State v Sevakasiga - Summing Up [2016] FJHC 760; HAC42.2015 (19 August 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 42 OF 2015

STATE

V

1. SOVITA SEVAKASIGA
2. PENIJAMINI TAWAKE
   

Counsels : Ms. A. Vavadakua for State
Ms. S. Dunn for 1^st Accused
Mr. A. Paka for 2^nd Accused

Hearings : 15 - 18 August, 2016
Summing Up : 19 August, 2016

SUMMING UP

Madam and Gentlemen Assessors,

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

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

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

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

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

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

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

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

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

[10] A few things you have heard in this Courtroom also are not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and closing submissions made by Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

[11] As I already indicated to you, another matter which will be of concern to you is the determination of truthfulness of witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.

[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting. Consider also the likelihood or probability of the witness's account.

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

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

[16] A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in this matter before us, the lateness of the complaint and what weight you attach to it. It is also for you to decide when she did eventually complain whether it was due to compulsion induced by physical assault and if it is so, as to its genuineness.

[17] Another consideration may be; has the witness said something different at an earlier time or whether he or she is consistent in his or her evidence? In assessing credibility of the testimony of a witness on consistency means to consider whether it differs from what has been said by the same witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question.

[18] In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection; or else could there be an intentional falsehood. Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in the light of other evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory or otherwise be mistaken.

[19] Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to an exhibit.

[20] Lady and gentlemen, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.

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

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

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

[24] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.

[25] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

[26] In order to illustrate this direction, I will give you an example. Imagine that when you walked into this Court room this morning, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that you will understand the relationship between primary fact and the inferences that could be drawn from them.

[27] It does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.

[28] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove. That burden rests on the prosecution to prove the guilt of the each accused.

[29] This is because the accused is presumed to be innocent. They may be convicted only if the prosecution establishes that they are guilty of the offences charged. The fact that both the accused have given evidence and called a witness on his behalf does not imply any burden upon them to prove their innocence. It is not their task to prove their innocence.

[30] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or level of proof, as expected by law?

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

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

[33] You should dismiss all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinion.

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

[35] There are four charges preferred by DPP, against each of the accused:

FIRST COUNT

(REPRESENTATIVE COUNT)

Statement of offence

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

Particulars of the Offence

SOVITA SEVAKASIGA, on the 7^th day of August 2015, at Vuniivi Settlement, Nakobo, in the Northern Division had carnal knowledge of SILIVIA MACA, without her consent.

SECOND COUNT

(REPRESENTATIVE COUNT)

Statement of Offence

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

Particulars of Offence

PENIJAMINI TAWAKE, on the 7^th day of August 2015, at Vuniivi Settlement, Nakobo, in the Northern Division, had carnal knowledge of SILIVIA MACA, without her consent.

THIRD COUNT

(REPRESENTATIVE COUNT)

Statement of Offence

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

Particulars of Offence

PENIJAMINI TAWAKE, on the 7^th day of August 2015, at Vuniivi Settlement, Nakobo, in the Northern Division, penetrated the mouth of SILIVIA MACA, with his penis, without her consent.

FOURTH COUNT

(REPRESENTATIVE COUNT)

Statement of Offence

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

Particulars of Offence

SOVITA SEVAKASIGA, on the 7^th day of August 2015, at Vuniivi Settlement, Nakobo, in the Northern Division, penetrated the mouth of SILIVIA MACA, with his penis, without her consent.

[36] I shall first deal with the elements of the offence of Rape. In order to prove a charge of Rape, the prosecution must prove beyond reasonable doubt that each accused penetrated Silivia Maca’s or the complainant’s vagina, by his penis. In addition, they also must prove that each accused penetrated the mouth of the complainant. The slightest penetration is sufficient to satisfy this element.

[37] Then we must consider the important issue of consent. It must be proved that each accused either knew that she did not consent or was reckless as to whether she consented. The accused was reckless, if each accused realised there was a risk that she was not consenting but carried on anyway when the circumstances known to him it was unreasonable to do so. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond reasonable doubt.

[38] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was over 13 years of age and therefore, she had the capacity to consent. More directions on the issue of consent will be made as we proceed.

[39] If you are satisfied beyond reasonable doubt that each accused penetrated the complainant’s vagina and mouth with his penis then you may find them guilty of Rape.

[40] Apart from the elements of these offences, the identity of the person who is alleged to have committed the offences must also be proved by the prosecution. What it means is that it was these two accused and none other had penetrated the complainant’s vagina and mouth on that date and time. There must be positive evidence as to the identification of each accused.

