State v Benjamin - Summing Up [2017] FJHC 288; HAC341.2015 (20 April 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 341 of 2015

[CRIMINAL JURISDICTION]

STATE

V

1. SEMI BENJAMIN
2. VERO VAKARIRI
3. JOPE VAKALOLOMA
   

Counsel : Ms. S. Tivao with Ms. S. Sharma for State

Ms. L. David for 1^st Accused

Ms. S. Boseiwaqa for 2^nd and 3^rd Accused
Dates of Hearing : 10^th - 19^th April 2017
Date of Summing up: 20^th April 2017

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. Evidence is what the witnesses said from the witness box inside this court room, the exhibits tendered and the admitted facts. 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.
   
3. 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.
   
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.
   
5. You have to bear in mind that a previous statement made out of court is not evidence. A statement made by a witness to the police can only be used during cross-examination to highlight inconsistencies. That is, to show that the relevant witness on a previous occasion had said something different to what he/she said in court.
   
6. 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.
   
7. 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.
   
8. 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.
   
9. 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.
   
10. 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.
    
11. 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.
    
12. 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.
    
13. 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.
    
14. 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.
    
15. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those agreed facts. You should consider those facts as proven beyond reasonable doubt.
    
16. 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.
    
17. In order to prove that an accused is guilty of an offence, the prosecution should prove all the elements of that offence beyond reasonable doubt. 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 relevant 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.
    
18. You are not required to decide every point raised by lawyers in this case. You should only deal with the offences the accused persons are charged with and matters that will enable you to decide whether or not the charges against the accused persons have been proved.
    
19. 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. But it is not necessary.
    
20. Let us now look at the Information. Please note that you are not required to give your opinion on the fifth count. The charges you have to consider are as follows;
    

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SEMI BENJAMIN on the 25^th day of October 2015, at Nasinu in the Central Division had carnal knowledge of Adi Viva Roditora without her consent.

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

SEMI BENJAMIN on the 25^th day of October 2015, at Nasinu in the Central Division, on an occasion other than the First Count had carnal knowledge of Adi Viva Roditora without her consent.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

SEMI BENJAMIN on the 25^th day of October 2015, at Nasinu in the Central Division, penetrated the mouth of Adi Viva Roditora with his penis without her consent.

FOURTH COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SEMI BENJAMIN on the 25^th day of October 2015, at Nasinu in the Central Division, unlawfully and indecently assaulted Adi Viva Roditora by touching her breasts.

SIXTH COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VERO VAKARIRI on the 25^th day of October 2015, at Nasinu in the Central Division, unlawfully and indecently assaulted Adi Viva Roditora by touching her breasts.

SEVENTH COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOPE VAKALOLOMA on the 25^th day of October 2015, at Nasinu in the Central Division, unlawfully and indecently assaulted Adi Viva Roditora by touching her breasts.

21. The 1^st accused is charged with the first, second, third and fourth counts; the 2^ndaccused is charged with the sixth count; and the 3^rd accused is charged with the seventh count. There are few things you should remember in dealing with the charges in this case.
    
22. 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.
    
23. The 1^st accused is charged with four counts. Again, you should bear in mind to consider the charges against the 1^st accused separately. You must not assume that the 1^st accused is guilty of the other counts 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.
    
24. Now, let me explain the elements of the offences you have to deal with. First, second and third counts are rape counts. The offence involved in fourth, sixth and seventh counts is sexual assault.
    
25. Let us look at the offence of rape. On the first and the second counts it is alleged that the 1^st accused had carnal knowledge of the complainant without her consent. Carnal knowledge in the context of this case is penetrating the vagina of the complainant by the accused with his penis. The elements of the first and the second counts are;
    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. On the third count the 1^st accused is charged with the offence of rape where it is alleged that he penetrated the mouth of the complainant with his penis. The elements of the third count are;
    1. the accused;
    2. penetrated the mouth 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.

