State v Zubair - Summing Up [2017] FJHC 894; HAC425.2016 (23 November 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 425 of 2016

[CRIMINAL JURISDICTION]

STATE

V

MOHAMMED ZUBAIR

Counsel : Ms. S. Serukai for State

Mr. J. Reddy for Accused

Hearing on : 20^th - 22^nd November 2017
Summing up on : 23^rd November 2017
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “KKL”.)

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 in this case is what the witnesses said from the witness box inside this court room and the exhibits tendered. As I have told you in my opening address, 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. 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. 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. You have to bear in mind that a statement made by a witness out of court is not evidence. However, if a witness admits that a certain portion in the statement made to the police is true, then that portion of the statement becomes part of the evidence.
   
5. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. Your emotions should not influence your decision.
   
6. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
7. The complainant said she is 15 years old. You may have come across children of this age. You will have an idea of the way children behave, think, talk and the way they describe things.
   
8. 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.
   
9. I mention these possibilities because experience shows that victims of sexual offences may react in different ways to what they went through and 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. 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. Sometimes we honestly forget things or make mistakes regarding what we remember.
    
11. 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.
    
12. 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.
    
13. 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.
    
14. 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.
    
15. 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 the accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
    
16. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those admitted facts. You should consider those facts as proven beyond reasonable doubt.
    
17. 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 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. You must be sure of the accused person’s guilt.
    
18. In order to prove that the accused is guilty of a particular 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 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.
    
19. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not those charges have been proved.
    
20. 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 witness was warranted due to the accused’s behaviour and should not draw any adverse inference against him on that account.
21. 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.
    
22. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offences;

FIRST COUNT

Statement of Offence

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

Particulars of Offence

MOHAMMED ZUBAIR on the 13^th day of February 2016 in Waila, Nausori, in the Central Division had carnal knowledge of KKL without her consent.

SECOND COUNT

Statement of Offence

ATTEMPT TO COMMIT RAPE: contrary to section 208 of the Crimes Act 2009.

Particulars of Offence

MOHAMMED ZUBAIR on the 30^th day of April 2016, in Waila Nausori in the Central Division attempted to have carnal knowledge of KKL without her consent.

THIRD COUNT

Statement of Offence

INDECENT ASSAULT: contrary to section 212 of the Crimes Act of 2009.

Particulars of Offence

MOHAMMED ZUBAIR on the 30^th day of April 2016 at Waila, Nausori in the Central Division unlawfully and indecently assaulted KKL.

23. After the conclusion of the prosecution case, it was decided to proceed only with the first count and the third count. Therefore, you are required to provide your opinion only on the first and the third counts.
    
24. 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.
    
25. To prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the vagina of the complainant with his penis;
    100. without the consent of the complainant; and
    4. the accused knew or believed that the complaint was not consenting; or

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

26. The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused committed the offence.
    
27. The second element involves the penetration of the complainant’s vagina with the penis. The law states that this element is complete on penetration to any extent. Therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.
    
28. The third and the forth elements are based on the issue of consent. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
29. You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent and the fact that there was no physical resistance alone shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
30. In addition to proving that the complainant did not consent for the accused to insert his penis inside her vagina, 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. This is the fourth element of the offence of rape.
    
31. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vagina, you may find that the accused was reckless as to whether or not the complainant was consenting. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not.
    
32. On the third count the accused is charged for indecent assault. To prove the offence of indecent assault, the prosecution should prove the following elements beyond reasonable doubt;
    1. the accused;
    2. unlawfully assaulted the complainant; and
    100. the said assault is indecent.
         
33. The first element involves the identity of the offender who committed the offence. The prosecution should prove beyond reasonable doubt that it was the accused who committed each offence.
    
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.
    
37. Please remember that knowledge and intention of the accused can only be inferred based on the other proven facts because you will not find direct evidence regarding same.
    