[41] It is the duty of the prosecution to establish these elements in respect of a particular accused or both accused.

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

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

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

1. THAT SOVITA SEVAKASIGA who is charged in this matter is the cousin of SILIVIA MACA.
2. THAT PENIJAMINI TAWAKE who is also charged in this case is also a cousin of SILIVIA MACA.
3. THAT SILIVIA MACA is the main complainant in this matter.
4. THAT on the 7^th day of August 2015, at Vuniivi Settlement at Nakobo in the Northern Division, SOVITA SEVAKASIGA, did more than once, have sexual intercourse with SILIVIA MACA by inserting his penis into her vagina.
5. THAT on the 7^th day of August 2015, at Vuniivi Settlement at Nakobo in the Northern Division, PENIJAMINI TAWAKE did more than once, have sexual intercourse with SILIVIA MACA by inserting his penis into her vagina.
6. THAT on the 7^th day of August 2015, at Vuniivi Settlement at Nakobo in the Northern Division, PENIJAMINI TAWAKE did more than once, have sexual intercourse with SILIVIA MACA by inserting his penis into her mouth.
7. THAT on the 7^th day of August 2015, at Vuniivi Settlement at Nakobo in the Northern Division, SOVITA SEVAKASIGA did more than once, have sexual intercourse with SILIVIA MACA by inserting his penis into her mouth.
8. THAT on the 7^th of August 2015, while SOVITA SIGA was inserting his penis into the vagina of SILIVIA MACA, PENIJAMINI TAWAKE was inserting his penis into the mouth of SILIVIA MACA and the two men then exchanged positions in terms of where they were inserting their penises with this same SILIVIA MACA.
9. THAT all parties agree that the only trial issue is lack of consent of SILIVIA MACA during the sexual intercourse with both the men named above.
   

Case for the Prosecution

[45] Evidence of the complainant Silivia Maca.

(i) It is her evidence that she is 25 years old and currently employed at a garment factory in Lautoka. She was living in Nakobo settlement in August 2015.

(ii) On 7^th August 2015, in the evening she had gone to the village of Vuniivi in search of her cousin. The reason was that her cousin promised her a set of earphones if she bought him a packet of cigarettes but did not keep the promise. She has looked for him in her village Nakobo and was told by one of her uncles that her cousin left for Vuniivi.

(iii) She then went to Vuniivi in search of her cousin but could not locate him. She saw a group of men, who are related to her, drinking in a house. The house is a square house and had four doors opening to the sitting room. The young men in the group were from the village and the 1^st and 2^ndaccused have returned to the village few years back from Suva. They were the main entrance, two doors for bed room and another to enter the kitchen. This house is normally occupied by the 1^st accused and his wife. She has left for village of Vunilagi on that day.

(iv) The group of men seeing the complainant called her in to join them. She was seated next to the 1^st accused, who is also her cousin and therefore she trusted him. She had visited him on many occasions before and had drunk with them. She had no fear of them including the 1^st accused.

(v) This was about 6.00 to 7.00 pm. They were having home brew at that time and she consumed about six plastic cups, but in small amounts. Then they mixed three bags of grog and continued drinking. When they finished grog, the group was planning to go to the village and have more.

(vi) She also said in her evidence as the only unmarried woman in the village she would join the young men in the village in farming, fishing and many other things.

(vii) The 1^st accused then sent the complainant to a nearby shop to buy tinned fish and the time is around 9.00 to 10.00 in the night. How she guessed the time was that the village generator is switched off at that time. When she returned to the 1^st accused house with cans of tinned fish, she found the young men who were in the drinking party had already left. She saw the 1^st accused in the kitchen and the 2^nd accused was outside. She then kept cans of tinned fish inside the house and went outside.

(viii) She wanted to go down the track that leads to the main road. Then she heard the 1^st accused was calling her name and coming after her. She got scared the way he called her and she hid herself under the house. She became scared thinking that he wanted to do something to her. The 1^st accused was calling her name in a loud voice and had then gone to the toilet, which is located outside of the house, to see whether she was there.

(ix) The complainant was shocked to see the 2^nd accused coming to her after seeing her in her hiding place. She came out and had then taken the other track that leads to the main road. These two tracks were located on the either side of the house. Why she had taken the 2^nd track was to avoid the 1^st accused seeing her.

(x) When she went down along the 2^nd track, the 2^nd accused came after her and she told him to go away. But the 2^nd accused kept on following her. She had then reached the main road, and was on her way back to her village. On her way to the village she had to pass a culvert. She was walking very fast and then she saw the 1^st accused standing on the culvert. She also saw the 1^st and 2^ndaccused were seen discussing and then she had gone past the culvert.

