State v Vakadranu - Summing Up [2016] FJHC 900; HAC57.2015 (23 September 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 057 OF 2015

[CRIMINAL JURISDICTION]

STATE

V

IOWANE VAKADRANU

Counsel : Ms. S. Navia and Mr. S. Seruvatu for State
Mr. S. Tinivata for Accused
Dates of Hearing : 19^th-21^st September 2016
Date of Summing up: 23^rd September 2016

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies for this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty.
   
2. During this summing up, if I express my opinion on the evidence or if I appear to do so, you are not bound accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
3. Your opinion should be based only on the evidence presented inside this court room. Evidence in this case is what you heard from the witnesses who took the stand in the witness box inside this court room and the admitted facts. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard such information.
   
4. Please remember that this summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening address and you heard the closing addresses. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only if you consider it appropriate.
   
5. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feeling of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
6. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
7. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Obviously, you may have a difficulty in believing someone who is not consistent. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a particular witness seem reliable when compared with other evidence you have decided to accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
   
9. Experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all. A victim’s reluctance to complain could also be due to shame coupled with the cultural taboos existing in the society in talking about matters of sexual nature with others. A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint.
   
10. Based on the evidence you would consider as truthful and reliable, you should decide what facts are proved and what reasonable inferences you can properly draw from those facts. Then you should decide whether the elements of the offences the accused is charged with have been proved considering those proven facts and the reasonable inferences. I will explain you the elements of the offences in a short while.
    
11. You are not required to decide every point which has been raised by the lawyers in this case. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the elements of each offence have been proved.
    
12. As a matter of law you should remember that the burden of proof always lies on the prosecution. The accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt. In order for you to give the opinion that the accused is guilty of a particular offence you must be sure that he is guilty of that offence.
    
13. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. If you have a reasonable doubt in respect of any element of an offence the accused is charged with, as to whether the prosecution has proven that element, then you must find the accused not guilty of that offence. However, if you find that the prosecution has proved all the elements of a particular offence beyond reasonable doubt, you should find the accused guilty of that offence.
    
14. You will note that the accused is charged with four offences. You should bear in mind to consider each count separately. You must not assume that the accused is guilty of the other counts just because you find him guilty of one count.
    
15. You would notice that the first three counts in the information are representative counts. A representative count is a count where the prosecution alleges that more than one offence described in the count was committed during the time period specified in the count. When it comes to a representative count, the law says that it shall be sufficient for the prosecution to prove that at least one such offence was committed between the dates specified in the charge.
    
16. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary.
17. The Director of Public Prosecutions has charged the accused for the following offences;
    

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 offence

IOWANE VAKADRANU between the 1^st day of October 2012 and the 31^st day of December 2013, at Labasa in the Northern Division, had carnal knowledge of Selai Tabua, without her consent.

SECOND 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

IOWANE VAKADRANU between the 1^st day of January 2014 and the 31^st day of August 2014, at Labasa in the Northern Division, penetrated the mouth of Selai Tabua, with his penis, without her consent.

THIRD 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

IOWANE VAKADRANU between the 30^th day of September 2014 and the 31^st day of August 2015, at Tailevu, in the Central Division had carnal knowledge of Selai Tabua, without her consent.

FOURTH COUNT

Statement of offence

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

Particulars of offence

IOWANE VAKADRANU between the 1^st day of September 2013 and the 31^st day of October 2013, at Labasa in the Northern Division, had carnal knowledge of Siteri Tino, without her consent.

18. Now let me summarise the evidence led by the prosecution and the defence. Please remember that I will not be reproducing the entire evidence of the case. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
    

Case for the prosecution

19. First prosecution witness was one Selai Tabua (“Selai”). She said that she is 22 years old. She left school in 2012 as she was sick and attended a home school run by the church ‘Back to Eden Church Ministry’ at Tailevu where the accused is the founder and the leader. The accused was the only teacher in this home school. She heard the accused saying in one sermon that ‘they should leave school and everything and should follow Jesus’. All her family members attend this church. During 2012 and 2015, she held the positions of assistant youth leader and the secretary to the Health Ministry in the church. Her father was an assistant pastor, and her mother a church steward. She said she respects the accused. She follows all his teachings and what he tells her. She believes that God has appointed him and that is how God helped her.
    