Prosecution case

38. The complainant said in her evidence that;
    1. She is 15 years old and her date of birth is 25/07/02. In February 2016 she was living with her mother. On 13/02/16 she was watching TV around 6.30am in the living room when she heard the door-bell. Her mother was at the accused’s house to help in the preparations for the accused’s sister’s engagement. When she opened the curtain she saw the accused who was her neighbour so she opened the door. The accused told her that his wife has asked for the cake prepared for the engagement. This cake was inside their (complainant’s) fridge.
    2. When she brought the cake from the fridge, the accused was not at the door. She kept the cake on the table and searched for him. She looked for him outside the porch but he was not there. Then she came inside and as she was walking in the passage, she saw the accused standing beside her mother’s room. She was shocked as to what he was doing in her mother’s room and she got scared.
    100. The accused then grabbed her from her hands and pulled her inside the mother’s room. She kept on telling him ‘don’t bhaiya, leave me’. But the accused kept on pulling her and pushed her onto the mother’s bed. The accused pulled her white and orange skirt up. She tried to push him. Then the accused removed her underwear and threw it on the floor. The accused tried to remove her light blue top and as he was doing this, her black bra also came out because it was loose. Then he took off his ¾ pants and at this time he was on top of her. She said she was pushing him upwards using both her hands. The accused continued to push her downwards and took off his underwear. Then he spread her legs and inserted his penis into her vagina. She could feel something hard going inside. She said she did not consent for the accused to insert his penis inside her vagina. It was painful and she was crying and shouting when he did that.
    4. She said the accused also kissed her and squeezed her breast. She was scared and was pushed him saying ‘don’t do it bhaiya’. Thereafter the accused stood up and threatened her saying that if she tells anyone about what happened, he will do it again, kill her mother and make her pregnant. At this time she was on the bed crying and she was having pains in her shoulders and stomach. She said her shoulders were paining because she was trying to get out of the bed when the accused was pushing her downwards. When the accused inserted his penis inside her vagina she tried to free herself and that is why she had stomach pains.
    5. Thereafter the accused left. She got off the bed and closed the main door. Then she had a shower and went to her mother who was at the accused’s house. She said the cake was still on the table and the accused’s sister’s children came to take the cake afterwards. She said she did not inform her mother what happened because of the accused threatened her. She said she went to the accused’s house because her mother forced her to go there.
    6. She said on 30/04/16 she went to the accused’s house with her mother for dinner. This was after the accused’s sister’s wedding. She was sitting beside her mother on the arm of the settee in the living room. After a while she wanted to use the washroom. Because there was someone in the bathroom which was inside the house, she went to the one that was outside near the kitchen. This was quite far from the living room. At that time the accused’s wife, sisters and many other guests were there around the living room apart from her and her mother.
    7. There was no one around the outside bathroom when she went there. When she opened the door after using the bathroom, the accused was standing in front of her. He pushed her from her shoulders back into the bathroom. She tried to push him for her to come out. Then the accused tried to pull her tights down. She used one hand to hold the tights and she beat the accused from the other hand. After that the accused left. Then she pulled her tights up and went to her mother. She did not tell her mother what happened because her mother was a sick person and also because the accused threatened her not to tell anyone. Thereafter she had dinner with her mother. She continued to stay in the accused’s house even after the incident because she did not want anyone to know. If she tells anyone the accused would kill her mother.
    8. She said when her friend N was sharing N’s secrets with her, she felt sad. N then asked her what happened and she told her that her neighbour Zubair raped her and she calls him ‘brother’. She could not remember the time she told this to N. N then told her to inform the teacher. Thereafter she informed Mrs. Kaibau that her neighbour Zubair whom she calls bhaiya raped her. She could not recall when.
    9. Thereafter she was taken to the welfare office and later her mother was called in. She said she was examined by a doctor at Nausori Health Centre and she informed the doctor about what happened to her. She said she had known the accused since birth and she regarded him as her brother. She recognized the accused in court.
    10. During cross examination she agreed that whatever she told the police when she gave her statement on 16/09/16 is true. She denied the suggestion that she told N that the accused attempted to rape her on 3 different occasions. When she was asked whether she told N that one time when she was washing the dishes the accused came from behind and tried to hug her she said ‘yes’. But she denied telling N that when the accused tried to hug her, she turned around and hit him with a pot.
    11. When she was asked the date the wedding was held at the accused’s house she said 30/02/16. She said the engagement took place on 13/04/16 which was a Saturday. She denied the suggestion that there was no wedding on 30/02/16 at the accused’s house and said that there was an engagement. When it was suggested that there was no engagement on that date at the accused’s house she said there was a wedding. She said there was a wedding on the day she was raped which was 13/02/16. She said she told the police that the accused was standing ‘beside’ her mother’s room. When she was asked whether she read her statement before signing she said ‘no’. She also said ‘no’ when she was asked whether the police read back her statement before she signed. She denied reading her statement at any time after the matter was reported to the police.
    50. She said she told the accused, ‘bhaiya what are you doing’ when the accused was pulling her to the mother’s bedroom and that she told the same to the police. She agreed that this is not recorded in her police statement and she does not know what was written by the police officer in the statement because she did not read the statement.
    13. She denied telling the police that when the accused was standing in her mother’s bedroom she went and asked him what he wanted. When it was suggested that the police officer must have made things up she said, ‘maybe because she didn’t know what I was trying to say’. When it was suggested that if she was shouting, her tenant would have heard her, she said at that time the tenants were not at home. She said the tenants went to their family house the day before the incident.
    14. She denied telling the police that she did not shout because there was loud music coming from the accused’s house. When she was asked why she did not tell the police that the accused told her that he will kill her mother, she said she told that to the police. She also said that she told the police that the accused threatened her saying that he will make her pregnant. She agreed that she told the police that about half an hour later her mother came home.
    15. She said she has a good relationship with her mother, and she would share her secrets and her problems with her mother. She admitted the suggestion that if she was raped it is prudent to tell her mother about it. When she was asked whether her mother actually came back half an hour later, she said after having lunch at the accused’s house she told her mother that she is having a headache and came home, and her mother came home half an hour after she came home.
    16. She said the first person she met when she went to the accused’s house that day was her mother but she did not tell the mother that the accused raped her because she was scared as she was threatened by the accused. She said her mother used to say that the accused ‘is so kind and nice and he is just like my son’. When it was suggested to her that there was a function on 14/02/16 but not on 13/02/16 she denied and said it was on the 13^th.
