State v Bilash - Summing Up [2016] FJHC 493; HAC149.2014 (26 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 149 of 2014

STATE

V

NITENDRA PRASAD BILASH

Counsel : Mr.M. Vosawale and Ms. S. Sharmafor State
Ms.S. Narayanand Ms. M. Chandfor the Accused

Dates of Hearing : 23^rdMay to 25^thMay 2016
Date of Summing Up: 26^th May 2016

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies for this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty.
   
2. During this summing up, if I express my opinion on the evidence or if I appear to do so, you are not bound accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
3. Evidence is what the witnesses said from the witness box in this court room, the exhibits tendered and the admitted facts. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard such information.
   
4. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening address and you heard the closing addresses. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
5. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box and the admitted facts. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feeling of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
6. Please remember that I will not be reproducing the entire evidence of the case in this summing up. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
   
7. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
8. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
9. In assessing the credibility of a witness, it may be relevant to consider whether there are inconsistencies in his/her evidence orwhether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that previous statements made out of court are not evidence except for those parts that are put to a witness as inconsistent versions. As I have already told you, evidence is only what came out from the witness box. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part in the statement is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
   
10. You may have a difficulty in believing someone who is not consistent. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
11. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
12. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weightyou give to a witness' testimony.
    
13. You heard that Achal Prasad (“complainant”)was 16 years old at the time of the alleged incident. The main task before you in this case therefore is to judge whether this witness has told the truth and whether the account of the events she gave is reliable. You may have come across children of that age. You will have an idea of the way they think, the way they talk and the way they respond to things. With your life experience, you have to decide whether the complainantwas a credible witness and whether you can rely on the account given by her.
14. Experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all. A victim’s reluctance to complain could also be due to shame coupled with the cultural taboos existing in the society in talking about matters of sexual nature with others.
    
15. You heard in this case that the complainant had made a complaint to her mother, the second prosecution witness after the incident. You should consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with.
    
16. The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that the complainant made a prompt and a proper complaint, then and then only you may consider that her credibility is strengthened in view of that recent complaint.
    
17. Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. What a witness told you about what he/she saw or heard may directly prove certain facts. In addition to those facts you would consider as directly proved, you may also draw inferences from those facts. For example, when you walk out of this court room, if you see rain water around and it was not raining when you came inside, even though you did not see, you can draw the reasonable inference that it had rained while you were inside the court room. Bear in mind that the inferences you draw should be based on facts proved by the evidence and you may only draw reasonable inferences.
    
18. You are not required to decide every point which has been raised by the lawyers in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not theelements of that offence have been proved.
    
19. When I say ‘proved’, as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.
    
20. The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of an accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person’s guilt.
    
21. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty. However, if you find that the prosecution has proved all the elements of the offence beyond reasonable doubt, you should find the accused guilty. I will explain you the elements of the offence in a short while.
    
22. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my final decision.
    
23. Let us now look at the Information. DPP has charged the accused for the following offence;
    

Statement of offence

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

Particulars of offence

NITENDRA PRASAD BILASH on the 22^nd day of July 2013, at Nabua, in the Central Division penetrated the vagina of Achal Prasad with his fingers without her consent.

24. The following facts are admitted facts in this case and you should consider these facts as proven beyond reasonable doubt;

1. It is agreed that Achal Prasad is the complainant in this matter.

2. It is agreed that Nitendra Prasad Bilash is the alleged accused in this matter.

3. It is agreed that Achal Prasad was residing at Veidogo Settlement, Vatuwaqa at the time of the alleged incidents.
4. It is agreed that on the 22nd of July 2013 the complainant had gone to babysit the daughter of the accused namely NishikaNehaBilash.
5. It is agreed that Nitendra Prasad Bilash was caution interviewed by DC 3650 Semi DaunitutuPeniVuakanisakea on the 25th September 2013. There is no dispute between the State and the Defence about the authenticity, content and admissibility of his caution interview.
6. It is agreed that Nitendra Prasad Bilash was charged by D/C 3761 JoneVeitaqomaki on the 13th of May 2014. There is no dispute between the State and the Defence about the authenticity, content and admissibility of Charge Statement.
   
25. To prove the offence of rape in this case, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of Achal Prasad to any extent with his fingers;
    100. without the consent of Achal Prasad;
    4. accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting.
       
26. The first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
    
27. Second element is penetrating the vagina of the complainant. The law says that penetration is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration. Evidence of a slightest penetration by the accused’s fingers is sufficient to satisfy this element.
    
