State v Bolalailai - Summing Up [2016] FJHC 1075; HAC350.2016 (11 November 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 350 OF 2016

STATE

v

SERUPEPELI BOLALAILAI

Counsel : Ms S. Serukai and Ms S. Tivao for the State
MsT. Kean and Ms V. Filipe for the Accused

Dates of Trial : 7^th; 8^th; 9^th; and 10^th November 2016

Summing Up 11^th November 2016

(Name of the complainant is permanently suppressed and will be referred to as A.B.)

SUMMING UP
___________________________________________________________________________

Ladies and Gentleman Assessors,

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

[2] As the presiding judge, it is my task 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 two 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 on each of them. 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 judgment, I shall place much reliance upon your opinion.

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

[8] The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution 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 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 the witnesses’ demeanor 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 demeanor in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting.

[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 such victim has his or 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, demeanor 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 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. I shall offer more directions when I deal with the evidence of the case in more detail.

[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 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 offence.

[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 morning, 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 defence. 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 are presumed to be innocent. They may be convicted only if the prosecution establishes that he is guilty of the offences charged. Whether the accused has given evidence or not is immaterial in this regard and it does not imply any burden upon him to prove their innocence. It is not for him 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 a reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond a 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 two 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 are three charges contained in the information. As you would have noted the prosecution presented evidence in relation to 2^nd and 3^rd charges only. Please note that therefore your opinion is sought only in respect of the count of Rape and count of Attempted Rape. You should not consider the charge of Sexual Assault.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 2009.

Particulars of Offence

SERUPEPELI BOLALAILAI on the 25^th day of October, 2015, at Tailevu, in the Central Division, penetrated the vagina of A.B., a child under the age of 13 years, with his finger.

THIRD COUNT

Statement of Offence

ATTEMPTED RAPE: Contrary to Section 208 of the Crimes Decree No. 44 of 2009.

SERUPEPELI BOLALAILAI on the 25^th day of October, 2015, at Tailevu, attempted to have carnal knowledge of A.B., a child under the age of 13 years.

[36] As you would have noted there is a count of Rape. I shall now deal with the elements of the offence of Rape. In order to prove the count of Rape, the prosecution must prove beyond reasonable doubt that the accused penetrated the complainant’s vagina by his fingers. The slightest penetration is sufficient to satisfy this element of the charge of Rape.

[37] As you would have noted there is also a count of Attempted Rape against the accused. I shall now deal with the elements of the offence of Attempted Rape. In order to prove the count of Attempted Rape, the prosecution must prove beyond reasonable doubt that;

1. the accused had an intention to penetrate the complainant’s vagina with his penis; and
2. the accused did an overt act which manifests that intention,

[38] A person 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 below 13 years of age at the time of the alleged offending and therefore, whether she consented or not is immaterial in relation to both these charges.

[39] If you are satisfied beyond a reasonable doubt that the accused penetrated the complainant’s vagina with his fingers in the instance as the information revealed, then you may find the accused guilty to the count of Rape.

[40] Similarly, if you are satisfied beyond a reasonable doubt that the accused had an intention to penetrate the complainant’s vagina with his penis, and the accused did an overt act which manifests that intention, then you may find him guilty to the count of Attempted Rape.

[41] Apart from the elements of these two offences, the identity of the person who is alleged to have committed them must also be proved by the prosecution. What it means is that it was this accused and none other who penetrated the complainant’s vagina and did an overt act manifesting his intention of penetrating her vagina with his penis. 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 the count of Rape and or to the count of Attempted Rape, then you must find the accused not guilty on both counts or on that particular count.

[43] In our law, no corroboration is needed to prove an allegation of Sexual Offence; and Rape and Attempted Rape 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 admitted the following four without calling witnesses:

1. THAT the Complainant in this matter is A.B. aged 7 years at the time of the alleged offence.
2. THAT the Accused in this matter is one SERUPEPELI BOLALAILAI aged 53 years at the time of the alleged offence.
3. THAT the Accused and the Complainant attend the same church.
4. THAT the Accused was living in Natovi Mission Compound in Natovi.
5. THAT the victim was medically examined on 25/10/15.