(xi) Then the 1^st accused called her and said that she knew something about his wife. He then ran after the complainant and she also ran towards the village. As she was nearing the Baka tree, the 1^st accused managed to get hold of her. He got hold of both of her arms forcefully and pulled her back to the house where they were drinking. He then pulled her inside the house. He closed the door with one hand while holding her with the other. She tried to run but the 1^st accused managed to close the door and then he pulled her into the room. He then pushed her onto the bed and tried to undress her.

(xii) She was wearing a blue colour T shirt and a black long tights. He pulled off her T shirt forcefully by pushing her head down. Then he tried to remove her tights and she again put it up. He then tore open the bottom of her tights and pulled it off. He then removed her brassieres and began to suck her breasts. The 1^st accused then inserted his penis into her vagina.

(xiii) She told him that she would report his sexual aggression to Police. The 1^st accused then said, if she reported him, he would do something. The complainant stated that she was afraid and did not know what to do next. Her body felt weak. She feared that if she resisted the 1^st accused could do something to her and would even kill her.

(xiv) When the 1^st accused stood up after penetrating her vagina, the 2^nd accused came into the room but she did know when he entered the room. When she saw the 2^nd accused, she tried to sit up, but the 2^nd accused had pushed her down on the bed and inserted his penis into her vagina. Thereafter, both the accused took turns.

(xv) When the 1^st accused was having sex with the complainant, the 2^nd accused came on her and inserted his penis into her mouth. He held her by her hair. The complainant says that both accused have switched their positions thrice. She was in pain, felt weak and lying on her back facing upwards. The time could be midnight as she was unable to say it precisely.

(xvi) After they took turns, the 2^nd accused was in the sitting room while the 1^st accused was seated beside the complainant. He then taped her private part and said “This is mine. I’m the boss and will use it whenever I want to.” Then he stood up and left. The complainant also stood up, gathered her clothes and left for her village.

(xvii) There were no neighbouring houses except for the shop that was located nearby to the house of the 1^st accused. The complainant said that the shopkeeper and her child may have been sleeping when this incident was happening.

(xviii) She returned home but could not sleep that night. Her mother expected her to come with her to Labasa and then she told her to look after the house. The complainant says that whole of Saturday she cried and had locked herself in the room, while others have gone to Church. She needed to tell this to someone and she felt ashamed as this incident would bring shame to her family and to her village.

(xix) On Sunday she went to Tumumoi as she could not hold it any longer and had then told her 2^nd cousin about the incident. They had some grog, while having grog, she told him what transpired that night and also wanted to share it with him. He then told her that he would report the matter to Police. She told him that it would bring shame to village and was also afraid that reporting to Police would make the accused to do something.

[46] Evidence of Mumeu Caucau

(i) This witness is originally from the village of Nakobo where he lived for 30 years and is familiar with the people and the village. He has been to the house where the 1^st accused lives. He also knew the complainant as they were working together. The village is powered by a generator at that time and it would be turned off at about 10.00 or 10.30 p.m. After the generator is turned off, the available sources of light would be flash lights and moon light. The distances to the house of the 1^st accused from the main road is about 15 minutes of fast walking.

(ii) In describing the house where the 1^st accused lived, he said it had a kitchen attached to it. The witness also drew a sketch and marked where the doors of this house are located. According to him there were two doors facing each other that would open into the sitting area. One door was facing the main road side while the other faced the coconut plantation side, located to the rear of the house. There is another door to enter the kitchen and the kitchen had another door for exit. He is not aware number of rooms it had.

(iii) There was another house close to the house occupied by the 1^st accused and closest shop is located in that house. It belonged to one Taione and his mother, wife and their two children lived in there. The witness also said that you could buy things from the shop at any time of the day and even if it is closed after the village generator is turned off, one could knock on the door or call them.

(iv) On 9^th August 2015, the complainant came to see him and she appeared to him as having had restless night and had been crying. Then told him that something shameful happened to her. When he asked as to who is it she said “they” forced her to have sex.

[47] That was the case for the prosecution. You then heard me explaining several options to the accused. I explained to them that they could remain silent or give sworn evidence and call witnesses on their behalf. They could also address Court. They were given these options as those were their legal rights. They need not prove anything. The burden of proving their guilt rests on the prosecution at all times. But both accused opted to offer evidence under oath and, in addition, the 2^nd accused called a witness on his behalf.

