State v Bulago - Summing Up [2016] FJHC 509; HAC15.2015 (6 June 2016)

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

CRIMINAL CASE NO: HAC. 15 OF 2015

STATE

V

TOMASI BULAGO

Counsel : Mr.M. Vosawaleand Ms. L. Bogitinifor State
Ms. C. Choy for the Accused

Dates of Hearing : 01^st June –03^rdJune 2016
Date of Summing Up: 06^thJune2016
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as TK)

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 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. 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 to the case and whether there is any explanation given with regard to the inconsistency. It is for you to decide what weight you would give to the evidence of a witness in view of any inconsistency you find in that evidence.
    
11. 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.
    
12. You heard that TK (“complainant”) was 12 years old at the time material to the first count and she is 18 years old now. 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 different ages. You will have an idea of the way a child would think, talk and would respond to things at a particular age. 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.
    
13. 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.A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for you to determine what weight you would give to the fact that the complainant in this case not informing anyone about the incidents until 2014.
    
14. 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 reasonable inferences from those proved facts.
    
15. 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.
    
16. 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.
    
17. 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.
    
18. 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 an offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. However, if you find that the prosecution has proved all the elements of a particular offence beyond reasonable doubt, you should find the accused guilty of that offence. I will explain you the elements of the offences in a short while.
    
19. You would note that on top of each count in the Information, it says “Representative Count”. A representative count is a count by which the prosecution alleges that several offences described in the statement of offence were committed during the time period specified in the count.When it comes to a representative count,the law says that it shall be sufficient for the prosecution to prove that between the dates specified in the count at least one such offence was committed.
    
20. The accused is charged with seven offences. Therefore you should bear in mind to consider each count separately. You must not assume that the accused is guilty of the other counts just because you find him guilty of one count.
    
21. 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.
    
22. Let us now look at the Information. DPP has charged the accused for the following offences;
    

COUNT ONE

(Representative Count)

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(b) & (3) of the Crimes Decree 2009.

Particulars of offence

TOMASI BULAGO between the 1^stday of February 2010 to the 27^th day of August 2010 at Nasinu, in the Central Division, penetrated the vagina of TK, a child under the age of 13 years with his finger.

COUNT TWO

(Representative Count)

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(c) & (3) of the Crimes Decree of 2009.

Particulars of offence (b)

TOMASI BULAGO between the 1^st day of January 2011 and the 27^th day of August 2011 at Nasinu, in the Central Division penetrated the mouth of TK, a child under the age of 13 years with his penis.

COUNT THREE

(Representative Count)

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(a) & (3) of the Crimes Decree of 2009.

Particulars of offence (b)

TOMASI BULAGO between the 1^st day of January 2011 and the 27^th day of August 2011 at Nasinu, in the Central Division had carnal knowledge of TK, a child under the age of 13 years.

COUNT FOUR

(Representative Count)

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(a) of the Crimes Decree of 2009.

Particulars of offence (b)

TOMASI BULAGO between the 1^st day of January 2012 and the 31^st day of December 2012 at Nasinu, in the Central Division had carnal knowledge of TK, without her consent.

COUNT FIVE

(Representative Count)

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(a) of the Crimes Decree of 2009.

Particulars of offence (b)

TOMASI BULAGO between the 1^st day of January 2013 and the 31^st day of December 2013 at Nasinu, in the Central Division had carnal knowledge of TK, without her consent.

COUNT SIX

(Representative Count)

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(a) of the Crimes Decree of 2009.

Particulars of offence (b)

TOMASI BULAGO between the 1^st day of January 2014 and the 31^st day of October 2014 at Nasinu, in the Central Division had carnal knowledge of TK, without her consent.

COUNT SEVEN

(Representative Count)

Statement of offence

Sexual Assault: Contrary to Section 210 (1)(a) of the Crimes Decree of 2009.

Particulars of offence (b)

TOMASI BULAGO between the 1^st day of February 2010 and the 31^st day of December 2013 at Nasinu, in the Central Division unlawfully and indecently assaulted TK by touching her breasts.

23. I am directing you that you should disregard the second count in the Information and should provide me your opinion regarding counts 1, 3, 4, 5, 6 and 7 only.
    