20. In 2012, she and 11 others went to Labasa with the accused, and lived at Vucilevu, Vuniika for about 2 years. The reason was to prepare them spiritually to spread the word of God to the world. She and the other members lived in a bure while the accused lived in a rented house nearby this bure. While they were there, some youth members withdrew and returned to their families, she and 4 other girls stayed back.
    
21. She said during the period between 01/10/12 and 31/08/14, she had one-on-one sessions with the accused where she was interviewed in the office where the accused was renting. During one of the sessions, the accused told her that he will perform an act that she would not have dreamt of or expected. The accused told her that the act is that he is going to touch her breast, touch her vagina and have sex with her. The accused also told her that she has been prepared for a mission to take the word of God and she can’t tell the world about something she had not done. She agreed with what the accused asked her because she believed in no sin, no sickness and no death. She can’t lie to the people. She believed him and she trusted him. She believes that everything that was done was not lust of the flesh. She is okay with everything that was done. She has a clear conscience about it.
    
22. One or two days after the accused told her that he is going to perform those acts, when she came for the interview, the accused touched her breast and then touched her vagina. On another day when she went inside for the interview, the accused closed the door. He told her to take her clothes off and went inside the room. She did what he asked her to do and lay down on the bed. The accused came inside, told her to close her eyes and then licked her vagina. Then he came on top of her and inserted his penis into her vagina. When she told the accused that it was paining, he withdrew. Then he told her to suck his penis and she sucked his penis. After that she got dressed and went inside the house. Then they prayed. Thereafter, the accused performed this on her once again at Labasa.
    
23. Between 30/09/14 and 31/08/15, they had returned to Tailevu and the daily one-on-one sessions with the accused continued. During that period they had sex twice. She said, the accused touched her breast, licked her vagina and then inserted his penis. He stopped when she told him that it is paining. She said that she gave the accused permission to do so, it was her choice and she agreed. She said that the accused gave her the same reasons that he gave her when he performed the acts to her in Labasa. She said she gave the accused permission to insert his penis into her vagina in Labasa and in Tailevu because of the reasons he gave her. It was also for the same reason that she sucked the accused’s penis in Labasa. She said no one in this world showed her the truth apart from the accused and she believes in everything the accused taught her. She did not tell anyone about what the accused did to her because he told her that it was between the two of them. She said they are allowed to have boy friends in their youth groups. All her family members are still part of the same church.
    
24. During cross examination she said she gave her consent in all the incidents that had given rise to the 3 counts of rape. She said she was not threatened, not forced and was not under duress. She said she still believes that the decision she took regarding all the incidents was the right decision and she has no regrets. Her father who is the assistant pastor also agreed. She said she did not see it as sexual intercourse or lust of the flesh and she has a clear conscience about it. She said that if she did not agree with the accused or with the doctrine, she would not have consented. She said the accused did not ejaculate inside her vagina at any time. When she was asked whether she feels that she was raped, she said ‘no’. She said she did not complain but the police came to her house. She said she agreed to everything that happened, and gave her consent. If she did not agree it would not have happened and this is what she chose. She also said that they reconciled for everything that had happened and it ended there.
    
25. During re-examination, she said that she doesn’t have regrets because she believes the word of God she had been taught by the accused every day. She said that what happened is based on the word of God. It may look foolish but she believes that it is correct in the eyes of God.
    
26. Second prosecution witness was one Siteri Tino (“Siteri”). She said she is 23 years old. She stopped schooling when she was in form 6 because the accused who was a pastor and the leader of the church she was a member, told her that it is no use going to schools in this world. She joined this church which is known as ‘Back to Eden Ministry’ in 2011. Her mother was also a member of the church. She held the position of youth leader in the church. The church has a belief, ‘no sin, no death, no sickness’. This was created by the accused. Accused was also their doctor and their spouse. When they are sick, they cannot take their sickness to the hospital and they go to the accused. This teaching was given by the accused. She said the accused also gave the teaching that they cannot get married outside or have boyfriends as he is the only one. She said she respected him and followed his teachings in the church as he taught good teachings.
    
27. In October 2012, she went with the accused and other youth members and lived at Vucilevu, Labasa. They lived there for about 2 years. During the one-on-one sessions she had with the accused as part of their daily program, the accused taught her bible verses and also about married life.
    