[46] The prosecution, in support of their case, called the complainant, Noela Rokawati, Dr. Ilisapeci Vereti, the interviewing Police Officer of the accused WPC 3763 Salote and the witnessing officer WPC Elina. The accused gave evidence in support of his denial.

Case for the Prosecution

[47] Evidence of the complainant A.B.

(i) It is her evidence that she was schooling at St. Vincent Primary School in Class 2. She was 7 years old in 2015.

(ii) On the midday of 25^th October 2015, A.B., watched movies at the male dormitory of her school as it was a Sunday. After watching a movie, she came up to Father Vincent who gave her a glass of juice. Then she went back but was called by one “Bola” into his room. He was showing a 2 dollar coin and was in his room. When she saw the coin, she went in. Only Bola was in his room.

(iii) The complainant then sat on his bed and then Bola “tried to insert his penis” into her vagina. She knew when he tried to insert into her vagina after laying on top of her. At that time the complainant was lying down on his bed face up. After that he inserted his index and middle fingers into her vagina. She felt pain when he inserted his fingers but unable to recall for how long he did it. Bola was at that time standing up.

(iv) Thereafter, he licked her vagina with his tongue, whilst bending down.

(v) At that point of time Noela came calling for Father Vincent, as no one was around, she came up to Bola’s room. Then Noela saw Bola lying on top of the complainant. The complainant knew Noela as she was also from the same school. When Noela saw them, Bola also saw Noela was there. He then stood up and went out locking the complainant in the room. Then the complainant wore her clothes back, came out of the room.

(vi) She then bought a lolly from the money Bola gave her and was under a tree. Later that day, Noela’s mother and Warden took her to Sister Maria. She saw Noela’s mother talking to Bola. She saw Bola only on that day.
(vii) Thereafter, she told Police what happened to her and was thereafter taken to Hospital for a medical examination. She also told the Doctor who examined her as to what happened.

[48] Evidence of Noela Rokawati

(i) It is her evidence that she is 13 years old and residing in Natovi. She also attends St. Vincent Primary School where her mother is employed.

(ii) On 25^th October 2015 she was asked by her mother to convey a message to Father Vincent. She then walked to the house of Father Vincent, which was located about 100 meters away from her house. She called out his name. When she did not hear from Father Vincent, she went to the room of the accused, located in the same house. She wanted to ask the accused whether he could pass on the message to Father Vincent.

(iii) She then peeped through the broken part of the netting of the door to the accused’s room. She saw the complainant sitting on the bed while the accused kneeling down facing her. The complainant was only wearing a T shirt and had no clothing on her bottom part. The accused had only his pants on.

(iv) Both, the accused and the complainant, saw Noela peeping through the netting. She noticed the accused had done “something” to the complainant. The complainant appeared like that she was about to cry. When she saw this the time was around 12.30 p.m. She then ran up to her mother and told her that she saw the accused and complainant in his room.

(v) The witness knew both the complainant and the accused before this incident.

[49] Evidence of Dr. Ilisapeci Vereti

(i) This witness, after her M.B.B.S. degree in 1997, has obtained a M.Sc Degree in Child Health. In addition she holds Post Graduate Diplomas on Primary Health Care and Child Health. Currently she is the Head of the Department of Pediatrics in CWMH.

(ii) The complainant was examined by Dr. Manasa, who was a medical officer under her supervision, on 25^th October 2015 at 11.20 p.m. and tendered the report marked P.E. No. 1. In explaining the term “examination under anesthesia” the witness said that it is also done when a child is not cooperative in the genital examination. The complainant had been medically examined initially and then also examined under general anesthesia.

