State v Cumu - Summing Up [2016] FJHC 1133; HAC305.2014 (8 December 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 305 OF 2014

STATE

vs

INOKE CUMU

Counsel : Ms M Chowdhury and Ms L Bogitini for the State
: Mr L Qetaki for the Accused

Dates of Trial : 28^th November – 7^th December 2016

Summing Up : 8^th December 2016

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

SUMMING UP
___________________________________________________________________________

Madam and Gentlemen Assessors,

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

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

[3] It is your duty to decide all questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of fact, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.

[4] During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent view.

[5] In forming your opinion, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.

[6] It is also important to note that, in forming your opinion on the charge against the accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgement, I shall place much reliance upon your opinion.

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

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

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

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and 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 how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

[14] The experience of the Courts is that those who have been victims of rape react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others will not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.

[15] The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim’s reluctance to report the incident could be also due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. There is, in other words, no classic or typical response by victims of Rape.

[16] A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in this matter before us, the lateness of the complaint and what weight you attach to it. It is also for you to decide when she did eventually complain whether it was due to intervention of her class teacher, also for 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] Lady and gentlemen, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

[21] Having placed considerations that could be used in assessing credibility of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.

[22] When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

[23] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence of Rape.

[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] 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.

[28] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence charged. The fact that the accused is absent, therefore did not offer evidence must not be taken against him as it is not his task to prove his innocence.

[29] 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?

[30] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I will explain these elements later.

[31] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence and the other matters of which you must be satisfied, such as identity, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such doubt, then your duty is to find the accused guilty.

[32] 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.

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

[34] There is only one charge preferred by DPP, against the accused:

AMENDED INFORMATION BY THE

DIRECTOR OF PUBLIC PROSECUTIONS

INOKE CUMU is charged with the following offence:

(COUNT 1)

Statement of offence

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

Particulars of the Offence

INOKE CUMU, between the 12^th day of May 2014 and the 15^th day of August 2014, at Nasigatoka Village, in Rewa, in the Central Division, penetrated the vagina of A.B., a child under the age of 13 years, with his tongue.

[35] I shall first deal with the elements of the offence of Rape. In order to prove a charge of Rape, the prosecution must prove beyond a reasonable doubt that the accused has penetrated A.B. or the complainant’s vagina, by his tongue. The slightest penetration is sufficient to satisfy this element.

[36] 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 less than 13 years of age and therefore, she had no capacity to consent. Therefore, her consent is immaterial in this case.

[37] If you are satisfied beyond a reasonable doubt that the accused penetrated the complainant’s vagina with his tongue then you may find him guilty of Rape.

[38] Apart from the elements Rape, 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 the accused named in the information namely Inoke Cumu and none other had penetrated the complainant’s vagina on that date and time. There must be positive evidence as to the identification of the accused.

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

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

[41] The parties have admitted the following as proved without calling necessary witnesses:

1. IT IS AGREED THAT the accused [hereinafter referred to as ‘Mr Cumu’], was 22 years old at the time of the alleged offence.
2. IT IS AGREED THAT the complainant A.B. at the time of the alleged offence was 8 years old and a primary school student.
   
3. IT IS AGREED THAT Mr Cumu was formally charged by DC 3751 Isoa at the Nausori Police Station on the 29^th day of October 2014 in the i-Taukei language.
   

Case for the Prosecution

[42] Evidence of the complainant A.B.

(i) It is her evidence that she was born on 10^th May 2006 and is currently living in Nakasi with her parents. She attends St Joseph the worker school and studies in Class 5. She is now 10 years old.

(ii) In August 2014 she lived in Nasigatoka, Rewa and was attending Rewa District School. At that time too she lived with her parents.

(iii) In describing the incident, the complainant stated that one day, during the school holidays in August 2014, she went to her grandmother’s house to borrow some matches. On her way back to her house, one Inoke had pulled her into his house. In its kitchen, Inoke has pulled down her panties and then he licked her vagina. She was lying down on the kitchen floor, when the accused licked her vagina. After that the accused threatened her that he would kill her if she revealed this incident.

(iv) She pointed out to the groin area of her doll when asked where her vagina is and also had spread its legs to demonstrate how her legs were; at the time Inoke licked her vagina. She also demonstrated with two dolls of the positioning of Inoke and her by placing the face of one doll on the groin area of the other.

(v) She did not reveal this incident to her parents as she was scared. After some time, she has told Mrs. Bula, her class teacher, about this incident, when Mrs. Bula asked her pupils as to what happened to them during their holidays.

[43] Evidence of Wainikitu Bula

(i) This witness said in her evidence that the complainant was her student at Rewa District Primary School in 2014. She found the complainant as a reliable, responsible and above average student.

