State v Rasiga - Summing Up [2017] FJHC 157; HAC34.2015 (2 March 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 34 OF 2015

STATE

V

BENIAMINO RASIGA

Counsels : Ms. A. Vavadakua for State
Mr. K. Ratule for Accused

Hearings : 27, 28 February 2017 and 01 March 2017
Summing Up : 02 March, 2017

SUMMING UP

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

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

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

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

[6] It is also important to note that, in forming your opinion on the charges against the 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 addresses made by the Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.

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

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

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

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

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

[16] A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in this matter before us, the promptness or lateness of the complaint and what weight you attach to it.

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

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

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

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

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

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

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

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

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

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

[29] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. Whether the accused has given evidence or not, is immaterial in this regard as he has no burden upon him to prove his innocence. It is not his task to prove his innocence. When he does offer evidence it is your duty to evaluate then apply the same standards.

[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 reasonable doubt. This means that in order to convict, you must be sure that the prosecution has satisfied beyond reasonable doubt of every element that goes to make up the offences charged. I will explain these elements later.

[32] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences and the other matters of which you must be satisfied, such as identity, in order to find 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 charges contained in the information.

[35] There are two charges preferred by DPP, against the accused:

FIRST COUNT

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

BENIAMINO RASIGA on the 4^th day of July 2015 at Tuatua, Labasa, in the Northern Division assaulted MELANIA BALE by biting her lips, thereby causing her actual bodily harm.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

BENIAMINO RASIGA on the 4^th day of July 2015 at Tuatua, Labasa, in the Northern Division, had carnal knowledge of MELANIA BALE, without her consent.

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

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

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

[39] If you are satisfied beyond a reasonable doubt that the accused penetrated the complainant’s vagina with his penis without her consent then you may find him guilty of Rape.

[40] A person commits Assault Causing Actual Bodily Harm, if he assaults another and as a result of that assault, that person has received bodily harm.

[41] Apart from the elements of the offence of Rape and Assault Causing Actual Bodily Harm, the identity of the person who is alleged to have committed these offences must also be proved by the prosecution. What it means is that it was this accused and none other had penetrated the complainant’s vagina and Assaulted the complainant Causing Actual Bodily Harm as per the date mentioned in the information. There must be positive evidence as to the identification of the accused.

[42] If you find that the prosecution failed to establish any of these elements in respect of these two offences, then you must find the accused not guilty to each charge.

[43] In our law, no corroboration is needed to prove an allegation of Sexual Offence. The offences of Rape is obviously considered as Sexual Offence. The other count of Assault Causing Actual Bodily Harm is not a Sexual Offence.

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

[45] The parties have agreed the following facts have already been proved beyond a reasonable doubt:

1.1 That the Accused in this matter is BENIAMINO RASIGA.

1.2 That the name of the complainant in this matter is MELANIA BALE.

1.3 That on the 4^th day of July 2015, the Accused was drinking with complainant, her boyfriend and others at Tuatua in Labasa.

1.4 That the Accused was with the Complainant at the time of the alleged incident

Case for the Prosecution

[46] Evidence of the complainant

(i) It is her evidence that she is currently 25 years old and is the mother of three children. She said after her divorce from Luke Lilicama she is in a romantic relationship with Sairusi Lilicama. In July 2015 she was resident of Naqelelevu Island of Taveuni.

(ii) She already knew the accused well since he is related to her partner.

(iii) The complainant said that on 4^th July 2015, she came to Labasa with her partner Sairusi to sell their sea produce. After selling their produce, they rented an apartment at Melrose Apartments. In the evening both of them went to North Pole Hotel and have consumed alcohol. Then they proceeded to Fusion night club. They did not enter into the club. Then they bought a bottle of Rum and met Kelepi and the accused. Then they proceeded towards the Holy Family School and have consumed the bottle of Rum.

(iv) Having finished their drinking session, all of them went to Pontoon night club. The time could be around 1.00 a.m. From the night club, four of them then proceeded to Kelepi’s place. Then they consumed Rum and Beer while seated on the verandah of the house. She did not talk to the accused or joked with him at that time.

(v) Later that night, she wanted to relieve herself and had walked away about 40 steps from the house. She sat somewhere on the compound, on the other side of the house, to pass urine. After finishing when she tried to get up, the accused held her from behind. He then pulled her to another place. She tried to call Sairusi, but was prevented by the accused, who held her mouth. When she tried to call out Sairusi, the accused punched her mouth. She was drunk and felt weak to resist.