(iii) Under D 12 of the Report, the observations of the vaginal examination of the complainant is recorded. Dr. Manasa has observed dried blood clots in the perineum and thighs. Her left labia majora was tender but not bruised. However, her left labia minora had a small abrasion measuring 1 cm X 1 cm, at 3 o’clock position. No active bleeding noted. She pointed out the location of this injury in the sketch of the female genitalia, marked as P.E. No. 1A.

(iv) She was of the opinion that the blood which noted as dried clots, would have come from the abrasion observed in the labia minora of the complainant and the blood clots are formed by clumped platelets.

[50] Evidence of WPC 3763 Salote

(i) This witness has served in the Police for past 11 years. On 29^th October 2015, she commenced the caution interview of the accused at the Crime office of the Korovou Police Station where she was serving at the time. The interview of the accused was conducted in the presence of WPC 3602 Elina as the witnessing officer.

(ii) All His rights were given; including his right to silence, and the witness had not threatened, forced, or intimidated the accused to admit the allegation. In recording the interview she followed Q & A format. The statement was handwritten and the accused answered all the questions put to him.

(iii) In each page of the interview statement of the accused, the witnessing officer and the accused have placed their signatures and during the course of the interview, it was suspended for scene reconstruction. The interview was conducted in iTaukei language.

(iv) The interview was suspended after about 3 hours in the 1^st day and recommenced on the following morning after more than 10 hour rest to the accused. The accused appeared normal during the interview and did not make any complaint or request to the witness.

(v) During the scene reconstruction, the accused showed her his room and the bed on which the alleged acts were done. She noted the wooden door to the room had torn netting and its opening is about 4 inches.

(vii) The witness then tendered the original notes of the caution interview of the accused recorded in iTaukei marked as P.E. No. 2A and its English translation as P.E. No. 2B.

[51] Evidence of WPC 3602 Elina

(i) This witness was tendered for cross examination by the prosecution without leading her evidence.

[52] That was the case for the prosecution. You then heard me explaining several options to the accused. I explained to them that he could 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. The accused need not prove anything. The burden of proving his guilt rests on the prosecution at all times. The accused opted to give evidence under oath.

Case for the Accused

[53] Evidence of the Accused

(i) It is his evidence that on 25^th October 2015, he was living in Natovi Mission Compound at Natovi.

(ii) Referring to the incidents of the alleged incident, the accused said; by mid day he was cooking in the kitchen of the presbytery. Then the complainant came and asked for some money to buy biscuits. He gave her a 2 dollar coin and returned to his cooking. When he looked back, he saw the complainant was still there in side his room.

(iii) Then he kissed on the top of her private part and thereafter asked her to go. She then left. He states nothing else happened in the room. After this when he came out of the room, he heard Noela calling Father Vincent. At that time Father Vincent was sleeping in the sitting room.

(iv) He was arrested on 27^th October 2015 by two officers. After grabbing his knife, they handcuffed him. He had a knife to cut firewood. Then they punched him on both sides of his ribs. After punching they made him walk up to the main road where a vehicle was waiting for them. He was then taken to Korovou Police Station.

(v) He spent two days in the cell before his interview commenced. During these two days no one came to visit him. He asked the Police to allow visitors, but they refused. He spent 5 days in Police custody in total and during this time no one came to visit him.

(vi) His interview was conducted by Salote and only two of them were there during the interview. The accused has complained to Salote of his chest pains, due to assault at the time of this arrest. He also told her that he is taking penicillin. He asked Salote to take him to a hospital, where he could be checked up and get his tablets. But she did nothing about it. He also had diabetes and asthma.

(vii) After the interview, his statement was not readout to him and he had no chance of reading his answers as he had no reading glasses with him. He is unable to confirm the answers as he could not read them. He signed the document as he was still in shock over what happened to him and was also frightened of it.

(viii) When he was produced before the Magistrates Court, he did not complain as he was not given a chance.