    17. She denied telling Mrs. Kaibau that the accused attempted to rape her in December 2015. When she was asked what exactly she told her teacher, she said that she told her that the accused raped her and she calls him Zubair bhaiya, and that he’s her neighbour. She denied telling Mrs. Kaibau that the accused’s sister was getting ready for the wedding in December 2015. She said that she told the teacher that the cake was in their fridge in the month of February.
    18. She denied telling her teacher that the first incident was just an attempt where; the accused entered the house, went straight to her room, she followed him to ask him why he came to her house and she quickly ran out of the house when the accused removed her top.
    19. She denied telling her teacher that the second incident took place on the wedding day and the accused came and closed the door of the room in which she was staying alone.
    20. She denied telling her teacher that there was a third incident one week before 16/09/16 when she was alone at home and the accused came and tried to have sex with her. She said she told the Welfare Officer Swastika, that ‘I have been raped’. She said that was exactly what the welfare officer told her mother in her presence.
    21. She denied telling the police that the accused came and pushed her inside soon as she entered the outside toilet around 9pm. She denied telling the police that the accused tried to open her dress and pulled her panty because she was not wearing a dress but was wearing tights and Kurthi. When she was asked whether she shouted and beat him she said ‘yes’.
    5. She denied telling her mother that the accused called her inside the toilet and told her to remove her clothes and she refused. She denied telling her mother that she bit the accused and said that she told the mother that she punched him. She admitted telling the police that she did not inform anyone until she gave the statement to police because apart from being afraid she thought that no one would believe her. She denied telling the doctor that the accused called her to her bedroom, tried to insert his penis inside her vagina but was unsuccessful because she kept pushing him away.
    23. She agreed that there was a temporary shed near the ‘outside toilet’ on 30/04/16 that was used for cooking for the visitors. She denied the suggestion that she had made up the allegations because she got inspired by N’s sexual stories. She said “I did not make up the story. I know what happened with me, you were not there”.
    10. She was shown a copy and the original of the marriage certificate of the accused’s sister that was later tendered with consent as DE 9 and DE 10 where it is stated that the date of marriage was 14/02/16. She also identified eight photographs shown to her as photographs taken during the engagement or the wedding ceremony. She admitted that she is seen smiling in all the photographs shown.
    25. During re-examination she said, the photographs shown to her were taken on the same day the incident took place. She said she did not tell her mother about what happened though she trusted her because her mother was sick and was having pains in her stomach during those days.
39. Next prosecution witness was the complainant’s mother. She said;
    1. On 13/02/16 the accused’s wife called her around 5am and requested her to come and help in the cooking for the engagement. She went to the accused’s place around 6.15am - 6.30am. She saw the accused setting up the sound system in the shed which was in front of their porch. The accused asked her where the complainant is and she told him that the complainant is at home. When she went inside the kitchen the accused’s wife and the mother were there. When she came home around 10.15am, the complainant was watching TV. She asked the complainant to get ready to go to the engagement and the complainant said that she does not want to go and that the complainant is having a headache. But she told the complainant ‘you have to come with me’. Then the complainant went to get ready.
    2. Then she had a phone call from the accused’s wife regarding the cake which was in their fridge. The accused’s sister’s kids came to collect the cake. She went with the complainant to the accused’s place around 10.45am for the engagement.
    100. She said her tenants were not at home that morning because they gave her the house key on Friday and went to their uncle’s place at Tacirua. They came back home Saturday afternoon. She said the sound system was really loud when she was at the accused’s house.
    4. She went with the complainant and her sister-in-law to the accused’s sister’s wedding held on 30/04/16 during daytime. Accused’s wife told her to come home for dinner when they were leaving. When they came home she told the complainant that “I think we don’t go”. The complainant said “ok mum we don’t go”. However because she received a call from the accused’s wife who said that she is waiting for them, she went with the complainant to the accused’s place for dinner. When they returned home it was about 11.00pm.
    5. On 15/09/16 around 2.45pm while she was at work, she received a call from the Nausori Social Welfare Department requesting her to come there. At the said office she was told by Welfare Officer Swastika and another officer that the complainant was raped and ‘attempted to rape’ too. She said she had known the accused since the time he was really small.
    6. She said she was really sick from December 2015 to January 2016 and was okay from February to April 2016. She said she is a diabetic patient and she has clinics every 3 months. She said she accompanied the complainant to the Nausori Health Centre on 16/09/16 and the doctor told her to sit outside when the complainant was examined.
    7. During cross examination she said that the contents of her police statement dated 26/09/16 are true. It was pointed out that in her statement it is stated that she was told by the social welfare officer, Swastika that the complainant had been ‘attempted rape’ by one Zubair. She said Swastika told her that the complainant had been raped and ‘attempted rape’. When she was asked why she did not tell the police officer to correct the statement, she said she thought the police officers are taking ‘attempt to rape’ and rape to be the same. When it was suggested to her that she had not informed the police that the accused removed the complainant’s panty she said she told the police officer that he removed all the clothes. She said she told the police that the accused squeezed the complainant’s breasts but she does not know why the officer wrote touched. When she was asked why didn’t she correct it when the statement was read back she said she did not ask the police officer because she was really upset that time.
    8. She denied the suggestion that the engagement and the legal marriage of the accused’s sister was on 14/02/16 and said that it was on 13^th. When DE 9 and DE 10 were shown to her she agreed that the engagement and the legal marriage took place on 14/02/16. She said ‘yes’ when she was asked whether she was okay in February 2016. She said she told the police that the accused ‘pulled’ her daughter inside the toilet and didn’t say that he ‘called’ the daughter inside. She said she could not see the spelling error because she was upset. When it was pointed out that according to her police statement the complainant had told her that the accused had told the complainant to remove her clothes and that the complainant refused but in court she said that she was told by the complainant that the accused pulled her tights, she said, the version given in court is correct. She denied that she had given a false statement to the police. She said that maybe the police officer did not understand what she said.
    9. When it was pointed out that in her police statement it is written that the incident in the toilet took place on 29/04/16 she said she told the police that it happened on the wedding day which is 30/04/16. When it was suggested to her that there was no reason for her to go to the accused’s house on 13/02/16 because there was no function on that day, she said she went there to help because of the accused’s sister’s engagement, maybe the date was wrong.
       
