State v Naisau - Summing Up [2016] FJHC 798; HAC057.2013 (12 August 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 057 OF 2013

STATE

vs

PENI NAISAU

Counsels : Ms. S. Navia for the State
Ms. P. Preetika and Mr. D. Chand for the Accused

Date of Trial : 9^th, 10^th and 11^th August 2016

Summing Up : 12^th August 2016

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

SUMMING UP
___________________________________________________________________________

Madam and Gentleman 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 to ensure that the trial is conducted fairly and according to law. As 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 questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful and reliable. You will then apply relevant law, to the facts as revealed by such credible evidence. In that way you arrive at your opinion.

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

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

[6] It is also important to note that, in forming your opinion on the charge against the accused, it is desirable that you reach a unanimous opinion; that is, an opinion on which you all agree, whether he is guilty or not guilty. However, the final decision on questions of fact rests with me. I am not bound to conform to your opinion. However, in arriving at my judgment, 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 the witnesses’ demeanor 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 demeanor in Court? But, please bear in mind that many witnesses are not used to giving evidence and may find Court environment distracting.

[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 such victim has his or 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, demeanor 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 their 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 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. I shall offer more directions when I deal with the evidence of the case in more detail.

[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] Madam and gentleman, 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 to the charge. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.

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

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

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

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

[27] 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 accused.

[29] This is because the accused are presumed to be innocent. They may be convicted only if the prosecution establishes that he is guilty of the offence charged. Whether the accused has given evidence or not is immaterial in this regard and it does not imply any burden upon him to prove their innocence. It is not for him to prove his 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 accused, it is required to prove it beyond a reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond a reasonable doubt of every element that goes to make up the offence 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 offence and the other matters of which you must be satisfied, such as identity, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such doubt, then your duty is to find the accused guilty.

[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 charge contained in the information.

[35] There is only one charge preferred by DPP, against the accused in the information:

FIRST 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

PENI NAISAU on the 12^th day of December 2012 at Flagstaff in the Central Division, penetrated the mouth of A.B. a child under the age of 13 years with his penis.

[36] As you would have noted there is only one count of Rape. I shall now deal with the elements of the offence of Rape. In order to prove the count of Rape, the prosecution must prove beyond reasonable doubt that the accused penetrated the complainant’s mouth by his penis. The slightest penetration is sufficient to satisfy this element of the charge of Rape.

[37] A person of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was less than 13 years of age at the time of the alleged offending and therefore, whether she consented or not is immaterial.

[38] If you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s mouth with his penis in the instance as the information revealed, then you must find the accused guilty to the count of Rape.

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

[40] If you find that the prosecution failed to establish any of these elements in relation to the count of Rape, then you must find the accused not guilty.

[41] In our law, no corroboration is needed to prove an allegation of Sexual Offence; and Rape and if relevant Indecent Assault are obviously considered as a Sexual Offences.

[42] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court. The parties have admitted the following four without calling witnesses:

1. THAT the Accused in this matter is PENI NAISAU, hereinafter referred to as “the Accused”.
   
2. THAT the Accused is charged with the following offences:
   

(a) First Count – Rape : Contrary to Section 207 (1) and (2) (c) and (3) of the Crimes Decree No. 44 of 2009.

3. THAT the Victim in this matter is A.B. (hereinafter referred to as “the victim”).
   
4. THAT the victim’s mother and the Accused person’s wife are close friends.
   

[43] The prosecution, in support of their case, called the complainant, her sister and the two Police Officers, including the one who interviewed the accused.

Case for the Prosecution

[44] Evidence of the complainant A.B.

(i) It is her evidence that she is presently ten years old and attends Holy Trinity Anglican School. She studies in Class 6 and lives in Raiwai with her mother and two of her sisters.

(ii) On the evening of 12^th December 2012, A.B., her mother, and her two sisters have gone to one Aunt Ana's house at Flagstaff. Aunt Ana's husband is called by them as "Seki" but his name is Peni Naisau. She identified the accused as "Seki".

(iii) Having arrived at Aunt Ana's house all of them sat in the sitting room and A.B. watched movies with Peni's daughters. A.B.'s mother and Aunt Ana were also sitting in the sitting room and they were drinking grog. Aunt Ana then asked Seki to cook dinner.

