State v Narayan - Summing Up [2016] FJHC 660; HAC143.2013 (15 July 2016)

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

CRIMINAL CASE NO: HAC. 143 of 2013

STATE

V

JOSEPH SHYAM NARAYAN

Counsel : Ms. D. Kumar and Mr. S. Shah for State
Mr. S. Kumar for Accused
Dates of Hearing : 12^th July – 15^th July 2016

Date of Summing Up: 15^th July 2016
(Name of the complainant is suppressed. Accordingly, the complainant will be referred to as SS)

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 in 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. 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.
   
2. 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.
   
3. 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. 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.
   
4. 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.
   
5. 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. 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. 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.
   
6. Based on the evidence of witnesses you may decide that certain facts are proved. In addition to those facts you would consider as directly proved, you may also draw reasonable inferences from those proved facts.
   
7. 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.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Obviously, you may have a difficulty in believing someone who is not consistent. 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 weight you give to a witness' testimony.
   
9. 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.
   
10. 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. The accused is presumed to be innocent until proven guilty. The prosecution should prove the guilt of the accused beyond reasonable doubt, in order for you to find him guilty of a particular offence. You must be sure of the accused person’s guilt.
    
11. The accused in this case is charged for two counts. You should also bear in mind that you should consider each count separately. You must not assume that the accused is guilty of the other count just because you find him guilty of one count. You must be satisfied that the prosecution has proved all the elements of each count separately in order for you to find the accused guilty of both counts.
    
12. 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. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in a short while.
    
13. You are not required to decide every point which has been raised by lawyers in this case. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the charges laid against the accused have been proved.
    
14. 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.
15. Let us now look at the Information. DPP has charged the accused for the following offences;
    

FIRST COUNT

Statement of offence

Sexual Assault: Contrary to section 210 (1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

JOSEPH SHYAM NARAYAN between the 1^st and 28^th of February 2013 at Nasinu in the Central Division unlawfully and indecently assaulted SS by touching her vagina.

SECOND COUNT

Statement of offence

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

Particulars of offence

JOSEPH SHYAM NARAYAN on the 11 March 2013 at Nasinu in the Central Division penetrated the vagina of SS with his tongue without her consent.

16. Now let me summarise the evidence led by the prosecution and the defence. Please remember that I will not be reproducing the entire evidence of the case. 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.
    

Case for the prosecution

17. Prosecution’s case is that the accused who was the stepfather of the complainant caught her smoking inside the bathroom and then he indecently assaulted her by touching her vagina. He told her if she keeps his secret he will keep her secret. On another occasion he kissed the complainant’s vagina inside the bathroom. Then on another occasion accused penetrated her vagina with his tongue. The accused expected the complainant to keep quiet because he is keeping her secret. The complainant was scared that her biological father would come to know about her smoking.
18. Complainant said she lived with her mother, Joseph Shyam Narayan whom her mother was having a de facto relationship, his son, his two nieces and his parents at Kalokalo, Makoi since 2011. It is an agreed fact in this case that Joseph Shyam Narayan is the accused in this case and that he was having a de facto relationship with the complainant’s mother. One week after the complainant started living there, the accused told her that he doesn’t accept her as his daughter and that he has lusty feelings towards her. She said that the accused also asked him how she felt towards him and she told him that she respects him as a father. Thereafter the accused used to pass unacceptable comments on her despite her telling him not to. She did not like what he was doing to her but she did not tell anyone because she did not know whom to approach. Her mother thought that the accused is just being friendly.
    
19. She recalled an incident which took place in the month of February 2013 when she was smoking inside the bathroom. When she was about to put the cigarette butt away, the accused opened the bathroom door. This door did not have a proper lock. At this time she was naked as she was about to bathe. Accused then asked her whether she was smoking and why. She grabbed the towel and put it over her but did not answer. Then the accused touched her vagina with his finger. He told her that if she keeps his secret, he will keep her secret. She did not inform anyone about the incident because she was scared that her father who was in New Zealand would come to know about her smoking.
    
20. She said her mother was operating a bean cart and she would come back home after 5pm. She said the accused used to drop her at school and then pick her along with his nieces and his son.
    