(vi) Then the accused pushed her to the ground and laid on top of her. He threw another punch on her mouth and bit her lip when she tried to free herself. She felt pain but could not do anything. She did not push the accused fearing her lips “would rip off”. He then removed her trousers while biting her lip. He then inserted his penis into her vagina.

(vii) After this the accused blacked out. She pushed him sideways and pulled up her pants and ran to Sairusi crying. She told Sairusi that the accused had raped her. They wanted her to point the place where she was raped. When she pointed out the direction of the place, she did not see the accused. She was asked whether she want the matter to be reported. Then they went to make a report.

[47] Evidence of Sairusi Lilicama

(i) This witness is the partner of the complainant and is in a romantic relationship with her. The accused is related to him and the witness knew him before the incident.
(ii) On 4^th July 2015 he came to Labasa with the complainant from Naqelelevu Island to sell their sea food to a company called Gold Hold, located in Labasa town. Then they paid for a room at Melrose Apartments. In the evening they went to North Pole Hotel to have some drinks. Then they checked Fusion night club and met his cousin Kelepi and the accused. They bought a 26 ounce bottle of alcohol. They consumed it while seated on the pavement close to railway. Then all of them proceeded to Pontoon Night Club. There too they had few more drinks. The complainant was always with the witness during their stay there.
(iii) After the night club, they bought 40 ounces of alcohol and then proceeded to Kelepi’s house. It was located in Tuatua. This was his first time in that house. The house appeared like a barracks. There were 5 houses next to each other in a row and Kelepi’s house was the 1^st from right side. That side of the house was empty. He did not notice anyone there as all were asleep. There was an incinerator which was located about 4 meters from his house.
(iv) The complainant, when they were on their way to Kelepi’s house, told him that she wanted to relieve herself. At Kelepi’s house they all consumed alcohol and she was seated close to the witness. Again she wanted to “go to toilet”.
(v) At this time the witness and Kelepi continued their drinking. The accused was chased out by Kelepi and later he returned. After some time, again the complainant wanted to relieve herself and went to the other side of the house. The witness did not see the accused at the place where they had drinks. She was away for about ½ an hour. She then came running and crying. She was bleeding from her upper lip. She told witness that the accused had raped her.
(vi) When the witness went to the place where the incident took place, he saw the accused lying on the ground unconscious. He was lying near the incinerator. The accused had his trousers down to his knees. He felt angry towards the accused. He then took the complainant to Police.
(vii) The witness denied having punched the complainant on her mouth.

[48] Evidence of Dr. Richard Tavo

(i) This witness, after obtaining his M.B.B.S. degree, has six years of experience as a medical officer. He was attached to Labasa Hospital as a medical officer in July 2015.
(ii) On 4^th July 2015, he examined the complainant at 12.45 p.m. after allowing her to rest for a few hours as she was under the influence of alcohol. He recorded history as given by the complainant.
(iii) Upon his examination of the complainant’s genital area, he did not observe any abrasions or lacerations. He noted that her upper lip was swollen. It could have happened 72 hours prior to her examination. He had no opinion to offer as to its cause.
(iv) It is his opinion that there exists a possibility of not having any injury to genitalia, even though a forceful sexual intercourse had taken place.

(v) The report prepared by the medical witness was tendered as P.E. No. 1A.

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

[50] Evidence of the Accused

(i) The accused said in his evidence he is 27 years old now and presently engaged in farming. He was employed by the Judicial Department as an Assistant Court Officer since 2013 and had served until 2015.

(ii) On 3^rd July 2015, after work, he returned to his room at Melrose Apartments. After a cup of tea and watching a movie, he prepared his dinner with his girlfriend. Then his grandfather Kelepi came to his room and told that Sairusi and Complainant are at the main door of the apartment. He proceeded to see them. They agreed to meet up later in the evening.

(iii) The accused knew Sairusi as a cousin of Kelepi and also knew the complainant from their school days. He had a “relationship” with her during that time.

(iv) The accused and Kelepi later met the complainant and her partner opposite the Fusion night club. They bought a bottle of Rum and consumed it at a place located behind the club and near the railway line. Then they proceeded near St Mary’s School with another ½ bottle of Rum. Then they went into Pontoon night club.

(v) At the club they bought more drinks and the accused danced for a while. Sairusi and Kelepi have then gone to upstairs to smoke. The accused went back to where the complainant was seated. They spoke about their relationship and they kissed. When Sairusi and Kelepi returned after smoking, they all got into a taxi and gone to Kelepi’s house in Tuatua. The accused has already visited this house and according to him it is one of the 4 houses in a row in barrack style. It was rented by Kelepi from Public Rental Board.