24. The following facts are admitted facts in this case and you should consider these facts as proven beyond reasonable doubt;
    1. TomasiBulago is the brother of TK’s step-father JaleNaqura.
    2. TomasiBulago captains a fishing vessel by profession.
    3. TK and her family moved to Narere in 2012 living a few metres from TomasiBulago’s family residence.
    4. TK was born on the 27th of August 1998.
       
25. You would note that the Information in this case contains three types of offences;
    1. Rape of a child below the age of thirteen years (Count 1& 3)
    2. Rape (Counts 4, 5 & 6)
    100. Sexual assault (Count 7)
         
26. 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 ofthe complainant with his finger or penis;
    100. without the consent of the complainant;
    4. accused knew or believed that she was not consenting or was reckless as to whether or not she was consenting.
       
27. However, law says that a child under the age of 13 years is incapable of giving consent. Therefore, if the complainant is below the age of 13 years, the prosecution need not prove the elements (c) and (d) aboveconcerning consent.It is an admitted fact that the complainant was born on 27th of August 1998 and therefore it should be considered as proven beyond reasonable doubt that the complainant was below the age of 13 years at the time material to counts 1 and 3. Accordingly, with regard to count 1 and count 3, only the elements (a) and (b) above are in dispute.
    
28. The first element of the offence of rape 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.
    
29. The second element of the offence of rape involves penetration. First count is about penetrating the complainant’s vagina with the accused’s finger. The second element of third, fourth, fifth and sixth counts involves penetrating the vagina of the complainant by the accused with his penis. The law states that this element is complete on penetration to any extent.It is not necessary to have evidence of full penetration or ejaculation. A slightest penetration either by a finger or penis is sufficient to satisfy this element.
    
30. With regard to the fourth, fifth and sixth counts, you need to consider the next two elements which involves consent. Not only that the prosecution should prove that the accused had carnal knowledge of the complainant without her consent, 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.
    
31. 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 penis 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 penis, 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.
    
32. 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.
       
33. There is one other matter you should bear in mind regarding the 4^th and the 5^th counts. When you consider count 4 and count 5, in the event you accept the evidence that the accused penetrated the vagina of the complainant but you are not sure whether or not the complainant consented to the act, you should find the accused not guilty of rape but should consider whether the accused is guilty of the lesser offence of defilement. Aperson who penetrates the vagina of a complainant between the age of 13 and 16 with his penis is guilty of the offence of defilement under section 215(1) of the Crimes Decree. It is a defence to this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years. However, it is not a defence that the complainant consented to the act.
    
34. Seventh count involves the offence of sexual assault.The elements of the offence of Sexual Assault are;
    1. the accused
    2. unlawfully and indecently
    100. assaulted TK
         
35. Again, the first element involves the identity of the accused.
    
36. The word “unlawfully” simply means without lawful excuse.
    
37. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
38. Assault is the use of unlawful force. Accordingly, a touch constitutes an assault if it is done without a lawful excuse.
    
39. You should also ask yourself, firstly, whether you consider the force which was used could have been sexual because of its nature; and if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual.
    

Case for the prosecution

40. Complainant said that during the period between 1^st February 2010 and 27^th August 2010, she was residing in Nadera with her mother, stepfather, the accused, accused’s wife and accused’s two daughters. Accused is her stepfather’s elder brother.
    
41. She said on one night between the aforementioned period, the accused came to her bedroom and told her to massage his stomach. At that timeher mother was admitted in the hospital and her stepfather had gone to the hospital to stay with her mother. Therefore, apart from her and the accused, only the accused’s wife and the two daughters were there and they were sleeping. Then the accused told her to massage downwards and then to massage his penis. After that he told her to lie down beside him, touched her breasts and then inserted his finger insider her vagina. She knew that he inserted his finger insider her vagina because he put his hand inside her panty, then touched her vagina and then inserted his finger. When he was doing this to her, she was scared and her private part was painful. She said when this incident happened the light was off and she knew that it was the accused from his voice. The accused told her not to tell anyone because no one will believe her andhe will beat her up and send her to a distant place. She was scared when she heard this. Her mother was admitted in the hospital for one week. Between 1^st February and 27^th August 2010, the accused did this to her several times.
    