(ii) In August 2014, the complainant told her that she was sent to borrow some matches from her neighbour’s house. When the complainant knocked on the door, Inoke was there. She had asked for some matches. Inoke then pulled her into the house, pulled down her pants and licked her vagina.

(iii) The complainant was scared and the witness had to reassure her repeatedly to reveal the incident. After verifying the incident with few more questions, the witness had then reported the matter to Assistant Head Teacher.

[44] Evidence of DC 3749 Esava

(i) This witness has 8 years of experience as a police officer and in August 2014 served in the Nausori police station in the CID branch. On instructions of Crimes Officer, the witness interviewed Inoke Cumu under caution on 29^th October 2014. Inkoe appeared fit and well. He had no complaints. The interview commenced at 1.10 p.m. and after a break for lunch, the interview continued until its conclusion at 3.16 p.m. on the same day.

(ii) The interview was conducted in iTaukei language in the presence of the witnessing officer Vilivo. There were no other police officers present except for the witness and witnessing officer Vilivo. Its handwritten record was tendered as P.E. No. 1A. Inoke answered all questions and there was no threat, promise or inducement for him to make the statement. Inoke was treated fairly by the witness during the interview. The witness pointed out few typing errors on the English translation of the interview.

(iii) In addition, the witness said in evidence that the two villages Lomanikoro and Nasigatoka are separated only by a foot path. The incident took place in Nasigatoka village.

[45] That was the case for the prosecution. You then heard me explain several options to the Counsel of the accused. I explained to him that the accused could give sworn evidence and call witnesses. The accused could also address Court. The accused 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. His Counsel opted to address Court.

Analysis of all evidence

[46] The prosecution relied on the evidence of the complainant, Waini Kitu Bula and the interviewing Police Officer of the accused, DC 3749 Esava to prove its case while the accused opted to address Court. The prosecution marked the iTaukei original of the accused's caution interview statement as P.E. No. 1A and its English handwritten and typed translations as P.E. Nos. 1B and 1C.

[47] 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 count of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved all the elements of the offence of Rape, beyond a reasonable doubt.

[48] 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.

[49] The prosecution has primarily relied on the evidence of the complainant in order to prove the charge of Rape they have levelled against 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 at a later stage of this summing up, as to how you should set about in assessing the caution interview statement of the accused.

[50] 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.

[51] 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.

[52] Your task includes the assessment of the evidence of a child aged 10 years, who described events that allegedly took place when she was 8 years of age. 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.

[53] 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.

[54] 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.

[55] 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.

[56] 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.

[57] 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.

[58] 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.

[59] 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, in addition to the ones I have just mentioned. 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.

[60] The evidence of the complainant is that after the alleged act, she did not complain about it to her parents immediately. She says she was scared. After the school holidays were over, she had told the incident to her class teacher. That too, when her class teacher asked her pupils about what they did during their holidays. The teacher had to reassure the complainant repeatedly as she was frightened. There is no clear evidence as to the time gap between the incident and its revelation to her teacher.

[61] 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.

[62] 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 his closing address, the accused has highlighted several inconsistencies of the evidence of the complainant with the evidence of her class teacher.

[63] These inconsistencies that were highlighted by the accused, concerns the sequence of events as narrated by the complainant about the incident. The complainant said in evidence that it was upon her return from her grandmother's house, she was pulled in by Inoke to his house. Her class teacher, Mrs Bula, in repeating what the complainant told her, stated in evidence that complainant told her that she has gone to a neighbour's house asking for some matches and when she knocked on its door, Inoke pulled her into the house.

[64] There is no inconsistency as to what Inoke did after the complainant was pulled into the house. The accused highlighted the inconsistency in relation to the place of the incident. The prosecution says these inconsistencies do not affect the real issue whether the accused has licked her vagina or not. The accused wants you to consider these inconsistencies as serious ones which would render her evidence unreliable.

[65] However, I must caution you over one matter when you consider the complainant's evidence with her class teacher's evidence. What the complainant told her teacher should not be taken by you as supportive evidence of the complainant’s evidence and you should consider it only for the purpose of considering whether her evidence is consistent about the allegation.

[66] 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 to what extent these inconsistencies affect her truthfulness and reliability as a witness in the light of the legal directions I have already given.

[67] In addition to the 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 version of events as presented by the prosecution.

[68] The evidence of the complainant is that when she returned from her grandmother's house, one of her neighbours called Inoke had pulled her into his house. After pulling down her panties, Inoke had then licked her vagina. He then threatened the complainant not to tell this to anyone. She then left his house having pulled up her pants.

[69] A.B. said in her evidence that when she lay on the kitchen floor, the accused licked her vagina and he was in between her parted legs.

[70] The accused wants you to consider the probability of the prosecution's claim as the complainant said in her evidence that the village was full of children and people as it was school holidays. In that situation, how is that the accused could pull in the complainant without being seen by anyone? In addition he wants you to consider the probabilities of the location of the kitchen as it’s his claim that it is located separately from the house.