27. The first element in each count is concerned with the identity of the person who committed the offence. Second element of the offence of rape involves penetration. The 1^st accused admits penetration in each of the three rape counts against him.
    
28. Therefore, in respect of the three rape counts, the dispute is on the third and the fourth elements. These two elements deal with consent. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina or the mouth as the case may be, 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 or the mouth as the case may be and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate, 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. You should note that you will not find direct evidence on the knowledge or the intention of an accused. Knowledge and intention of an accused can only be inferred based on other proved facts.
    
33. The 1^st accused is charged with the offence of sexual assault on the fourth count; the 2^nd accused is charged with the offence of sexual assault on the sixth count and the 3^rd accused is charged with the offence of sexual assault on the seventh count. The elements of the offence of sexual assault are;
    1. the accused;
    2. unlawfully assaulted the complainant; and
    100. the said assault is indecent and sexual.
         
34. Assault is the use of unlawful force. A touch constitutes an assault if it is done without a lawful excuse.
    
35. The word “unlawfully” simply means without lawful excuse.
    
36. An assault 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 that indecent assault could also 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.
    

Prosecution Case

37. The complainant said in her evidence that;
    1. On 25/10/15 around 12.30pm she was on her way home after the church service. While she was walking she saw the 1^st accused coming down from the stairway in front of her. There was a black taxi at the end of that footpath. The person inside the taxi called out to her and told her to get inside. She thought he was talking to the 1^st accused who was coming down the steps.
    2. She tried to ask for help from the 1^st accused when she realized that the man inside the taxi is talking to her. She did not know the man who was inside the taxi and she did not know the 1^st accused. When she asked for help the 1^st accused turned her towards the taxi and told her not to ask for help or do anything. Then he told the man inside the taxi to come along the footpath in Caubati. The taxi left while they stood there. Then the 1^st accused took her along the steps. She said there were houses beside the steps they were walking on. The 1^st accused asked her to sit down on the second last step and to smoke a cigarette. Then he disappeared to the blue house. She said the 1^st accused told her if she does anything he will stab her to death. She felt a hard object on her back when he said this. She said she did not run away from the 1^st accused because he threatened her. She said she smoked the cigarette because if she did not do whatever he asked her to do he will stab her. Whilst smoking Kolinisau and two other boys went past her. They laughed because they knew that she does not smoke.
    100. The 1^st accused came back and they started walking. They went past a small creek, and went to the ‘cross cut’ at Caubati. At the end of the footpath the same black taxi was there. Then the 1^st accused forced her to get inside the taxi by pulling her inside. Then he pressed her head onto the seat. She said there were three people inside the taxi. They got off in front of a pink house. She said the 1^st accused pulled her out and took her to the pink house through the back door. Then he made her sit on a broken chair. The 2^nd and 3^rd accused persons were there inside the house. She did not know them. She felt nervous and scared when she was inside that house with the three boys. She said she was scared because she did not know any of them and they constantly threatened her.
    4. She said they forced her to smoke marijuana saying that if she did not they will stab her. First she put the smoke out. Then they told her not to put the smoke out. So she followed the instructions and inhaled the smoke because they threatened her. She said she felt dizzy. She said the accused persons also smoked while she was smoking. The 3^rd accused told her to get up and bring cigarettes from a room. She stood up but she tripped. When she fell onto the ground she blacked out. She felt that two boys lifted her up and put her onto a bed. She lay on the bed until the 1^st accused woke her up. Then the 1^st accused told her to go inside another room. She refused but he forced her.
    5. She said the 1^st accused forced her by pulling her hand. Inside the room the 1^st accused ripped off her clothes. Then she said the first accused took off the coat she was wearing and then he removed her dress and then removed her undergarment. When he was removing her clothes she was just standing there and was looking at whatever he was doing. She was nervous and scared because it was the first time for a guy to remove her clothes. She said she didn’t want the 1^st accused to remove her clothes.
    6. Then the 1^st accused put her onto the bed and sucked her breast. Then he started touching her vagina. He pressed her hands onto the bed using both of his hands and came on top of her. She said she begged him to stop. She said she told him to stop because she was having an important exam the next day. Then the 1^st accused forced his penis into her vagina. When she tried to shout he covered her mouth with a pillow and continued to force his penis inside her vagina for about half an hour. She said she did not consent.