(iv) After that Seki called A.B into the kitchen and A.B.'s mother also asked her to go. A.B. went into the kitchen and then Seki wanted her to sit on the table. He then told A.B. to put her panties and pants down. When A.B sat on the table, she saw a cake on the same table. She also saw a laptop and it showed a naked man and a woman. When A.B. was told to put her pants down she asked why. Seki then told her not to tell anyone. For someone who is in the sitting room, he cannot see what happens in the kitchen.

(v) He unzipped his trousers and pulled his underwear down. Then he placed some cream from the cake on his penis and told her to suck it. Seki also told her that if she sucked it will taste like cake. She sucked his penis as she was told. After some time he touched her private part. Then they heard someone coming towards the kitchen and the accused told her to pull up her panties and trouser and go to living room. He warned her that if she tells someone about this he would do something to her.

(vi) After several days A.B. told about this incident to her sister. She was eating soursop fruit when she told it to her sister. The witness then conveyed it to their mother who in turn had told their father. He decided to report the matter to Police.

[45] Evidence of C.D.

(i) It is her evidence that A.B. is her youngest sister. On 18^th December 2012 she was in the kitchen with A.B. and they were having soursop. She was surprised to see the way the 7 year old A.B. was sucking the stem of the soursop fruit. She then asked her where A.B. saw that from. A.B. at first kept quiet. When promised with a candy, A.B. told her about the incident at the accused's house.

(ii) A.B. has then told witness that she was asked to put her trousers down by the accused for him to touch her private parts and A.B was also to touch his private part. A.B. was then asked to suck his penis. The witness was shocked to learn this and reported it to her mother. Then they reported the matter to Police.

[46] Evidence of D. Sgt. 2060 Apisai

(i) This witness has served in the Police for past 20 years. On 1^st February 2013, he commenced the caution interview of the accused at the Crime office of the Totogo Police Station where he was serving at the time. He commenced his interview of the accused at 4.40 p.m. in the presence of D.C. 4655 Bolabiu as the witnessing officer. Each page of the interview statement the witness and the accused have placed their signatures and during the course of the interview, the accused was asked 64 questions. The interview was conducted in English language.

(ii) The interview was suspended at 5.30 p.m. and recommenced on the following morning at 10.14 a.m. and continued until its conclusion at 11.45 a.m. The accused appeared normal during the interview and did not make any complaint or request to the witness.

(iii) His rights were given and the witness had not threatened, forced, or intimidated the accused to admit the allegation. After the interview, the witness formally charged the accused, upon instructions received from his superiors.

(iv) The witness then tendered the caution interview statement of the accused marked as P.E. No. 1.

[47] Evidence of D.C. 4655 Bolabiu

(i) This witness has served in the Police for the last 7 years. On 1^st February 2013 he was attached to CID of the Central Police Station. In this case, the witness was the witnessing officer to the caution interview of the accused.

(ii) The interview was conducted at the Crime Office of the Station in the English language and followed Q & A format. The statement was handwritten and the accused answered the questions put to him calmly.

(iii) The accused was given his legal rights and the witness or Sgt Apisai did not assault, threaten, or intimidate the accused to admit the allegation during the interview.

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

Case for the Accused

[49] Evidence of the Accused

(i) It is his evidence that he is currently employed as an Executive Chef of a Resort and possesses professional qualifications. He served as one of the judges of yearly chef competitions. He is also an examiner in his field. He is married for the last 18 years and is a father of four children and their ages are from 18 to 5 years. He currently lives with his family.

(ii) Referring to the day of the alleged incident, the accused said he returned home after work at the School of Hotel and Catering, where he lectured and tutored. After a cup of tea, he had played with his children. Then they were visited by A.B., her two sisters and their mother. They would visit them every week or every second week.

(iii) After his tea, he cooked dinner for his family and was not aware of the visit of A.B.'s family until late. When they arrived, his wife decided to have kava with A.B's mother while seated in the sitting room. The children played while the accused was in the kitchen. After his children had their dinner he cleaned up the kitchen and decided to have a shower.

(iv) The bathroom had an entrance from the kitchen and after shower he had wiped himself with a knee length towel. Then he had wrapped the towel around his waist and knelt down to check up something in the cupboard located in the kitchen. Then A.B., who had come into the kitchen, had poked his "balls" from behind with her finger. The accused denied A.B.'s claim that he had called her into the kitchen.

