State v Rupeti - Summing Up [2017] FJHC 78; HAC101.2016 (3 February 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 101 of 2016

[CRIMINAL JURISDICTION]

STATE

V

IANE RUPETI

Counsel : Ms. S. Tivao with Mr. E. Samisoni for State

Mr. M. Fesaitu with Mr. S. Luvena for Accused

Dates of Hearing : 31^st January – 3^rd February 2017

Date of Summing up: 3^rd February 2017
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as ES.)

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 is 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 in this court room, 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 such information.
   
3. 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.
   
4. 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.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. You may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
6. Based on the evidence of witnesses you may decide that certain facts are proved. In addition to those facts you would consider as directly proved, you may also draw reasonable inferences from those proven facts. You should decide what happened in this case, taking into account those proven facts and reasonable inferences.
   
7. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. 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.
   
9. According to the evidence you heard in this case, the complainant was 13 years old in 2011 and was 17 years old in 2015. 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 is charged with.
   
10. I must explain to you as to the reason for the use of the screen when the complainant gave evidence. It was a normal procedure adopted in courts on the request of the prosecution to make a particular witness relatively more comfortable when giving his/her evidence. You must not infer that such a protection to the complainant was warranted due to the accused’s behaviour and should not draw any adverse inference against him on that account.
    
11. As a matter of law you should remember that the burden of proof always lies on the prosecution. The accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt in order for you to find him guilty of a particular offence. You must be sure of the accused person’s guilt.
    
12. If you have a reasonable doubt in respect of any element of an offence the accused is charged with, as to whether the prosecution has 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.
    
13. 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.
    
14. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary.
    
15. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offences;
    

FIRST COUNT

Representative Counts

Statement of Offence

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

Particulars of Offence

IANE RUPETI between the 1^st day of June and 30^th day of December 2011 at Rotuma in the Eastern Division had carnal knowledge of ES 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

IANE RUPETI on the 31^st day of December 2011, at Rotuma in the Eastern Division, had carnal knowledge of ES, without her consent.

THIRD COUNT

Representative Count

Statement of Offence

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

Particulars of Offence

IANE RUPETI between the 1^st January 2015 and 15^th May 2015 at Rotuma in the Eastern Division had carnal knowledge of ES, without her consent.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

IANE RUPETI on 16^th of May 2015 at Rotuma in the Eastern Division had carnal knowledge of ES, without her consent.

16. You would note that there are four counts or charges in the Information. Please remember that you should consider each count separately. You must not assume that the accused is guilty of the other count just because you find him guilty of one count. You must be satisfied that the prosecution has proved all the elements of each count separately in order for you to find the accused guilty of all counts.
    
17. You would also note that the first count and the third count are representative counts. The prosecution would opt for a representative count when they allege that the offence described in that particular count was committed on several occasions between the dates specified in the count. When it comes to a representative count, the law says that it shall be sufficient for the prosecution to prove that at least one such offence was committed between the dates specified in that count.
    
18. Now I will summarise the evidence led in this case. Please remember that I will not be reproducing the entire evidence of the case. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
    
19. The complainant said she is 19 years old. In 2004, she went to live with the accused and his wife as the accused’s wife wanted her to come to Rotuma. Accused’s wife is her mother’s sister. In 2004 she was living at Tuai, Rotuma with the accused, his wife and his father. In June 2011, accused’s wife went to Fiji with the daughter to give birth to the second child. She lived with the accused at Tuai, Juju Rotuma. She said the accused’s father passed away before June 2011.
    
20. One Wednesday night, while she was sleeping in the sitting room, she felt cold and then realized that she was naked. She saw the accused, and the accused was licking her vagina. By that time she had known the accused for 7 years and she recognized that it was the accused from the light that was coming from the neighbour’s house. The accused was the only other person who was in that house at that time and all the doors were closed. When she felt that the accused was licking her vagina, she did not do anything because she was scared. She asked him what he is doing to her and he told her to shut up and not make a noise. Then he forcefully inserted his erected penis into her vagina. She said it was painful. She said she felt ashamed, she wanted to commit suicide and felt that her life is ruined. Thereafter, when she was taking a shower, she noticed blood coming out of her and that her underwear was full of blood. She said she did not consent for the accused to do this to her. She did not tell anybody about this incident because the accused threatened her that if she tells anyone or go to the police, the family bond will be over and he does not want to go to jail. She said she was 13 years old in 2011.
    