21. She said when she came back from school on 11/03/13, the accused told her that he wants to lick her vagina. She said “no that wasn’t right”. The accused then held her hand and took her to the bathroom, he took off her pants and panty. He went down and kissed her vagina. Then he kissed her lips. While this was happening the accused’s niece Sanjeshni came looking for her and the accused told her that the complainant was upstairs. Accused then left. She said she couldn’t let anyone know as she had caused a lot of problems to her parents.
    
22. She said the accused brought a roll of Marijuana one day. She couldn’t remember the date. After she was shown a certain part of her statement given to the police by the prosecutor, she said it was on 11^th March. She said the accused made her smoke from the roll of Marijuana. She thinks that the incident in the bathroom may have taken place the same day. The next day, the accused kept on telling her that he wants to lick her vagina properly. The accused told her that he had seen her whole body, touched her and kissed her. So she should allow him to lick her vagina. She told him that she wouldn’t let him do that. Then the accused told her to go to the bathroom and wash herself. He was scolding her and she did not know what to do. She then took her towel and was standing outside the bathroom. The accused then scolded her again to go inside and wash herself. Then she washed herself but stayed inside the bathroom for a while as she didn’t want the accused to lick her vagina. The accused came and pulled her by her wrist and took her to the bedroom. He pushed her on the bed where she was made to lie down with her feet on the ground. Then the accused knelt down, lifted her legs and started licking her vagina. He was putting his tongue inside her vagina. She kept on telling the accused not to do it, and the accused heard her. Accused told her that she should enjoy while he is enjoying. At that moment she was wearing a blue T-shirt and a towel around her waist and the accused opened the towel when he pushed her on the bed.
    
23. She said she told her form teacher about the incidents. The day she told the form teacher, the accused dropped her at school and told her not to come home unless she make up her mind to have sex with him. She told him that she won’t be coming home that day. She then went to her form teacher and told him that the accused caught her smoking and since then he was forcing her to smoke and was blackmailing her. She told him that the accused was touching her body and that the accused licked her vagina forcefully.
    
24. During cross examination she said most of the time, the accused would pick her from school in the afternoon around 3.30 -3.45 unless she was on duty or had afternoon classes. She said most days he dropped them inside the compound and the accused stayed in the house for some time before he left to drive the taxi again. The accused used to pick her mother between 5.00pm and 6.00pm. She said the lock in the bathroom was not very strong. She said she did not raise alarm when the accused came into the bathroom when she was smoking because she was doing something unacceptable. She said she did not tell her mother soon after the incident because she was scared that the mother won’t believe her. She said it took some time to find courage to tell someone. She denied fabricating evidence to suppress the fact that the accused caught her smoking. She said after she left the accused’s house, her mother was still in contact with the accused and subsequently she went back to the accused. She said she gave her statement to police on 21/03/13. When she told her mother, the mother did not want her to take legal action. It was reported to the police after she spoke to her student counsellor.
25. During re-examination she said that the accused thought that he had something to keep her quiet. She said she did not hide the fact that she was smoking when she came out with what the accused did to her.
    
26. Second prosecution witness was the complainant’s biology teacher and form teacher in 2013. He said one particular morning which he later recalled as 13^th March, the complainant came in search of him and he noticed she was upset over something. She asked him whether he was free and whether she could share something which she is not comfortable in sharing with anyone else at that point of time. He said the complainant told him that the complainant was harassed and molested by her stepfather. He told her to inform her mother about it. He also advised her about the school procedures and that in order to help her, he needs to involve the school counsellor and the principal. When he was asked to give details about what the complainant told him, he said complainant told him that using a smoking incident to blackmail her, the stepfather kissed her, touched her private parts and also licked her. He said he was not comfortable to discuss in detail with the complainant as he found it disturbing. He said, first the complainant decided to try and speak to her mother and in the following week she again came to him and informed him that “the situation is still risky for her and there is no major redress” after speaking to her mother. Then he got the school counsellor and the principal involved and principal directed that the matter be reported to police.
    