Analysis of all evidence

[54] The prosecution relied on the evidence of the complainant, Noela Rokawati, Dr. Ilisapeci Vereti, the interviewing Police Officer of the accused WPC 3763 Salote and the witnessing officer WPC 3602 Elina to prove its case while the accused gave evidence in support of his denial of the two charges. The prosecution marked the medical report of the complainant as P.E. No. 1 and its sketch as P.E. No. 1A. They also marked the iTaukei original of his caution interview statement as P.E. No. 2A and its English translation as P.E. No. 2B.

[55] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by the complainant and other witnesses are 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 to the counts of Rape and Attempted 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 all the elements of the offences of Rape and Attempted Rape, beyond a reasonable doubt.

[56] Since the main witness for the prosecution, A.B. is a child, I thought it appropriate at this stage to familiarise you with some general considerations in evaluating evidence of a child witness for its truthfulness and reliability. It is for you to decide that issue and my references in this respect are not binding on you as they are not directions on law.

[57] The prosecution has primarily relied on the evidence of the complainant in order to prove the two charges they levelled at the accused. They also relied on the contents of the caution statement of the accused. I shall first deal with the evaluation of the evidence of the child witness and thereafter direct you as to how you should set about in assessing the caution interview statement of the accused at a later stage of this summing up.

[58] A most important part of your task is to judge whether the child witness has told the truth, and has given a reliable account of the events she was describing. Some of you will have children and grandchildren who are of a similar age to the child who has given evidence.

[59] If so, I think you will recognise the sense of the advice I am going to offer you about your judgement of their evidence, but remember that I am speaking of an approach to the evidence and it must be re-emphasised here that evaluation of her evidence is your responsibility. You do not have to accept my advice and if you do not agree with it you should reject it.

[60] Your task includes the assessment of the evidence of a child aged 8 years and 8 months, who described events that allegedly took place when she was 7 years of age. At times during her evidence, it was apparent that she was having difficulty with some questions and with recall, particularly of detail and sequence. There is a danger that in formal situations we tend to judge children by the same standards as we would an adult. That would be a mistake.

[61] Children do not have the same experience of life as adults do. They do not have the same standards of logic, understanding and consistency as adults do, and are therefore necessarily less sophisticated. 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.

[62] Experience has shown a number of things. A child may not fully understand the significance of activity which is sexual in nature and that may be reflected in the way they remember it or describe it. A child’s perception of the passage of time is very likely to be different from that of an adult. A child’s memory can fade even in the short term. When recounting events later, even a fairly short time later, a child’s recall of when and in what order events occurred may not be accurate. She may well not be able to speak of the context in which those events occurred. A child may have particular difficulty dealing with conceptual questions such as how she felt some time ago, or why she did or did not take a particular course of action. Those are not the sort of questions which are likely to encourage a meaningful or reliable response.

[63] Your task is to judge whether the essential parts of the witness’s evidence were truthfully given and, if so, whether they are reliable. Errors and inconsistencies in detail and in the sequence of events may not, in the case of a child, be any indication of untruthfulness or unreliability on the essential matters. Those decisions are, however, for you to make. Having made due allowance for the age and immaturity of the witness, you should act on her evidence only if you are sure it is right to do so.

[64] 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.

[65] I have just invited your attention to some considerations in evaluating evidence given by a child witness. When judging allegations of sexual or physical abuse involving children, experience has shown that it is necessary to keep a cool head. It is easy to feel indignant at the idea of this sort of thing happening, and easy to be sympathetic to a witness who seems to be showing difficulty or distress at having to recall and recount an incident which was distressing and unpleasant for her. Those are perfectly proper and normal emotions but they do not assist in deciding whether these allegations are satisfactorily proved. As I said to you at the outset of this case you must judge this case on the evidence you have heard. You must put aside any feeling you have about cases such as these and review the evidence you have heard dispassionately.

[66] Take into account, if you wish, the emotions and demeanour of the child witness, but do not allow your own emotions to take over.

[67] You have to be sure that the complainant is telling you the truth and that her evidence is accurate and reliable. By doing that you are applying exactly the same standards as you would in any other criminal trial.