21. The following Saturday, she asked the accused whether she could go for a movie with two friends and he said ‘no’. When she asked for the second time, he told her that if she goes to the movie they have to have sex. She did not answer and just went for the movie. When she came back after the movie around 10pm she woke the accused to let him know that she is back. At that time there was no one else apart from the two of them inside the house. When she was about to lie down on her mattress, the accused told her to go and get a dirty sulu from the verandah. She did not do anything. Then he told her that it is for the last time. She kept refusing but he kept on forcing her. So she brought the sulu and gave it to him. Then he told her to hand him over his pillow. She complied. She said by this time the accused was already naked. He spread the sulu on top of the pillow. He then told her to undress herself and he inserted his penis inside her vagina. She said he was on top of her for less than 10 minutes and then pulled his penis out from her vagina when he was about to ejaculate. She said she did not consent for the accused to have sex with her.
    
22. She said, on 30/12/2011, she wanted to go ‘fara’. She said fara is to do with singing, dancing and clapping with the use of musical instruments. She said that day she went fara during night time with her friends and cousins. It finished around 1.00am on 31/12/2011. Then she went to Henry’s house because the accused told her to come there and they went home together. She went to her bed straight away. She usually sleeps in the sitting room facing the neighbour’s house and the accused also sleeps in the sitting room facing the cemetery. Then the accused told her that he wants to have sex with her. She told him that she does not want to. She said the way the accused reacted when she said this was scary. She said the accused told her that if she does not give herself, then she will not go anywhere else and would stay inside the house. She was scared of the accused thinking that he might punch her or hit her with the stick. Then he told her to go and get the sulu. When she brought the sulu, he told her to pass his pillow and to take her clothes off. By that time the accused was already naked. When the accused told her to take off her clothes, she didn’t want to but then he forced her. She said if she didn’t take off her clothes, then the accused will do it. Thereafter, the accused inserted his penis inside her vagina. She said she felt more and more unhappy, sad and angry. She said she was like a slave and the accused treated her like his wife. She said she did not consent to have sexual intercourse with the accused. She said when she asked him why he is doing this to her he told her that he is teaching her what she should do to her husband when she get married. She said she did not tell anybody about this because he threatened her by telling her that if she takes it to the police, the family bond is over and that he does not want to go to jail.
    
23. She said the accused’s wife came back in 2012 with the two daughters and the accused’s sister, Mere. One day in January 2015, before the schools started, she asked the accused whether she could go fara and the accused said ‘no’. She said at this time the accused’s wife, the two daughters and the sister were back in Fiji. Later the accused let her go fara but the accused told her they should have sex in return. When she came back after fara, the accused was waiting. There was no one else at home at that time. Then the accused asked her to go and get a dirty sulu. When she did not go, he kept on chasing her. She said she felt like running away from home but then she brought the sulu. Then he told her to undress herself and she complied. She complied because he said that she needs to pay for it. She did not want to have sex with the accused. Then the accused inserted his erected penis inside her vagina. She said he took it out when he was about to ejaculate. After that she went to her bed. She did not tell anyone about this incident because she was scared and she had no one to trust. She was so afraid, so she just waited.
24. She said, one day the accused went to Ahau with her. She went to Eneriko’s house at Ahau and the accused went to have grog with the DO. She said Eneriko is her grandfather. After the grog session the accused brought her home even though she wanted to stay back at her grandfather’s house and spend the weekend. When they arrived home the accused asked her to make a cup of tea. She made tea and left the cup of tea on the table. But the accused was angry and he smashed the cup of tea on the wall. The accused said he’s not happy and he needs to have sex. He told her to get a sulu and she told him that she does not want to. Then he kept on telling her to get the sulu. Then she agreed and brought the sulu. By this time he was already naked and he told her to take her clothes off and told her to lie down on his mattress. Thereafter he touched and fondled her vagina and then inserted his penis inside her vagina. She said he took his erected penis out saying that he is about to ejaculate after about 10 minutes. She said she did not want to have sex with the accused and she did not consent to have sex with him. She did not tell anyone what happened because she was scared.
    
