State v Bera - Summing Up [2017] FJHC 218; HAC304.2015 (15 March 2017)

IN THE HIGH COURT OF FIJI AT SUVA
CASE NO: HAC. 304 of 2015

[CRIMINAL JURISDICTION]

STATE

V

JOSEFA BERA

MATORINO MADOGO

Counsel : Mr. M. Vosawale with Ms. Kantharia B. for State

Ms. C. Choy with Ms. A. Singh for 1^st Accused

Ms. S. Boseiwaqa for 2^nd Accused

Dates of Hearing : 08^th – 13^th March 2017
Date of Summing up: 15^th March 2017

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case. However, if I express my opinion on the evidence or if I appear to do so, you are not bound to 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.

2. Evidence is what the witnesses said from the witness box in this court room, the admitted facts and the exhibits tendered. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must completely disregard such information.
   
3. 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 feelings of sympathy for or prejudice against, an accused or anyone else.
   
4. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the counsel for the prosecution and the counsel for defence are not evidence. A suggestion made to a witness during cross examination is not evidence unless the witness accepted that suggestion. You heard the opening address and the closing addresses. The arguments and comments made during addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only if they coincide with your own reasoning.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; 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. 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 witness is not capable of being believed.
   
6. When you assess the testimony of each witness, you should bear in mind that witnesses 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.
   
7. In assessing the credibility or reliability of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence or whether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that previous statements made out of court are not evidence except for those parts that are put to a witness as inconsistent versions. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
   
8. You may also consider the ability and the opportunity each 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 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. Based on the evidence you would consider as truthful and reliable, you should decide what facts are proved. If you find that certain facts are proved, based on those facts you are entitled to infer the existence of other facts. But you may only do so if that inference is the only reasonable inference to draw from the proved facts. Then you should decide whether the elements of the offences each 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.
   
10. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that an accused is guilty of the relevant offence and an accused is not required to prove that he is innocent. The prosecution should prove the guilt of an accused beyond reasonable doubt. In order for you to find an accused guilty of a particular offence you must be sure that he is guilty.
    
11. 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 an accused is charged with, as to whether the prosecution has proved 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 relevant accused guilty of that offence.
    
12. 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.
    
13. Let us now look at the Information. The Director of Public Prosecutions has charged the accused persons for the following offences;
    

FIRST COUNT

Statement of offence

RAPE: Contrary to section 207 (1) and (2)(a) of the Crimes Act 2009.

Particulars of offence

JOSEFA BERA on the 11^th day of September 2015 at Vatuwaqa, Suva in the Central Division penetrated the vagina of MIRANDA VOKAI with his penis, without her consent.

SECOND COUNT

Statement of offence

RAPE: Contrary to section 207 (1) and (2)(b) of the Crimes Act 2009.

Particulars of offence

MATORINO MADOGO on the 11^th day of September 2015 at Vatuwaqa, Suva in the Central Division, penetrated the vagina of MIRANDA VOKAI with his finger, without her consent.

THIRD COUNT

Statement of offence

RAPE: Contrary to section 207 (1) and (2)(a) of the Crimes Act 2009.

Particulars of offence

MATORINO MADOGO on the 11^th day of September 2015 at Vatuwaqa, Suva in the Central Division penetrated the vagina of MIRANDA VOKAI with his penis, without her consent.

14. You would note that the first charge is against the first accused and the second and third charges are against the second accused. Firstly, you should remember to consider the evidence against each accused separately. In the event you find one accused guilty of a particular count, you must not simply assume that the other accused must be guilty as well.
    
15. Secondly, when it comes to the second and third counts, you should bear in mind to consider each count separately. You must not assume that the 2^nd accused is guilty of the other count just because you find him guilty of one count. It is necessary that you consider whether the prosecution has proved each count beyond reasonable doubt against the relevant accused, separately.
    
16. The three counts involve the offence of rape. To prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused,
    2. penetrated the vagina of the complainant,
    100. without her consent,
    4. the accused - knew or believed that she was not consenting or

was reckless as to whether or not she was consenting

17. The first element is concerned with the identity of the person who committed the offence. In this case there is no dispute regarding the identity of the accused persons.
    
18. In relation to the first count, the first accused admits that he penetrated the complainant’s vagina with his penis. Therefore, in order to prove the first count the prosecution should only prove the third and fourth elements above that are relevant to the issue of consent.
    
19. The second accused denies the allegation in the second count. Therefore, in relation to the second count, the prosecution should prove that the second accused penetrated vagina of the complainant with his fingers without her consent. The law states that the element based on penetration is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration. A slightest penetration is sufficient to satisfy the element.
    
20. In relation to the third count, the second accused admits that he penetrated the complainant’s vagina with his penis. Therefore, in order to prove the third count the prosecution should only prove the two elements relevant to the issue of consent.
    
21. With regard to the issue of consent that is challenged in relation to all three counts; firstly, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the accused to penetrate her vagina either with the penis or the fingers as per the relevant charge.
    
22. Secondly, the prosecution should prove that the accused knew or believed that the complainant did not consent for the accused to penetrate her vagina or that the accused was reckless as to whether or not she was consenting.
23. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina, you may find that the accused was reckless as to whether or not she was not consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.
    
24. You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. The fact that there was no physical resistance alone shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by means of threats or intimidation of any kind; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
25. Complainant’s evidence
    1. The complainant said she is 19 years old. She said, on 10/9/15 she went to Temptation II nightclub with some of her friends and her uncle. While she was drinking with her friends, the first accused invited her to dance with him. So she danced with him. She knew the first accused because she was dating a bouncer at the nightclub who worked with the first accused. She said she had talked with the first accused only once or twice.
    2. Thereafter, the first accused came to her and told her that he wants to tell her something. They went to a corner and the first accused asked her out and kissed her. She went back to her friends as she did not want to have any conversation with him. After that he kept on coming to her. She said that the first accused told her that he wants to have sexual intercourse with her and asked her to book a room. She said she did not say anything and just continued to have her session with her friends.
    100. She left the nightclub after 12.00am with the first accused. She said she agreed to go home with the first accused because she knew him and she trusted him. The second accused also got into the same taxi. She sat with the first accused at the back. The second accused sat in front.
    4. She said they came to the Golf Course at Vatuwaqa around 1.00am. She noticed that the nearby house was about 80 to 100m away. She got off the taxi after the two accused persons got off. She asked the first accused what they were doing there and the first accused told her not to worry. It was dark and the only light was the light from the taxi.
    5. Then they took her to a place where there were mangroves and they sat down. The second accused took out Chinese whiskey from a bag. She said the first accused tried to force the whiskey in her mouth and she tried to push his hand. After that the first accused stood up, grabbed her right hand by the wrist and dragged her a few steps from where they were sitting.
    6. Then he pushed her down with one of his hands and was trying to take his pants off. She said she tried to push him away. Then he pulled down her skirt and her underwear and he forced his penis into her vagina. She said his hands were on her chest and he was in between her legs. She said she did not raise any alarm because it was painful and she was trying hard to push him away. She said she did not agree for him to insert his penis in her vagina.
    7. She said she did not scream because the only person that was close by was the second accused and while the first accused was on top of her the second accused was saying “me too, I want too”. After one to two minutes, the first accused stood up. Then she also stood up, wore the underwear and the skirt and started to look for the road for her to leave the place. She said she was shocked and scared.
    8. The second accused followed her and told her to wait as he wants to tell her something. She did not stop and kept looking for the road. Then the first accused pushed her down and dragged her. He sat on top of her breast and held her hands above her head on the ground with one of his hands and closed her mouth with the other.
    9. While the first accused was on top of her the second accused inserted his fingers inside her vagina after removing her underwear. She tried to kick him off and moved her body. She said she did not agree for the second accused to insert his fingers inside her vagina.
    10. Thereafter the first accused stood up and asked the second accused to leave with him. The second accused did not want to leave. Then she told the first accused that she is going to report him to the police. The first accused swore at her and said he does not want to see her face again at Temptation II. Then he left.
    11. Then the second accused grabbed her hand and pushed her down. He forcefully removed her underwear and then inserted his penis into her vagina. She said at that time she was in pain and was crying. The second accused was on top of her with his hands on her chest.
    50. While she was crying the second accused told her that she can scream as loud as she want and nobody is going to hear her. She said she was scared when she heard this. She said she did not agree for the second accused to insert his penis inside her vagina. She said she tried to push him away. After about two minutes the second accused stood up and left.
    13. She waited there till sunrise. She asked for a phone from two men who were walking by and spoke to her stepfather and informed him about what happened. Her mother then told her to go straight to the police station. But she went home in a taxi and went to the police station in the same taxi with her mother.
    14. During cross examination on behalf of the first accused when she was asked the reason she did not scream she said it was because the second accused was the only other person who was around. She said when she read her first statement given to the police dated 11/09/15 she noted that she had made a mistake where she had told the police that the first accused had sex with her for the second time. She said that was because she was traumatized and was in shock after what happened to her. She agreed that in her first statement she told the police that “I waited for daylight and the two men gave me bus fare”. She agreed that the Nabua Police Station was not far from the place which the incident took place and she first went home because she needed someone beside her.
    15. During the cross examination on behalf of the second accused she agreed with the suggestion that her friends were in one corner of the nightclub and the two accused were in another corner and she was moving between them. With regard to the incident where the second accused inserted the fingers inside her vagina she agreed that she could only feel something was inserted in her vagina as it was dark and as the first accused was on top of her. She agreed with the suggestion that she could have given a much bigger fight but she didn’t. She said that was because she was shocked and she was in pain due to what the second accused was doing to her. The only thing that came to her mind was to kick the second accused.
    16. She said though there was an opportunity for her to run, she did not know where to run as she could not find her way out. She said she could not run away when the second accused was pulling his pants down because he had one hand on her and she could feel a lot of pressure. She agreed that her phone went missing that night.
    17. During re-examination she said the second accused did not sleep at the scene.
        
26. Evidence of Doctor Mereseini Bavadra
    1. She conducted a medical examination on the complainant on 11/09/15. She tendered the relevant medical report as PE 01. During the medical examination her consultant and the complainant’s mother were present. She said the complainant looked distraught. She was shaking and was in tears.
    2. She said she observed abrasions on both wrists which appeared to have occurred within 24 hours. She had noted blood stains in the complainant’s underwear and that it was wet. She said no visible injuries were noted on the vulva or vagina, but the vulva was unusually wet.
    100. As there were no visible injuries, she was of the view that the presence of the blood stains could have been due to the fact that the complainant was about to start her menstruation.
    4. She said the fact that there were no visible injuries, does not rule out the possibility of forceful penetration in the vaginal area. In her experience, the fluid that caused the unusual wetness was seminal fluid as it was not the usual vaginal discharge.
    5. During cross examination on behalf of the first accused she agreed that she did not have much experience at the time she conducted the examination on the complainant. She agreed that the complainant told her that the complainant was dragged out of the nightclub and into the taxi. She also said that the complainant told her that the complainant was dragged out of the taxi near the Golf Course at Vatuwaqa.
    6. She said no bruises or abrasions were found on torso, abdomen or the back of the complainant. She agreed that she cannot confirm that the complainant had forceful sexual intercourse. She said if a person is pushed to the ground and dragged down forcefully on the ground she would expect to find abrasions on the part of the body that had contact with the ground.
    7. During the cross examination on behalf of the second accused she agreed that she was told by the complainant that the complainant did not drink any alcohol while she was at the night club. She said she cannot rule out the possibility that there was consensual sex.
    8. During re-examination she said only a brief summary of the history given by the complainant is included in D10 of the medical report but she has documented in detail in her statement given to the police.
       
27. At the end of the prosecution case you heard me explain several options to the accused persons. They had those options because an accused is not required to prove anything in a criminal trial. The burden of proving the guilt of an accused beyond reasonable doubt remains on the prosecution at all times. Both accused chose to give sworn evidence.
    
28. Evidence of the first accused
    1. He said he was at the Temptation II nightclub on 10/09/15 and the complainant got angry because he was dancing with a girl. He said the complainant would pick him to dance for every song. The complainant showed signs that she liked him and they started kissing each other while they were dancing.
    2. He left the nightclub between one and two on the following morning with the complainant and the second accused. He said the complainant came with him because they started to like each other. The second accused was sitting in the front and he was sitting at the back seat with the complainant. He said they sat close to each other and were also kissing each other. According to him the complainant showed signs that she really liked him.
    100. The complainant knew that they are going to Rifle Range because he told her that they are going to have more drinks at Rifle Range. When they got off from the taxi the complainant did not say anything. Then they walked to the place where they had planned to drink and they sat beside a tree. He said they drank Chinese Whiskey but the complainant drank only a little bit. At that time there was moonlight. He said the complainant was wearing a t-shirt and a skirt and he was wearing a t-shirt and a three quarter pants.
    4. He kissed the complainant, they hugged each other and then he started fondling her breasts and the vagina. He said the complainant was not angry and she did not push his hand away. He then took her hand and they walked towards the mangroves. There were branches lying on the ground. Before they walked to this area he said he told the second accused that they are going to have sexual intercourse and the complainant did not say anything.
    5. He said the complainant took off her underwear and lay on the ground after they kissed each other. He took off his pants and he inserted his tongue in her vagina and he said the complainant liked it. He said the complainant sucked his penis and he sucked her vagina. Thereafter he turned around and inserted his penis inside her vagina. He felt that her vagina was wet. He said the complainant liked it.
    6. Thereafter they went back to where they were sitting. Then the three of them started walking towards the road. On their way he again hugged the complainant and they kissed each other. The complainant asked him to have sexual intercourse again and she lay on the ground. However, he could not get an erection. Then they had a chat for a while.
    7. Later the complainant got angry with him because she had lost her phone. Then he told the second accused that he’s going to take the lead home and the second accused told him “yes, just take the lead home”. He then left. He also said that the complainant got angry and swore at him when he could not get an erection on the second time. He said the complainant consented for him to have sexual intercourse with her.
    8. During cross examination on behalf of the second accused he agreed that when he tried to have sexual intercourse with the complainant for the second time, the second accused told him “that’s enough”. He also agreed that second accused gave his shirt to the complainant when they got off from the taxi. He also agreed that when he was leaving, the second accused asked him “what about the complainant” and he responded by saying “you too decide what you want to do”.
    9. During cross examination by the prosecution he agreed that when they got off near the Golf Course he knew that the complainant was new to the area and that it was an isolated area.
       
29. Evidence of the second accused
    1. The second accused said that while he was drinking at the Temptation II nightclub on 10/09/15 the first accused and the complainant came to his table. He said that night the first accused and the complainant were dancing and they were kissing and hugging each other. He left the club between 12am and 1am with the first accused and the complainant in a taxi. He saw the first accused and the complainant hugging and kissing inside the taxi on the way to Vatuwaqa.
    2. They got off at the Golf Course. He said after they got off from the taxi he gave his shirt to the complainant because the complainant was cold. He said the first accused and the complainant took the lead and he paid for the taxi. They walked to an area inside the Golf Course and they sat down on the ground. There he drank Chinese whiskey with the first accused. The complainant did not drink as she said it was too strong. He said that the complainant and the first accused had consensual sexual intercourse.
    100. After that the complainant and the first accused came back to where he was sitting and then they started moving closer to the roadside. However they stopped near a tree and the first accused told him that he’s taking the lead home. Then he asked the first accused “what about the complainant” and the first accused said “that it is up to both of you”. He said the complainant and the first accused again started to hug and kiss each other. Thereafter the two lay down to have sexual intercourse for the second time. After about 2 to 3 minutes the first accused stood up and left.
    4. He did not follow the first accused as he was concerned about the complainant. The complainant told him that she did not follow the first accused because she had lost her phone. Then he assisted the complainant to look for the phone. They could not find and he suggested that they wait until sunrise.
    5. He said they sat near a tree and started chatting. After chatting for 3 to 5 minutes, the complainant started shivering and therefore he hugged her. The complainant then came closer to him. Then he asked her to have sexual intercourse with him. She said ‘yes’. He started touching her and the complainant enjoyed it. He said that the complainant told him “you are totally different from you friend, different from Joe, but I like it”. He said he then sucked the complainant’s vagina. After that the complainant told him to have sex.
    6. Then he took off his pants, the complainant lay down on the ground and he lay on top of her. He said the complainant pulled up her skirt and she was not wearing underwear. He had sexual intercourse with the complainant for around 2 to 3 minutes. He said the complainant did not push him away at any time. Thereafter they sat down and he fell asleep. When he woke up, the complainant was not there.
    7. He denied the allegation that he penetrated the complainant’s vagina with his finger and he denied the allegation that he penetrated the complainant’s vagina without her consent.
    8. During the cross examination by the prosecution he said the only reason he went in that cab was because he lived in the same area as the first accused.
       
30. That is a summary of the evidence. You may note that I have not reproduced the entire evidence that was led. I have reproduced the evidence which I consider necessary to explain the case and the applicable legal principles to you. If I did not refer to any evidence which you consider important, you should still consider that evidence and give it such weight you may think fit. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide.
    
31. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those admitted facts. The prosecution does not have to prove the facts that are admitted. You should consider that those facts are proven beyond reasonable doubt.
    
32. You heard the evidence of the second prosecution witness, the doctor who examined the complainant. The medical report she prepared was tendered as PE 01. She gave her opinion based on what she observed when she examined the complainant. It is a matter for you to decide what weight you give to the observations made and the opinion given by the second prosecution witness.
    

Analysis

33. To prove the first count, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the first accused to insert his penis inside her vagina and the first accused either knew or believed she was not consenting or the first accused did not care whether the complainant consented or not. This is because the first accused admits that he penetrated the complainant’s vagina with his penis. The first accused says that the complainant consented for him to penetrate her vagina with his penis.
    
34. To prove the second count the prosecution should prove beyond reasonable doubt that the second accused penetrated the complainant’s vagina with his fingers without the complainant’s consent and the second accused either knew or believed she was not consenting or the second accused did not care whether the complainant consented or not. The second accused denies this allegation.
    
35. To prove the third count, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the second accused to insert his penis inside her vagina and the second accused either knew or believed she was not consenting or the second accused did not care whether the complainant consented or not. The second accused admits that he penetrated the complainant’s vagina with his penis. But the second accused says that the complainant consented for him to penetrate her vagina with his penis.
    
36. The defence says that there are inconsistencies in the evidence led by the prosecution. The following inconsistencies were highlighted among others;
    1. During cross examination, the complainant admitted that she informed the police in her statement made on 11/09/15 that the first accused had sex with her for the second time. The complainant said in her evidence that she had stated that by mistake because she was traumatized and was in shock after what happened to her.; and
    2. The complainant said in evidence that she agreed to go home with the first accused and got into the taxi because she knew him and trusted him. She said that when the taxi stopped at Rifle Range she got down from the taxi. The second prosecution witness admitted that the complainant had told her that the complainant was dragged out of the nightclub and into the taxi and then the complainant was dragged out of the taxi near the Golf Course at Vatuwaqa.
       
37. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. That is, whether a particular witness has not maintained the same position and has given different versions with regard to the same issue. You may think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If you are satisfied that there is an inconsistency, then you should first decide whether that inconsistency is significant. That is whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by him/her is for you to decide.
    
38. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his/her evidence is inaccurate; or you may accept the reason he/she provided for the inconsistency and consider her to be reliable as a witness.
    
39. According to both accused persons, the complainant is lying. The defence says that the account given by the complainant relevant to this case is not reliable for the following reasons among others;
    1. The complainant said she agreed to go home with the first accused because she knew the first accused and she trusted him. The defence points out that the complainant agreed to leave the night club with the first accused despite the fact that she had spoken with him only once or twice prior to that date and despite the first accused telling her to book a room as he wants to have sexual intercourse with her.
    2. Defence points out that the complainant should have sustained more injuries if the complainant’s version of events is true and the absence of injuries on the complainant’s torso, the abdomen, the back and the vagina shows that the account given by the complainant is false. However, the second prosecution witness said during cross examination that the complainant was covered with mud when the complainant came for the examination and therefore, the surface she came into contact would have been soft. The witness said that she cannot either confirm that there was sexual assault or rule out the possibility of sexual assault based on her findings.
    100. The defence points out that the complainant had initially informed the police that the first accused had ‘sex’ with her for the second time. Having given a further statement on 27/02/17, she said in her evidence that she told that to the police by mistake. The first accused said in his evidence that there was a second attempt to have sexual intercourse. The second accused also said that he saw the complainant and the first accused lay down to have sexual intercourse for the second time.
         
40. Remember that you should first decide on the credibility and reliability of the prosecution witnesses who gave evidence in this case and accordingly decide what facts are proven beyond reasonable doubt and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of each offence have been established based on those proved facts and reasonable inferences. You should take into account the directions I have given where relevant, in deciding whether the prosecution has proved all the elements in each offence.
    
41. 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 beyond reasonable doubt.
    
42. 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. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
43. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise pertaining to 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 the prosecution has proved all the elements beyond reasonable doubt. If you are sure that the prosecution has proved all the elements, the n your proper opinion would be that the accused is ‘guilty’ of the offence.
      
44. Any re-directions?
    
45. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. You may peruse the exhibit tendered in court if you wish to do so. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
46. Your possible opinion should be as follows;

1^st count – guilty or not guilty
2^nd count – guilty or not guilty
3^rd count – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitors for the Accused : Legal Aid Commission, Suva.