28. She said, something unusual happened during the period between 01/09/13 and 31/10/13 in one of the one-on-one sessions. On this particular day, when she went for the interview, the accused told her to close the door and lock it. She sat on the settee and the accused was sitting on a chair. Then the accused encouraged her and told her to be strong as this is the call of God to appoint her to do this and that God has chosen her. After that the accused told her to lie down on the bed and then to take her clothes off. The accused removed his pants and lay on top of her. Then he started inserting his penis into her vagina. She said she cried as it was paining for her and she couldn’t do anything. Then the accused told her to be strong. He said that is what God has called him to do and has appointed him to do. Accused was inserting his penis in her vagina for 5 to 7 minutes. She could not do anything because she knew that the accused is their pastor and they respect him. She said she did not give the accused permission to insert his penis into her vagina. She did not tell anyone about this incident because she was told by the accused not to tell anyone about what happens during the interview. She was interviewed by the police last year. Police came because her mother reported the matter. She told her mother what happened. She is no longer a member of the Back to Eden Ministry.
    
29. During cross examination, she admitted that the values ‘no sin, no death, no sickness’ are stated in 2 Timothy Chapter 1 verse 10. When she was asked whether she believed in those principles in the Bible when she was with the church, she said no. She admitted that she was a member of the church for 5 years and also had preached about those principles though she did not believe in that.
    
30. She said on the morning of the incident, she did not agree with the action to be taken after the discussion. She said she walked to the bed without being assisted. She was not threatened or forced, and was not under duress. When it was suggested that she consented, she denied. She said she was told to take her clothes off. She got undressed before climbing on to the bed. On the bed she was facing upwards. She admitted that she did not push the accused away, did not yell and did not try to run away. She said she found blood the same time the act was done to her. Then she admitted that she told the police that she saw blood in the afternoon after returning from the washroom. It was suggested to her that there was no penetration and she said “you would not know because I knew what had been inserted to me”. She said she decided to complain to her mother when her mother asked her in 2015. She said she wanted to tell her mother, but she was afraid and was not sure when to tell her. She admitted that she had chances to report but she did not.
    
31. During re-examination, she said that the accused told him to get undressed and walk to the bed. She did not push the accused away or yell because at that point in time she saw the accused as her pastor, and whatever he told them to do, they will do it. She was afraid to tell her mother because they were told not to tell anyone regarding the interviews.
    

Case for the Defence

32. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence.
    
33. The accused said in his evidence that he did not commit rape because he did it for a purpose. He said he advised them about the body and about spiritual life. All his teachings were based on the Bible. He said he does not consider the incidents involving the allegations as rape because he was teaching and preaching them for a very long time before it happened. He has been explaining on number of ways for them to choose and to make decisions. He said they were trained about everything in the body and they did practical. This is because there are teachings in the Bible to take care of the body, to cure diseases without medicine and without surgery. He was teaching them lessons about every part of the body including sexual organs.
    
34. He said if any of them did not agree with his teachings, he will not do what he is alleged to have done. He said Selai and Siteri gave full consent. The two were leaders of two departments within the church. He said he had sex with them and that sex was not love and it is not lust of the flesh. He inserted his penis inside their vaginas and they gave full consent to that. He did not ejaculate as it is not allowed. He said they were prepared for a mission not to commit adultery, so that they will know the taste and will not go and do it outside but only with him. He said they were about to preach that it is not allowed to commit adultery. He advised not to do it outside, as he is the only one who should do it because he is their leader and adviser.
    
35. He said he just came to know about blood as he did not notice it. He said it is true that he touched the breast and the vagina. His intention was that they should know that it is part of their teaching. Once that is done, they are ready to go. He said it will end there and they are ready to go. When they go for missions they know not to do it outside and also inside. He said he does not consider what he did as sexual intercourse and it was a lesson. He said he take few minutes speaking to them before they agree and if they refused, he will not do it. He said the purpose of touching the breast and the vagina was, it is part of sex so that they are not going to search in the outside world. He said they are not going to share what they have not experienced and that is the main purpose, not to lie.
    
36. During cross examination he said that he is married for about 20 years and has 4 children. He said he is the founder of the ‘Back to Eden church Ministry’, and this church is founded on the doctrine; no sin, no sickness, no death. He admitted that he created this doctrine, advised from the Bible. He said that he is the doctor and the teacher of the church members. He admitted that he had not obtained any degree from a medical institution or a degree or certificate from any teaching institute. He admitted that one of his teachings was that the education system is corrupt but he said that it is based on the Bible. He also admitted that the aforementioned teaching is the reason that the youths in his church left their schools and were then home schooled by him. Another teaching of his was that the church members are married to him and this was according to the Bible.
    