25. She said in May 2015 the accused asked her to have sex with him and said it is for the last time. She said ‘no’ but he kept on begging and asking. She felt shameful and she felt scared of him. At this time the accused’s wife, two children and Mere were in Fiji. Because he went on asking and begging, despite her saying ‘no’, she finally agreed. She said she agreed because she was too scared and too afraid of him that he might hit her with a stick or punch her. She said she had to say ‘yes’. Thereafter the accused himself brought a sulu and told her to take her clothes off. When she did not take her clothes off, he dragged her onto his bed and removed her clothes. She said, the accused spat on her vagina and inserted his penis inside her vagina. He asked her how does she feel and whether she is satisfied but she did not answer. She said she did not want to agree to have sex with the accused.
    
26. She said the last time they had sex was on 16/05/2015. On this day no one else was at home apart from her and the accused. The accused asked her to have sex with him and she said ‘no’. He kept on asking and he said it is for the last time. She said she agreed to have sex when he kept on asking because she was scared. It was dark and it was just the two of them inside the house. She said she never wanted to have sex with the accused. Then he told her to undress and to lie down on top of his mattress. She said he inserted his erected penis inside her vagina. After about 10 minutes he took his penis out.
    
27. She said she told Eneriko everything after that incident because she was fed up and she wanted to put a stop to it. She asked Eneriko whether she could stay with him and he said ‘yes’. Eneriko took the matter to the police.
    
28. During cross examination she agreed that the accused’s wife came back to Rotuma in August 2012 and again went to Fiji during December 2014. She denied the suggestion that the accused’s wife asked her whether she wanted to come to Fiji. She said the accused and his wife were mostly supporting her throughout the 12 years she lived in Rotuma. She also agreed that the accused continued to support her with her daily needs and education when his wife was in Fiji. She agreed that she was in contact with the accused’s wife while the accused’s wife was in Fiji. She denied when it was suggested that the accused was strict on her. She agreed that the accused had talked to her about stealing money from home. She agreed that when she was staying with the accused the accused was always concerned about her performance in school and he always kept an eye on her when she was doing her housework. She agreed that the accused was very strict on her when she wanted to leave the house at night. She denied that she sneaked out from the house at night to meet her friends. Later she agreed that she kept her monkey doll on her bed covering with a bed sheet and sneaked out from the house one night. She agreed that after 2011 she continued to live with the accused and continued to attend school. She agreed that she was in a relationship for about a year from 2012 to 2013 and then was in another relationship for one month in the latter part of 2013.
    
29. She denied that the accused spoke to her about her behavior on the day the accused threw the cup and plate. When it was suggested to her that the accused spoke to her about her behavior and asked her if she is to come home one day pregnant, what will he do, she said that it is not true. Then she was asked whether it is true that the accused got angry when she told him ‘if I came home pregnant one day, I will get (an) abortion’, she said ‘yes’. She denied that the accused slapped the cup of tea which was on the table because he got angry for what she said. She denied when it was suggested that the accused told her he will chase her out of the house and send her back to Fiji. She also denied when it was suggested to her that she apologized to the accused saying that she does not want to be sent to Fiji but want to stay in Rotuma to finish her education. Then she agreed that the accused told her to get her school clearance from her Principal on the following Monday. She admitted that on that Monday she went to Eneriko’s house after school. She agreed that the accused came looking for her to Eneriko’s house as the accused did not know that she will be going there. She also agreed that the accused told her to return home with him. She denied that she told the accused that she want to stay at Eneriko’s house to do her studies because there is electricity at Eneriko’s house. She agreed that the accused came again on the following day to Eneriko’s house to discuss with her and Eneriko. She denied that the accused apologized to Eneriko for chasing her out of the house and for slapping the cup with the plate which was on top of the table. She agreed that on that day the accused told her to prepare to return to Fiji. She admitted that when the accused told her to prepare to return to Fiji, she said ‘no’ and said that she want to stay in Rotuma. She denied that she got angry when the accused told her that she has to return to Fiji. She also denied that she complained to Eneriko about the incidents on the same day the accused told her to return to Fiji. She agreed that she had regularly visited Eneriko at his house. She said she came to know Eneriko in 2014.
    
