporting. But what you have to consider is that whether her allegations were consistent.

[64] The fact that her mother repeated in her evidence before us, what T.B. told her that morning, should not be taken as a factor confirming T.B.'s evidence on the point. You must keep in mind, in considering her step mother's evidence on this point; you should only consider it on consistency of the version of the complainant. It should be used only to decide whether the complainant was consistent in making the allegations against the accused.

[65] The accused, during his cross examination of the complainant, elicited from her that although she said in her evidence that on 5th July 2015, the accused returned home drunk and carrying a beer bottle, she had failed to mention that fact in any of the two statement she made to Police. She admitted that she had a fresh recollection of events at the time of making the statements. Her explanation was that she forgot to mention this fact. Thus it could be seen, that she mentioned this fact only at the trial for the first time. It is your responsibility to consider this inconsistency and to decide what effect it might have on the truthfulness of the evidence of the complainant as a whole.

[66] Also on the consistency, in her examination in chief, the complainant said the accused wanted her to show him how to open Facebook. But in cross examination, she admitted that it was the date the accused showed her photos on the Facebook. She also did admit that the accused had blamed her for ignoring his instructions not to use Facebook or internet. It could appear to be an act of confronting the complainant with her Facebook account and not an attempt by the accused to familiarise himself with the social media. It is for you to decide the effect of this inconsistency.

[67] The complainant said in evidence that on Sundays, she would go to church. But her step mother, in giving evidence said that T.B. was not allowed to go to church by the accused. It is for you to decide the effect of this inconsistency.

[68] The prosecution has relied upon the evidence of the medical witness. This kind of evidence is given to help you with scientific matters about the witness has expertise. As you have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefits, and to express opinions about them, because they are used to doing that within their particular field of expertise. You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence, and it is on all the evidence that you must make your final decisions.

[69] You would recall that during cross examination of the medical witness, it was elicited by the accused, that there is no reference to the dimensions of the abrasion found on the wall of the vaginal vault. However, in her examination in chief the medical witness gave evidence that it was an abrasion measuring about 1 or 2 centimetres. The medical witness sought to clarify her position, when it was suggested to her that she lied under oath, by stating that normally when she records an abrasion of that size, she would not mention its exact dimensions. It is for you to decide this evidence and then to decide what effect it can have on the overall evidence of this witness and whether her evidence should be rejected in its totality due to this inconsistency.

[70] These are the inconsistencies in the prosecution case, although on peripheral matters. However, it is your responsibility to assess them and decide to which extent they affect the truthfulness of the prosecution evidence.

[71] Similarly you have to consider any inconsistency in the accused's evidence and decide its effect on truthfulness of his evidence. The accused suggested the abrasion in the vagina may have caused when a tampon is inserted. He gave evidence that he bought tampons for the complainant in the last week of June when her menstrual period was due.

[72] However, this position was never put to the complainant or to her mother. Whether she used tampons when she is having her periods, and whether she had her periods during last week of June continuing on to first week of July could have been clarified with the complainant. As already directed, it is your responsibility to consider the inconsistency of the accused and decide as to its effect on his evidence.

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

[74] The evidence of the prosecution is that complainant did not complain of the act of penile penetration to anyone until 5th July 2015, giving in to the threat issued by the accused. However, with the two incidents on that day, the complainant insisted that the matter should be reported to Police. It appears that the 5th July incident triggered the complainant to make a complainant. In spite of the possible reaction by the accused, she proceeded with the complaint. There is no clear evidence as to the reason the complainant disregarded her fear of the accused.

[75] The accused paints a different picture. He totally denied any wrong doing. It is his claim, that being provoked by the strict control of all aspects of T.B.'s life by him; the complainant had fabricated this allegation. According to the accused, his claim is supported by the fact that the complainant, having put him in remand, is now enjoying her newfound freedom to the full.

[76] The prosecution says why would the grateful complainant, falsely accused her step father; who looked after her since infancy, unless the accusation is true. The accused say that of the three daughters, why only she has complained and not others, if the accused had any sinister designs for them.

[77] It is said by the prosecution that the fact that the complainant's hymen was not intact and she having an abrasion with redness, which may have occurred within 12 hours of examination, supports the claim of the complainant. The prosecution clarified through the medical witness that hymeneal damage could be due to forceful penile penetration and the abrasion on the vaginal wall could be due to insertion of a finger.

[78] The accused, during his cross examination of the medical witness listed out a long list of other possibilities where hymeneal damage could occur. He also cross-examined the medical witness to the effect that insertion of a tampon into a vagina, during menstrual period could also leave an abrasion as was seen in the complainant's. The medical witness agreed that too is a possibility resulting in the injury.

[79] You will also have to consider the evidence that the complainant was tearful when seen by her step mother after she returned from the main house and had cried when tapped on the shoulder. Is it due to the fact that she was sexually abused by her step father or was it due to the fact that the accused confronted, may be in very strong terms, the complainant for her act of disobedience, by putting up her photos in the Facebook?

[80] On the question of relative probabilities, I wish to place the following considerations also for your consideration.

[81] It is claimed by the complainant that on 5th July morning, when the accused did these acts only two of them were there. It was elicited from the complainant that the hall of this house had no walls and provided no cover. It is not disputed that there were several small children were also with the complainant's step mother who cooked pan cakes in the kitchen. The conduct of small children could not be predicted. In these circumstances, would the accused engage in this type of conduct with a strong possibility of being surprised by a small child who would run into the house unexpectedly, exposing him to the danger of being discovered?