[71] It is your responsibility to decide whether the version of the prosecution is probable, in deciding the truthfulness and reliability of its evidence.

[72] 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 whether the prosecution version is probable, based on your common-sense.

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

[74] You will recall how the complainant gave answers when she was cross examined. She would pause for some questions and would answer some suggestions by the accused very promptly with a yes or no.

[75] Similarly, you should also consider the demeanour of Mrs. Bula and the Police officer.

[76] 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.

[77] It’s time to turn our attention to the caution interview of the accused. The accused during his cross examination suggested to DC Esava that three other police officers have assaulted him to make admissions and the officer fabricated contents of this caution interview. These suggestions were denied by the police witness who affirmed that the accused voluntarily provided all answers to the questions put to him by the witness.

[78] 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.

[79] Whether the accused gave his statements voluntarily and whether the statements set out a version of events in relation to the 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.

[80] The prosecution 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 offence he is charged with.

[81] You have heard from the police officer 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 it was correctly recorded.

[82] DC Esava said in his evidence that the accused was given his rights and he was cautioned. The interview was conducted in the crimes office and the accused was provided with lunch break, before the interview was resumed after caution.

[83] It is for you to assess the evidence of the prosecution. 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.

[84] 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.

[85] 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.

[86] So far, I have directed you on the assessment of credibility of the evidence for the prosecution. If you reject the denial 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 offence of Rape, beyond a reasonable doubt.

[87] As already noted the complainant had said, in relation to the count of Rape that the accused licked her vagina and she felt pain. She said in evidence that the accused’s tongue went inside her vagina. Prosecution says this evidence supports their claim that there was penetration of her vagina by the tongue of the accused. In addition, question Nos. 22, 23, 24, 25, 26 and 27, and the corresponding 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.

[88] 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 tongue, the prosecution relied on evidence of the complainant and also on the admissions contained in the caution interview statement of the accused marked and tendered as P.E. No. 1A.

[89] The accused wants you to believe that it was a different Inoke Cumu who is responsible for this incident and not him. He claims that the prosecution has accused a “wrong man”. He relies on the evidence of the complainant that the incident was with Inoke Cumu of Nasigatoka, who is her neighbour and the accused is from the village of Lomanikoro not of Nasigatoka. In cross-examination, the complainant admitted that she was told by someone that Inoke is known as Inoke Cumu. The prosecution says these two villages are only separated by a foot path. It might be relevant to note that there is no evidence before Court that there were others who were also known as Inoke Cumu in the area.

[90] It is for you to decide this highly contested question of fact. If you entertain a reasonable doubt that whether it was Inoke Cumu of Nasigatoka who is responsible for this incident, then that benefit of doubt should go to the accused. If you have no such doubts that it was the accused in this case is the person who is responsible for the act of penetration of the complainant’s vagina by tongue, then you may convict him as charged.

[91] Then lastly, you will note that when the trial was commenced in your presence, the accused was present in Court and pleaded not guilty to the charge of Rape. As at present, the accused is not before us and it is not for you to wonder why. The law provides for the trial to proceed in the absence of the accused. In the circumstances, I must now direct to you about coming to your opinion on the charge when the accused is absent:

(a) You obviously have heard no evidence from him. Even if he was here it would have been his right to remain silent and to require the prosecution to make you sure of his guilt; there is no burden on him to prove anything.

(b) You must not assume that an absent accused is guilty because he is not here. His absence does not help the prosecution to prove its case against him in any way at all.

(c) Similarly you must not speculate or guess as to the reasons for his absence, and you must not hold his absence against him.

(d) You try this case according to the evidence, and you will assess it just as carefully as you would have done if the accused was here.

(e) But you will appreciate that there is no evidence from him at this trial to undermine, contradict or explain the evidence put before you by the prosecution, except the suggestions put to the prosecution witnesses on his behalf by his Counsel.

[92] 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, then you must find the accused not guilty to the count of Rape;
2. If you find the prosecution evidence is not truthful and or not reliable then too you must find the accused not guilty of Rape;
3. If you find the prosecution 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. In addition they must prove his identity. If it is so then only you must find the accused guilty to the count of Rape.
4. If you find the prosecution failed to prove there was penetration, or the identity of the accused, then you must find him not guilty of Rape.

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

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

[95] Madam and Gentlemen assessors, this concludes my summing up of law and evidence. Now you may retire and deliberate together and may form your individual opinions on the single charge of Rape. When you have reached your individual opinions you will come back to Court, and then you will be asked to state your opinion.

[96] I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Suva
This 8^th Day of December 2016

Solicitor for the State : Office of the Director of Public Prosecution, Suva

Solicitor for the Accused : Legal Aid Commission