42. She said, during the period between 01^st January 2011 and 27^th August 2011, she was residing in Newtown with her mother and her stepfather. One day she did not go to school because she was sick and she was alone at home as her parents had gone for work. The accused came to her house that day and when she said that both parents have gone to work, he locked the doors and came inside her room. He then told her to lie down with him. He then told her one story and told her that he wants to have sex with her. She told him that she does not know how to do that. Then he told her that he will teach her. He came on top of her, he removed her clothes and then inserted his penis inside her vagina. She could feel something strong inside her vagina and her vagina was so painful when this was happening. She said he was inserting his penis for more than 5 minutes. Afterwardsshe saw blood coming out of her vagina and accused’s sperm on the bed sheet. Then he thanked her for being strong to have sex with him and he left. During that period, the accused inserted his penis inside her vagina plenty of times.
    
43. She said in 2012, she was residing at Narere with her family and the accused was residing with his family a few meters away. She said the accused used to send his daughters to call her for her to come to the accused’s house and massage him. The first time it happened in 2012, accused’s daughters came to call her during daytime. When she went to his house accused was in his bedroom wearing only a towel. Then he told her to rub his penis with her hands and she complied because she was scared of the accused. Then he told her to have sex with him and she agreed because the accused forced her. Theaccused got on top of her, kissed her and kept on asking her to have sex with him. On that day, his penis was inside her vagina for less than 5 minutes. She said she did not give her consent for the accused to have sex with her on this occasion. She said apart from this incident he did that to her on several times in 2012 and she gave her consent only some times. She said on the occasions she did not consent, the accused knew that she was not consenting because she said ‘no’. On such occasions, the accused used to tell her that if she have sex from an earlier age, then it would be easier for her to have sex with her husband. She said the first time this happened to her in 2012, accused’s daughters and his son were at home, but she did not inform anyone because they won’t believe her.
    
44. She said, in 2013 also she lived in Narere and the accused continued to send his daughter to call her to his house to massage him. When it happened for the first time in 2013, after his daughter called her, she went straight to the accused’s bedroom. Then he asked her to have sex with him and she said ‘no’. She said then the accused forced her by dragging her towards him. He started touching her, touching her breasts and her vagina. Then he took her clothes off and inserted his penis into her vagina. His penis was there for less than 5 minutes and after he finished, he told her to put her clothes on and to go back to her house. At that time, accused’s entire family was there but she did not alert anyone because she was scared. She was scared thinking that he would beat her up and chase her as he was very close to her stepfather and the stepfather was not treating her as a daughter. She said, apart from this incident the accused did the same thing to her plenty of times in 2013 and she did not consent on those occasions.
    
45. Then she said she resided at Caubati during the period between 01^st January 2014 and 31^st October 2014 with her parents. The accused was living in Nakelo. During that period, the accused used to come to her house and take her to his house with her mother’s permission and then force her to have sex with him. She said the first time the accused took her to his house in 2014, the accused’s wife’s mother and his daughters were at home. The accused threw her onto the bed, kissed her, removed her clothes and inserted his penis into her vagina. She did not alert anyone because she did not want to. She was scared of him. She did not consent for the accused to insert his penis inside her vagina. The accused knew that she was not consenting because she said ‘no’. He did that to her on several times between 01^st January 2014 and 31^st October 2014, without her consent.
    
46. She said the accused touched her breast on several occasions in 2010, and on two occasions in 2013.
    
47. She told her aunt, Talatoka about the accused forcing her to have sex with him in 2014 because she was fed up.
    
48. During cross examination she said the accused’s son whose name was also Tomasi lived with them in 2010. She agreed that her mother was admitted in the hospital on 13^th of July 2010. She denied that the accused’s wife had left for Kadavu with some other relatives on the day her mother was admitted. She also denied that the accused left for Denarau two days before her mother was admitted in the hospital, and also that the accused was still at Denarau when her mother returned from the hospital.
    
49. She denied that in 2011, one Salamisa and one Ana were living in the same house with her at Newtown and that Ana was not working and was at home always. She denied that in 2012, one girl by the name of Asena was staying with her and her family at Narere. She was shown her statement given to the police on 11/12/2014 where she had said that in 2013, the accused took her to a fishing boat at the yacht club and told her to have sex with him there and it was suggested to her that what she had told the police regarding what happened to her in 2013 is different from what she said in court. She agreed. She also agreed that she did not mention in her statement to the police that in 2014 the accused picked her from Caubati and took her to Tailevu, and what she had told the police was that when she was free at home, the accused would continue to have sex with her.
    