(v) The accused was shocked with this act of A.B. and said "what she was doing?" in raised voice. She did not reply for a while but then told accused that she has seen one of her neighbour putting his balls into another's mouth. Then the accused told her that he would tell this to her mother. But A.B wanted to feel what the "balls" are like. She insisted that if she can touch it again. The accused was wearing only a towel at that time. He then moved closer to the table on to which A.B. had already climbed up.

(vi) A.B. was sitting on the far end corner of the table. The accused then lifted the towel and then he took about 1/4 or 1/2 of a tea spoon of cream from the cake that was on the table and spread it on the left side of his "balls". A.B. then licked it off for about 1 or 2 seconds. He did not remove A.B's clothes at any point of time but touched top of her private part whilst she was wearing her clothes. He told A.B. that girls have different parts from men.

(vii) Then he heard footsteps coming towards the kitchen and had then told A.B. to "get up and join the girls". A.B. had gone to join the other girls while the accused, having had a change, joined the ladies for a drink.

(viii) After the incident was over he felt guilty and the incident was haunting in his mind.

(ix) In relation to the caution interview, the accused said that he was arrested at his work place and was then brought to Totogo Police Station. He was asked to wait in the waiting room and then Apisai came and briefed him. They were alone in the room. Then Apisai sat next to him, having explained to him the allegation against him went out. After a while he returned and poked his side below the ribs with hand causing pain. The then threatened the accused “confess to the crime”. The accused was frightened. During the night he could not sleep as the threat was running in his brain. There were two other cell mates in the cell he occupied.

(x) On the next day morning 1^st cellmate was called for his interview. After some time he returned holding his head and did not talk. Then the 2^nd cellmate was called for his interview. He returned and complained of assault during interview. The 1^st cellmate also told that he too was assaulted. The accused was called for the interview next and he went to the interview room very scared. There was no witnessing officer present during the entire duration of the interview. During his interview Apisai kept on reminding him of the threat he already issued. Apisai did not give the accused of his Constitutional rights and only asked whether he wanted a lawyer.

[50] Evidence of Amar Babu Narayan

(i) He said in his evidence that he was arrested by the Police in connection with an incident involving a vehicle. He was taken to Totogo Police station and was put to the 3^rd cell. In that cell, in addition to an Indo-Fijian man, there was another wearing a shirt with FNU logo. This person was wearing a black pants and a pair of dressing shoes. The witness noted one of the shoes was broken. He identified the accused as the person he saw in the cell.

(ii) In relation to the interview of suspects, it is his evidence that he was taken up for interview first. His interview was conducted first. An officer called Apisai then assaulted him with a broom stick asking him where the car was. Due to this assault the witness suffered injuries around his eye, on his cheek and also on his rib side. The Police then dispatched a vehicle in search of the car and told witness that if it is not there where he told them it would be, he would get "some more".

(iii) At that point of time the accused was also there in the interviewing room. The assault took place in his presence in the same room. After the witness's interview was over, he was asked to sit away from the accused whose interview was commenced immediately thereafter. He was told not to talk to the accused. He had no chance of talking to the accused and the accused also had to go through what the witness had already gone through.

(iv) After the accused's interview, the witness noted that the shirt of the accused was ripped and had a button missing. Then they were put back into the cell and therefore had lot of time to talk to each other. The accused told the witness that he was jabbed with the end of a broom stick handle and was shown the fresh injury on his rib cage. The accused said it was his first time in police and was crying. There was another cell mate who also said that he was slapped asking him about a laptop.

Analysis of all evidence

[51] The prosecution relied on the evidence of the complainant, her mother and two Police Officers to prove its case while the accused gave evidence and called one witness in support of his case.

[52] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by the complainant and other witnesses are truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty to the count of Rape, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved all the elements of the offence of Rape, beyond a reasonable doubt.

[53] Since the main witness for the prosecution, A.B. is a child, I thought it appropriate at this stage to familiarise you with some general considerations in evaluating evidence of a child witness for its truthfulness and reliability. It is for you to decide that issue and my references in this respect is not binding on you as they are not directions on law.

[54] The prosecution has primarily relied on the evidence of the complainant in order to prove the charge they levelled at the accused. They also relied on the contents of the caution statement of the accused. I shall first deal with the evaluation of the evidence of the child witness and direct you as to how you should set about in assessing the caution interview statement of the accused at a later stage of this summing up.

[55] A most important part of your task is to judge whether the child witness has told the truth, and has given a reliable account of the events she was describing. Some of you will have children and grandchildren who are of a similar age to the child who has given evidence.