    7. After that she felt weak and she lay on the bed. When she woke up, the 1^st accused entered the room covering his waist with a white towel. He came onto the bed and she tried to push him. Then he threw her to the wall beside the window. Again he pulled her onto the bed. Then he came on top of her and forced his penis inside her vagina again. She said she couldn’t do anything because her body could not tolerate the effect of the drugs. She said that she did not consent.
    8. After that the 1^st accused lay on the bed facing upwards and pulled her head onto his penis. She tried to resist but he continued to pull her head. She felt nervous. A hard object that was in his penis hurt her mouth. She said that the 1^st accused told her that it was a marble. She said she did not consent. After that the 1^st accused left the room. She did not leave the room because she was feeling weak.
    9. Then the 3^rd accused came inside the room and lay beside her. She said she was still feeling a bit dizzy. The 3^rd accused asked her some personal questions like her name and her religion. She said she did not answer all his questions. She said that the 3^rd accused touched her vagina and sucked her breast. She said she felt nervous when he was touching her vagina. She did not consent for what he did to her.
    10. After that the 1^st accused came with a brown towel and then the 3^rd accused left the room. The 1^st accused told her to go to the bathroom. She went to the bathroom and had a shower. After that she went back inside the room. The 1^st accused saw blood dripping from her vagina and he made her wear a panty with a pad. Thereafter she was alone in that room but she could not escape because she had no strength.
    11. The 1^st accused then took her to the room which they smoked and told her to lie down on the bed. While she was on that bed the three accused persons went to a different room. Because she did not feel comfortable in that room, she went to the room beside the room where the accused persons were in. She sat on the bed and looked for her white coat. Thereafter she went to check whether the front door is open. She said it was not open but she was not sure whether it was locked. Again she stood beside the room where the boys were and listened to their conversation.
    50. After a while one of them came out and he saw her standing there. He then took her inside the room. There they told her that they will give her money and if she is questioned, she should say that she has family problems. Then she was told by the 1^st accused to wait for the 2^nd accused and that the 2^nd accused will give her money. The 1^st accused then forced her to lie down next to the 2^nd accused by pushing her onto the bed and left the room.
    13. She then said that while she was in that room, the 1^st accused and the 2^nd accused told her that they will give her money and she should say that she has family problems if she is questioned. She said nothing. Then the 1^st accused took her to a shop to buy cigarettes. This shop was on the main road and it took about 25 minutes to go there. On the way there were nearby houses and people. She did not ask for help because they had already warned her. When the 1^st accused was buying the cigarettes she was standing at the left corner of the shop. She did not run away because he told her not to. They returned to the house and the 1^st accused lit a cigarette on the passage. He smoked half of it and gave the other half to her. She didn’t want to smoke but she smoked that cigarette because the 1^st accused told her.
    14. After this, he took her to the room where the 2^nd accused was in. He told her to wait for the 2^nd accused and left the room. Then the 1^st accused came back and pushed her onto the mattress on which the 2^nd accused was lying in. Then he left the room. Then the 2^nd accused started touching her breast. She asked him to stop but he did not stop. She felt nervous when he was touching her.
    15. After that someone knocked on the door and the 2^nd accused stood up and went. She ran to the door and opened the door. It was a Fijian boy and the boy asked her where the people in the house are. She told him that she does not know. Then the 2^nd accused came and pulled her back and then talked with that boy. When they were talking she went back inside and stood beside the wall trying to make out what they were talking.
    16. After the Fijian boy left the 2^nd accused went back to his room and called her. Then she managed to open the grill in the front door and she went outside the house. She asked for help from a Fijian man who was walking along the road. Then she blacked out. This happened at around 4.00 o’clock. She woke up in the hospital.
    17. During the cross examination on behalf of the 1^st accused she said her house was six houses away from the church. The church is usually full of people on Sundays and there was a shop opposite the church. She said she did not struggle when she was pulled to the taxi. She said she did not run away when the 1^st accused was talking to the person inside the taxi because the 1^st accused threatened her. She agreed that she had told the police that the 1^st accused told her to follow her after the taxi left. She said she did not scream because the 1^st accused was standing beside her. When it was suggested that she could have run away when the 1^st accused went inside the blue house, she said she did not run because the 1^st accused told her not to. She said the 1^st accused was inside the house for more than 7 minutes. She agreed that she knew Kolinisau and the 2 boys very well. She said she did not ask for help from them because she was told not to ask for help. When it was suggested to her that she should not have smoked when she was alone if she did not want to smoke, she said, she just did what the 1^st accused told her to do.