30. She agreed that the accused would touch her legs at some nights when she is sleeping on her bed. But she denied that the only reason the accused would touch her legs was to check whether she is sleeping. She denied that she told Eneriko that she did not want to return home because the accused treated her like a slave at home and that she does not have time to relax as she had to work all the time. Then when her statement made to the police was shown to her she agreed that she told Eneriko that she did not want to return to the accused’s house because the accused treated her like a slave, and that she has no time to relax as she had to work all the time. She denied that she was lying and said ‘it has been long. I am trying to forget everything that he has done’. She said ‘yes’, when she was asked whether she confirms that she hated it when the accused told her to do the house work. She admitted that she complained to Eneriko that the accused is treating her like a slave because she did not want to go to Fiji. When it was suggested that the only thing she told Eneriko was that the accused was touching her at night, after taking some time, she said she is not sure.
    
31. When she was asked whether she said ‘no’ when Eneriko asked her if the accused touched her vagina, she took some time and said she can’t recall. Again she said she can’t recall when it was suggested that she said ‘no’ when Eneriko asked her whether the accused had sexual intercourse with her. When it was suggested that she never complained to her teacher or the principal about the accused having sexual intercourse with her in 2011 and 2015, she said she did. She said Rotuma Police station is situated near Eneriko’s house at Ahau. She admitted that Eneriko pressured her to report against the accused to the police. She also admitted that Eneriko was present throughout the time she was interviewed. Finally, when it was suggested to her that she made up the allegations that the accused was having sexual intercourse with her in 2011 and 2015 without her consent, because she hated the accused for treating her as a slave, making her work all the time and for being strict on her from leaving the house at night; she said ‘yes’.
    
32. During re-examination she said the accused started touching her legs in 2008 while she was sleeping. She said she didn’t want to go to Fiji because the accused came to Eneriko’s house and apologized for what he had done. She said the accused knelt in front of her and begged not to let the police know. She said when she went to the principal to get her clearance after the accused told her to do so, the principal asked her why and she told the principal that the accused molested her and he slept with her. She said she did not report the matter to the police initially because she was too scared. She said she doesn’t steal money but the accused is the one who was giving her money in return of having sex. She said she continued to live with the accused after 2011 because the accused asked her.
    
33. She said she did not make up the allegations. She said the accused was planning to send her over to Fiji so that she could not take the matter to the police and that is why she refused to go to Fiji.
    
34. Next prosecution witness was Eneriko Tupou. He served as a nurse in Rotuma Hospital from 2014 to 2015. He said the complainant came to his house one day and wanted to stay with him during the weekend. He said the complainant used to wash his clothes. She used to visit him because he is related to her mother and she calls him ‘kuku’ which means grandfather. He said the accused came and took her home and therefore she could not stay with him during that weekend. He said they left on a Saturday and the following Monday the complainant came back because there was a dispute between her and the accused. He said the complainant had told him that the accused treated her like a second wife and when he asked her what did the accused do to her, she had said that the accused used to touch her thighs. Then when he asked her to demonstrate, she had demonstrated by touching her thighs up to her private part. He reported the matter to the police. He said the day he reported the matter to the police the accused came to apologize to him. He said he told the accused to apologize to the complainant. Though the accused then apologized to the complainant, the complainant did not accept his apology. He said the accused apologized to him and admitted that he used to close the complainant inside the house and didn’t let her spend time with friends. He said the accused also admitted touching the complainant. He said after the mother left, the complainant had come to his house with the accused twice and that was during two weekends. He said the police interviewed the complainant in the sitting room in his house and he was in office when the interview took place. But he was sitting in his sitting room while the interview was going on when he came home to have his morning tea. He said the complainant was interviewed in Rotuman language and he does not speak Rotuman.
    
35. He said when the complainant told him that the accused touched her, he saw that she was scared and she was also crying. He said that the complainant also told him that the complainant and the accused had sex.
    
36. During cross examination, he said that the accused and the wife came to his house to clean up and to do house chores twice. He admitted that he did not know the complainant well. He admitted that the accused apologized to him for chasing the complainant from home. When he was asked whether the complainant told him that the accused had sex with her, he said ‘yes’. When he was asked whether the complainant said ‘no’ when he asked the complainant whether the accused had touched her vagina, he said ‘no’. Then when he was asked whether the complainant said ‘no’ when he asked the complainant whether the accused had sex with her, he said that is what he told the police in his first statement, because the complainant told him ‘no’. He said, after giving his statement to the police, the complainant came and told him that she had sex with the accused. He said he did not tell the police what he just said in court. He admitted that when he asked the complainant whether the accused touched her vagina, the complainant said ‘no’. He also agreed that the complainant said ‘no’ when he asked her whether the accused had sexual intercourse with her.
    