[68] 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 whether the complainant complained about the acts of sexual aggression without a reasonable delay. If a prompt complaint is made, although not necessarily, it supports the proposition that opportunity to fabricate a false allegation is less, as there is little opportunity to the complainant to carefully think it over.

[69] The evidence of the complainant is that after the alleged acts, she had gone and bought a lolly for herself with the 2 dollars the accused had given her and when asked by Noela’s mother and the Warden, then only she revealed what happened to her to Sister Maria. This happened later in the day.

[70] It is for you to consider whether there is any delay in making the allegation. Promptness of her complaint could, of course, enhance credibility of the complainant as a truthful and reliable witness. Delay in complaint might support a proposition that her claim could be a fabricated story. However, if you consider that she made her allegation promptly having considered the circumstances, you must also remember that this is not an accurate indication of the truthfulness of the allegation.

[71] Another consideration would be the consistency of her version of events. In dealing with the issue of consistency, I shall first refer to the evidence of the complainant since she is the main witness for the prosecution. During cross examination, the accused has highlighted an important inconsistency with her evidence in examination in chief.

[72] The inconsistency that was highlighted by the accused was that the complainant in her examination in chief said that the accused inserted fingers into her vagina. She showed her middle and index fingers when giving evidence. However, during the cross examination she was asked as to how did she see the accused inserting his fingers. She did not answer. Then she admitted she did not see his fingers. She also admitted she did not see it go inside. She also agreed that if it has gone inside and painful she would say “Stop it” or “Ow”. When questioned as to why then she said that he did, in her examination in chief, she said “I forgot”. But she denied the suggestion that someone said to her to say that in Court. In re-examination, the complainant said that she did not tell that the accused inserted his two fingers into her vagina.

[73] The law required me to direct you in considering this type of inconsistencies among evidence of the same witness.

[74] In considering this type of evidence you should be cautious before you accept the complainant's sworn evidence that conflicts with her own evidence she had previously given. In these circumstances, her evidence in Court should be regarded as unreliable unless you are satisfied in the two following particular respects:

1. Firstly, that if there is any explanations as to the inconsistency, then whether these explanations are genuine.
   
2. Secondly, that, despite the complainant being prepared to admit a contrary factual position to the position already taken in her evidence she is now telling the truth.
   

[75] The prosecution wants you to treat instances of these inconsistent evidence as, inconsistencies which resulted in due to confusion following exhaustion of the child witness after long hours of cross examination.

[76] The 2^nd inconsistency highlighted by the accused was that the complainant said in her evidence that when Noela peeped in, the accused was lying on top of her. However, Noela, in her evidence said that when she saw the accused he was kneeling in front of the complainant.

[77] These are the inconsistencies of the complainant in the prosecution case. Considering these items of evidence, it is your responsibility to decide whether the complainant was consistent in her evidence and; whether and to what extent these inconsistencies affect her truthfulness and reliability as a witness in the light of the legal directions I have already given. In addition, the accused in his closing address invited your attention to the inconsistencies of the two Police witnesses called by the prosecution. These will be referred to in detail when dealing with truthfulness and reliability of these two officer's evidence in relation to the caution interview statement of the accused.

[78] Similarly, you have to consider any inconsistency in the version advanced by the accused and decide its effect on truthfulness of their claim. In this case, the evidence of the accused was presented in order to cover two areas. Firstly, the accused told us what happened on that day of the alleged incident. Secondly, he told us what happened in the Korovou Police Station at the time of recording his caution interview statement.

[79] As you did with the complainant’s evidence, you must employ same yardstick in evaluating the truthfulness of the position advanced by the accused. Here also it is your responsibility to consider whether the position advanced by the accused is consistent and if it is or not, then to what extent it affects truthfulness of the position advanced by him.

[80] The accused said in his evidence that on that he did not complain to the Magistrates Court of the assault as he was not given an opportunity. He also did not complain of this to the High Court, although he appeared before it three occasions to the date on which he did eventually complain.