    18. She admitted that they met a lady who was cooking and two boys on her way with the 1^st accused and that the 1^st accused talked to the lady. She said she did not run away at that time or inform the lady about what is happening to her because the 1^st accused had told her that he will stab her. She admitted that, thereafter the two of them walked past several houses. She admitted that they met some boys on the way and that the 1^st accused spoke with them. She denied the suggestion that the two of them went to Nasole by bus and not in a taxi. She agreed that she told the police that she got in at the back of the taxi. She said that was after the 1^st accused pulled her. She also admitted that she did not mention in her statement to the police that she was pulled.
    19. When it was suggested to her that the accused persons did not assault her inside the house, she said they did assault her when she refused to smoke marijuana. She said she did not tell the police that they assaulted her because she had so much in her mind and she missed some events. She said they assaulted her using their hands. She said she did not try to run away from the house because the boys were blocking her way towards the front door. She said she couldn’t go out through the back door because it was locked. She admitted that she told the police that the 1^st accused brought her inside the bedroom. She said that was after he pulled her. Then when she was asked whether he pulled her or did he bring her to the bedroom, she said he pulled her. Then when it was suggested that she had lied to the police she said she missed out on that part.
    20. She admitted that she told the police that the 1^st accused removed her dress and her panty. She said she had so much on her brain and therefore she just said he removed her clothes instead of saying ripped. Then she said, by saying ‘ripped off the clothes’ she meant that the clothes were removed. She said when the 1^st accused held her hands tightly, it was sore but she did not receive any injuries from the tight grip. She admitted that she told the police that she told the 1^st accused to stop as he might make her pregnant. When it was pointed out that she said in her evidence that she told the 1^st accused to stop because she had an exam; she said she begged him to stop for both reasons. She said though there were houses close by, she did not scream because they had told her not to. She admitted that she had not mentioned in her statement to police that she tried to shout and that the 1^st accused covered her mouth with a pillow. She said she missed out on that because she had so much in her brain at that time.
    21. She said she felt pain on her head when the 1^st accused threw her against the wall because it was a concrete wall. She admitted that she told the police that when she woke up, the 1^st accused was pushing his penis in her mouth. She admitted that it is not what she said in her evidence in chief. She said the 1^st accused told her about the marble in his penis when she begged him to stop. Then she admitted that the 1^st accused explained to her about the marble during the first sexual encounter.
    5. She said that the 1^st accused told her to have a shower alone and it was after the first sexual encounter. She denied the suggestion that she went to the shop with the 1^st accused after the first sexual encounter and said it was after the third. She said that she did not tell the person who knocked on the door about what was happening because she thought he may be a friend, but she told the Fijian man whom she met after she walked out of the house because she knew that he would be able to help her. When she was asked whether she told the Fijian man what happened to her inside that house she said she only asked him to help her.
    23. During the cross examination on behalf of the 2^nd and 3^rd accused she agreed that she lived in a densely populated area. She also admitted that there are always people in the houses in that area especially on Sundays. She admitted that 2DE 1 is a map of the pink house she was referring to. She admitted that she was holding onto a bible when she came with the 1^st accused. She agreed that if she had screamed someone would have heard her.
    10. She admitted that the police went through her statement with her thoroughly. But when she was asked whether she told them everything that happened, she said she missed out some of the things. She agreed that the 3^rd accused prepared a light smoke for her. She admitted that she told the police that the 3^rd accused was touching her breast and her bum.
    25. She agreed that room D was where she lay next to the 2^nd accused and after that she went out with the 1^st accused to buy cigarettes. She agreed that in her statement to the police she had not mentioned about lying next to the 2^nd accused before she went with the 1^st accused to buy cigarettes. She said she missed out on that part.
    26. She denied the suggestion that the Fijian man she met was talked to the 2^nd accused while she was still standing at the roadside. She denied the suggestion that she liked the 1^st accused and was hurt when she found out that he was with someone else. She denied the suggestion that she made the allegations because she got late when she left that house and she was scared of her family. She denied the suggestion that she lied in court because her father was present in court when she gave evidence.
    27. During re-examination she said she meant that they pulled her onto the walls, slapped her and pushed her when she said that they assaulted her.
        