Case for the Accused

[48] Evidence of the 1^stAccused Sovita Sevakasiga

(i) The 1^st accused in his evidence stated that on the evening of 7^th August 2015, he was drinking tribe mixed with home brew with a group of about 10 men, who are known to him. They were also joined by the complainant. The light went off at about 9.30 p.m. When the dinks ran out, they mixed three bags of grog and consumed it. When that too was finished there was a discussion to go to the village and to continue drinking.

(ii) After this discussion, he stood up and some of the group went outside. The 1^st accused then gave some money to the complainant to bring some tinned fish from the nearby shop as he felt tired. He then waited for a while and as she was getting late, he went in the direction of the shop. Before he reached the shop he saw one Tubula was standing at the corner of the shop with a battery operated lamp. Then the complainant came out with the tinned fish and he met her at the corner of the shop. They returned to the house with Tubula leading the way with the lamp. He then left the lamp and went to the village. The 1^st accused and the complainant entered to the house using the kitchen door and he told her to leave the tinned fish on the cupboard.

(iii) When he turned back, he could not see the complainant, she was not there in the sitting room. Then he called out her name and as there was no response, he went down looking for her. He took the track which ran by a Mango tree to the main road and it was steep. He then ran down and had reached the main road. There he met with the complainant and the 2^nd accused. They were on their way to the village. The 1^st accused also joined them. When they went past culvert, and reached another track leading to the beach, the 2^nd accused took it. Thereafter, the complainant and the 1^st accused have continued their walk towards the village and have reached a Baka tree.

(iv) Then he held the complainant’s hand and asked her what she knew about his wife as they were close. He also requested her to go back to the house. When the complainant said yes, they walked either side of the road and returned to the house. They returned to the house upon the track with the steep climb, the track he had taken to come to the main road.

(v) After coming to the house, the 1^st accused asked the complainant to sit on the chair and also to close the door. She said nothing. Then the 1^st accused himself close both doors. When he told her to go to the room, she stood up and went in. Then they started kissing and touching each other. After that they sat down on the bed, the 1^st accused lifted her T shirt up, sucked and licked her breast.

[49] Evidence of 2^nd accused Penijamini Tawake

(i) The accused is 26 years of age and is related to the complainant as they are cousins. It his evidence that they had an intimate relationship with each other since 2013. They had consensual sexual intercourse on three different occasions.

(ii) In relation to the incident on 7^th August 2015, he said that in the evening he was drinking with the others at the 1^st accused's house. Among the group there was a person called Lesley Taylor. The complainant also joined them halfway and had a couple of cups of home brew. After some time the 2^nd accused then went out to relieve himself and had met the complainant when she also came out for the same purpose. He then proposed her whether they could go out that night. She agreed and said they could go after the drinking session was over.

(iii) When the drinking session was nearing its end, the 2^nd accused got up and went out to wait for the complainant. He was standing by the side of the house. Then he saw all the males leaving the house and also saw one Tabula also coming out. A short while later the complainant came out through the kitchen door and went to the shop and she did not see him as he was hiding under the house. He wanted to speak to the complainant, but resisted the idea as Tubula was also there.

(iv) Thereafter he saw the 1^st accused coming out and went in the direction of the shop and then met the complainant. They then returned to the house. The complainant was following the 1^st accused. The 1^st accused entered the kitchen while the complainant entered the living room using a different entrance. Then she came out again and ran passing the point where the 2^nd accused was hiding and she also hid herself under the floor of the house.

(v) Then he went up to her and asked about the outcome of their conversation. She did not reply but walked towards the shop. He followed her. They did not talk until they reached the main road and they walked along the main road. There are two tracks joining the main road. One from the house of the 1^st accused and the other from the sea shore. They met the 1^st accused after passing the tracks. The 1^st accused suggested that they all to go together. Then the 2^nd accused took the track leading to beach, leaving the complainant and the 1^st accused.

(vi) He then was on his way back to the 1^st accused’s house after going to the beach, and was near the Mango tree, he heard voices of a man and a woman. He also heard their laughter. He then saw the 1^st accused and complainant were also returning to the house. The complainant appeared willingly following the 1^st accused. They also were coming on the track with a steep climb.

(vii) They then entered the house through the door located to the side of the plantation and he heard them talk. Thereafter he did not see them.

(viii) When he next saw the complainant, she was lying on the bed. He had looked through the louvers and saw her legs open wide and the 1^st accused was having sex with her. She was enjoying the act and when she saw him peeping she stretched her hand out, took his hand and placed it on her breast. When she did this he felt happy as her boyfriend.