[56] If so, I think you will recognise the sense of the advice I am going to offer you about your judgement of their evidence, but remember that I am speaking of an approach to the evidence and it must be re-emphasised here that evaluation of her evidence is your responsibility. You do not have to accept my advice and if you do not agree with it you should reject it.

[57] Your task includes the assessment of the evidence of a child aged 10 years who described an event that allegedly took place when she was 7 years of age. At times during her evidence, it was apparent that she was having difficulty with some questions and with recall, particularly of detail and sequence. There is a danger that in formal situations we tend to judge children by the same standards as we would an adult. That would be a mistake.

[58] Children do not have the same experience of life as adults do. They do not have the same standards of logic, understanding and consistency as adults do, and are therefore necessarily less sophisticated. Their understanding may be severely limited for a number of reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult.

[59] Experience has shown a number of things. A child may not fully understand the significance of activity which is sexual in nature and that may be reflected in the way they remember it or describe it. A child’s perception of the passage of time is very likely to be different from that of an adult. A child’s memory can fade even in the short term. When recounting events later, even a fairly short time later, a child’s recall of when and in what order events occurred may not be accurate. She may well not be able to speak of the context in which those events occurred. A child may have particular difficulty dealing with conceptual questions such as how she felt some time ago, or why she did or did not take a particular course of action. Those are not the sort of questions which are likely to encourage a meaningful or reliable response.

[60] Your task is to judge whether the essential parts of the witness’s evidence were truthfully given and, if so, whether they are reliable. Errors and inconsistencies in detail and in the sequence of events may not, in the case of a child, be any indication of untruthfulness or unreliability on the essential matters. Those decisions are, however, for you to make. Having made due allowance for the age and immaturity of the witness, you should act on her evidence only if you are sure it is right to do so.

[61] All decisions about the evidence are for you to make. I only advise caution against judging children by the same standards as you would an adult.

[62] I have just invited your attention to some considerations in evaluating evidence given by a child witness. When judging allegations of sexual or physical abuse involving children, experience has shown that it is necessary to keep a cool head. It is easy to feel indignant at the idea of this sort of thing happening, and easy to be sympathetic to a witness who seems to be showing difficulty or distress at having to recall and recount an incident which was distressing and unpleasant for her. Those are perfectly proper and normal emotions but they do not assist in deciding whether these allegations are satisfactorily proved. As I said to you at the outset of this case you must judge this case on the evidence you have heard. You must put aside any feeling you have about cases such as these and review the evidence you have heard dispassionately.

[63] Take into account, if you wish, the emotions and demeanour of the child witness, but do not allow your own emotions to take over.

[64] You have to be sure that the complainant is telling you the truth and that her evidence is accurate and reliable. By doing that you are applying exactly the same standards as you would in any other criminal trial.

[65] 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. One such consideration is whether the complainant complained about the acts of sexual aggression without a reasonable delay. If a prompt complaint is made, although not necessarily, it supports the proposition that opportunity to fabricate a false allegation is less, as there is little opportunity to the complainant to carefully think it over.

[66] The evidence of the complainant is that after the alleged act, she had returned home with her family and told her eldest sister about this incident only after several days, and that too when her sister questioned the complainant when she was eating soursop fruit. The complainant told her sister that "Seki" asked her to suck his penis and also touched her private part.

[67] It is for you to consider whether there is any delay in making the allegation. Promptness of her complaint could, of course, enhance credibility of the complainant as a truthful and reliable witness. Delay in complaint might support a proposition that her claim could be a fabricated story of Rape. However, if you consider that she made her allegation promptly having considered the circumstances, you must also remember that this is not an accurate indication of the truthfulness of the allegation.

[68] Another consideration would be the consistency of her version of events. In dealing with the issue of consistency, I shall first refer to the evidence of the complainant since she is the main witness for the prosecution. During cross examination the accused has highlighted 4 inconsistencies in her evidence with her statement made to Police. I shall refer to these 4 instances one by one.

[69] The 1^st inconsistency that was highlighted by the accused was that the complainant in her evidence has said that she had watched TV when she was in the sitting room. To the Police, the complainant has said that " ... Aunty Ana’s two children were playing with us ...".

[70] The 2^nd inconsistency was the complainant said in her evidence that no one was using laptop that she saw in the kitchen. However to the Police she has said that she " ... saw uncle Peni working and doing some work in his laptop".