38. The second prosecution witness said in his evidence that;
    1. He is the doctor who examined the complainant on 26/10/15 at 9am. His initial observations were that the complainant was awake, alert and unkempt. He said there were no bodily injuries apart from his findings in the pelvic area. Blood clots were found in the vagina and his opinion was that, it was due to the tears in the hymen which he had observed at 7 o’clock and 3 o’clock positions. He said those injuries could be caused by any form of vaginal penetration. He tendered the medical examination form of the complainant as PE1.
    2. During cross examination on behalf of the 1^st accused he said if there was any tenderness on the patient’s head he would have noted it down. He also said if he had seen bruising or tenderness around the wrists he would have noted that. He said if a person was thrown against a concrete wall and the person hit the head, depending on the amount of force there may be no injury to a very large injury. He agreed with the suggestion that if someone’s wrists were gripped by strong hands he would expect some tenderness or bruises around the wrists. He said he would have noted if the complainant had any cuts or lacerations inside her mouth. He agreed that there is a possibility that the clots he found were due to menstruation.
       
39. The third prosecution witness said that;
    1. He is the police officer who interviewed the 3^rd accused under caution. He tendered the caution interview of the 3^rd accused as PE 2. He said that the 3^rd accused was asked at Question 23 where he was on 25/10/15 between 1.30pm and 6.00pm and the 3^rd accused answered that he was at home at Nasole.
    2. During cross examination he agreed that the allegation put to the 3^rd accused during the cautioned interview was that he touched the breast and the bum of the complainant based on the allegation made against him by the complainant.
       
40. 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 1^st accused chose to give evidence on oath and called one witness. The 2^nd accused and the 3^rd accused chose to give evidence on oath.
    