27. During cross examination he said the reason for his police statement to be brief compared to the evidence he gave is that he was not asked about the details and he just reported the matter to the police as he was duty bound to do so. He also said that he could remember about this incident because this is one of the most serious incidents he had come across in his teaching career.
    
28. Complainant’s mother was the third witness for the prosecution. She said in 2013, the complainant was living with her and the accused. She operated a bean cart. She commences work between 7am and 8am. She would finish work around 6.30pm to 7.30pm. She said the accused was a taxi driver and he used to pick the children from school around 3.00pm. He used to stay home after that to have his tea and lunch. He would start again at 5pm and finish at 9.00pm.
    
29. She said in March 2013, when she came back home one afternoon she noted that the complainant was in tears. When she asked, the complainant told her that she is having a headache. Again one afternoon around 5.00pm, the complainant came to her bean cart and started crying. Then the complainant told her that the accused caught her smoking in the bathroom and kissed her on her lips forcefully and touched her breast and the vagina. The complainant also told her that on another occasion, accused took her to the bedroom and licked her vagina. She didn’t know that the complainant smoked. She did not know whom to trust. She didn’t go to the police because the accused’s mother begged her and she felt sorry for her. Then she left the house with the complainant and stayed with her brother. Then they rented out a place, but she went back to the accused because she fell sick. The complainant went back to the brother’s place. She was living with the accused even after the complaint was lodged. She assisted in having the accused released on bail.
    
30. During cross examination she said she assisted in obtaining bail for the accused because she was emotionally attached to the accused’s mother. She said she left the accused’s house two days before he was released on bail. She said there was no proper lock in the washroom and anyone can open it from outside. When the complainant informed her about the incidents, she did not believe either of them because she loved and trusted the accused and she also trusted her daughter. But it was a shock to her to find out that the complainant was smoking. She said, though the time she mentioned as 5.00pm to 9.00pm was the accused’s driving time, he used to come home in between to have a shower or to go to the washroom. She said after her work, sometimes the accused picked her and other times she went home in a taxi.
    

Case for the Defence

31. 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.
32. Defence case is that the accused was elsewhere during the time the complainant says the two offences were committed. So he could not have committed the offences he is charged with. Further, when the defence counsel cross examined the complainant he suggested to the complainant that she complained against the accused to suppress the fact that the accused caught her smoking. The accused said in evidence that the complainant has no reason to make those allegations.
    
33. Accused said that he usually starts work at 6.00am. He drops his children including the complainant around 7.30am at school. The he would come home to have a break from around 10.30am. Again he would pick the children from school around 3.30pm. He waits for the complainant till 3.45pm. Then he would drop them at the road in front of the house around 4.00pm. After he drops them at home, he would continue driving the taxi till 8.00pm. If it was a busy time, he would come home around 9.00pm or 10.00pm. He would also bring his wife home around 5.30pm or 6.30pm. He said he came to know about the allegations through his lawyer as he was not at home at that time.
    
34. He said the washroom door had a t-bolt lock, and if somebody locks from inside no one will push from outside. The washroom and the bedroom in the bottom flat were separated by a board. He lived with his de facto wife in the bottom flat at the back, but after the complainant came to live with them, he moved to the flat upstairs. He said he did not use the washroom downstairs.
    
35. He said he followed the same routine he earlier explained, on 11/03/13. He said, one morning when he came to take the children to school after having the complainant’s mother dropped in hospital, he saw the complainant throwing away a cigarette butt. When he questioned the complainant said either the accused or the grandfather would have thrown it. Then he took the kids to school and as the complainant was getting down from the vehicle, he told her that he will tell everything to her mother in the afternoon. He said he can’t remember the date but that is the date the complainant complained about him to her mother.
    