[71] As the 3^rd inconsistency, it was highlighted that the complainant has said in her evidence that she sat on the table in the kitchen whereas to the Police she stated that " ... I went to the kitchen uncle Peni carried me and made me sit on the table”.

[72] The other inconsistency was that the complainant has said in her examination in chief that the accused told her to touch his penis (after she sat on the table) and in her statement to Police she had stated that "... I sat on the table, uncle Peni then told me that he will touch my ball and I have to touch his ball."

[73] When the accused read back the portions of her statement to Police which are inconsistent with her evidence, and given her the option to state which version is true, the complainant in all four instances said that the Police statement is true. With this answer, the complainant made the portions of her statement to Police, part of evidence before this Court. This change then added another dimension into the body of the evidence. In effect this has brought two versions of the complainant in respect of these four inconsistencies as four instances of inconsistent evidence.

[74] The law required me to direct you in considering this type of inconsistencies among evidence of the same witness. This situation is similar to an instance where a witness has made a statement on oath directly inconsistent with evidence he or she gives in Court.

[75] As the complainant stated that what she told Police is true in her evidence under oath, the two versions on each of these inconsistencies should be considered as sworn evidence which is in conflict with each other. In considering this type of evidence you should be cautious before you accept the complainant's sworn evidence that conflicts with another sworn statement she had previously made. In these circumstances, her evidence in Court should be regarded as unreliable unless you are satisfied in the two following particular respects;

1. Firstly, that if there is any explanations as to the inconsistency, then whether these explanations are genuine.
   
2. Secondly, that, despite the complainant being prepared to admit a contrary factual position to the position already taken in her evidence she is now telling the truth.
   

[76] The prosecution wants you to treat these four instances of inconsistent evidence as, according to them inconsistencies which are on peripheral matters and does not touch upon the core issues of the prosecution. But the accused, wants you to consider them as these inconsistencies make her evidence unreliable.

[77] The accused wants you to consider particularly the 4^th inconsistency. The complainant has said in her examination in chief that the accused asked her to suck his penis. She stated to Police that he told her that he would "....touch my ball and I have to touch his ball." The accused admitted in his evidence that he got the complainant to lick his testicle after applying some cream on it. It is his claim that when the complainant said to Police "balls" she was referring to his testicles and not his penis.

[78] The complainant, during her re-examination, stated when asked what "balls" means she replied as " a man's balls". However, in considering these conflicting claims, it is also relevant to note that she had said to Police that the accused said that he would also touch her balls. It is up to you to decide in consideration of these items of evidence that the term "balls" used by the complainant in her statement to Police refers to the penis or to the testicles of the accused.

[79] The prosecution called the sister of the complainant to say what she was told by her younger sister when she questioned her. This witness also repeated what she was told by the complainant about the incident. You cannot consider this witness's evidence on this point as supporting evidence to the complainant's evidence. You could only use this evidence to decide whether the claim of the complainant is consistent or not.

[80] These are the inconsistencies of the complainant in the prosecution case. Considering these items of evidence, it is your responsibility to decide whether the complainant was consistent in her evidence and; whether and to what extent these inconsistencies affect her truthfulness and reliability as a witness in the light of the legal directions I have already given. In addition, the accused in his closing address invited your attention to the inconsistencies of the two Police witnesses called by the prosecution. These will be referred to in detail when dealing with truthfulness and reliability of these two officer's evidence in relation to the caution interview statement of the accused.

[81] Similarly you have to consider any inconsistency in the version advanced by the accused and decide its effect on truthfulness of their claim. In this case, the evidence of the accused was presented in order to cover two areas. Firstly, the accused told us what happened on that day of the alleged incident. Secondly, he told us what happened in the Totogo Police Station at the time of recording his caution interview statement. At this stage we only consider his evidence in relation to the events on 12^th December 2012. As I already indicated, his evidence in relation to caution statement will be discussed at a later stage.

[82] As you did with the complainant’s evidence, you must employ same yardstick in evaluating the truthfulness of the position advanced by the accused. Here also it is your responsibility to consider whether the position advanced by the accused is consistent and if it is or not, then to what extent it affects truthfulness of the position advanced by him.

[83] The accused said in his evidence that on that evening after his bath, he had knelt down to get something from a cupboard. It is evidence that at that time A.B. came from behind and poked his “balls” with her finger. Then she had said that she saw some activity involving her neighbours of “putting balls into mouth”. The accused also said that she insisted that she be allowed to touch his “balls”. After that he put cream on his left “ball” and she licked it.