Defence Cases

41. The 1^st accused said in his evidence that;
    1. He was at Cunningham around 12.30pm on 25/10/15 at his wife’s relative’s house. He went to the nearby shop as his wife wanted him to buy something for her before he leave for Nasole. On his way to the shop he saw the complainant sitting down and facing her head towards the ground. On his way back from the shop he invited the complainant to have lunch at his wife’s relative’s house. The complainant said she was fine. Then he asked her whether she smoke and she said ‘yes’. He gave her one roll from his packet. Then he left her and went to the house to drop the stuff he bought. He said the complainant asked him whether she could come with him to Nasole as she wants to stay until the afternoon because of her family problems. Then he told her to feel free to do that. Then they went down the long steps towards the shortcut to Caubati. He said there were houses on either side of the steps. They went past a house where they met a male and a female. He obtained the permission from the female to go past that house to cross the creek.
    2. He said the complainant’s evidence that he held a hard object on her back, that he turned her towards a taxi in Cunningham, that he forced her to smoke a cigarette and that he threatened her that he will stab her is not true.
    100. Then they went through a cassava patch and walked on Sarju Prasad road. When they reached the main road they took a bus to Nasole. He said there was no taxi waiting at the footpath. After they got off at the bus stop they went to a shop to buy cigarettes and went home. He said they entered the house through the front door. When they arrived the 2^nd accused was at home. They sat down in the sitting room and later he went to the kitchen to get a glass of water. When he came out of the kitchen the 3^rd accused arrived with takeaway from Wishbone.
    4. He said he asked the complainant whether she wanted to go with him to the room. She agreed and then they went to the room. He said, in the room she undressed herself. He said that the complainant insisted on sucking his penis. Then she wanted him to come on top of her. Then she lay on the bed and removed her undergarments. He noted blood stains on her undergarment and on the vagina. He said it was dry. Then they had sexual intercourse with consent. He said he did not suck her breast or touch her vagina. After that they went to have a shower together.
    5. After the shower she followed him to the room. Before she entered the room she opened her towel and asked the 2^nd accused and the 3^rd accused who wants to go next. He said he covered her with her towel, brought back to the room and asked her whether she was serious. Then she laughed and said she was just making fun of them.
    6. Then they put on the same clothes they were wearing. However, since the complainant’s underwear had blood in it, he told her to put it away and told her to take a panty and a pad from his sister’s drawer.
    7. Thereafter they went to the living room and then went to the same shop they first went to. They bought cigarettes and came back to the house. Then they sat down in the living room with the 2^nd and 3^rd accused. He asked the 3^rd accused to bring a ‘bong’. He had a small pack of smoke and he started smoking with the 3^rd accused. Then the complainant wanted to try it and she told him that she had tried it before. He gave her one puff and the complainant coughed. He said there was no force for her to smoke. When they were smoking the 2^nd accused went to his room. Then he went with the complainant to the 2^nd accused’s room. The 2^nd accused was lying down there. Then the complainant lay beside the 2^nd accused. He sat down on the couch beside the mattress.
    8. Later, they left that room and went back to the same room they had sexual intercourse before. There they had sexual intercourse again. He said the complainant consented to have sexual intercourse this time as well.
    9. He denied covering the complainant’s mouth with a pillow. After that he went to the living room while the complainant was still lying down. The 3^rd accused was in the living room. When he lit a cigarette, the 3^rd accused left. Thereafter when he went to the room the complainant was lying down the 3^rd accused was sitting on top of the head of the bed. He heard the 3^rd accused asking the complainant about her personal details. After that the 3^rd accused left.
    10. Then he told her that it was getting late and they need to go. But the complainant wanted to stay with him. When he told the complainant that she can’t stay there the complainant told him to give her money to go to her boyfriend in Nadi. She told him that she does not want to go home as she is with her stepfather and stepmother who used to assault her. Then he the complainant to wait for him and he left to Cunningham to check on his wife and the kids.
    11. When he came back to Nasole it was around 8.30pm and the complainant had left by then. The 2^nd accused informed him that the complainant was crying and was asking for him. The complainant had told the 2^nd accused that the 1^st accused lied to the complainant and had run away.
    50. He said the complainant was really troubled and had very serious issues. He said he has no idea why she made up an allegation like this. He said everything happened with her consent.
    13. During cross examination he said his wife’s relative’s house was just 5 seconds away from where he met the complainant. It took half an hour for them to get to Nasole. He said if the complainant did not consent he would not have had sexual intercourse with her. He denied the suggestion that he forcefully took the complainant to Nasole because he found the complainant attractive. He said the reason he went to the 2^nd accused’s room with the complainant was to ask for money.
        