37. He said, during the one-on-one sessions he had with Selai at Labasa he would share bible verses and would pray together. He admitted that he told Selai that he will perform an act she would not have dreamt of. He said that she did not expect it. He said he told her that he will teach her about sex. He said he told her the reasons for doing that and the reason was that he is preparing her for a mission; when she goes out to preach, she has to preach about something she has experienced; and for her not to commit adultery when she goes and spreads the word of God. He admitted that she consented because of that reason and because she believed him.
    
38. He denied telling Selai to close her eyes. He admitted that he licked her vagina and that he inserted his penis into her vagina. Then he admitted that Selai complained that it was paining and he withdrew his penis from her vagina and told her to sit on the bed. He denied telling her to suck his penis after that. He said he asked her to do that before having sex and Selai did suck his penis. He admitted that the same thing happened in Labasa few weeks later.
    
39. He also admitted that he had sex with Selai at Tailevu after they returned from Labasa. He admitted he gave the same reason that he gave in Labasa regarding why he is going to have sex with her and that she consented because she believed that reason. He admitted that he did not send them for the mission even after 3 years. He denied that he made a false representation to Selai in Labasa and in Waidalice so that he can have sex with her. He admitted having sex with Selai again a few weeks later, that is inserting his penis in her vagina.
    
40. He admitted that Siteri was also a youth member who stayed with him in Labasa during 01/09/13 and 31/10/13. He admitted that, in one of the one-on-one sessions, he encouraged her to be strong and told her that he is about to do God’s calling, and he also told her that God had chosen him to do what he is about to do to her. He said he has evidence from the Bible. He said she believed him all along. He admitted that he told her to undress and lie on the bed. He admitted that he inserted his penis into her vagina. He said he stopped when Siteri told him that it was paining. When it was suggested that she did not give permission for him to insert his penis into her vagina, he said she gave full consent. Then when it was put to him that he made her believe that God had called him to do what he did to her, he said that is not the purpose, and there is a different purpose. Then again he admitted that he told her that God has chosen him to do what he is about to do to her and stated further that there is support from the Bible which allowed him to do it.
41. When he was asked whether the doctrine no sin, no sickness, no death is supported by 2 Timothy 1:10, he said “that one and there are other verses from the Bible”. Then when he was asked whether that doctrine say that he can have sex with Selai to prepare her for a mission, he said it is there. It was also put to him that the said doctrine does not show that God had commanded him to have sex with Siteri and he said there is a teaching in the Bible. He admitted that he told Selai and Siteri not to tell anybody after he did those acts to them. He admitted that adultery is having sex outside marriage. But when it was suggested that he was committing adultery by having sex with Selai and Siteri, he denied. He denied that he lied to them about the reason of doing those acts in order to get their consent.
    
42. During re-examination, he said that the Bible explains that he is the husband of the girls. When he commits [sexual intercourse] outside marriage, it is not adultery because the Bible says that it is permitted for him to do it. It is not forbidden for him to do it because of the purpose. He said the purpose is to teach them what is adultery and for them to tell that it is not allowed. Only he is allowed as he is ‘his apostle’. He said, after doing it to them it ends there.
    
43. In this case the prosecution and the defence have agreed on certain facts. You should consider those admitted facts that are before you as proven beyond reasonable doubt.
    
44. The accused is charged with four counts of rape. You would find that the first, second and third counts in the Information involve Selai and the fourth count involves Siteri. Further, you would find the term ‘carnal knowledge’ in the first, third and fourth counts. In the context of this case, carnal knowledge is inserting the penis inside the vagina.
    
45. To prove the first and the third counts, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of Selai with his penis;
    100. without the consent of Selai; and
    4. the accused knew or believed that Selai was not consenting; or

the accused was reckless as to whether or not she was consenting

46. To prove the second count, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the mouth of Selai with his penis;
    100. without the consent of Selai; and
    4. the accused knew or believed that Selai was not consenting; or

the accused was reckless as to whether or not she was consenting

47. To prove the fourth count, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of Siteri with his penis;
    100. without the consent of Siteri; and
    4. the accused knew or believed that Siteri was not consenting; or

the accused was reckless as to whether or not she was consenting

48. The first element of the four offences is concerned with the identity of the person who committed the offence.
    
49. The second element of the offences involves penetration. The law states that this element is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.
    
50. You heard during the trial that the accused admitted inserting his penis inside Selai’s vagina on two occasions in Labasa and on two occasions in Tailevu. He admitted that he asked Selai to suck his penis in Labasa and Selai did suck his penis. He also admitted that he inserted his penis inside the vagina of Siteri in Labasa.
    