37. That is a summary of the evidence led by the prosecution. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide. 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. The prosecution need not prove the agreed facts.
38. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to remain silent. That is his right to do so. You must not draw any adverse inference against him due to his choice to remain silent.
    
39. Now, let me explain the elements of the offences you have to deal with. Accused is charged with the offence of rape on each count.
    
40. 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.

41. The first element is concerned with the identity of the person who committed the offence. The Prosecution should prove beyond reasonable doubt that it was the accused who committed the offence.
    
42. 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.
    
43. 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.
    
44. You should also bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent 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.
       
45. The prosecution should also prove either that the accused knew or believed that the complainant was not consenting; or that the accused was reckless as to whether or not the complainant was consenting.
    
46. 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.
    
47. The first count and the third counts are representative counts. Therefore to prove these counts the prosecution should prove beyond reasonable doubt that the accused committed the offence of rape at least on one occasion during the period specified in each count.
    
48. It is an agreed fact that the complainant’s date of birth is on 08^th February 1998. Accordingly, it is established that the complainant was 13 years old in 2011. You would note that the offences charged on the first and the second counts are alleged to have been committed in 2011.
    
49. Therefore, when you consider the first and the second counts, in the event you are satisfied beyond reasonable doubt that the accused penetrated the complainant’s vagina with his penis but have a reasonable doubt on the issue of consent, that is, whether the prosecution has proven either one of the two elements based on consent, then you have to consider whether the accused is guilty of the lesser offence of defilement.
    
50. A person who penetrates the vagina of a person who is between the age of 13 and 16 years with his penis is guilty of the offence of defilement under section 215(1) of the Crimes Decree. It is a defence to this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years. However, it is not a defence that the complainant consented to sexual intercourse when it comes to the offence of defilement.
    

Analysis

51. The prosecution says that during the period between 01^st June 2011 and 30^th December 2011 the accused inserted his penis inside the complainant’s vagina without her consent on several occasions.
    
52. Accused completely denies the allegations and says that the complainant had made up the allegations against him because of the hatred she had against him for being strict and for getting her to do all the house work. Defence says that the complainant made the allegations after the accused chased the complainant from the house and wanted to send her to Fiji.
    
53. With regard to the first count, you should decide whether the prosecution has proved beyond reasonable doubt that at least on one occasion during the period between 01^st June 2011 and 30^th December 2011;
    1. the accused penetrated the complainant’s vagina with his penis without her consent, and
    2. the accused knew or believed that she was not consenting, or
    100. the accused was aware of the risk that the complainant may not be consenting and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina.
54. In the event you are satisfied beyond reasonable doubt that the accused inserted his penis inside the complainant’s vagina, but you have a reasonable doubt whether the complainant did not consent or have a reasonable doubt whether the accused knew or believed that she was not consenting and whether he was reckless as to whether she was not consenting then you should consider whether the accused is guilty of the lesser offence of defilement.
    
55. With regard to the second count, the prosecution says that on 31^st December 2011, after the complainant returned from fara, the accused inserted his penis inside her vagina without her consent. According to the complainant when she refused to have sex, the accused told her that if she does not give herself she will not be allowed to go anywhere and will have to stay at home.
    
56. The accused completely denies the allegation and says that the complainant had made up the allegations against him because of the hatred she had against him for being strict and for getting her to do all the house work. Defence says that the complainant made the allegations after the accused chased the complainant from the house and wanted to send her to Fiji.
    
57. With regard to the second count, you should decide whether the prosecution has proved beyond reasonable doubt that on 31^st December 2011;
    1. the accused penetrated the complainant’s vagina with his penis without her consent, and
    2. the accused knew or believed that she was not consenting, or
    100. the accused was aware of the risk that the complainant may not be consenting and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina.
         