[81] The accused says he did complain only when he was informed of his rights by his Counsel. The prosecution claims that it an inconsistency. It is your responsibility to determine this fact, namely whether the accused put his version of events consistently when the prosecution was presenting its case or it was added belatedly. It is also for you to decide if it is so, to what extent it affect the truthfulness and reliability of the accused’s evidence.

[82] In relation to the circumstances under which he made the caution interview statement, the accused said in his evidence that after his arrest, he was punched 9 times on his ribs by the arresting officer after he was handcuffed. His interview was conducted after two days of this incident and he was still frightened of the punching during the time of his interview. He had no visitors, denied of medical treatment and was deprived of his medications. He admits signing the statement but says that he had no idea of how his answers were recorded as he could not read what was written without his reading glasses.

[83] The prosecution says that the evidence given by the accused of the punches of the ribs are a made up claim and he failed to report about it on the first available opportunity.

[84] It is for you to consider these inconsistencies, and also to decide its effect on the truthfulness and reliability of the evidence of the Defence case.

[85] 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. In order to consider this aspect I shall endeavour to present the evidence in relations to events that took place on 25^th October 2015 between A.B. and the accused, on a chronological order.

[86] The evidence of the accused is that the complainant came and asked for money to buy biscuits. The complainant says the accused showed her a 2 dollar coin and wanted her to come to his room. Then she says the accused locked the door. The accused denies it.

[87] A.B. said in her evidence that when she sat on his bed, the accused tried to insert his penis into her vagina after lying on top of her. Then the accused, whilst standing up, inserted two fingers into her vagina. Then he licked her vagina after bending down. The accused denies all this, except that he kissed on top of her vagina “very fast” as per his suggestion.

[88] The accused wants you to consider the probability of the prosecution claim as the complainant said in her evidence that the accused had his pants on. If that is the case then how is that the accused tried to put his penis into her vagina? The prosecution says that the accused showed his penis to the complainant and then tried to insert it into her vagina.

[89] Of these two versions of events, it is your responsibility to decide which version is more probable than the other in deciding their truthfulness and reliability.

[90] 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 version is the more probable one, based on your common-sense.

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

[92] You will recall how the complainant gave answers when she was cross examined. She would pause for some questions and would take long time to come with an answer. In certain questions she simply did not offer any answer. These questions were based on the conceptual considerations as to why she did or did not take a particular course of action, upon the happening of another incident.

[93] In assessing the reason as to why she did not answer these questions you may consider whether she was evasive in doing so or she had no answer to offer or she could not comprehend the question fully and then decide. Similarly you should consider the demeanor of Noela and the two Police officers. You will also have to consider the demeanor of the accused in giving evidence. He displayed difficulty in reading the caution interview without his reading glasses, which he said he forgot to bring into Court.

[94] 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 the prosecution has fabricated this allegation against him. That is wrong. The accused is under no legal duty to disprove the case for the prosecution. He is not even under a legal duty to offer evidence.

[95] The prosecution has also 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 that you must make your final decision.

[96] You would recall that the medical witness said in evidence that she clotted blood seen on the complainants groin and thighs could have come from the small abrasion observed on her left labia minora at 3 o’clock position. However, the accused claims that the prosecution did not clarify whether this could be due to penetration of vagina by an object like a finger and they also failed to clarify the timing of her injury. It is for you to decide whether to accept her opinion on these points and whether it supports the prosecution case or the denial of penetration by the accused.

[97] It’s time to turn to caution interview of the accused. The accused in his evidence clearly stated that the caution statement was obtained by the interviewing officer, in unfair circumstances and therefore it has been made involuntarily. He also complained that he later realised upon reading it that the caution interview statement contained answers that he had not given at the interview. He alleges that it has therefore been fabricated by Salote.

[98] Any admission made by an accused, in his caution statement is admissible and sufficient evidence to prove his guilt to a charge. However, there are some applicable principles of law in relation to this evidence. The prosecution must prove that the caution statement was made by the accused voluntarily. The prosecution must establish this fact beyond a reasonable doubt.