(ix) He then entered the house through the kitchen door. He then went up to the bed. The complainant was standing and was looking outside. He then touched her. She said “don’t” and then laughed, hugged and kissed him. Thereafter she laid herself on the bed, told him to suck her breasts and she then parted her legs. He penetrated her. Then he went for a glass of water.

(x) After resting for a while he again entered the room and upon seeing him, she touched front part of his pants. At that time she was having sex with the 1^st accused. He then pulled out his penis and asked her whether she wanted to suck it. She said “come”. Then both accused switched and took turns twice.

(xi) After this the 2^nd accused was seated in the sitting room. The 1^st accused had tinned fish with the complainant in the room. Then all three smoked. Then she went back to her house and he had gone to sleep.

[50] Evidence of Lesley Taylor

(i) This witness also among the group of men of the drinking party. He had halfway through the drinking returned to the village. There he consumed grog and also hear that the 1^st accused having rum. The witness also wanted to join the 1^st accused and had returned to the 1^st accused’s house.

(ii) When he came there he saw there was light in the sitting room and also heard people inside. He then peeped through a half open wooden window and saw the complainant lying naked, 1^st accused at the bottom liking her vagina and then having sex. He also saw the 2^nd accused and then left.

(iii) On the following day, he told what he saw to his best friend from the village.

Analysis of all evidence

[51] Each of the two accused is charged by the DPP for two counts of Rape. These two counts were brought in as it was alleged that each accused penetrated the complainant's vagina and mouth by his penis. Therefore two charges of Rape against each of these two accused were made. In order to prove its case, the prosecution relied on the evidence of the complainant and another lay witness.

[52] You will recall that at the commencement of this summing up, I explained to you of the elements of the offence of Rape. The prosecution had to prove that each of these accused and no other has penetrated the complainant's vagina and her mouth without her consent. Of these elements, there is no contest by both the accused that there was penetration of the complainant's vagina and mouth by them. They admit that fact. This is done at the commencement of the trial when the parties have tendered the agreed facts. As a result, you can accept that in respect of each of the four charges, penetration and the identities of the accused have been already proved beyond a reasonable doubt.

[53] In the circumstances, what is left for you to decide is when both accused penetrated her each of the four occasions that is described in the information, whether the complainant had consented or whether the each accused was reckless about her consent. This is the only question of fact that you have to decide in order to arrive at your opinion whether the two accused are guilty or not guilty to the charges of Rape.

[54] In respect of this element, the prosecution wants you to accept their claim that the complainant did not consent. The two accused, on the other hand, wants you to accept their claim that she in fact consented.

[55] The prosecution relies on the evidence of the complainant to prove this element. The two accused, in addition to their own evidence under oath, also relied on the evidence of the witness called by the 2^nd accused in support of their claim, that she consented. However, it is the responsibility of the prosecution to prove this element, beyond a reasonable doubt by their evidence.

[56] In considering the evidence presented by the prosecution, we have evidence only of the complainant. The other witness called by the prosecution is not a witness to the incident and therefore is not helpful in respect of this question of fact. Therefore, determination of this vital question of fact, namely whether the complainant has consented in these four instances, is depend on whose evidence you accept as truthful and reliable.

[57] The prosecution placed before you direct evidence where the complainant has said to the accused that she would complain to Police, in order to prove she did not consent. In addition, the prosecution also led evidence of the complainant as to the existence of certain circumstances which, according to them, could be utilised to infer that she has not consented.

[58] At the beginning of this summing up, I described some considerations you might want to apply to the evidence in order to satisfy yourselves as to the truthfulness and reliability of the evidence of the witnesses. One such consideration is the consistency of the evidence.

[59] Before we consider evidence there are few directions of law I thought I should invite your attention to. During the cross examination of the complainant by the 2^nd accused she said that she is a single mother. In addition, the 2^nd accused, during his cross examination by the 1^st accused, said that his brother had made the complainant pregnant. I have expunged that evidence from the record and direct you to totally erase your memory of that evidence. You should not consider it as part of evidence of this trial and must not base your decisions on them. Past sexual history of the complainant with others not relevant to this matter.

[60] In relation to another matter, I must issue a caution to you. The 2^nd prosecution witness was present in Court, during a part of the complainant's re-examination. He has admitted having heard her evidence. When you consider his evidence for its truthfulness and reliability, consider this aspect and decide the weight to attach to his evidence.

[61] Now we return to the evidence of the case. In relation to the considering consistency of the prosecution evidence, I shall first direct you with the evaluation of evidence on the aspect known as recent complaint. What this consideration is whether the complainant consistently made the allegation of sexual aggression to the person to whom she disclosed it for the first time since the alleged incident.