50. She agreed that the accused’s wife came to her place before she left for Lautoka and her mother told the accused’s wife about the incidents. It was suggested to her that the wife of the accused told her that she, the wife of the accused cannot believe her and that she is fond of telling lies. She denied this. But she admitted that her mother did not believe her. She denied that the accused got angry and told her and one Emi off on one day in October 2014, because the two of them did not wait as per the accused’s request for the accused to pick them up the previous day. She agreed that the accused is a boat master and would be out at sea for months, but denied that he would only come and stay at home for one or two days. She denied that she made up this entire incident because the accused got angry with her in October 2014. She said the accused and his wife were financially supporting her and Unaisi. It was suggested that she did not tell or alert anyone about the incidents because the incidents did not happen and she denied those suggestions.
    
51. In re-examination she said that in 2010 the accused’s son was 19 years old at that time and he was also there at home with the others she mentioned. She said she did not mention about the incident in the yacht club because she forgot. She also said that she forgot to tell the police about the accused taking her to Nakelo because when she was giving her statement, all her memories were ‘jumbled up’. She said the accused had not told her off as suggested by the defence counsel. She said the accused would stay back home for one to two weeks when he returns.
    

Case for the Defence

52. 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 to call witnesses.
    
53. Accused in his evidence said that in 2010 he was a boat master and he was mostly based at Denarau. He would be at the sea for one or two months depending on the charters and would stay at home only for one or two days. He said in 2010 he lived in Nadera with his family, his niece Unaisi, his brother’s son and the daughter and the complainant and her parents. He was at Denarau on 13^th July 2010 and he left on 09^th July. By the time he left, the complainant’s mother was already admitted. He denied the complainant’s allegations relating to 2010.
    
54. He said he was residing at Narere in 2011 with his family, Unaisi, one Salamisa, Ana, the complainant and her parents. Salamisa is his cousin brother and Ana is the wife of Salamisa. After one month, complainant’s family moved to Newtown with Salamisa and Ana. He said Ana was not working and was at home during daytime. He said the allegations made regarding incidents in 2011 did not happen and he was mostly based in Denarau.
    
55. In 2012 he was residing at Narere. The complainant and her parents were at Newtown. He said the incidents which the complainant mentioned did not take place between him and the complainant in 2012 and that the complainant is lying.
    
56. He said, in 2013 he was residing at Nakelo in Tailevu with his family, his wife’s parents and her uncle’s family. He was stationed at Walu Bay and he was the captain of an inter-island vessel. He would travel to the Islands for one to two weeks. He said the allegations the complainant made regarding 2013 is not true as it did not happen.
    
57. In 2014, he was residing at Lokia in Rewa with his family, Unaisi and one Livia. He was the captain and the fishing master of a fishing vessel. He was based at Walu Bay. He said the incidents which the complainant related did not happen in 2014. He spent most of his time at sea. He said on one morning in the month of October 2014, on his way to work, he stopped at Caubati and told the complainant and one Emi to wait for him in the afternoon for him to pick them up. This is because Emi’s parents who had come from Kadavu wanted to see Emi. But when he went to pick them in the afternoon, they were not there. When both of them came to his house next morning he told them off because he got annoyed as they did not wait for him the previous day.
    
58. He said he was supporting the complainant for her education since 2009. He said he did not have sex with the complainant between 2010 and 2014 and he did not touch her breast. He said he is surprised that this had happened to him. He had helped them and he cannot believe this.
    
59. During cross examination he said his son’s voice and the complainant’s stepfather’s voice is little bit similar to his voice. He admitted that the complainant has no reason to make all this up. But he said the complainant is a liar.
    
60. Second defence witness was the wife of the accused. She said Rosi is their daughter. They were residing at Nadera in 2010 with her niece Unaisi, accused’s son Tomasi, accused’s nephew Jale and niece Asena, the complainant and her parents. She went to Kadavu on 13^th July 2010 for a funeral. Complainant’s mother was admitted in the hospital on the 09^th. The accused was in Denarau by the time she went to Kadavu and he was still at Denarau when she returned.
    