[82] The accused, in his evidence said that the complainant was at full arm's length away from him when he showed her the tablet and wants you to consider in that position whether it is possible to touch the vagina of the complainant coupled with hand movements.

[83] There could be many other probabilities you would like to consider arising out of the evidence placed before us. You may consider all these probabilities and should decide which one is the more probable one, based on your common-sense.

[84] Another consideration in evaluating evidence for its truthfulness and reliability is the manner of each witness in giving evidence.

[85] You will recall when the complainant, in her examination in chief, had no apparent difficulty in giving evidence. However, during cross examination she displayed some reluctance to answer. This became evident when the accused made certain suggestions concerning his case.

[86] When it was suggested to her that the accused never had penile sex with her, she took a long pause to answer that he inserted. When it was further suggested that she did not complain it to anyone because it never happened, she offered no answer. When the suggestion was repeated for the second time also she opted not to answer. She again offered no answer when it was suggested to her that she did not shout as no penile penetration took place. Please consider the complainant's demeanour in the witness box in relation to her truthfulness.

[87] Was she evading the questions or failed to understand the questions put to her or she had no answer to offer or she had a difficulty in expressing herself or she had an inner struggle with her conscience are some of the considerations you may think of. It is for you to decide the effect of the behaviour of the complainant in giving evidence and to decide the truthfulness of her evidence and the degree of reliability you should attach to her evidence.

[88] I must caution you over one other 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 due to the strong ill feeling that the complainant had towards him, upon the accused over controlling her life, she made this accusation. That is wrong. He is under no legal duty to disprove the case for the prosecution. He is not even under a legal duty to offer evidence. He could have remained silent. However, when he does give evidence, then, as already directed, it must first be evaluated for its credibility and reliability.

[89] During the trial, the caution statement of the accused was marked as an agreed fact. The original of the statement recorded in iTaukei was tendered as D.E. No. 1A and its English translation as D.E. No. 1B. You may consider its contents and decide the weight you attach to it.

[90] Then 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.

[91] On this issue, I must direct you to disregard the conduct of the accused towards the complainant during the trial. You will recall the accused protested when the complainant gave some item of evidence during her examination in chief. You should not entertain any adverse inference against him for this inappropriate conduct and I direct you to erase that incident from your memory and exclude it from your considerations.

[92] During the trial it was transpired that when T.B.'s mother visited the accused in remand, the accused wanted her to "go and change her statement". The English translation of the iTaukei word used by the witness was disputed by the accused. According to him what he said to her was to cancel or block or withdraw. The prosecution wants you to believe the accused did this as he knew he was wrong. The accused says he did it as he inferred that his wife regretted making a false complaint. Which of these explanations are valid must be decided by you considering the evidence in its totality.

[93] 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.

[94] As already noted the complainant had said that the accused inserted his penis into her vagina and she felt pain. 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.

[95] The complainant also said that the accused inserted his finger into her vagina. She used the word he "poked" his finger. If you accept it as sufficient proof of digital 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.

[96] In relation to the Sexual Assault charge the complainant demonstrated to you how the accused used his hand to touch her vagina. Whether, her demonstration establishes "fondling" by the accused is a question of fact and therefore it is your responsibility to decide that.

[97] 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.

[98] 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 in relation to the 1st count. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented for the sexual intercourse.

[99] 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.

[100] 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 the two counts of Rape. If you do not accept that he thought she was consenting on both occasions when you consider all the circumstances, then you could convict him of the two counts of Rape if you find the other elements also have been proved.

[101] 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 and digital penetration of the complainant's vagina without her consent, then you must find the accused not guilty of both counts of Rape.

[102] The prosecution relies on the complainant's evidence to prove that it was the accused and no other who penetrated her vagina.

[103] The evidence of the complainant before us is that the alleged incident took place in a morning while her mother was at work in relation to the 1st count and in the kitchen in relation to the 2nd and 3rd counts. The accused is a known person. She had seen him in close proximity. Whether there was sufficient light to properly identify the person on both these occasions 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.

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

[105] As you already know there are two counts of Rape and one count of Sexual Assault against the accused in the information. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty on others.

[106] In summary and before I conclude my summing up let me repeat some important points in following form:

i. If you accept the accused's denial, then you must find the accused not guilty of all three counts;

ii. If you reject the accused's denial, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution;

iii. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of all counts;

iv. If you find the persecution evidence is both truthful and reliable then only you must consider;

1. Elements of the charge of penile Rape was proved beyond reasonable doubt. If so you must find the accused guilty of the first count. If not you must the accused not guilty of the first count.
   
2. If you accept that the demonstrated hand movement of the accused would be considered as indecent by the right minded persons, then you must find him guilty of the second count. If not, then you must find him not guilty to the second count.
   

100. Elements of the charge of digital Rape was proved beyond reasonable doubt. If so you must find the accused guilty of the third count. If not you must the accused not guilty of the third count.
     

[107] 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 of all charges.

[108] Any re directions the parties may request?

[109] 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 three counts separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinion.

[110] I thank you for your patient hearing.

Achala Wengappuli
JUDGE

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

Solicitor for the Accused : Legal Aid Commission, Suva.