51. You may notice that there is variance between the time of offence referred to in the charge and the evidence in respect of the first two counts. However, as mentioned before, the accused admitted penetrating Selai’s vagina with his penis in Labasa in relation to the first count and the accused admitted penetrating Selai’s mouth in Labasa with his penis in relation to the second count. Thus, you may consider this variance with respect to time of offence in relation to the first and the second counts as immaterial.
    
52. Accordingly, it is clear that the first and second elements in all four counts based on identification and penetration are not disputed. The elements in dispute are the elements based on consent.
    
53. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated Selai’s vagina with his penis without her consent in relation to counts one and three, and that the accused penetrated her mouth with her penis without her consent in relation to count two.
    
54. Further, in relation to count four, the prosecution has to prove that accused penetrated Siteri’s vagina without her consent.
    
55. It is very important that you understand what the word “consent” means according to the law of this country. You should bear in mind that “consent” means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. Mere submission without physical resistance by a person to an act of another person shall not constitute consent. Even where a person consents to an act, that consent is not freely and voluntarily given if it was obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority; or
    5. by false and fraudulent representations about the nature or purpose of the act; or
    6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
       
56. There is another element in relation to consent. That is, not only that the prosecution should prove that a particular complainant did not consent for penetration; the prosecution should also prove either that the accused knew or believed that the complainant did not consent; or that the accused was reckless as to whether or not the complainant was consenting.
    
57. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the relevant complainant may not be consenting for him to insert his penis inside the complainant’s vagina or the mouth as the case may be and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vagina or mouth with his penis, you may find that the accused was reckless as to whether or not the complainant was consenting. Simply put, you have to see whether the accused did not care whether the relevant complainant was consenting or not.
    

Analysis

58. In relation to the first count, the prosecution says that Selai did not give her consent freely and voluntarily for the accused to insert his penis into her vagina in Labasa and the accused knew or believed that she was not consenting, or the accused did not care whether she was consenting or not.
    
59. In relation to the second count, the prosecution says that Selai did not give her consent freely and voluntarily for the accused to insert his penis into her mouth in Labasa and the accused knew or believed that she was not consenting, or the accused did not care whether she was consenting or not.
60. In relation to the third count, the prosecution says that Selai did not give her consent freely and voluntarily for the accused to insert his penis into her vagina in Tailevu and the accused knew or believed that she was not consenting, or the accused did not care whether she was consenting or not.
    
61. Selai said in her evidence that she gave her consent for the accused to insert his penis inside her vagina in Labasa and in Tailevu. She said that she sucked the accused’s penis with her consent in Labasa. She also said that she gave her consent for the accused to perform the above acts that had given rise to the 3 counts of rape because she believed in his teachings. That is, the accused was preparing her for a mission where she is required to spread the word of God to the world and she cannot preach something which she has not experienced. She said she was not threatened, not forced and was not under duress. She said she still believes that the decision she took regarding all the incidents, that is, the two incidents of sexual intercourse and the sucking of the accused’s penis in labasa and the two incidents of sexual intercourse in Tailevu was the right decision and she has no regrets. Her father who is the assistant pastor also agreed. She is okay with everything that was done. She said she has a clear conscience about it. She and all her family members are still members of the same church.
    
62. In relation to the fourth count, the prosecution says that Siteri did not give her consent freely and voluntarily for the accused to insert his penis into her vagina in Labasa; and the accused knew or believed that she was not consenting, or the accused did not care whether she was consenting or not.
    
63. Siteri said in her evidence that she did not consent, she did not give permission for the accused to insert his penis into her vagina. She joined the accused’s church in 2011. She stopped schooling as the accused told her that it is no use going to school in this world. She was the youth leader of the accused’s church at the time of the incident and her mother was a church member. The accused had taught her that he is their doctor and he is their spouse. Before the incident which took place in 2013, the accused told her that he is going to perform on her what God had appointed him to do. Then the accused told her to remove her cloths and lie down on the bed. She complied. When the accused came on top of her, he inserted his penis inside her vagina. There was no physical resistance from her. She said she could not do anything, she did not push or yell or run away as she saw the accused as her pastor where she respected him and she will do whatever he tells her to do. She wanted to tell her mother but was afraid and was not sure when to tell her as the accused had told her not tell anyone about what happens during the interviews. But when her mother asked her in 2015, she told her and then reported the matter to the police.
    