(vi) When they reached Kelepi’s house, they got off from the taxi and sat near the incinerator, which was located in the front of his house. They continued with drinking while sharing jokes. Then the complainant brought up the topic of their relationship for the 2^nd time and then Sairusi did not “feel good” about it. He then grabbed the accused by his T shirt and Kelepi intervened. Kelepi told the accused to leave the drinking party.

(vii) The accused complied and after some time returned and sat with the group again. He then tried to contact the complainant in order to tell her not to bring up the topic of their relationship as it had led to animosity. He managed to contact the complainant. She then got up and went towards the other end of the building. After about 3 minutes, the accused also stood up and went behind Kelepi’s house to meet up with the complainant. Sairusi and Kelepi remained seated. He did not take the same path the complainant took to reach the other end of the building. When he went there the complainant was standing.

(viii) He told the complainant not to bring up the topic of their relationship in front of Sairusi. She had felt sorry and guilty. She had then hugged the accused and they kissed. Then they laid themselves on the ground. The complainant had lifted up her skirt and put down her panties on her own. The accused also putdown his pants to his knees and then laid himself on top of her. At that time he “blacked out”. He says he had no carnal knowledge of the complainant.

(ix) When he woke up he heard the complainant crying after Sairusi confronted her by asking angrily as to what two of them did there. Then he heard the complainant telling Sairusi that the accused had raped her. At the time he woke up he felt pain in his eye and his nose bleeding. He was in the same spot on which he blacked out

(x) The accused denied punching on her face and mouth. He also denied pulling and pushing her. He denied biting her lips. He also said the verandah at the back of the house is not big enough for 4 people to sit on.

Analysis of all evidence

[51] The prosecution relied on the evidence of the complainant, her partner and the medical officer who examined her to prove its case, while the accused also offered evidence under oath.

[52] Firstly, you must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses is 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 charges of Rape and Assault Causing Actual Bodily Harm, 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 the elements of the offences of Rape, Assault Causing Actual Bodily Harm and also the identity of the accused beyond a reasonable doubt.

[53] 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 the consistency of the evidence.

[54] In relation to considering the consistency of the prosecution evidence, I shall first direct you with the evaluation of evidence on the aspect known as recent complaint. What this consideration is whether the complainant consistently made the allegation of sexual aggression to the person to whom she disclosed it for the first time since the alleged incident. You could also consider whether she consistently maintained her allegation thereafter.

[55] The prosecution lead evidence from the complainant that she did describe the alleged act of sexual aggression to her partner soon after it happened and implicated the accused as the person who did it. Evidence of her partner reveals that she complained to him, as she came running and crying. She said the accused “raped” her”.

[56] About few hours later the complainant again complained of the incident to the medical officer who examined her at Labasa Hospital. The history given by the complainant is there in P.E. No. 1A.

[57] You could consider these items of evidence, in order to decide whether the allegation of sexual aggression is consistently made and also in what detail. The fact that she complained of “rape” should not be used by you to decide the charge of Rape as it is your responsibility to decide it after considering all the evidence. What she has said to others outside Court is not evidence. You could only use this complaint of “rape” to decide the consistency of the allegation.

[58] However, I must again caution you that these items of evidence should not be utilized by you to decide that they support the complainant's evidence led before this Court. You could only consider these items of evidence at this stage to consider whether the allegation is consistently made and made without undue delay, without leaving room for afterthought and fabrication.

[59] In addition, it is your duty to consider all the evidence led before this Court for its consistency. I shall first deal with the inconsistencies in the prosecution's case. Before I venture to refer to the inconsistencies, let me assist you by directing the manner in which you should consider the inconsistencies in determining truthfulness and reliability of a particular witness.

[60] In assessing credibility of the testimony of a witness on consistency means to consider whether the evidence of that witness differs from what has been already said by the same witness on the same issue in 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.

[61] You may have observed that when the complainant’s partner gave evidence, there were some inconsistencies between his evidence before this Court and the statement given to the police. What you have to take into consideration is only the evidence given by the witness in Court and not what he said in any other previous statement. The reason is what he said to Police is not evidence. The portion of the statement to Police could only be used to consider whether he said something different to what he said in Court. These portions only assist to decide whether he was consistent in that particular issue.

[62] As I have already directed you earlier on in this summing up, 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.

[63] One of the inconsistencies of Sairusi’s evidence as highlighted by the accused was in relation to the fact that whether they went to the accused’s room at Melrose apartments. The witness said in evidence they did not. It was then highlighted by the accused that in his statement to Police the witness has said “we all came down just to see if Rasiga was there.” When the accused confronted the witness with his statement, then he said in evidence “Yes, we did”. The accused however did not address you on the inconsistencies but mainly addressed you on the probability of the version of events of the prosecution.