42. The second witness for the 1^st accused said in her evidence that;
    1. On 25/10/15 she was working at Nasole Supermart. She said she had been working there for about 2 years. On that day she saw the 1^st accused at her shop with a girl. They were laughing and joking around. She said the girl did not seem frightened or scared.
    2. During cross examination she said other than her, her boss who is a female works at the shop.
       
43. The 2^nd accused said in his evidence that;
    1. On 25/10/15 he watched the Rugby World Cup semifinals with the 3^rd accused. He slept after the game which started at 5.30am and he woke up around 12.30pm. He said the 3^rd accused went to bring lunch from Wishbone. After about 20minutes the 1^st accused arrived with the complainant. The two were walking close to each other and the complainant was following the 1^st accused. The complainant was dressed in church clothes and she had a bible in her hand. They entered from the back of the house. When they entered the house the complainant seemed shy and he heard the 1^st accused telling the complainant that “its ok, only my cousin is here”. He said the back door of the house is always open. The 1^st accused told the complainant to sit on a broken office chair and went inside the kitchen.
    2. Then the 3^rd accused arrived with the food. The 1^st accused came out of the kitchen and greeted the 3^rd accused. While he was having lunch with the 3^rd accused, the complainant and the 1^st accused were talking to each other and after sometime they went to the room marked A on the map 2 DE 1. He said they were there for about 15 to 20 minutes and then they went to the bathroom together. The duo came out after 5 to 10 minutes and they followed each other to the room. He said the complainant opened her towel for a second or two, flashed her nude body to him and the 3^rd accused and asked if they wanted to sub. Then the 1^st accused grabbed her by the hand and pulled her into the bedroom. After that the complainant and the 1^st accused came to the sitting room.
    100. In the sitting room he asked her some questions. Then the 1^st accused told the 3^rd accused that he wanted to smoke. The 3^rd accused said he will get the ‘bong’. He then went to the bedroom marked D to have a rest. He said he slept for 2 to 3 hours. He woke up when the 1^st accused knocked at the door. The 1^st accused and the complainant came inside the room. The 1^st accused sat on the bed and the complainant lay beside him on the mattress which was on the floor. He said the complainant was leaning against the wall with her legs spread out on the mattress. He said the 1^st accused told him that the complainant was afraid to go home and that the complainant was having family problems. The 1^st accused also said that he needs to go home to check on his wife. Then the 1^st accused told the complainant that he will come after 8pm and he left. This happened around 5.30pm.
    4. He then moved away from the complainant and sat facing her. He asked the complainant whether she knew that the 1^st accused is married. She did not say anything and just looked blank. Then he asked her why she chose to accompany the 1^st accused when she had her exam the next day. Then she told him that she’s not living with her real parents. He told her that she cannot stay in that house and the owner of the house will be coming back that evening. When he told her to leave, the complainant looked hesitant to leave. He said he knew that the complainant was afraid to go home. He told her to go to her friend’s place. Then she left. After sometime a soldier came near the front door and asked if a girl come there. When the soldier was talking to him the complainant was still standing at the road. He denied the allegations against him.
    5. During cross examination when it was suggested to him that he also smoked marijuana he denied and said that he does not smoke.
       