[62] The prosecution did not lead clear evidence from the complainant that she did describe the alleged acts of sexual aggression and also implicated the accused as the persons who did it. Evidence of Mumeu reveals that she said something shameful happened to her, when she came to see him. When he asked who did it, she said "they" forced her to have sex. There is no clear evidence by the prosecution that the complainant alleged that each accused penetrated both her vagina and mouth. She revealed this incident to him on a Sunday and the alleged incident took place on Friday night.

[63] You could consider these items of evidence, in order to decide whether the allegation of sexual aggression is consistently made and also in what detail. However, I must caution you that evidence Mumeu should not be utilised by you to decide that it supported the complainant before this Court. You could only consider his evidence to decide whether the allegation is consistently made and it was made without an undue delay, leaving room for afterthought and fabrication. It is your responsibility to decide whether considering these circumstances as to the genuineness of the allegation.

[64] In addition, it is your duty to consider the evidence led before this Court for its consistency. However, you attentively listened to the evidence and closing submission of Counsel. It is for you to consider whether there were any inconsistencies of the prosecution and if so what effect it would have on the truthfulness and reliability of the basic version of the prosecution.

[65] Similarly you also have to consider the inconsistencies of the accused's evidence. and if there are, then their effect on the truthfulness and reliability of the accused's evidence.

[66] I also mentioned you that the manner of giving evidence is also an applicable consideration in evaluating witnesses for their truthfulness and reliability. You would have observed how the complainant and the other witness for the prosecution have given evidence and faced cross examination. Similarly you should also consider the demeanour of the two accused and the defence witness, in evaluation of their evidence for truthfulness and reliability.

[67] In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution and accused are truthful and reliable. That is the relative probability of the versions of events as presented by the parties. You have to consider the relative probability of the complainant's evidence, in deciding its truthfulness and reliability.

[68] Having applied these considerations, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by the complainant is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find both accused not guilty of the charges since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable; and then only you must proceed to consider, whether by that truthful and reliable evidence, the prosecution has proved the element of no consent beyond a reasonable doubt.

[69] Similarly, in examining the accused's evidence for its truthfulness and reliability, if you find the evidence of the accused that is more probable than the evidence of the complainant, then you must find both the accused not guilty of the two charges of Rape, levelled against each of them, since the prosecution has failed to prove its case. If you reject the evidence of the accused and his witness as not truthful and also unreliable, that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence the complainant.

[70] With these directions of law in mind, we could proceed now to consider the evidence of the prosecution and the accused for its truthfulness and reliability.

[71] The prosecution and the accused have placed a sizable body of evidence before us for consideration. Both parties have cross examined the opposing party's witnesses extensively. The Counsel have challenged the evidence against their case primarily on the consideration of the relative probability of the version of events as narrated by each witness. In order to avoid repetition of and also for easy understanding I propose to deal with the evidence of both prosecution and accused at the same time, under this consideration of relative probability.

[72] Again for convenience, I shall divide the whole sequence of events to few segments, so that different versions as presented by the parties could be considered in the proper context.

[73] The first segment would be in relation to the events including the evidence regarding the arrival of the complainant to the 1^st accused's house and then noon extend up to the point that the complainant has reached the main road.

[74] The evidence of the prosecution is that the complainant came to the 1^st accused's house, in search of her cousin who had cheated her. She was invited by the drinking party to join them and she did consume home brew mixed with beer. The accused do not challenge this portion of her evidence.

[75] When the drinking was over, and the group was about to leave for the village in search of more drinks, the 1^st accused sent the complainant to the nearby shop to buy tinned fish. The prosecution claims that this was done by the 1^st accused to isolate the complainant from the group, who otherwise would have returned to her village. The 1^st accused claims that he was tired after sitting and that is why he sent her.

[76] The prosecution claims when the complainant returned, the 1^st accused was in the kitchen and when he called her name and searched for her, she became scared and then she hid herself under the house. Then the 2^nd accused surprised her by coming to the place where she was hiding. She then took to the track and went downhill until she reached the main road. When the accused chased after her she told them not to come.

[77] The 1^st accused said that when the complainant got late to return from the shop, he went in search of her. She came out of the shop. Then he returned with the complainant, led by Tubua who had a lamp with him. Then complainant entered the house and left tinned fish cans there. Thereafter she was not to be found in the house. Then the 1^st accused went to the main road.

[78] The 2^nd accused said that before the drinking ended he hid himself under the house as he and the complainant already agreed to meet up after the drinking session was over and he wanted to keep it unknown to others. He also did not call the complainant even though he saw her going past him, when he was under the house waiting for her. Then he went up to the place where she was and then both of them took the track leading to the main road and avoided being noticed by the 1^st accused.