61. In 2011, they were residing at Narere. Complainant and the family moved to Newtown and accused’s cousin Salamisa and Salamisa’s wife Ana were also staying with the complainant and the family. She said Ana was at home during daytime.
    
62. In 2012 she was residing at Narere and the complainant and the family were at Newtown. In 2013, complainant and her family also moved in to a place few metres away from her house. She said one Asena was also staying with the complainant’s family. Mereani, Livia, Jale, Kelevi and Pauliasi were living with her family.
    
63. In 2014 she lived with her parents, the accused, daughter Rosi, Unaisi, her sister and her brother at Nakelo. Her parents were at home during daytime.
    
64. She said in 2010, the accused was working as a boat master at the Suva Yaucht Club. The accused would be away for more than a month and when he returns home, he would stay at home for less than 2 days.She said she was working in the years 2011, 2012, 2013 and 2014 and the accused would be away for more than a month and would come home only for less than two days in 2011, 2012 and 2013. She financially supported Unaisi and the complainant along with the accused.
    
65. She said complainant’s mother told her in 2014 that the accused had been having sex with the complainant. She looked at the complainant and said that it is a lie and that she knows the complainant very well. The complainant was just looking down at that time. She said the complainant’s mother also believed her. She said from the time complainant was brought to her house, complainant was stealing and was always telling lies. She told the complainant to wait so that when the accused return from the sea, she could confront both of them, but when the accused returned, the complainant was at Lautoka.
    
66. During cross examination, she first denied that she was at home when the complainant’s mother was admitted in the hospital. Later she admitted that she was at home that day but said that the accused was not there. She denied the suggestion that the accused sometimes visited the house where the complainant lived in 2011. She denied that there were instances where the accused would be at home while she was at work. She denied that the accused and complainant’s stepfather were close.
    
67. In re-examination she said she left 2 days after complainant’s mother was admitted in hospital. She said the complainant might be having some issue with them for the complainant to make things up.
    
68. Final witness for the defence was the complainant’s stepfather. He said accused is his elder brother. Complainant was with him since 2009. His wife was admitted in hospital in July 2010. During that time, he was at home during daytime and visited his wife at the hospital in the evening with the complainant. He said they did not stay overnight in the hospital. He said his wife was admitted two days after the accused left for Denarau. He said the accused’s wife went for a funeral in Kadavu and at that time he, complainant, Jale, Asenaca, Rosi’s grandmother were at home. Accused was not at home when his wife came back from hospital as he was still at Denarau.
    
69. He said when his family was residing at Newtown in 2011, Salamisa and Ana also were staying with them. At that time his wife and Ana were not working and they were at home during the day. In 2012, he and his family moved to Narere and one Asena was also living with them. Accused’s house was about 30 metres away from their house. They were in Narere in 2013 as well and in 2014 they moved to Caubati.
    
70. He said he treated the complainant as his own daughter and loved her more than her mother. He said, the accused would visit him sometimes when he was not living with the accused, but the accused would come with his wife and children and would not come alone.When the accused was released on bail, he reconciled with the accused because he knows about the complainant’s lies and that it is not true. At that time the complainant and her mother were in Lautoka. He said the complainant did not complain about the accused, to him. He was informed about the matter after a complaint was lodged with the police.
    
71. During cross examination he said he respects the accused since the accused is his elder brother. He said he is very close to the accused as a brother. He admitted that he came to court on last Wednesday and while the complainant was outside court and about to give evidence, he asked her why this case has not yet been closed.
    
72. In re-examination he said he does not want the complainant’s lies to become real.
    

Analysis

73. With regard to the first count the prosecution says that the accused inserted his finger inside the complainant’s vagina on multiple occasions during the period between 1^st February 2010 and 27^th August 2010, and the first incident took place when the complainant’s mother was admitted in hospital. According to the prosecution, the incident took place in the night, the light was off and the complainant recognized the accused from his voice.
    
74. According to the defence, the accused was at Denarau during the time complainant’s mother was admitted in hospital, the period relevant to the first count. The accused said that the complainant’s mother was admitted on the 13^th July 2010 and he left for Denarauon the 9^th of July 2010. Accused also said his son’s voice and complainant’s step father’s voice are similar to his voice.
    