44. The 3^rd accused said in his evidence that;
    1. On 25/10/15 he was at home with the 2^nd accused. He was having a relationship with a girl who lived in that house. He went to Wishbone at Centrepoint to buy lunch. When he came back he saw the complainant sitting in the sitting room. When he sat on the floor with the 2^nd accused to have lunch, the 1^st accused asked the complainant to accompany him to the room. They went to room A in the map. Then he saw the complainant and the 1^st accused going to the bathroom and he heard them laughing. After sometime the 1^st accused came to the sitting room. After that the complainant came out of the bathroom and went to room A. Then the 1^st accused followed her.
    2. After 2 to 3 minutes they came back and the 1^st accused told him to get the ‘bong’ because the girl wanted to smoke. So he went out of the house through the back door to bring the ‘bong’. When he returned, only the 1^st accused and the complainant were there in the sitting room. He prepared the bong and gave it to the 1^st accused. Then he was asked to make one for the complainant. When he asked her whether she had smoked earlier she told him that she had smoked in her neighborhood. Then he made a smoke for her. When she exhaled, he and the 1^st accused started laughing because they knew that the complainant had not smoked earlier. Thereafter he made another puff for the complainant on the 1^st accused’s request as the complainant insisted the 1^st accused that she wants to try.
    100. After that the 1^st accused asked the complainant to bring the packet of cigarettes from room C. He said the complainant tripped because of the broken office chair on her way to bring the cigarettes. Thereafter he saw the 1^st accused asking the complainant to accompany him back to room A. Then the two of them went to that room. After sometime the 1^st accused came back and finished his cigarette. He then went to the back of the house to keep the bong where he took it from. On his way back he went to the toilet and then he went to room A as he felt sorry for the complainant who was sleeping on the bed next to the window. He sat on top of the bed and asked her some personal questions. After the conversation the complainant moved closer to him and she touched his thigh and his leg. He said he did not respond to that. The 1^st accused then came to the room and then he left the room.
    4. After sometime he got bored and he went to their family house in Valelevu. He said the front door was open and it was not locked. He also said that the kitchen door was kept open when he came back to the house after he kept the ‘bong’ outside. He denied the allegations made against him.
       
45. That is a summary of the evidence.
    
46. To prove the first count, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the 1^st accused to penetrate her vagina with his penis 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 when the 1^st accused penetrated the complainant’s vagina with his penis.
    
47. To prove the second count, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the 1^st accused to penetrate her vagina with his penis 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 when the 1^st accused penetrated the complainant’s vagina with his penis on an occasion other than the First Count.
    
48. To prove the third count, the prosecution should prove beyond reasonable doubt that the complainant did not consent for the 1^st accused to penetrate her mouth with his penis and 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 when the 1^st accused penetrated the complainant’s mouth with his penis.
    
49. When you consider the fourth, sixth and the seventh counts, you should note that the identity is not disputed by the relevant accused. Each accused admits their presence in the house which the alleged incidents took place but they said that the complainant is lying.
    
50. To prove the fourth count, the prosecution should prove beyond reasonable doubt that the 1^st accused unlawfully, indecently and sexually assaulted the complainant by touching her breasts.
    
51. To prove the sixth count, the prosecution should prove beyond reasonable doubt that the 2^nd accused unlawfully, indecently and sexually assaulted the complainant by touching her breasts.
    
52. To prove the seventh count, the prosecution should prove beyond reasonable doubt that the 3^rd accused unlawfully, indecently and sexually assaulted the complainant by touching her breasts.
    
53. You heard the evidence of the third prosecution witness, the doctor who examined the complainant. He gave his opinion based on what he observed when he examined the complainant. You are not bound to accept that evidence. It is a matter for you to give whatever weight you consider appropriate with regard to the observations made and the opinion given by the doctor.
    
54. The 3^rd accused’s cautioned interview was tendered as PE2. You should consider that cautioned interview statementhe same manneranner you would consider the evidence given by a witness. You may accept the entire statement to be true or a part of it is true or you may consider the entire statement is not tYou may rely only on what yhat you would consider to be true.
    
55. 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.
    
56. 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.
    
57. 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.
      
58. Any re-directions?
    
59. 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. You may peruse the exhibits 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.
    
60. Your possible opinion should be as follows;

first count (rape) – guilty or not guilty
second count (rape) – guilty or not guilty
third count (rape) – guilty or not guilty
fourth count (sexual assault) – guilty or not guilty
sixth count (sexual assault) – guilty or not guilty
sixth count (sexual assault) – 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.