[84] This version of events were not suggested to A.B. when she was giving evidence. The accused revealed this claim only during his evidence. The prosecution claims that it an inconsistency. It is your responsibility to determine this fact, namely whether the accused put his version of events consistently when the prosecution was presenting its case or it was added belatedly. It is also for you to decide if it is so, to what extent it affect the truthfulness and reliability of the accused’s evidence.

[85] In relation to the circumstances under which he made the caution interview statement, the accused said in his evidence that after his arrest Apisai, whilst briefing him has jabbed his hand in to the accused side below his ribcage causing him pain. He threatened the accused to confess. His interview was conducted after two of his cell mates were interviewed and they both told him of the assaults that they have received during the interview. Over the two day period he was interviewed, Apisai kept on reminding that he confesses. What was told to him by his cell mates and the threat by Apisai, made him scared and therefore he made an involuntary statement.

[86] The prosecution says that the evidence given by the accused of the jab and threats are inconsistent with the evidence given by the witness for the accused, Mr. Narayan. According to Narayan, both of them were in the interview room and were interviewed in the presence of each other. Narayan was assaulted with broom handle by Apisai, who had thereafter taken the accused also for his interview. According to this witness “he was going through what I have gone through” in relation to physical assault. He also said after the interview they had time to talk to each other and the accused told him that he was jabbed with a broom handle on his side and the injury was visible.

[87] The fact that Apisai had assaulted Narayan was not put to Apisai when he gave evidence and the manner in which the interviews are conducted and the causes of the injury are different. Narayan saw a broken shoe of the accused and also a torn shirt with missing button but the accused did not mention any of these.

[88] It is for you to consider these inconsistencies, and also to decide its effect on the truthfulness and reliability of the evidence of the Defence case.

[89] In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution and the accused are truthful and reliable. That is the relative probability of the versions of events as presented by the parties. In order to consider this aspect I shall endeavour to present the evidence in relations to events that took place on 12^th December 2012 by A.B. and the accused, on a chronological order.

[90] The evidence of the accused is that he has returned after work and after his cup of tea, played with his children. He then went to the kitchen to cook their dinner. A.B said in her evidence that after their arrival, accused’s wife asked him to cook dinner.

[91] A.B. said in her evidence that she was called by the accused into the kitchen and was asked to sit on the table and to put her pants and panties down. Accused said in his evidence that she came to the kitchen without his knowledge and had poked his “balls” when he knelt down to pick something.

[92] In her evidence, A.B. said that the accused then put some cream on his penis and told her to suck it. She then said that what he told her was that“ ... he will touch my ball and I have to touch his ball." The accused said in his evidence that she wanted to touch his testicles and then she licked cream he put on his left “ball”. It appears that A.B. referred to “.. my ball” and “his ball”. The accused says the term “balls” refer to his testicles but when she referred “ .. my ball” could she be referring to genitals in general is a possibility you have to consider and decide one way or the other.

[93] A.B. also said that the accused touched top of her private part. The accused admits that he touched her private part, but at that time she had her clothes on.

[94] She then said that there were footsteps and the accused asked her to pull up her pants and go. The accused also admits that he heard footsteps and told A.B. to go and join the kids.

[95] A.B.’s sister in her evidence said that she has asked her younger sister as to where did she see that when the witness noted the way A.B. sucked the stem of the soursop fruit. Until then A.B. has not told of the incident to anyone and when she did, that too was due to the promise of a bribe of a candy.

[96] Of these two versions of events, it is your responsibility to decide which version is more probable than the other in deciding their truthfulness and reliability.

[97] There could be many other probabilities you would like to consider arising out of the evidence placed before us. You may consider all these probabilities and should decide which version is the more probable one, based on your common-sense.

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

[99] You will recall how the complainant gave answers when she was cross examined. She would pause for some questions and would take long time to come with an answer. In answering certain questions she simply said “I do not know” and “cannot answer the question”. Why she said these answers and whether she evasive in doing so or she had no answer to offer or she could not comprehend the question are matters for you to consider and decide. Similarly you should consider the demeanor of her sister, the Police officers. The accused in his evidence, demonstrated how he was jabbed and threatened by Apisai.