75. Accused’s wife, the second defence witness said that the complainant’s mother was hospitalized on the 9^th July 2010 and she left for Kadavu for a funeral on 13^th July 2010. She said, by the time she left for Kadau, the accused was already in Denarau.
    
76. Third defence witness who is the younger brother of the accused and also the complainant’s stepfather said his wife was admitted two days after the accused left for Denarau.
    
77. During the examination in chief, the complainant could not remember the exact date the first incident in 2010 take place. What she could remember was that it happened during the one week her mother was hospitalised. It was the position of the defence that the accused was in Denarau during the time complainant’s mother was hospitalised. The accused said complainant’s mother was hospitalised on the 13^th July 2010 and he left for Denerau on 09^th July 2010, his wife said the complainant’s mother was hospitalised on 09^th July 2013 and she went to Kadavu on 13^th July 2010.
    
78. Law says that, if an accused takes up the position that he was elsewhere during the time of offence and therefore he could not have committed the offence, the prosecution should be given prior notice. In this case no such notice was given to the prosecution with regard to count one. When you decide whether you accept the evidence of the defence that the accused was in Denarau during the time according to the complainant when the first incident took place and what weight you give to that evidence, you should also consider the fact that the defence has not given the required notice to the prosecution in that regard.
    
79. Considering all the evidence, if you are satisfied that the prosecution has proved beyond reasonable doubt that the accused penetrated the vagina of the complainant at least on one occasion during the period between 1^st February 2010 and 27^th August 2010, then you should find the accused guilty of the first count. If you are not, then you should find the accused not guilty of the first count.
    
80. It is not required for you to consider the second count.
    
81. With regard to the third count, the prosecution says that the accused inserted his penis inside the complainant’s vagina on multiple occasions during the period between 1^stJanuary 2011 and 27^th August 2011.According to the prosecution, the first incident took place whenthe accused cameto her house on a day when she was alone at home, during daytime.
    
82. Accused says that one Ana was staying with the complainant and her family in 2011 and Ana was at home during daytime. He said the allegations made regarding incidents in 2011 did not happen and he was mostly based in Denarau at that time. Second and third prosecution witnesses also said that one Ana was living in the same house with the complainant.
    
83. Considering all the evidence, if you are satisfied that the prosecution has proved beyond reasonable doubt that the accused penetrated the vagina of the complainant at least on one occasion during the period between 1^st January 2011 and 27^th August 2011, then you should find the accused guilty of the third count. If you are not, then you should find the accused not guilty of the third count.
    
84. With regard to the fourth count, the prosecution says that the accused inserted his penis inside the complainant’s vagina on multiple occasions during the period between 1^st January 2012 and 31^st December 2012.According to the prosecution, the accused would send his daughters to call the complainant to massage him. Then the accused would insert his penis inside the complainant’s vagina. The complainant gave evidence of the first incident in 2012. She said apart from this incident he did that to her on several times in 2012 and she gave her consent only some times. She said on the occasions she did not consent, the accused knew that she was not consenting because she said ‘no’. On such occasions when she say ‘no’, the accused would tell her that if she have sex from an earlier age, then it would be easier for her to have sex with her husband.
    
85. According to the accused, the incidents which the complainant mentioned did not take place between him and the complainant in 2012 and the complainant was lying.
    
86. Considering all the evidence, if you are satisfied that the prosecution has proved beyond reasonable doubt that the accused penetrated the vagina of the complainant, without her consent and he knew or believed that she was not consenting or he did not care whether she was not consenting; at least on one occasion during the period between 1^st January 2012 and 31^st December 2012, then you should find the accused guilty of the fourth count. If you are not, then you should find the accused not guilty of rape as charged on the fourth count.
    
87. However, if you are sure that the accused did penetrate the complainant’s vagina with his penis but not sure whether the complainant consented or not sure whether the accused knew and reckless as to whether the complainant was not consenting; then you should consider whether the accused is guilty of defilement of a girl between 13 and 16 years old.
    
88. Based on admitted fact No. 4, during the time material to the fourth count, the complainant was above the age of 13 years but below the age of 16 years. Therefore, unless it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years, you should find the accused guilty of defilement.
    