36. He said he never pushed open the washroom door when the complainant was having a bath. When he was asked whether he licked the vagina as the complainant had testified, he said he was not there at that time. He said during the month of February 2013, his driving schedule was the same. He said there is no reason for the complainant to make those allegations.
37. During cross examination, he agreed that he saw the complainant with a cigarette butt in February 2013, but he said he saw her throwing it away. He said he did not want to inform the complainant’s mother immediately that he saw the complainant smoking because the complainant’s mother was a nice lady and he did not want to disturb her work. When he was questioned about him opening the bathroom door when the complainant was smoking inside and then touching the complainant’s vagina, he kept on saying he was not there. Then he was asked about certain questions and answers in his cautioned interview. This was regarding him opening the bathroom door and witnessing the complainant smoking inside. He said he cannot read English but his statement was recorded in English since there was no Hindi interpreter. He did not say that his preferred language is English. He said the answers read by the prosecutor were not given by him to the police. He said he wanted a lawyer to be present but it was not allowed. When it was pointed out that he wanted the complainant’s mother to be there during the interview and not a lawyer, he said she was initially there but then she left. He said he told the police the same thing he said in court. He said he is seeing that interview (PE1) for the first time.
    
38. When it was put to him that he had agreed for his cautioned interview to be given in evidence though he says he has not seen it, he said he do not know anything about it because he is not that educated. When the allegations made by the complainant were put to him, he kept on saying that he was not at home. When he was questioned about the complainant’s mother calling him after the complainant told her about the allegations against him, he said he had two missed calls from the complainant’s mother and he directly went to her and spoke to her. He said he had a missed call from his mother as well.
    
39. Second witness for the defence was one Samuela Tupua. He said the accused is a taxi driver in the taxi base at Makoi where he is the president. He said he will never forget 11/03/13 because he heard that the accused had done something and he was taken into custody. He said on 11/03/13, 4.00pm to 8.00pm was a very busy time and the accused was on duty at the base. He said the accused would go on short runs which were for just 4 to 5 minutes and the accused never went out for longer than 5 minutes. During cross examination he agreed that he also drove a taxi and he did not keep any records.
    
40. The third defence witness was one S. Nisha who was a tenant of the accused who occupied the front ground flat from 2010 to 2014. She said she cannot recall when the accused was charged, not even the year. She said the accused parks his taxi next to her room. He leaves at 7.00am to drop the children to school and then he would be working, driving his taxi. He comes at 3.30pm to drop the children at home, and would go back to work. He drops the children beside the house on the road and she had not seen the accused come home until after 9.00pm. She could not work and she stayed at home as she is asthmatic. During cross-examination she agreed that she gave her statement to police in October 2015 and she cannot remember the events exactly.
    
41. Next witness for the defence was the accused’s sister. She said she went with the third prosecution witness, her husband and her mother to Mr. Sunil Kumar in order to have the accused released on bail. She said the third prosecution witness did the talking with the lawyer.
    
42. Final witness for the defence was the accused’s mother. She said she went to Mr. Sunil Kumar’s office with her daughter and the third prosecution witness and the third prosecution witness did the talking with the lawyer. She said when the complainant came to live with them, the accused moved to the top flat and the complainant and her mother occupied the bottom flat. She was the one who cooked for the accused and washed his cloths. The accused used to go in the morning and return around 11.00am or 12.00pm. In the afternoon, he would go around 2.30pm and drop the children at home around 3.30pm on the road near the gate. Then the accused would go back to run the taxi and would return around 9.30pm or thereafter. She said the accused does not come home in the afternoon after dropping the children near the gate.
    
43. That is a brief summary of the evidence. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those agreed facts. You should consider those facts as proven beyond reasonable doubt.
    
44. You heard in this case that the complainant had made a complaint to her form teacher, the second prosecution witness. Prosecution is relying on that evidence and says that there was a recent complaint made by the complainant. You should consider whether the complainant made that complaint without delay and whether she sufficiently complained of the offences the accused is charged with. The complainant need not describe every detail of the incidents in the complaint, but the complaint should contain sufficient information with regard to the alleged conduct of the accused.
    