28. Next two elements involve consent. Not only that the prosecution should prove the complainant did not consent for the accused to insert his fingers, but the prosecution should also prove that the accused knew that she did not consent to the act or that the accused was reckless as to whether or not she was consenting.
    
29. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the complainant may not be consenting for him to insert his fingers inside her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina with his fingers, you may find that the accused was reckless as to whether or not she was consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.
30. You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. The fact that there was no physical resistance alone shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       

Case for the prosecution

31. First prosecution witness was Achal Prasad, the complainant. She said she was 16 years old in 2013. Her father used to cut grass at the accused’s compund. She went to babysit the accused’s daughter on 22/07/2013. After accused returned home on that day between 4.00pm and 5.00pm, his daughter, Neha went to have a shower. Then the accused sat beside her, pulled her pants and poked two of his fingers inside her vagina. She tried to push the accused when he was taking off her clothes but she couldn’t. She said it was painful when he poked the two fingers inside her vagina. Accused’s fingers were inside her vagina for about 5 minutes. She wanted to free herself from the accused, she was pushing the accused and was telling him not to do it. She said she shouted a little bit but did not shout louder because she was scared. When she managed to push him away, the accused got up and went to wash his hands. All this while, Neha was taking the shower. After Neha came back, she was with Neha till her mother came to pick her.She told her mother about the incident because there was blood in her panty. Then she lodged a complaint with the police, and she showed the police her panty. She was medically examined on the 23^rd. She identified the accused.
    
32. In cross examination, she said she was wearing blue jeans and a top at the time of the incident. She said the jeans she was wearing was not that tight and it could be pulled off even when she was sitting. She said her clothes were not torn when her mother came to take her. She did not have any bruises around the waist area. She agreed that she told the police “I could not run away as he was holding me tight” and said that he was holding her waist and her hand. She said she had been to the accused’s house previously to assist her mother who used to do house work there. After finishing their work they used to watch TV series at 12.00pm at that house. She was aware of the fact that there were tenants in the same property but she said they were not at home for them to hear her shout at the time of the incident. When it was suggested to her that if the accused wanted to have intercourse with her he would have taken her to one of the 3 bedrooms in that house,she said “I don’t know”. She said the accused gave her mother $7 when her mother came to take her after 5.00pm. She admitted that she did not mention about her mother being given money in her police statement. Then she was asked whether she agrees that certain facts are not included in her statement made to police and she replied saying that she had told her mother everything that happened. When it was suggested to her that Neha did not have a bath when she was in that house that day, she maintained that Neha did go to have a bath. She agreed with the suggestion that herself and her mother went to a shop before they went home that day, and that she went to the washroom before informing her mother of the incident. She said she was given the medical examination form on the same day by the police, but the police told them to go to the doctor on the next day. She agreed that she was medically examined on the day after the incident around 11.55am. Then she was cross examined on the medical report which the defence tendered as DE 1. She was asked whether she gave the information which is recorded at D10 of the report which reads “yesterday 22/7/13, according to patient, between 4-5pm, she was visiting a friend at Vatuwaqa when her friend went for a shower, her friend’s father pulled off her underwear, and inserted his finger into her vagina. He also pulled up her top and started kissing her breasts” and she said, yes.
    
33. Then she was shown page 5 of the medical report where it indicates that the doctor has noted small bruises on her left breast. She agreed that she did not inform the police about the bruises and also about accused kissing her breast. Then she was asked whether she agrees that the information she gave the police and the information she gave the doctor are different and she said “a bit different”. Then it was suggested to her that she did not inform about the bruises on the left breast because it was not there when she went to the police and she said “it was there”. She denied the suggestion that those injuries are self-inflicted. She also denied the suggestion that she told a tenant of the accused that she will withdraw the complaint if she is given $10,000 by the accused.
    
34. In re-examination, she said the entire ordeal lasted for about 10 to 15 minutes. She said she did not shout because she was scared. She said Neha gave her mother the $7 that afternoon. When she was asked why she did not inform police about the bruises on the left breast, she said it was because she was scared. She said she didn’t inform the police about the accused kissing her breast because she was ashamed.
    
35. Next witness was the mother of the complainant, Reena Prasad. On 22/07/2013, accused called her on her phone and told her to send the complainant to look after his daughter, Neha. She took the complaint to the accused’s house around 9.00am that day and only Neha was there in the house. She again went to the accused’s house around 11.30am to see her daughter and to watch the TV series. She went back home after 1.30pm. She came to pick the complainant around 5.00pm. At that time, Neha, the accused and the complainant were there. She said the accused gave her $7, where $5 was for the complainant and $2 for her cleaning the toilet and the bathroom.
    