[99] Whether the accused gave his statements voluntarily and whether the statements set out a version of events in relation to the Rape and Attempted Rape of A.B. on which you can rely and accept, is a matter for you. Of course if you believe that the interview is false, that it was made up by the Police, you may think that you cannot put any weight on it. However, if you believe that the accused gave his statements without force or intimidation or oppression and it is not a fabrication, then you may think that they set out a version of the evidence which will assist you in deciding on his guilt or otherwise. However, the question of what weight you can put on these admissions contained in the caution interview statement is a matter of fact for you to decide.

[100] The prosecution however, says that the interview was not obtained under pressure or inducement, it is not a fabrication and that the accused told the police the truth in it. What weight you put on the accused’s statement to the police is entirely a matter for you. However if you accept that the contents of the interview are reliable you may think that it contain a complete confession to all the elements of the two offences he is charged with.

[101] You have heard from the police officers that there were no threats or any intimidation of any kind by anyone on the accused and his statement was freely and voluntarily given and Salote has correctly recorded what the accused said.

[102] Salote and Elina said in their evidence that the accused was given his Constitutional rights and after a short session on the first day, the interview of the accused was suspended for him to have a rest and dinner. It recommenced on the following morning and they left for scene reconstruction. Upon their return, it was recommenced after the accused had his lunch. At about 5.00 p.m. it was concluded. The accused admitted this fact in his evidence.

[103] The Police Officers stated that they have not threatened, induced or intimidated the accused to admit to the allegation. The accused did not complain to them or made any requests. Elina has said due to an oversight she did not place her signature on page 6 of P.E. No. 2A. Elina however maintained that she was there throughout the interview, except for two minutes she had taken to answer a phone call and denied the suggestion that she was not present.

[104] The accused says that the evidence of these two Police witnesses are inconsistent. In relation to the time it commenced, time it concluded, the breaks given, failure to place signatures, and these indicate fabrication. In addition, the accused was punched on his ribs after he was handcuffed, denied medical attention when requested, he was denied of his medication, he was denied visits by relations and he was kept in the Police for over 48 hours, in violation of the Constitutional right, he was made to sign on the statement without reading its contents to him and he could not read its contents as he had no reading glasses with him are all circumstances that support their claim that the accused was treated unfairly by the Police. It is in these circumstances he made his caution statement and wants you to accept his claim that he did not make it voluntarily. He did not complain to the Magistrate as he was not given an opportunity to do so.

[105] Prosecution says that the accused’s failure to complain to Police or to Court makes his claims of punching on ribs and denials of medical treatment are clearly an afterthought. They say the visitors were denied as they could not distinguish as to who are his well wishers and who are not. They claim there were instances of many visitors wanted to see him in order to abuse him. The prosecution says that the mistakes made by the Police officers at various stages in the recording of his statement have no adverse impact on its voluntariness as the accused admitted that he was smoking during the interview and therefore the interview was conducted in a comfortable atmosphere.

[106] The accused wants you to consider the 48 hour limitation on detention of the accused in the custody of the Police. He says he was kept for 5 nights and the prosecution did not dispute that. The applicable provisions of the Constitution limits the period of Police detention to 48 hours, but “if it that is reasonably not possible, as soon as possible thereafter”. This is another question of fact you have to decide. You will have to consider whether it is reasonable for the Police to detain the accused for 5 days before producing him before the Court in this instance. You will also note that the interview of the accused has commenced within the 48 hour period, since his arrest.

[107] It is for you to assess the evidence. Remember that police officers are experienced witnesses who are used to giving evidence. I do not say this because I express any opinion about their credibility, but where a confession is a primary item of evidence against an accused such direction is usually given.