45. You heard the evidence of the complainant and the evidence of the second prosecution witness, the form teacher. Defence says that the second prosecution witness has not given any details in the two statements he had given to the police. Accused said that the complainant and her mother had a heated argument over the second prosecution witness sharing his personal information with the complainant. According to the accused, this personal information the second prosecution witness is alleged to have shared with the complainant is that he did not get married because he was heartbroken. Though the accused said this in his evidence, the prosecution witnesses including the second prosecution witness were not questioned by the defence lawyer regarding this particular personal information in order to give the prosecution witnesses the opportunity to respond. The second prosecution witness also said that he was not asked for details when he gave his statements but he clearly remembers about this incident because this is one of the most serious incidents he had ever come across.
    
46. Considering all the relevant evidence, you should decide whether there is reliable evidence that the complainant made a prompt complaint to her form teacher and whether that complaint contains sufficient information regarding the offences the accused is charged with. If you decide that the complainant had made a complaint which is prompt and sufficient, then you may consider that the complainant’s credibility is strengthened in view of that complaint.
    
47. You should also remember that what the 2^nd and 3^rd witnesses said in evidence about what the complainant told them cannot be considered to prove that what the complainant said was true.
    
48. You may consider whether there are any inconsistencies in the evidence led in this case. In dealing with inconsistencies, first you have to be satisfied that in fact there are inconsistencies. If you are satisfied that there are inconsistencies, then you should consider whether those inconsistencies are material and relevant or insignificant and irrelevant. If you find an inconsistency to be material and relevant, then you must consider whether there is any explanation for that 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 particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
49. 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.
    
50. The prosecution tendered as PE1 and PE2, the cautioned interview and the charge statement of the accused which is mentioned at paragraph 11 of the agreed facts. Prosecution wanted to show that the accused had made previous statements that are different to the evidence he gave in court. However, when he is questioned about PE1, the accused said that he did not give the answers read by the prosecutor which appear in PE1 though he has signed that document. He said he wanted the interview to be conducted in Hindi as he cannot read English. But the police told him that there was no Hindi translator. He said the police did not allow him to have a lawyer when his interview was conducted. With regard to PE1 and PE2, you should first decide whether the accused did give the answers recorded in those two documents.
    
51. On one hand, the accused has clearly stated in the agreed facts that he does not dispute the admissibility of PE1 and PE2. Then he says in evidence that he did not give certain answers contained in PE1. When he was asked about the agreed facts, the accused said that he is not that educated to understand them. Therefore, in deciding whether the accused did give the answers highlighted by the prosecution, you should not forget that there is a possibility that the accused’s lawyer failed to properly advice the accused or that there may have been a miscommunication.
    
52. Therefore, before you consider whether there are any inconsistencies between the accused’s evidence and PE1 and PE2, you should ask yourselves whether you are sure that the accused did make those statements. If you are not sure that the accused gave those answers, you should disregard PE1 and PE2. If you are sure that the accused gave those answers then you may proceed to consider whether there is an inconsistency between the evidence given by the accused and the answers. I have already directed you on how to deal with inconsistencies.
    
53. May I now direct you on the defence of alibi. Defence of alibi means, the accused takes up the position that he was not at the crime scene but elsewhere at the time the crime was committed. The accused says that he was driving his taxi and was not at home at the time the two offences were alleged to have been committed. His position is that he could not have committed the offences he is charged with because of his daily routine as a taxi driver. Though the accused had put forward this defence of alibi, please remember that there is no burden for the accused to prove that he was elsewhere. The prosecution should still prove that it was the accused that committed the offence and that therefore the alibi is not true.
    
54. You heard the accused and the witnesses he called except the fourth witness giving evidence on his daily routine. You heard the evidence of the witnesses for the prosecution. If you think that the version of the accused that the accused was not at home at the time the offences are alleged to have been committed is true or it may be true, then you must find the accused not guilty.
    
55. However, you should also bear in mind that you should not assume that the accused is guilty of the charges merely because you decide not to accept his version, if you so decide. You should remember that sometimes an accused may invent an alibi just because it is easier to do so rather than telling the truth. Main question remains the same. That is, are you sure that it was the accused who committed each offence.
    
56. The accused is charged with the offence of sexual assault under section 210(1)(a) of the Crimes Decree in the first count. The elements of this offence are;
    1. the accused;
    2. unlawfully and indecently;
    100. assaulted the complainant.
         