[79] The prosecution claimed that the 2^nd accused too had a secret plan on the complainant and therefore without agreeing upon a meeting place, he opted to hide himself. He also did not call the complainant when she went past him and that fact also supports the prosecution’s claim.

[80] Now we come to the second segment which covers the complainant's return to the house of the accused from the Baka tree.

[81] The complainant said that when she went along the main road, she saw the 1^st accused ahead of her near a culvert. The 2^nd accused was also following her. She had then gone past the culvert. Then she saw both accused talking to each other. Then they followed her and the 1^st accused got hold of her near the Baka tree. He held her hands and pulled her back to his house along the main road and, track with a the steep climb up to his house.

[82] The 1^st accused said that he met the 2^nd accused and complainant on the main road and they were heading to the village. He too had joined them and after some time the 2^nd accused took to a track leading to the beach. He continued with the complainant up to the Baka tree where he asked about his wife from the complainant and also invited her to return to his house. Then they returned noise along the main road, and then took the track with the steep climb and reached home.

[83] It is stated by the 2^nd accused, that both himself and the complainant came to the main road by avoiding the 1^st accused. However, he caught up with them and came along. Then he took the track leading to the beach while the complainant and the 1^st accused continued towards the village.

[84] The prosecution challenged the version of the 1^st accused as to why he waited until they reached Baka tree to ask about is wife. The 1^st accused challenged the complainant's claim that it is not possible to pull the complainant by her hand up the steep hill and also for over 100 meters. She could have screamed, if she was dragged like that, he said. On the contrary she came with him quite willingly.

[85] In his evidence, the 2^nd accused said that after the complainant and the 1^st accused continued their journey to the village, he had returned to the 1^st accused's house from the beach. He then heard the voices of a man and woman. Then he saw both of them coming towards the house, along the track with a steep climb.

[86] It is time to move on to the third segment, which is in relation to the events that took place inside the house.

[87] The parties have placed detailed descriptions of the sexual acts that was done that night. I need not reproduce them here in such detail. I will only present what might be useful to you in determining the probability of the versions.

[88] The prosecution claimed that after the 1^st accused pulled the complainant up to the house, he then pulled her into the house. When the complainant tried to escape through the other door, he held her and shut the door. He then pulled her into the room, pushed her on to the bed and started to undress her.

[89] The complainant then warned the 1^st accused that she would report to Police. The 1^st accused responded by issuing a threat that if she did, he would do something to her. She felt scared. Her body became weak, she feared for her life. Thereafter he penetrated her. Later the 2^nd accused also came in. He too penetrated her. Then both accused took turns about thrice.

[90] The prosecution relied on this evidence that there was no consent and the complainant had merely submitted herself to the sexual aggression out of fear and helplessness.

[91] In disputing that the 1^st accused claimed that she was a willing partner and they had consensual sex. The 2^nd accused also claims consent. He said he was invited by the complainant by placing his hand on her breast when he peeped from the half open window. When he asked her, she said "don't" and then laughed. They tried different positions of intercourse on the request of the complainant. She was enjoying having sex with them. The called Taylor also in support of their claim.

[92] As the fourth segment, I will present the events subsequent to the incidents on Friday night.

[93] The complainant said that she spent that night sleepless and had locked herself in the room for the entire Saturday. Her mother went to Labasa and wanted her to look after the house. Her sister had gone to church. She cried whole day. On Sunday, she has gone to see her 2^nd cousin Mumeu, as she could not hold it any longer. Over a session of grog she told him what happened. Complainant was reluctant to take action considering the shame it would bring to her family and village. Then he said he would report the matter to Police.

[94] Mumeu says she appeared having had a restless night and also hang cried, although she did not tell him that.

[95] The accused claim that, she could have told this to her mother or to her sister but opted for a male relation and that too after some time. What prompted her to reveal this after sometime was that by then there were rumours spreading in the village of the incident and then only she thought of revealing this to someone. The 2^nd accused called witness Taylor who has seen the sexual activity of the three through a half open window and had then told about it to his best friend in the village. This witness, after the matter was reported to Police, had met with the complainant and challenged her, over an argument, that it is a lie that she was raped.

[96] Then we arrive at the last segment in which general considerations could be evaluated for this probability.

[97] The 2^nd accused claimed that he had an intimate relationship with the complainant for over two and half years and it was agreed between them that they keep it secret. He loved her at that time.

[98] The prosecution says that is a lie and he was even not told by the complainant that she was employed.