36. She said when she gave the complainant the money, the complainant did not take it and she noted that the complainant is worried for something. After receiving the money they went to a shop and then they went home. The complainant went to the washroom and after that the complainant told her that there is blood in her panty. The complainant then told her that when the complainant was sitting on a settee, the accused asked her whether she has a boyfriend and then he pushed the complainant on the settee while Neha was taking a shower, pulled her blue jeans and her panty and poked his hand on her private part. After she heard this, she went with the complainant to Vatuwaqa Police post and reported the matter. They also took the panty to the police.
    
37. During cross examination she said she saw the blood in the complainant’s panty. Then she was shown her statement given to the police where it is stated that “when I went to her, she showed me her panty and told me that blood is inside her panty” and was suggested to her that she had not told the police that she saw the blood. She said she saw it but agreed that it is not mentioned in her statement to police. She said she followed up for about one year about the progress with regard to the complaint made. In re-examination, she confirmed that she saw blood on her daughter’s panty.
    
38. Next witness was Dr. Brian Guevara who prepared DE 1. He has been practicing as a medical officer for 7 years. He had observed that the complainant was alert and oriented but was ‘teary’ at times when telling her story. He had noted a tear in the hymen in the 7 o’clock region with a blood clot, and also noted a small bruise on the left breast. In his opinion a penis, finger or a foreign object which penetrates the vagina vigorously can cause the injuries he had noted. To his knowledge, the injuries he noted were recent having occurred within the last 24 to 48 hours. He said there is always a possibility that this type of injuries can be self-inflicted, but it would be very painful.
39. During cross examination he said the injury on the hymen was noted at the bottom left corner when facing the vagina. He said the bruise noted on the left breast was of dark blackish colour, and it can be caused by biting, pinching or even prodding. He said he did not find any evidence of previous tears in the hymen.
    
40. Next witness was Detective constable Semi Daunitutu who was an investigating officer of the case and was produced by the prosecution for the defence to cross examine. During cross examination, he said the accused was interviewed on 25/09/2013. Explaining the delay in conducting the cautioned interview, he said the rape victims are initially processed by the sexual offences unit and later referred to the relevant police station. He said in some cases it takes few days to get the suspect and to go through the investigation process. He also said he made several phone calls to the accused and as the accused was working in the Suva City Council, he gave the accused time. He had inspected the premises of the alleged incident 10 months after the incident. He said the reason would have been that he was on leave and also maybe he was instructed to revisit the scene after that month stated by the defence counsel. He denied the suggestion that the police decided to dismiss the report because they did not find any weight on the complaint. During re-examination he said he visited the scene before but had to re-visit to draw the sketch.
    
41. Final witness for the prosecution was Detective constable JoneVeitaqomaki who charged the accused. This witness was also presented by the prosecution for the defence to cross examine. During cross examination he said he charged the accused when he was instructed by his superiors to do so.
    

Case for the Defence

42. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence and call witnesses.
    
43. Accused in his evidence said that on 22/07/13 he started work at 7.00am and finished work at 4.00pm. His daughter did not go to school that day as she was sick and he called Reena Prasad on her mobile and requested her if she or the complainant could come over and look after his daughter, and that he will pay them in the afternoon. He came home around 4.30pm. When he came home, the complainant and his daughter were watching TV. He kept his bag in the dining room, took out the leftover food and he ate that food in the sitting room. He sat on the single seater settee in front of the TV. The complainant was sitting in the settee behind him and his daughter was lying down on the settee on his left side. He sat there for about 15 minutes having his food and then went to the kitchen, threw the wrapper and washed his hands. Then again he sat down where he was sitting earlier till complainant’s mother arrived at 5.00pm to pick the complainant. He gave $7 to the complainant’s mother and then the complainant and the mother left.
    
44. He said the complainant was wearing jeans and a top. There are 3 bedrooms in his house. He denied doing anything to the complainant that afternoon and said that the complaint’s allegation is false. He said his daughter did not take a shower while the complainant was there and his daughter had a shower after the complainant and the mother left around 5.30pm.
    