89. With regard to the fifth count, the prosecution says that the accused inserted his penis inside the complainant’s vagina on multiple occasions during the period between 1^st January 2013 and 31^st December 2013. According to the prosecution, the accused continued to send his daughters to call the complainant to massage him. The first time it happened in 2013, when the accused asked her to have sex with him and she said ‘no’. She said then the accused forced her by dragging her towards him. He started touching her, touching her breasts and her vagina. Then he took her clothes off and inserted his penis into her vagina.
    
90. According to the accused, in 2013 he was residing at Nakelo in Tailevu with his family, his wife’s parents and her uncle’s family. He was stationed at Walu Bay and he was the captain of an inter-island vessel. He would travel to the Islands for one to two weeks. He said the allegations the complainant made regarding 2013 is not true as it did not happen. Accused’s wife said that in 2013, complainant and her family also moved in to a house few metres away from her house at Narere. She said one Asena was also staying with the complainant’s family.
    
91. Considering all the evidence, if you are satisfied that the prosecution has proved beyond reasonable doubt that the accused penetrated the vagina of the complainant, without her consent and he knew or believed that she was not consenting or he did not care whether she was not consenting; at least on one occasion during the period between 1^st January 2013 and 31^st December 2013, then you should find the accused guilty of the fifth count. If you are not, then you should find the accused not guilty of rape as charged on the fifth count.
    
92. However, if you are sure that the accused did penetrate the complainant’s vagina with his penis but not sure whether the complainant consented or not sure whether the accused knew and reckless as to whether the complainant was not consenting; then you should consider whether the accused is guilty of defilement of a girl between 13 and 16 years old.
    
93. Based on admitted fact No. 4, during the time material to the fifth count, the complainant was above the age of 13 years but below the age of 16 years. Therefore, unless it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years, you should find the accused guilty of defilement.
    
94. With regard to the sixth count, the prosecution says that the accused inserted his penis inside the complainant’s vagina on multiple occasions during the period between 1^st January 2014 and 31^st October 2014. According to the complainant, the accused used to come to her house at Caubati and take her to his house at Nakelo with her mother’s permission and then force her to have sex with himwithout her consent.
    
95. According to the accused, in 2014, he was residing at Lokia in Rewa with his family, Unaisi and one Livia. He was the captain and the fishing master of a fishing vessel. He was based at Walu Bay. He said the incidents which the complainant related did not happenin 2014. He spent most of his time at sea. According to the accused’s wife,in 2014 her family including the accused lived with her parents at Nakelo.
    
96. Considering all the evidence, if you are satisfied that the prosecution has proved beyond reasonable doubt that at least on one occasion during the period between 1^st January 2014 and 31^st October 2014, the accused penetrated the vagina of the complainant, without her consent and he knew or believed that she was not consenting or he did not care whether she was not consenting, then you should find the accused guilty of the sixth count. If you are not, then you should find the accused not guilty of rape as charged on the sixth count.
    
97. Prosecution also says that the accused sexually assaulted the complainant several times by touching her breasts during the period between 1^st day of February 2010 and the 31^st day of December 2013. Accused denies the allegation.
    
98. Considering all the evidence, if you are satisfied that the prosecution has proved beyond reasonable doubt that the accused unlawfully and indecently assaulted the complainant by touching her breast at least on one occasion during the period between 1^st day of February 2010 and the 31^st day of December 2013, then you should find the accused guilty of the seventh count. If you are not, then you should find the accused not guilty of the seventh count.
    
99. You must remember to assess the evidence for the prosecution and defence using the sameyardstick but bearing in mind that always the prosecution should prove the case.
    
100. 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.
     
101. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each offence;
     
     • (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.
       
102. 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. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
     
103. Your possible opinion should be as follows;

1^st count - Rape – guilty or not guilty

3^rd count - Rape – guilty or not guilty

4^th count - Rape – guilty or not guilty

If not guilty

Defilement - guilty or not guilty

5^th count - Rape – guilty or not guilty

If not guilty

Defilement - guilty or not guilty

6^th count - Rape – guilty or not guilty

7^th count – Sexual Assault – 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: Office of the Director of the Legal Aid Commission, Suva