[64] It is for you to decide whether this are inconsistency and to the extent to which it affect the credibility of this particular witness and the basic version of the prosecution. You will also have to decide what weight you attached to its evidence. You may have also consider any other inconsistency in evidence which you may have noted.

[65] Similarly, you have to consider the version of events as narrated by the accused for its consistency. The prosecution did not highlight any inconsistency of the evidence of the accused and instead they also challenged his version of events only on probability.

[66] I also mentioned you that the manner of giving evidence is also an applicable consideration in evaluating witnesses for their truthfulness and reliability. You would have observed how the complainant and her partner have given evidence and faced cross examination. You would also consider how the accused faced his cross examination and his demeanour at the witness stand.

[67] In addition to above mentioned considerations on evaluation of evidence; there is another factor in considering whether the evidence of the prosecution is truthful and reliable. That is the relative probability of the versions of event as presented by the parties. In this trial both parties have placed hearing reliance on this aspect in evidence.

[68] The evidence of the prosecution is that the accused, having followed the complainant who came out of the verandah to relieve herself, pulled her to a another place, made her lie down on the ground and inserted his penis into her vagina. He also bit her lip.

[69] In challenging the prosecution version of events on relative probability, the accused wants you to consider the fact that although the complainant said that the accused held her with his two hands, her own two hands were free and she could have struggled or pulled his hand, which covered her mouth out and call for help.

[70] In addition, the accused wants you to consider the probability of her claim that she was pulled by him as according to him it was a concrete path and her legs had no injury. The accused also wants you to consider the probability of her claim that he pushed her to the ground. Accused invites you to consider that if he pushed her, then she is free from his grip and could have easily run away or to call out for help.

[71] The accused, challenging the prosecution on probability and particularly on the element of penetration said in his evidence that although he mounted on her with the intention of having sex with her, he had blacked out before penetrating her. On the other hand, the prosecution wants you to consider the probability of the position taken up by the accused that after removing his trousers and in that position having laid on top of the complainant, he being “blacked out”. But he heard the angry confrontation by Sairusi and the complainant’s accusation that he raped her.

[72] In relation to the count that the accused committed Assault Causing Actual Bodily Harm by biting on her lip, he poses the question as to why is that there are no bite marks were seen when she was medically examined a few hours later? He also wants you to consider the probability of her claim that she was punched “8” times on her face by the accused and why is that it is not supported by medical evidence.

[73] In relation to the count of Rape, the accused wants you to consider the probability of not having any injury on her genitalia after a forceful sexual intercourse by the accused. He claims that it supports his position that no penetration took place.

[74] The accused also wants you to consider the probability of the version of events as per the complainant, since the location was a densely populated area and the probability of occurring such an incident without anyone noticing it. The prosecution theory is that this was in the middle of the night and everyone was asleep except for these four and opportunity for such is therefore is minimal.

[75] Having considered these probabilities, if you find that the claim of the accused raises a reasonable doubt in your minds, and then you must find the accused not guilty of the charges of Rape and Assault Causing Actual Bodily Harm, since the prosecution has failed to prove its case. If you reject the claims of the accused that he did not bite or punched the complainant and merely lay on top of her when she voluntarily removed her undergarment before being “blacked out” that does not mean the prosecution case is automatically proved. They have to prove their case independently of the accused and that too on the evidence they presented before you.

[76] With this caution in mind, we could proceed to consider the claim of the accused for its probability of the version. It is claimed by the accused, that due to prior relationship between the two they talked for a while they kissed. Then both of them lay on the ground. Then the complainant raised her skirt and put down her panties. The accused then put down his trousers to his knees and laid himself on top of her. Then he “blacked out” and therefore had not penetrated her vagina by his penis.

[77] The accused also wants you to consider the fact that the complainant complained of Rape, only when she was seen with the accused by her partner and she did so to protect her relationship with him. It is your duty to consider the relative probability of the accused's version of events in the light of these items of evidence.

[78] I must caution you over one important matter. When I present the accused’s version, alongside the version of the complainant, you might get an impression that the accused must prove that he “blacked out” without penetration and did not bite her lips. That is wrong. He is under no duty to disprove the case for the prosecution. He is not even under a legal duty to offer evidence.