45. He got a call from Reena Prasad after 7.00pm that day and was told that he had wanted to rape her daughter and that she is going to make a complaint to the police. He had said “I didn’t do any sort of those things because she is like my daughter”. He said police officers from Vatuwaqa police post took him to the police post around 8.30pm. When he went there, the complainant and her mother were giving their statements. After he was there for about half an hour, the officer-in-charge told him to go (home) as there is no transport to take him to the Nabua police station. Then he told the police officers to take them for a medical. As the reason for saying this he said, “... because I knew it was getting late night and they will go and do something to themselves and say that I did something”. But the officers told him that there is no doctor. Starting from the following day, he kept following up with the police. He said, on one particular day he was asked to come to the police station by one Sachin. He said Sachin’s superior officer was one Sunil and said that Sunil showed him the complainant’s medical report and her statement. He said the two were not matching. Then he was asked to go home. He again met Sachin at Nabua Shop & Save ATM where he was told to go and meet one Semi at the Nabua police station. He went to the police station with his daughter and Semi interviewed his daughter. He was interviewed sometimes in September 2013, and was charged in May 2014.
    
46. During cross examination he denied that he approached the complainant when his daughter went to take a shower. He denied pulling the complainant’s pants and panty and inserting two fingers inside the complaint’s vagina. He said his daughter was with them.
    
47. Defence called accused’s daughter NishikaNehaBilash next. She did not go to school on 22/07/2013 because she was sick and stayed at home with the complainant. When she was at home alone, she called accused and told him to call the complainant as she is alone and scared. She said whenever she was sick, the complainant came and stayed with her. That day, complainant came around 9.00am. Then they watched TV till complainant’s mother came around 12.00pm and wanted to watch the TV series. Then they all watched the TV series till half past one. After that she told the complainant’s mother to go and the mother left. Then she continued to watch the movie they were watching earlier.
    
48. She said the accused arrived home at half past four. When he came, she and the complainant were watching the movies. She said after the accused came, he put his bag on the dining table, he took out his food and he started to eat while sitting on the small settee in front. She was lying on the large settee on the left and the complainant was sitting where she was sitting from the morning. They continued to watch movies until complainant left with her mother. She said the complainant’s mother did not come inside. The accused gave complainant’s mother the money and then they left. She said the complainant went to the mother as soon as the complainant saw her. She said the complainant’s behaviour was normal when the mother came. On that day, she had her shower after the complainant left and she did not go to take a shower when the complainant was there. Complainant was wearing blue jeans and a top. She said the complainant “is wearing like a modern”. Vatuwaqa police station is 4 to 5 houses away from their house.
    
49. During cross examination, she said she specifically asked for the complainant when she told the accused to call for the complainant. When the accused came home that day she was still enjoying the movies she was watching with the complainant. She said after the sitting room, next is the bathroom behind the TV, behind the bathroom is the dining room and next is the kitchen. She agreed that she could not see what’s happening in the dining room and the kitchen from the sitting room. When she was questioned how did she see the accused put his bag in the dining room and take out his food, she said whenever the accused comes he does that. She admitted that on that day she did not see that happen. She said the accused was eating while the complainant’s mother came. She denied that she bathed before the complainant went away. When she was asked “on that day whilst you had your bath, you would not know what your father did to Achal”?;she looked down took some time and then said “I did not have my shower at that time”.
    
50. Final witness for thedefense was ArunLata. She said the last time she met Reena and her daughter was, two weeks after the incident at the shop next to her house. She said they told her if the accused pays them $10,000 cash they can settle the case. She said the complainant’s dressing is not good as she always wear small, tight fitting clothes. Whenever she sees her, the complainant is on the road, at the bus stop or shop. She said they borrow money and they have also come to her many times. Vatuwaqa police post is near her house, four houses away. She does not know where the complainant resided in 2013. The tenants in the accused’s property don’t stay at home during the day.
    
51. During cross examination she said though the accused is her landlord, she hardly meets him because she is doing shift work. She said she came to know about the rape incident when complainant’s mother told her about it. She did not inform the accused about this settling for $10,000 because her husband told her not to interfere and she was scared. She told the accused about it last week. She said she would not have told him if she knew that she will have to give evidence. She denied that she made up the story about the $10,000.
    
52. During re-examination she said when she asked the accused whether he is going to the hospital with the intention of asking a lift to drop her at the hospital, she was told that he is busy and that he came from the Solicitor’s office. Then she told him about the incident.
    

Analysis

53. The prosecution says that the accused on 22/07/2013 penetrated the vagina of the complainant at his house. The accused totally denies this allegation.
    