[100] I must caution you over one other important matter. When I present the accused’s version, alongside the version of the complainant, you might get an impression that the accused must prove that the prosecution has fabricated this allegation against him. That is wrong. The accused is under no legal duty to disprove the case for the prosecution. He is not even under a legal duty to offer evidence.

[101] So far, I have directed you on the assessment of credibility of the evidence for the prosecution and of the accused. If you reject the version of the accused and preferred to accept the prosecution evidence as truthful and reliable account of the incident, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offence of Rape beyond a reasonable doubt.

[102] As already noted the complainant had said, in relation to the count of Rape that she sucked the penis of the accused upon being told by him to do so. The prosecution must prove that the accused penetrated the mouth of A.B. In dealing with inconsistencies and probabilities I have already referred to the evidence of A.B. where she said she sucked his penis and then said her statement to the Police in which she stated that “... I sat on the table, uncle Peni then told me that he will touch my ball and I have to touch his ball."

[103] The prosecution says this is their proof of penetration of the mouth of A.B. by the accused. The accused says that he only got her to lick his left “ball” after putting some cream on it. If you consider when A.B. said “ball” she refers to penis and when she said she sucked it, as sufficient proof of penetration of the complainant’s mouth by the accused on that occasion, then you must find the accused guilty of Rape as A.B’s consent is irrelevant. If you are not satisfied that penetration had occurred, then you must find the accused not guilty to the charge of Rape.

[104] If you find the accused not guilty of Rape on the basis penetration was not proved by the prosecution beyond a reasonable doubt, then and then only you should consider whether he is guilty of an alternate lesser offence.

[105] You could consider whether the available evidence is sufficient to find the accused guilty to the offence of Indecent Assault, even though the accused is not charged with this offence in the information. The law provides for this type of situation.

[106] In proof of Indecent Assault, there must be evidence to prove beyond a reasonable doubt that the accused unlawfully and indecently assaulted the complainant. The word “unlawfully” simply means without a lawful excuse. An act is “indecent” if right minded persons would consider the act indecent. As to whether the act of getting to lick the testicles of the accused as he claims is indecent, you have to consider what right minded persons would think of this act. Similarly as the prosecution says touching the private part of A.B. also had to be considered by you what right minded persons would think of this act. Was the act so offensive to current standards of modesty and privacy as to be indecent? The word “assault” means the use of force unlawfully. Accordingly, a physical contact may constitute an act of assault, if it is done without a lawful excuse.

[107] In considering these questions you may consider the general nature of the relationship between the accused and the age gap between them. If you find that right minded persons would consider the acts touching private parts of a 7 year old girl or getting her to lick the testicles of the accused as to be an indecent, then you may find the accused guilty to this offence. If you are not satisfied, then you must find the accused not guilty to this charge.

[108] The identity of the accused too must be proved by the prosecution beyond a reasonable doubt. In order to prove that it is this accused who had penetrated the mouth of A.B. with his penis, the prosecution relied on evidence of A.B. and also on the admissions contained in the caution interview statement of the accused marked and tendered as P.E. No. 1. The complainant identified the accused and he was known to her and that fact was not disputed by the accused.

[109] It is appropriate to deal with the evidence presented by parties in relation to the voluntariness of the caution interview statement.

[110] The accused in his evidence clearly stated that the caution statement was obtained by the interviewing officer, upon intimidation by issuing a threat and also by poking his side. In addition, he has heard from the two other cell mates as to what they gone through during their caution interviews induced fear in his mind. There was no witnessing officer for the whole duration of his interview. These circumstances made him anxious and therefore he did not make the statement voluntarily.

[111] Any admission made by an accused, in his caution statement is admissible and sufficient evidence to prove his guilt to a charge. However, there are some applicable principles of law in relation to this evidence. The prosecution must prove that the caution statement was made by the accused voluntarily. The prosecution must establish this fact beyond a reasonable doubt.

[112] Whether the accused gave his statements voluntarily and whether the statements set out a version of events in relation to the Rape of A.B. on which you can rely and accept, is a matter for you. Of course if you believe that the interview is false, that it was made up by the Police, you may think that you cannot put any weight on it. However, if you believe that the accused gave his statements without force or fabrication, intimidation or oppression you may think that they set out a version of the evidence which will assist you in deciding on his guilt or otherwise. However, the question of what weight you can put on these admissions contained in the caution interview statement is a matter of fact for you to decide.