[108] You should take into account all the circumstances in which the statement was made in assessing its value. The State says the accused person has made a confession to the police. You can convict a person on his confession alone. It has been said that people don’t admit committing an offence unless it is true. Of course people are known to make false confessions too. Before you can act on the confession of the accused you have to be satisfied beyond a reasonable doubt of three things:

i. that the accused did make the confession,

ii. that the confession is true,

3. whether the accused made the confession voluntarily in the sense that it was obtained without oppression, ill treatment or inducement.

[109] If you decide that the prosecution has failed to prove any of these or some of these factors beyond a reasonable doubt then you must disregard the caution interview statement of the accused altogether. But if you decide the prosecution has established these factors to the required level of proof, then you could use its contents as items of evidence against the accused.

[110] So far, I have directed you on the assessment of credibility of the evidence for the prosecution and of the accused. If you reject the version of the accused and preferred to accept the prosecution evidence as truthful and reliable account of the incident, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offences of Rape and Attempted Rape, beyond a reasonable doubt.

[111] As already noted the complainant had said, in relation to the count of Rape that the accused inserted his two fingers into her vagina and she felt pain. Prosecution says the dried blood clots seen by the examining doctor on the same day supports their claim there was penetration. In addition, question Nos. 59 and 60, and the answers given by the accused in his caution interview statement are also relied upon by the prosecution. If you consider these items of evidence as sufficient proof of penetration of the complainant’s vagina by the accused on that occasion, then you may find the accused guilty of Rape as A.B’s consent is irrelevant. If you are not satisfied that penetration had occurred, then you must find the accused not guilty to the charge of Rape.

[112] The prosecution says in relation to the charge of Attempted Rape that the accused tried to put his penis into her vagina. Then only he inserted his fingers. Noela saw the complainant naked below her waist on the bed of the accused and him kneeling in front of her. In addition, question Nos. 62, 63 and 64 and the answers given by the accused in his caution interview statement are also relied upon by the prosecution. If you find that the prosecution has proved that accused had an intention to penetrate the complainant’s vagina with his penis, and when the accused tried to put it into her vagina if it is an overt act which manifests that intention in your opinion, then you may convict the accused for Attempted Rape. If not, you must find the accused not guilty of Attempted Rape.

[113] The identity of the accused too must be proved by the prosecution beyond a reasonable doubt. In order to prove that it is this accused who had penetrated the vagina of A.B. with his penis, the prosecution relied on evidence of Noela and also on the admissions contained in the caution interview statement of the accused marked and tendered as P.E. No. 2A and B. The complainant said she saw “Bola” on that day for the first time and there was no identification of the accused by her.

[114] Then lastly, 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 Courts 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.

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

1. If you accept the accused’s denial that that he had not put his fingers into the vagina of the complainant and he did not try to put his penis into her vagina, then you must find the accused not guilty to the counts of Rape and Attempted Rape;
2. If you find the prosecution evidence is not truthful and or not reliable then too you must find the accused not guilty on these two counts.
3. If you find the persecution evidence is both truthful and reliable then only you must consider whether elements of the charge of Rape, namely penetration has been proved beyond a reasonable doubt in relation to the accused and also the elements of Attempted Rape, namely whether the accused had an intention to penetrate the complainant’s vagina with his penis, and did an overt act which manifests that intention. In addition they must prove his identity. If it is so only you must find the accused guilty to the count of Rape and Attempted Rape.
4. If you find the prosecution failed to prove there was penetration, then you must find the accused not guilty of Rape.
5. You should not find the accused guilty of one charge because you find him guilty to the other charge. You must consider each charge separately on the available evidence.

[116] If you have any reasonable doubt about the prosecution case as a whole then you must find the accused not guilty on both counts.

[117] Any re-directions, the parties may request?

[118] 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 charges of Rape and Attempted Rape. When you have reached your individual opinions you will come back to Court, and then you will be asked to state your opinion.

[119] I thank you for your patient hearing.

Achala Wengappuli
JUDGE

At Suva
This 11^th Day of November 2016

Solicitor for the Prosecution : Office of the Director of Public Prosecution, Suva
Solicitor for theAccused : Legal Aid Commission