54. The prosecution relied on the complainant’s evidence, evidence of her mother on recent complaint to prove the charge. However, because the defence tendered the medical examination report of the complainant as a defence exhibit, the prosecution also called the doctor who examined the complainant on 23^rd July 2013.
    
55. The defence says that there are inconsistencies in the evidence presented by the prosecution and that the complainant is lying. During cross examination, the defence counsel highlighted that the complainant did not mention about her mother being given money by the accused in her police statement and that she did not inform the police about the bruises on her left breast and also about accused kissing her breast as noted in the medical report tendered as DE1.
    
56. Defence also says that the accused was with his daughter till the complainant left his house with her mother on the day in question, the accused could have taken the complainant to any of the vacant bedrooms if he wanted to rape her as he would have known that his daughter would come out from the bathroom at any time, there were houses nearby and if the complainant had shouted or called for help she would have got help and that the injuries noted in DE1 are self-inflicted.
    
57. Was the complainant a truthful witness and can you rely on her evidence? You saw the way the complainant give evidence before this court. You should decide whether she was a credible witness and whether you can rely on her evidence. You should decide whether there are inconsistencies in her evidence as stated by the defence and assess the evidence of the complainant according to the directions I have given you on dealing with inconsistencies.If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some others for example by a police officer in recording the statement where the witness is alleged to have given that version.
    
58. You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points it would not make witness a liar. You must consider the overall evidence of the witness, the demeanor, the way he/she faced the questions inside this court, in deciding on a witness's credibility.
    
59. You heard the third defence witness saying that the “complainant’s dressing is not good and she always wear small tight fitting cloths”. You remember that the complainant was not questioned when she was cross examined regarding her cloths in order to give her an opportunity to respond in this regard. Nevertheless, what you have to decide in this case is whether or not the elements of the offence are proved beyond reasonable doubt.
    
60. If you find that the complainant has made prompt and a proper complaint to her mother then you may conclude that the complainant’s credibility is strengthened in view of that recent complaint.
    
61. As a matter of law you should remember that it is not required to look for corroboration of the evidence of a complainant in a case concerning a sexual offence. To look for corroboration is to look for the existence of independent evidence to support the evidence of a particular witness. Therefore, in a rape case you do not have to look for any other evidence to support the complainant’s evidence.
    
62. You also heard from the third defence witness that when she met the complainant’s mother and the complainant two weeks after the incident, ‘they’ told her that if the accused pays $10,000, they are going to settle the matter. In her examination in chief she did not say who exactly said this to her. During cross examination she said Reena told her about the rape incident and when she was asked “When did Mr. Bilash know that Reena wanted $10,000? When did he know?”; she answered, “I told him last week”. When Prosecution Witness Reena, the complainant’s mother gave evidence, she was not cross examined about this matter by the defence to provide her an opportunity to respond. When the complainant was cross examined, she was asked whether she met the accused’s tenant ArunLata or Anni a few months back and she said “I don’t know”. Then it was suggested to the complainant that she indicated to that tenant that she would withdraw the complaint if she is given $10,000 by the accused and the complainant said “No”. Therefore, if you accept this evidence of the third defence witness regarding the $10,000, you should consider the above when you decide what weight you give to that evidence in deciding the credibility of the complainant.
    
63. In dealing with the evidence of Dr. Guevara and the medical report tendered as DE1, you should bear in mind that the contents in that report which indicates whatever the complainant had told the doctor which is consistent with what she said in court cannot be taken to support her evidence. You may only take into account any inconsistency with regard to what she had told the doctor about the incident as per my directions on dealing with inconsistencies. You may give whatever weight you consider appropriate with regard to the observations and the opinion given by the doctor.
    
64. Considering the evidence you decide to accept as true, you decide whether the prosecution has proved all the elements of the offence beyond reasonable doubt. That iswhether;
    1. the accused;
    2. penetrated the vagina of the complainant on 22/07/2013;
    100. if you are sure that he did penetrate, whether he did it without the complainant’s consent; and
    4. he knew that the complainant was not consenting or that he was reckless as to whether or not she was consenting.
       
65. You must remember to assess the evidence for the prosecution and defence using the sameyardstick but bearing in mind that it is always the prosecution who should prove the case.
    
66. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
67. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise;
    
    • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
      
    • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of an offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proved all the elements beyond reasonable doubt. If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.
      
68. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You may peruse the exhibit if you wish to do so. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
69. Your possible opinion is;

Rape – guilty or not guilty

Any re-directions?

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Divendra Lawyers, Suva