57. The first element of both counts 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. From the manner in which the witnesses were examined and cross examined, there was no dispute that the ‘Joseph’ the complainant referred to is the accused and it is an agreed fact that the accused is the complainant’s stepfather. However, the accused says that he could not have committed the offences as he was elsewhere. Having in mind my directions on dealing with the defence of alibi, you should decide whether the prosecution has proved beyond reasonable doubt that it is the accused who committed the offence. This applies in respect of both counts.
    
58. The word “unlawfully” simply means without lawful excuse. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent. 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. Assault is the use of unlawful force.
    
59. The prosecution says that the accused sexually assaulted the complainant by touching her vagina inside the bathroom during the period between 1^st February and 28^th February 2013. According to the complainant, the accused forcefully opened the bathroom door when the complainant was naked as she was going to have a bath. She was about to throw away the butt of the cigarette she was smoking when the accused came inside. Then the accused touched her vagina. The accused denies the allegation and says that the complainant is lying to suppress the fact that the accused caught her smoking. You should first decide whether you believe the evidence of the complainant in respect of the first charge and then decide whether the elements of the offence of sexual assault is established based on that evidence. If you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence then you should find the accused guilty of the first count. If you have a reasonable doubt, you should find the accused not guilty.
    
60. To prove the second count, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the complainant’s vagina with his tongue;
    100. without the consent of the complainant;
    4. the accused knew or believed that the complainant was not consenting; or

he was reckless as to whether she was consenting or not.

61. Again, the first element involves the identity of the accused. I have already explained to you about this element. Accused says that he could not have committed the offence as he was elsewhere.
    
62. To establish the second element of the first count, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his tongue. A slightest penetration is sufficient to satisfy this element.
    
63. The next two elements involve consent. The prosecution should prove that the accused penetrated the complainant’s vagina without her consent. The prosecution should also prove that the accused knew that the complainant did not consent to the act or that the accused was reckless as to whether or not she was consenting.
    
64. 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 tongue 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 tongue, 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.
    
65. 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.
       
66. According to the prosecution, the accused penetrated the complainant’s vagina with his tongue. Second count alleges that this incident took place on 11/03/13. However, the complainant did not come out with the exact date of the incident. In her evidence she related to an incident which the prosecution has not charged the accused for as an incident which took place on 11/03/13. According to the complainant, the incident where the accused licked her vagina took place on the following day. This was the last incident before she went to her form teacher seeking his assistance. Her version was that, from the date the accused caught her smoking, he was taking advantage of her threatening her that he will disclose about her smoking. Would the fact that she did not come out with the date mentioned in the second count mean that the complainant lied about the incident relevant to the second count?
    
67. Another question to be considered is, did the accused know the allegation he had to defend in respect of the second count. The crux of the allegation in the second count is that the accused penetrated the complainant’s vagina with his tongue. When the complainant’s version regarding the allegation was put to the accused, he denied and he said that he was not at home and he was doing his job. In relation to this count you may therefore also consider whether the accused was prejudiced in anyway due to the fact that the complainant did not come out with the date mentioned in the count. Did the accused’s evidence of alibi focus merely on 11/03/2013 or was it about his daily routine as a taxi driver.
    
68. Considering all the evidence led in this case, if you are satisfied that the prosecution has proved beyond reasonable doubt that the accused penetrated the vagina of the complainant with his tongue, then you should find the accused guilty of the second count. If you have a reasonable doubt, or if you think that the variance between the date mentioned in the charge and the complainant’s evidence regarding the date of offence caused a prejudice to the accused in respect of his defence, then you should find him not guilty of the second count.
    
69. You must remember to assess the evidence for the prosecution and the defence using the same yardstick but bearing in mind that always the prosecution should prove the case.
    
70. 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. In the event you disbelieve the accused and/or his witnesses, that does not make the accused 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 the prosecution has proved all the elements beyond reasonable doubt.
    
71. Any re-directions?
    
72. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. You may peruse the exhibits tendered in court 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.
    
73. Your possible opinion should be as follows;

1^st count – guilty or not guilty

2^nd count – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Sunil Kumar Esq, Nausori.