64. The defence says that Selai and Siteri fully consented for what the accused did with them. It was their choice. Defence points out that there were no force, no threats and duress made by the accused and the two prosecution witnesses got undressed on their own and got onto the bed on their own. Defence says that the accused would not have performed those acts if Selai and Siteri did not consent. According to the defence, Siteri had ample opportunity to report the matter for two years but she only complained because of her mother.
    
65. Accused while admitting that he inserted his penis inside Selai’s vagina in relation to the first count and the third count, and that he got Selai to suck his penis in relation to the second count, said that Selai fully consented for his acts. Accused also admitted that he penetrated Siteri’s vagina with his penis and said that Siteri fully consented. Accused also says that he does not consider what took place as sexual intercourse and there was some other purpose for doing what he did.
    
66. The prosecution takes up the position that Selai and Siteri did not freely and voluntarily give their consent as the accused has made false representations to them. Prosecution says that, though the accused said that the two prosecution witnesses were prepared for a mission, they were not sent for any mission even after 3 years. Prosecution points out that the accused himself has committed adultery where the accused says that adultery should not be committed.
    
67. The accused said that he has not made any false representations and all his teachings are based on the bible. He said that bible says that it is not adultery for him to have sexual intercourse outside the marriage.
    
68. The following can be identified as the reasons the accused had given during the trial as the reasons for him to have sexual intercourse with Selai and Siteri;
    1. they were prepared for a mission to spread the word of God and they cannot tell the world about something they had not done, they cannot lie;
    2. God has called him and had appointed him to do that to Siteri;
    100. sex he had with them was not love and it is not lust of the flesh;
    4. they were about to preach that it is not allowed to commit adultery;
    5. they were prepared for a mission not to commit adultery, so that they will know the taste and will not go and do it outside but only with him;
    6. he advised them not to do it outside, as he is the only one who should do it because he is their leader and adviser;
    7. Bible explains that he is the husband of the girls;
    8. when he commits it outside marriage, it is not adultery because the Bible says that it is permitted for him to do it;
    9. it was not sexual intercourse but was a lesson;
    10. purpose of touching the breast and the vagina was that it is part of sex so that they are not going to search in the outside world;
    11. purpose is to teach them what is adultery and for them to tell that it is not allowed;
    50. only he is allowed as he is ‘his apostle’;
    13. once that is done, it will end there and they are ready to go;
        
69. When you evaluate the evidence presented in this case, you should remember to put aside your own prejudices, beliefs and knowledge if any, about the Bible or any particular religion. You should not let your own views or perspectives influence your decision as to whether the accused guilty or not guilty of the four counts of rape he is charged with. You should provide your opinion based only on the evidence led in this case as I have already directed you.
    
70. The defence says that there are inconsistencies in the evidence given by Siteri. The inconsistencies according to the defence are that;
    1. She said she did not believe in the principles of the church but she was preaching about those principles;
    2. She says that she did not consent, but she did not resist and took her clothes off and got onto the bed on her own; and
    100. She said in her evidence that she saw blood when the incident took place, but had told the police that she noticed blood in the afternoon.
         
71. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that Siteri is generally not to be relied upon or you may decide to disregard only part of her evidence which you consider unreliable.
    
72. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider her as a reliable witness notwithstanding the inconsistency.
    
73. When you deal with the three counts in relation to Selai, you should consider each count separately and decide whether the prosecution has proven beyond reasonable doubt that Selai did not freely and voluntarily consent for the accused to penetrate her vagina or the mouth as the case may be, and that the prosecution has proved beyond reasonable doubt either the accused knew or believed that she was not consenting, or the accused was reckless as to whether or not she was consenting.
    
74. When you deal with the fourth count in relation to Siteri, you should consider that count separately and decide whether the prosecution has proven beyond reasonable doubt that Siteri did not freely and voluntarily consent for the accused to penetrate her vagina, and that the prosecution has proved beyond reasonable doubt either the accused knew or believed that she was not consenting, or the accused was reckless as to whether or not she was consenting.
    
75. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that always the prosecution should prove the case.
    
76. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
77. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each offence;
    
    • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
      
    • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of an offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proved all the elements beyond reasonable doubt. If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.
      
78. Any re-directions?
    
79. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion. Your possible opinion should be whether the accused is guilty or not guilty of each count.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Toganivalu & Valenitabua Barristers & Solicitors, Suva.