58. In the event you are satisfied beyond reasonable doubt that the accused inserted his penis inside the complainant’s vagina, but you have a reasonable doubt whether the complainant did not consent or have a reasonable doubt whether the accused knew or believed that she was not consenting and whether he was reckless as to whether she was not consenting then you consider whether the accused is guilty of the lesser offence of defilement.
    
59. With regard to the third count, the prosecution says that during the period between 01^st January 2015 and 15^th May 2015 the accused inserted his penis inside the complainant’s vagina without her consent on several occasions.
    
60. The accused completely denies the allegations and says that the complainant had made up the allegations against him because of the hatred she had against him for being strict and for getting her to do all the house work. Defence says that the complainant made the allegations after the accused chased the complainant from the house and wanted to send her to Fiji.
    
61. Therefore, you should decide whether the prosecution has proved beyond reasonable doubt that at least on one occasion during the period between 01^st January 2015 and 15^th May 2015;
    1. the accused penetrated the complainant’s vagina with his penis without her consent, and
    2. the accused knew or believed that she was not consenting, or
    100. the accused was aware of the risk that the complainant may not be consenting and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina.
         
62. With regard to the fourth count, the prosecution says that on 16^th May 2015 the accused inserted his penis inside the complainant’s vagina without her consent.
    
63. The accused completely denies the allegation and says that the complainant had made up the allegations against him because of the hatred she had against him for being strict and for getting her to do all the house work. Defence says that the complainant made the allegations after the accused chased the complainant from the house and wanted to send her to Fiji.
    
64. Therefore, you should decide whether the prosecution has proved beyond reasonable doubt that on 16^th May 2015;
    1. the accused penetrated the complainant’s vagina with his penis without her consent, and
    2. the accused knew or believed that she was not consenting, or
    100. the accused was aware of the risk that the complainant may not be consenting and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina.
         

Belatedness

65. You heard in this case that this matter was reported to the police in 2015 after the complainant spoke to her grandfather, who is the second witness for the prosecution. According to the second prosecution witness he reported the matter to the police when he heard from the complainant that the accused had touched the complainant from the thighs up to her private part. Thereafter the complainant’s statement was recorded by the police.
    
66. 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. 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.
    
67. 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. They may be embarrassed because they did not appreciate at the time that what they were doing was wrong. They may be embarrassed because they found that some aspects of the attention they were getting from the individual concerned were enjoyable.
    
68. 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 to the police makes the account given by the complainant unreliable or whether you find that there is a reasonable explanation for that delay.
    

Inconsistencies

69. You may consider whether there were any inconsistencies in the evidence led by the prosecution. You may find inconsistent versions within the evidence of a particular witness and there may be inconsistencies between the evidence given by each witness.
    
70. You may consider the following as inconsistencies among others;
    1. During her examination in chief, the complainant said that she told the second prosecution witness that the accused slept with her, before the second prosecution witness reported the matter to the police.
    2. During cross-examination, the complainant said she cannot recall whether she said ‘no’ when the second prosecution witness asked her whether the accused had sexual intercourse with her.
    100. The second prosecution witness’ evidence was that the complainant said ‘no’ when he asked the complainant whether the accused had sex with her.
    4. During cross-examination the complainant denied that the accused asked her what he will do if the complainant ‘comes home pregnant’. But she agreed that she told the accused that if she come home pregnant she will get an abortion and that the accused got angry when she said this.
    5. Complainant first denied that she told the second prosecution witness that she does not want to return home because the accused treats her like a slave and she does not have time to relax. Later when her statement made to the police was shown to her, she admitted saying the above to the second prosecution witness. Then when the defence counsel suggested to the complainant that she initially lied, she said “it has been long. I am trying to forget everything that he has done”.
       
71. This is how you should deal with inconsistencies when you evaluate the evidence of a particular witness. First you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find an inconsistency to be material and relevant, then you must consider whether there is any explanation for that inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
72. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
73. You have to bear in mind that previous statements made out of court are not evidence except for those parts that are put to a witness as inconsistent versions. As I have already told you, evidence is only what came out from the witness box. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
74. Any re-directions?
    
75. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
76. Your possible opinion should be as follows;

1^st count Rape – guilty or not guilty
If not guilty;
Defilement – guilty or not guilty

2^nd count Rape – guilty or not guilty
If not guilty;
Defilement – guilty or not guilty

3^rd count Rape – guilty or not guilty

4^th count Rape – 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