[99] It is said by the prosecution that the 1^st accused allowed the 2^nd accused also to join him in order to save his marriage. The reason attributed was if the 2^nd accused has seen the 1^st accused's act of intimacy with the complainant, the 2^nd accused would have told that to the 2^nd accused's wife. In considering this claim, you can also consider the fact that the complainant and the wife of the 1^st accused were having a very close relationship and if the 1^st accused is responsible for an act of sexual aggression on the complainant, would not the complainant herself report that to his wife, and thus ending his marriage?

[100] I must caution you over one important matter. When I present the accused’s version, alongside the version of the complainant, you might get an impression that the accused must prove that it was due to the rumours that spread around the village of the incident prompted the complainant to implicate the two accused of the sexual aggression and that is why they have given evidence and called a witness. That is wrong. They are under no duty to disprove the case for the prosecution. They are not under a legal duty to offer evidence. They could have remained silent. When they do offer evidence, then, as already directed, it must first be evaluated for its credibility and reliability. We are dealing only with this aspect of their evidence at this moment.

[101] So far I have directed you on the assessment of credibility of the witnesses for the prosecution and of the accused. If you reject the evidence of the accused as false and or unreliable and preferred to accept the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the element of lack of consent beyond a reasonable doubt.

[102] I shall now direct you on the issue of consent. It is our law that consent of the woman must freely and voluntarily be given. She must have the necessary mental capacity to give consent. It is important to note that mere submission to sexual act without physical resistance by the woman cannot be considered as consent. Even if there is consent, if that consent is obtained by force, threat, fear of bodily harm, or exercise of authority then also it cannot be considered as consent acceptable to law.

[103] The public perception of a rape victim that if she did not consent, then she must scream, struggle and must have injuries. These perceptions are known to legal researchers as stereotyping and rape myths. These rape myths are without a proper scientific basis and therefore has no applicability in a Court of Law.

[104] The prosecution wants you to believe that it was due to the threats and physical inertness of the complainant due to fear of her life, she had silently endured the alleged sexual aggression by the accused. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented for the sexual intercourse.

[105] In relation to the issue of consent, there is another aspect you must consider. As I have already directed you earlier on my summing up, the prosecution must prove that there was no consent by the complainant or the accused was reckless about it. What that means is whether the accused realised that there was a risk that she was not consenting but carried on with his act anyway when in the circumstances known to him it was unreasonable to do so.

[106] If you are not sure that he would have realised she was not consenting then you must proceed to consider whether the accused might have been reckless as to whether she consented, then you must consider whether he genuinely believed she was consenting. If you think so, then you must find the accused not guilty of rape. If you do not accept that he thought she was consenting when you consider all the circumstances, then you could convict him of rape.

[107] In adopting these legal principles to the case before us, this is more a valid consideration to the 2^nd accused, in addition to the 1^st accused.

[108] It is complainant's evidence that after the 1^st accused penetrated her, she merely laid on the bed. Her body was weak and she was under fear for her life. If you consider the fact that the 2^nd accused has had a continuing intimate relationship with the complainant for the last two and half years, when he had penetrated the complainant that night, whether he realised, given their relationship, that there was a risk that she was not consenting but carried on with his act anyway when in the circumstances known to him it was unreasonable to do so. This is a question of fact you must decide.

[109] The accused wants you to consider the fact that at no point of time she said “No”. She willingly followed the accused had no indication from her behaviour of her disapproval to the sexual acts. She willingly and actively participated in the sexual acts. The accused, therefore, wants you to consider this aspect of it as they claim that the prosecution has not proved the element of consent beyond a reasonable doubt.

[110] These are the versions of the prosecution and the accused presented for your consideration. It is your responsibility to consider their relative probability in the light of the available evidence. There could be many other probabilities you would also like to consider arising out of the evidence placed before us. You may consider all these probabilities and should decide which one is the more probable one, based on your common-sense.

[111] However if you decide to accept the version of the prosecution as the more probable version; then please remember to consider whether that version proves beyond a reasonable doubt of the fact that there was no consent.

[112] There are four separate charges of Rape contained in the information. You must consider them separately. If you decide that each of the accused is guilty only one charge, you must not find him guilty of the other charge automatically. Each charge will have to be decided on the evidence.

[113] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved the element of lack of consent in respect of each charge, beyond reasonable doubt, then you must find each accused guilty of Rape. If not, then you must find both accused not guilty of Rape.

[114] Any re directions the parties may request?

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

[116] I thank you for your patient hearing.

.

ACHALA WENGAPPULI

JUDGE

At Labasa

19 August, 2016

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

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa