State v Ryland - Summing Up [2017] FJHC 241; HAC20.2015 (29 March 2017)

IN THE HIGH COURT OF FIJI AT LABASA
CASE NO: HAC. 20 of 2015

[CRIMINAL JURISDICTION]

STATE

V

1. SEKOVE RYLAND
2. PAUL SENIKUBA
3. BA WAQOVI
4. JONE KAIATIA
5. JONETANI NABORISI
6. NAVITALAI SEREIVALU
   

Counsel : Ms. A. Vavadakua for State

Ms. S. Devi for 1^st, 2^nd, 4^th & 6^thAccused

Ms. S. Nasedra for 3^rd and 5^th Accused
Dates of Hearing : 20^th– 28^th March 2017
Date of Summing up: 29^th March 2017
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as S.M.)

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 in 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 are guilty or not guilty. 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. Please remember that I will not be reproducing the entire evidence in this summing up. 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.
   
3. Evidence is what the witnesses said from the witness box inside this court room. 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 disregard that information.
   
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 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. 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 to the extent you would consider appropriate.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 during cross-examination as inconsistent versions.
   
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, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
   
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. Sometimes we honestly forget things or make mistakes regarding what we remember.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence.That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This is how you should deal with inconsistencies. 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. You may perhaps 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 there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected.
   
9. 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.
   
10. 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 him/her to be reliable as a witness.
11. 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 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.
    
12. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused are charged with.
    
13. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that that inference is the only reasonable inference to draw from the proved facts. If there is a reasonable inference to draw against an accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
    
14. 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 and the 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 him guilty of a particular offence. You must be sure of the accused person’s guilt.
    
15. 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. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in a short while.
    
16. You are not required to decide every point which has been raised by 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 charges against the accused have been proved.
    
17. 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 are guilty or not guilty; but it is not necessary.
    
18. Let us now look at the Information. The Director of Public Prosecutions has charged the accused persons for the following offences;
    

COUNT 1

Statement of Offence

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

Particulars of Offence

SEKOVE RYLAND, between the 1^st day of August 2013 and the 31^st day of August 2013 in Qamea, in the Northern Division, penetrated the vagina of S.M., with his penis, without her consent.

COUNT 2

Statement of Offence

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

Particulars of Offence

PAUL SENIKUBA, between the 1^st day of August 2014 and the 31^st day of August 2014 in Qamea, in the Northern Division, penetrated the vagina of S.M., with his penis, without her consent.

COUNT 3

Statement of Offence

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

Particulars of Offence

PAUL SENIKUBA, BA WAQOVI, JONE KAIATIA and JONETANI NABORISI, between the 1^st day of August 2014 and the 31^st day of August 2014 in Qamea, in the Northern Division, penetrated the vagina of S.M., with their penis, without her consent.

COUNT 4

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

NAVITALAI SEREIVALU, between the 22^nd day of December 2014 and the 11^tht day of January 2015, in Qamea, in the Northern Division, unlawfully and indecently assaulted S.M.

19. You would note that there are four counts or charges in the Information. There are six accused persons. The 1^staccused is charged with the first count; the 2^nd accused is charged with the second count; the 2^nd, 3^rd, 4^th and 5^th accused persons are charged with the third count; and the 6^th accused is charged with the fourth count. There are few things you should remember in dealing with the charges in this case.
    
20. 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 persons must be guilty as well. Even when you consider the third count where four accused persons are jointly charged, you should still consider the evidence against each accused separately. In the event you find one accused guilty of the third count, you must not assume that the other accused persons must be guilty of the third count as well.
    
21. The 2^ndaccused is charged with two counts. That is the second count and the third count. Again, you should bear in mind to consider the two counts 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.
    
22. Now, let me explain the elements of the offences you have to deal with. First, second and third counts are rape counts. The fourth count is sexual assault.
    
23. You may note that the 2^nd, 3^rd, 4^th and 5^th accused persons are jointly charged for rape on the third count. In the particulars the Director of Public Prosecutions says that “...penetrated the vagina of S.M., with their penis”. However, the prosecutor informed you during the opening address that, in respect of the 3^rd count, only the 5^th accused penetrated the complainant’s vagina with his penis without her consent and the 2^nd, 3^rd and 4^th accused persons aided and abetted the 5^th accused to penetrate the complainant’s vagina with his penis, without her consent.
    
24. Do not let the use of the term “their penis” in the third count confuse you. In relation to the third count, what you should remember is that you should consider whether the 5^th accused is guilty of the offence of rape and whether the 2^nd, 3^rd and the 4^th accused persons are guilty of aiding and abetting to commit the offence of rape.
    
25. The 1^st accused is charged for rape on the first count; the 2^nd accused is charged for rape on the second count and the 5^th accused is charged for rape on the third count. 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 with his penis;
    100. without the consent of the complainant; and
    4. the accused knew or believed that the complaint was not consenting; or

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

26. The first element is concerned with the identity of the person who committed the offence. On each count, the prosecution should prove beyond reasonable doubt that it was the accused who committed the offence and no one else.
    
27. Second element involves the penetration of the complainant’s vagina. The law states that this element is complete on penetration to any extent. Therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.
    
28. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
29. You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent and 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 threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
30. The prosecution should also prove that, either the accused knew or believed that the complainant was not consenting; or the accused was reckless as to whether or not the complainant was consenting.
    
31. 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 the complainant’s vagina, 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 complainant was consenting or not.
32. The 2^nd, 3^rd and 4^th accused persons are charged for the offence of rape as aiders and abettors on the 3^rd count. A person who assists or helps another person to commit an offence can also be guilty of that offence as an aider and abettor. To find an accused guilty of aiding and abetting to commit rape you must be sure that;
    1. the accused;
    2. assisted or helped the main offender to commit the offence of rape by his conduct;
    100. the main offender in fact committed the offence of rape; and
    4. the accused intended that his conduct would assist or help the main offender to commit the offence of rape.
       
33. The 6^th accused is charged for sexual assault on the fourth count. The elements of the offence of sexual assault are;
    1. the accused;
    2. unlawfully and indecently;
    100. assaulted the complainant.
         
34. Again, the first element involves the identity of the accused. The prosecution should prove beyond reasonable doubt that it was the accused who committed the offence.
    
35. Assault is the use of unlawful force. A touch constitutes an assault if it is done without a lawful excuse.
    
36. The word “unlawfully” simply means without lawful excuse.
    
37. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent. You should also ask yourself, firstly, whether you consider the force which was used could have been sexual because of its nature; and if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual.
38. The first element in all the offences concerns the identity of the offender. When you consider the evidence on the identification of the accused in respect of each offence, please bear in mind that an honest and a convincing witness can still be mistaken. Mistaken recognition can occur even of close relatives and friends. Therefore, you should closely examine the following circumstances among others when you evaluate the evidence given by the complainant on identification of the accused in relation to each offence;
    1. Duration of observation;
    2. The distance within which the observation was made;
    100. The lighting condition at the time the observation was made;
    4. Whether there were any impediments to the observation or was something obstructing the view; and
    5. Whether the complainant knew the accused and for how long.
       
39. You should note that you will not find direct evidence on an element of an offence based on the knowledge or intention of the accused. Knowledge and intention of an accused can only be inferred based on the proved facts.
    

Prosecution Case

40. The complainant gave evidence on four incidents. According to her; in August 2013, the 1^st accused penetrated her vagina with his penis without her consent near a mango tree at Waibulu Village; in August 2014, the 5^th accused penetrated her vagina with his penis without her consent behind a vacant house at Waibulu Village and the 2^nd, 3^rd and 4^th accused persons assisted the 5^th accused; before that incident, the 2^nd accused penetrated her vagina with his penis without her consent near the stream at Waibulu Village; and between 22^nd December 2014 and 11^th January 2015, the 6^th accused touched her breast when she was sleeping at her grandmother’s house at Qamea.
    
41. The complainant said she did not complain to any adult about the incidents when she was residing in Waibulu because she was afraid. She felt safe when she started living at Vatusogosogo village with the third prosecution witness and therefore she informed the said witness about the incidents.
42. The second prosecution witness who is the principal of the All Saint’s Secondary School said that, according to the school records the 3^rd accused had been a vocational student in her school in term one of 2014 and the 3^rd accused was not a student of that school in the other two terms.
    
43. The third prosecution witness said that the complainant is her husband’s sister’s daughter. She said the complainant used to spend a lot of time with her while the complainant was living in Waibulu when her parents go out for work. When the complainant came to stay with her at Vatusogosogo she noticed a change in the complainant. Then she decided to talk to the complainant along with her niece. In the beginning of the school year in 2015, she explained to them about boys and what might happen if they become attracted to boys. She said she also spoke to them what will happen and when to say ‘no’. Two days after she had this conversation the complainant revealed to her about incidents where certain boys have touched her, penetrated her and threatened her. Then the matter was reported to the police. She said the complainant was afraid when she confided in her about the incidents. When she was asked whether the complainant told her that the complainant consented or not, she said that the complainant told her that it was painful, she felt dirty and was embarrassed after it happened. She admitted that she used to visit the complainant’s family and the complainant used to come to her place during weekends in 2014.
    
44. The fourth prosecution witness who is the principal of the Holy Cross Secondary School at Taveuni said that, according to the school records the 2^nd accused had been a student at his school in term one of 2014 and thereafter had left school.
    
45. At the end of the prosecution case you heard me explain several options to the accused persons. They had those options because they do not have to prove anything. The burden of proving an accused’s guilt beyond reasonable doubt remains on the prosecution at all times. The accused persons chose to give evidence on oath and called witnesses in their defence.
    

Defence Cases

46. The 1^st accused denied the allegation against him and said he did not go to Waibulu village during the month of August 2013. According to him, during the month of August 2013, he was working in Laucala Island and he was at his house at Navivi only from Saturday evening to Sunday morning. The 1^st accused called his step-father who said he was also working with the 1^st accused at Laucala Island and his mother who said the 1^st accused did not go to Waibulu in August 2013, as his witnesses.
    
47. The 2^nd accused denied the allegation against him in the second count and the allegation in the third count and said that he did not go to Waibulu in 2014. He said he was in Taveuni in the month of August 2014. The 2^nd accused called his aunt and uncle who said that the 2^nd accused was living with them at Waitavala in August 2014 and his mother who said that the 2^nd accused visited her at Waimaqera during weekends, as his witnesses.
    
48. The 3^rd accused denied the allegation against him in the third count and said that he did not go to Waibulu in August 2014. He said he was in Labasa. The 3^rd accused called his sister as a witness who said that the 3^rd accused lived with her at Naseakula in August 2014.
    
49. The 4^th accused denied the allegation levelled against him. He said that he was in Taveuni in August 2014 and did not visit Waibulu. The 4^th accused called his aunt as a witness who said that the 4^th accused was staying with her at Waitavala, Taveuni in August 2014.
    
50. The 5^th accused denied the allegation against him. He said that he was cutting cane from June 2014 to November 2014 in Tabia and was not in Waibulu in August 2014. The 5^th accused called his father as a witness who said that the 5^th accused was in Labasa in the month of August 2014.
    
51. The 6^th accused denied the allegation against him. He said that he was residing at Naodamu in Labasa with his eldest brother during the period between 22/12/14 and 11/01/15 and therefore he was not in Waibulu during that period. The 6^th accused called his brother as a witness who said that he and the 6^th accused were living with their elder brother in Naodamu during the period between 22/12/14 and 11/01/15 and that the 6^th accused did not go to Waibulu during that period.
    

Belatedness of the complaint

52. You heard in this case that this matter was first reported to the police on 18/03/15 after the complainant informed her aunt who is the third witness for the prosecution in January 2015, about the incidents.
    
53. The third prosecution witness did not give evidence on what exactly she was told by the complainant. Complainant said that she did not inform anyone about the incidents because she was scared due to the threats made by the 1^st accused and then the 2^nd accused. She said she informed the third prosecution witness after she relocated from Waibulu to Vatusogosogo as she felt safer when she was no longer living in the village the incidents took place. The defence points out that the villages Waibulu and Vatusogosogo are not that far from each other for the complainant to feel safe when she moved to Vatusogosogo. Defence says that the complainant had the opportunity to complain to her parents or to the third prosecution witness about the incidents without delay if her allegations are true.
    
54. 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 elders. On the other hand when there is a delay in making a complaint, there is room for fabrication. However, 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.
55. Children can be confused about what has happened to them; sometimes children blame themselves for what has happened. Sometimes children do not speak out for fear that they themselves will be blamed for what has taken place, or through fear of the consequences should they do so. They may feel that they may not be believed. They may fear they will be punished.
    
56. However, it is up to you to carefully analyse the evidence in this case based on your day to day experience as representatives of the society and decide whether the delay in complaining about the alleged offences makes the account given by the complainant unreliable or whether you find that the said delay is justified.
    

Defence of Alibi

57. May I now direct you on the defence of alibi. In this case all six accused persons took up the position that they were not at the crime scene but were elsewhere at the time the offences were alleged to have been committed. They say that they could not have committed the offences they are charged with because they were not at Waibulu at the material time. Though an accused raises the defence of alibi, please remember that there is no burden for the accused to prove that he was elsewhere during the time the offence was alleged to have been committed. The prosecution should still prove that it was the accused that committed the offence and therefore the alibi is not true.
    
58. When you consider the evidence of each accused regarding their alibi, if you think that the version of the accused is true or it may be true, then you must find the accused not guilty of the relevant offence.
    
59. However, you should also bear in mind that you should not assume that an accused is guilty of the relevant offence merely because you decide not to accept his alibi. You should remember that sometimes an accused may invent an alibi just because it is easier to do so rather than telling the truth. Main question remains the same. That is, whether you are sure that it was the accused who committed the relevant offence.
    

First Count

60. The complainant’s evidence on the incident relevant to the first count was that;
    1. One day in august 2013 the 1^st accused grabbed her hand and asked her whether they could have sex at the mango tree. She said ‘no’. On that day she was assisting her aunt in preparing food for a function in their church and she met the 1^st accused on her way back to her aunt with the container her aunt sent her to bring from a house. Then he held her hand tighter and kept on asking her to have sex. She kept telling him ‘no’. Thereafter the 1^st accused held her from her upper left arm, closed her mouth and carried her near the mango tree.
    2. He pushed her down, unbuttoned his pants and then took off her underwear. Then he parted her thighs and inserted his penis into her vagina. She said she tried to free herself. After the 1^st accused stood up, she noticed bleeding from her vagina. She said it was painful. She also said that the 1^st accused told her not to tell anybody in a rough tone and she got scared when he said this. She said she did not tell her aunt what the 1^st accused did to her because she was scared and afraid due to what the 1^st accused told her.
    100. The complainant said that the 1^st accused is related to her and he was living in Naivivi Village where her school was situated.
         
61. During cross examination;
    1. She admitted that she gave a statement to police on 23/03/15 and singed it after the statement was read over to her. But when it was shown to her that she had stated in that statement that “... he grabbed me and carried me to the stone cave”, she denied saying that.
    2. She also denied saying that the incident took place in January 2015. Then she agreed with the suggestion that she changed her story in her statement to police dated 25/04/16. She also agreed with the suggestion that her statement made on 23/03/15 is false.
    100. She said the 1^st accused dragged her from the footpath to the mango tree where she said during her evidence in chief that the 1^st accused carried her to the mango tree.
         
62. The 1^st accused denies the allegation against him and says that he did not go to Waibulu village during the month of August 2013. According to the accused either he was at Laucala Island or at his house at Naivivi during the month of August 2013. The defence says that the complainant had changed her story within one year and therefore her evidence is not reliable.
    
63. To prove the first count, the prosecution should prove beyond reasonable doubt that the 1^st accused penetrated the complainant’s vagina with his penis without the consent of the complainant; and the 1^st accused knew or believed that the complainant was not consenting, or the 1^st accused was reckless as to whether she was consenting or not.
    

Second Count

64. The complainant’s evidence on the incident relevant to the second count was that;
    1. Before the incident relevant to the third count which took place in August 2014, on her way to the stream to have a bath, the 2^nd accused approached her and asked her to have sex with him. When she said ‘no’ he kept on saying that they should have sex.
    2. Thereafter he grabbed her hand and closed her mouth. He carried her to the cassava patch and he pulled off her sulu. He then took off his pants and inserted his penis inside her vagina. She said she tried to push him away but she couldn’t. After having sex with her, the 2^nd accused told her that he will do the same thing what the 1^st accused had already told her. She said the 1^st accused had told her that he will do something to her or to her siblings. She did not tell anyone about what happened because she was afraid.
    100. She said the 2^nd accused is her cousin.
         
65. During cross-examination;
    1. She said the 2^nd accused carried her using both his hands and he was also covering her mouth using his right hand while he was carrying her;
    2. She admitted that the version she gave during her evidence in chief that the 2^nd accused took his pants off is not correct and the 2^nd accused only pulled his pants down as mentioned in her police statement dated 25/04/16.
       
66. The 2^nd accused denies the allegation and says that he did not go to Waibulu in 2014. He says that he was staying in Taveuni in the month of August 2014. Defence says that it is not possible to carry some one using both hands while covering the mouth with one hand. Defence says that the complainant’s evidence is not consistent and therefore not reliable.
    
67. To prove the second count, the prosecution should prove beyond reasonable doubt that the 2^nd accused penetrated the complainant’s vagina with his penis without the consent of the complainant; and the 2^nd accused knew or believed that the complainant was not consenting or the 2^nd accused was reckless as to whether she was consenting or not.
    

Third Count

68. The complainant’s evidence on the incident relevant to the third count was that;
    1. On one afternoon during the month of August 2014, when it was getting dark, her father sent her to buy kerosene. On her way to the shop she saw the 2^nd, 3^rd, 4^th and 5^th accused persons sitting under the mango tree. On her way back, the 2^nd accused came in front of her and asked her if they can have sex again. She said ‘no’.
    2. Thereafter the 2^nd accused came from behind, grabbed her hand, closed her mouth and called the other boys. The others came and took her behind the house near the stream which belongs to one of her cousins. At that time that house was not occupied. She said the 4^th accused closed her mouth and the 2^nd accused held her hands. She said the 2^nd, 3^rd and 4^th accused persons touched her breasts forcefully and they used their fingers to touch her vagina. They were saying that they were touching her vagina to see whether it is big or small. She could not run away because they were holding her. Then the 5^th accused took off his pants and inserted his penis inside her vagina. She said, when the 5^th accused was having sex, the others were pressing her hands separately onto the ground. She said it was painful and she was crying.
    100. After the 5^th accused had sex with her, they saw a light coming from the track and then they dressed her up. They hid themselves when the person holding the torch shone the light towards them. Before that the person holding the torch called her. That person knew that complainant was there because the person heard the conversation. When that person came towards her, she was able to get out from there. She took the kerosene and went home. She did not tell her father who was at home about what happened because she was afraid that something might happen.
    4. She said she had known the accused persons before. She said the 4^th accused is 2^nd accused’s brother and their grandfather is her grandmother’s brother. The 3^rd accused is living in the same village and the 5^th accused is her cousin brother.
       
69. During cross-examination;
    1. She admitted that, in her statement to police dated 18/03/15 she had stated that one ‘Naborisi’ approached her while she was returning from the shop but in the statement dated 25/04/16 and during her evidence in chief she said that it was the 2^nd accused who approached her.
    2. She said that her statement dated 18/03/15 is incorrect and her statement dated 25/04/16 is correct. She said she recalled the incidents while she was sitting at home and then she went and informed the police.
    100. She admitted that there is a track besides that house which is used by a lot of villagers and that there are houses on both sides of this track. She agreed that if someone is carried across the feeder road from the mango tree, the occupants of the nearby houses would be able to see.
    4. She said she did not utter a word during the incident as they closed her mouth. Then she was asked how the person who came with the light came to know she was there if she did not utter a word. She said the person came to know after that person came towards her and the light was shone on her.
    5. When she was asked who dressed her up, she said it was the 4^th accused. Then when it was pointed out that she had told the police that 2^nd, 3^rd and 4^th accused persons had dressed her up, she said that it is true but she blame the 4^th accused for that.
    6. She said the kerosene she was sent to buy was not urgently needed and it was to be used in the evening the next day. She said she came to know that the kerosene was under the floor of the house because the ‘boys’ told her when she asked them while she was standing with the owner of the light.
       
70. The defence says that there are inconsistencies in the evidence given by the complainant pertaining to the incident relevant to the third count. Defence also says that the complainant’s version is not probable because;
    1. if the complainant was carried from the where the mango tree was, the villagers in the nearby houses would have seen her;
    2. if the complainant was raped she could not have looked for the kerosene after the incident;
    100. if the complainant was raped by the accused persons they would not have dressed her up when they saw the light.
         
71. To prove the third count against the 5^th accused the prosecution should prove beyond reasonable doubt that the 5^th accused penetrated the vagina of the complainant with his penis without the consent of the complainant; and the 5^th accused knew or believed that the complainant was not consenting, or he was reckless as to whether or not she was consenting.
    
72. The 5^th accused denies the allegation against him. In addition to challenging the complainant’s evidence based on inconsistencies and improbabilities, the 5^th accused says that he did not go to Waibulu in the month of August 2014 and he was in Seagaga, Labasa during that period.
    
73. The 2^nd, 3^rd and 4^th accused persons are also charged on the third count as aiders and abettors. To prove the third count against the 2^nd, 3^rd and 4^th accused, the prosecution should prove beyond reasonable doubt that;
    1. the 5^th accused committed the offence of rape;
    2. each accused assisted or helped the 5^thaccused to commit the said offence by their conduct; and
    100. each accused intended that their conduct would assist or help the 5^thaccused to commit the said offence.
         
74. Therefore, if you find that the 5^th accused did not commit the offence of rape, then you should find the 2^nd, 3^rd and 4^th accused persons not guilty of the third count.
75. If you find the 5^th accused guilty of the offence of rape, then you should separately consider whether the 2^nd accused, 3^rd accused and the 4^th accused are guilty of the third count.
    
76. The 2^nd accused denies the allegation against him. In addition to challenging the complainant’s evidence based on inconsistencies and improbabilities, the 2^nd accused says that he was in Taveuni and did not come to Waibulu during August 2014.
    
77. If you find that the 5^th accused committed the offence of rape, you should consider whether the prosecution has proved beyond reasonable doubt that the 2^nd accused assisted or helped the 5^th accused to commit the offence of rape by his conduct and the 2^nd accused intended to assist or help the 5^th accused to commit rape through his conduct.
    
78. The 3^rd accused denies the allegation against him. In addition to challenging the complainant’s evidence based on inconsistencies and improbabilities, the 3^rd accused says that he did not go to Waibulu in the month of August 2014 and he was in Labasa.
    
79. As I explained to you in relation to the 2^nd accused, you should decide whether the evidence presented by the prosecution against the 3^rd accused is sufficient to prove beyond reasonable doubt that he assisted or helped the 5^th accused to commit the offence of rape by his conduct and he intended that his conduct will assist or help the 5^th accused to commit that offence.
    
80. The 4^th accused denies the allegation against him. In addition to challenging the complainant’s evidence based on inconsistencies and improbabilities, the 4^th accused says that he did not go to Waibulu Village in August 2014 and he was in Taveuni.
    
81. Again, you should decide whether the evidence presented by the prosecution against the 4^th accused is sufficient to prove beyond reasonable doubt that he assisted and helped the 5^th accused to commit the offence of rape by his conduct and he intended that his conduct will assist or help the 5^th accused to commit that offence.
    

Fourth Count

82. The complainant’s evidence on the incident relevant to the fourth count was that;
    1. One night between 22^nd December 2014 and 11^th January 2015 when she was at her grandmother’s house, after dinner, she took the dishes to the kitchen which was situated outside. On her way to the kitchen she saw someone standing outside. On her way back, she felt that someone was following her. She then identified that the person was the 6^th accused. She said that the 6^th accused wanted to have sex with her inside the kitchen. She said ‘no’ and went inside the house. While she was sleeping in the bedroom she felt someone touching her breasts. She got up and then she saw that it was the 6^th accused who was touching her. He was outside the window and he touched her by putting his hand inside through the window. Then she went to her grandmother who was sleeping in the living room. She said she did not allow the 6^th accused to touch her breasts.
    2. She said the 6^th accused is residing in Togo and he always visits his relatives in Waibulu.
       
83. During cross-examination;
    1. She said there was no light in the kitchen and no light in the bedroom she was sleeping;
    2. She said a person cannot stand outside and put the hand inside through the window as the window was high. She said she saw a chair beside the window the next morning but she admitted that she mentioned about the chair for the first time during cross-examination.
       
84. The 6^th accused denies the allegation against him. In addition to challenging the complainant’s evidence based on inconsistencies and improbabilities, he says that he did not go to Waibulu during the period between 22/12/14 and 11/01/15. He says that he was residing at Naodamu in Labasa during that period.
    
85. To prove the fourth count the prosecution should prove that the 6^th accused unlawfully, indecently and sexually assaulted the complainant by touching her breasts.
    
86. 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 against each accused beyond reasonable doubt.
    
87. 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.
    
88. 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 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.
89. Any re-directions?
    
90. 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 each accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
91. Your possible opinion should be as follows;

1^st count (rape) – guilty or not guilty

2^nd count (rape) – guilty or not guilty

3^rd count

5^th accused (rape) – guilty or not guilty

2^nd accused (aiding and abetting rape) – guilty or not guilty

3^rd accused (aiding and abetting rape) – guilty or not guilty

4^th accused (aiding and abetting rape) – guilty or not guilty

4^th count (sexual assault) – guilty or not guilty

Vinsent S. Perera
JUDGE

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