[79] So far I have directed you on the assessment of credibility of the witnesses for the prosecution and the version of events as claimed by the accused. If you reject the denial of the accused of biting lips of the complainant and also his claim, that he merely “blacked out” without penetrating her vagina, and preferred to accept the prosecution evidence as truthful and reliable then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offences of Rape and Assault Causing Actual Bodily Harm, beyond a reasonable doubt.

[80] The prosecution has also relied upon the evidence of the medical witness. This kind of evidence is given to help you with scientific matters about the witness has expertise. As you have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefits, and to express opinions about them, because they are used to doing that within their particular field of expertise. You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.

[81] You would recall that the medical witness said in evidence that he did not observe any injury on her genitalia. He did not offer the cause of the swelling he saw on her upper lip in examination in chief, but during his cross examination by the accused, he was of the opinion that it could be due to an act of punching.

[82] The accused, during his cross examination of the medical witness sought to clarify certain positions. In relation to the claim of repeated punching on the face and mouth of the complainant, the accused suggested that if that is the case then there would be injuries sustained. The medical witness did agree with this suggestion and said he would expect injuries to her oral cavity. It is for you to decide whether to accept his opinion on these points and whether it supports the prosecution case or the accused position.

[83] It is time we consider whether the prosecution has proved the elements of the two offences they charged the accused with.

[84] Let us consider the charge of Rape first. As already noted the complainant had clearly stated that the accused inserted his penis into her vagina. The prosecution claims that the medical evidence does not disprove their claim of penetration. If you accept it as sufficient proof of penile penetration of the complainant’s vagina, then in addition, the prosecution must prove that it was the accused who had penile penetration and that he had no consent of the complainant or was reckless about it.

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

[86] The prosecution wants you to believe the evidence of the complainant in which clearly said that she did not consent to the act of the accused. She was kept silent by the accused when he punched her on the face and mouth and also by covering her mouth with his hand. She was after liquor and felt weak. Consider these legal provisions in the light of the evidence presented by the prosecution whether the complainant has consented for the penile penetration of her vagina by the accused.

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

[88] If you are not sure that he would have realised she was not consenting then you must proceed to consider whether the accused might have been reckless as to whether she consented. Then you must consider, whether he genuinely believed she was consenting, when you consider these circumstances I have mentioned to you just now. If you think so, then you must find the accused not guilty of Rape. If you do not accept that he thought she was consenting when you consider all the circumstances, then you could convict him of Rape if you find the other elements also have been proved.

[89] The accused is also charged with the offence of Assault Causing Actual Bodily Harm as the 1^st Count on the Information. In proving an allegation of Assault Causing Actual Bodily Harm, the prosecution must prove beyond a reasonable doubt that the accused assaulted the complainant and as a result of that assault, she received bodily harm. “Harm” is a legal term and it includes any bodily hurt and pain suffered by the victim. The complainant said she felt pain when the accused bit her lips and was fearful that it would rip-off if she pushed the accused away.

[90] If you find that the accused assaulted the complainant by biting on her lips and it caused any bodily hurt to the complainant, 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.

[91] You will recall that I have already directed you on this topic by referring to the identity of the accused. It is a vital component of the prosecution case and if it had failed to prove the fact that it was this accused and no other had penile penetration of the complainant’s vagina without her consent and committed Assault Causing Actual Bodily Harm to the complainant, then you must find the accused not guilty of Rape and Assault Causing Actual Bodily Harm. The prosecution primarily relied upon the evidence of the complainant to prove identity of the accused. However, there is no challenge by the accused to the complainant’s claim that she identified the accused that night and the parties have agreed that the “accused was with the complainant at the time of the alleged incident.”

[92] In summary and before I conclude my summing up let me repeat some important points. If the prosecution has proved all the elements of Rape and Assault Causing Actual Bodily Harm beyond a reasonable doubt then you may find the accused guilty of Rape and Assault Causing Actual Bodily Harm. If not, then you must find the accused not guilty of Rape and Assault Causing Actual Bodily Harm.

[93] If you find him guilty to one charge and that fact does not automatically make the accused guilty of the other charge. You have to consider each charge separately with the relevant evidence and then to arrive at your conclusion on each of them.

[94] If you have any reasonable doubt about the prosecution case as a whole or an element of any of these offences, then you must find the accused not guilty.

[95] Any re directions the parties may request?

[96] 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 separate opinions on the two charges you will come back to Court, and you will be asked to state your opinion on them.

[97] I thank you for your patient hearing.

ACHALA WENGAPPULI

JUDGE

At Labasa

01 March, 2017

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

Solicitor for the Accused : Office of Messrs Gibson & Company, Barristers & Solicitors Labasa