[113] The prosecution however says that the interview was not obtained under pressure or inducement and that the accused told the police the truth in it. What weight you put on the accused’s statement to the police is entirely a matter for you. However if you accept that the contents of the interview are reliable you may think that they contain a complete confession to all the elements of the offence.

[114] You have heard from the police officers that there were no threats or any intimidation of any kind by anyone on the accused and his statement was freely and voluntarily given and D. Sgt. Apisai has correctly recorded what the accused said.

[115] Apisai and Bolabiu said in their evidence that the accused was given his Constitutional rights and after a short session on the first day, the interview of the caused recommenced on the following morning and before noon it was concluded. Both of these officers stated that they have not threatened, induced or intimidated the accused to admit to the allegation. The accused did not complain to them or made any requests. Bolabiu said that Apisai has forgotten to give him the statement to place his signature as the witnessing officer. He however maintained that he was there throughout the interview and denied the suggestion that he did not.

[116] The accused says that the evidence of these two Police witnesses are inconsistent. In relation to the briefing that had taken place before the interview, Apisai had taken two different positions and even the evidence in relation to the presence of the witnessing officer the two officers are contradictory to each other. Apisai said that Bolabiu had left the interview room for brief moments while Bolabiu denied such incidents. The accused wants you to consider the inconsistencies of these two witnesses occurred as they were giving false evidence.

[117] The accused said that he was threatened by Apisai by telling him to confess or they would make him confess and also by jabbing, the message was conveyed. He was further scared when he learnt what happened to his two cell mates during their caution interviews. During the interview Apisai kept reminding him of the warning he had already given. It is in these circumstances he made his caution statement and wants you to accept his claim that he did not make it voluntarily. He did not complain to the Police as he did want to get into further trouble and he did not complain to Magistrate as Apisai was present in Court.

[118] The witness called by the accused gave a different version of events by saying that his and the accused’s caution interview statements were recorded in each other’s presence and both were assaulted by Police. The other cell mate was slapped by the Police when he was arrested over a laptop.

[119] Prosecution says that the accused’s failure to complain to Police or to Court makes his claim an afterthought.

[120] It is for you to assess the evidence. Remember that police officers are trained witnesses who are used to giving evidence. I do not say this because I express any opinion about their credibility, but where a confession is the primary evidence against an accused such direction is usually given.

[121] You should take into account all the circumstances in which the statement was made in assessing its value. The State says the accused person has made some sort of confession to the police. You can convict a person on his confession alone. It has been said that people don’t admit committing an offence unless it is true. Of course people are known to make false confessions too. Before you can act on the confession of the accused you have to be satisfied beyond a reasonable doubt of three things:

i. that the accused did make the confession,

ii. that the confession is true,

3. whether the accused made the confession voluntarily in the sense that it was obtained without oppression, ill treatment or inducement.

[122] If you decide that the prosecution has failed to prove any of these or some of these factors beyond a reasonable doubt then you must disregard the caution interview statement of the accused altogether. But if you decide the prosecution has established these factors to the required level of proof in relation to the caution interview statement of the accused, then you could use its contents as items of evidence against the accused.

[123] Then lastly, I must explain to you as to the reason for the use of screen, when the complainant gave evidence. It was a normal precautionary procedure adopted in Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. You must not infer that such a protection to the witness was warranted due to the accused’s behaviour and should not draw any adverse inference against him on that account.

[124] In summary and before I conclude my summing up let me repeat some important points in the following form:

1. If you accept the accused’s evidence that he had not put his penis into the mouth of the complainant, then you must find the accused not guilty to the count of Rape;
3. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty.
4. If you find the persecution evidence is both truthful and reliable then only you must consider whether elements of the charge of Rape, namely penetration has been proved beyond a reasonable doubt in relation to the accused and also his identity. If it is so only you must find the accused guilty to the count of Rape.
5. If you find the prosecution failed to prove there was penetration, then only you proceed to consider whether the elements of Indecent Assault is proved beyond a reasonable doubt. If so, then you must find the accused guilty of Indecent Assault.
6. If you find that element of Indecent Assault also is not proved beyond reasonable doubt, then you must find the accused not guilty to Indecent Assault.

[125] If you have any reasonable doubt about the prosecution case as a whole or an element of the offence and identity, then you must find the accused not guilty.

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

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

[128] I thank you for your patient hearing.

ACHALA WENGAPPULI
JUDGE

At Suva
12^th August 2016

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

Solicitor for the Accused : Prina Preetika Lawyers