40. The next witness was the complainant’s form teacher in 2016. She said;
    1. On 16/09/16 the complainant came to see her in the morning with tears. During the conversation she had with the complainant thereafter the complainant told her about 3 incidents. The first incident was in December 2015. She said the complainant told her that Zubair who was her neighbour came to her house because the cake for the wedding of Zubair’s sister was in their fridge, Zubair went straight to her bedroom, the complainant followed him to ask him why he went towards the bedroom, then Zubair tried to kiss her and tried to take off her top, the complainant struggled and ran outside.
    2. The second incident according to what she was told by the complainant had taken place on the wedding day. On this day, while the complainant was alone inside a room Zubair came in, closed the door and then inserted his penis into her vagina without the complainant’s consent.
    100. The third incident relayed to her by the complainant had taken place one week before the 16^th of September. The complainant told her that Zubair tried to have sex with her again.
    4. Thereafter she followed the procedure in the school and the complainant was ultimately taken to the social welfare office at Nausori. She said that the complainant was a joyful student, she is talkative and very sociable. She did not notice a change in the complainant until the complainant came to her.
    5. During cross examination she said that the complainant told her that the complainant was frightened to tell her mother as she was scared of her mother. After her police statement dated 28/09/16 was shown to her she agreed that the third incident had taken place at the complainant’s house.
       
41. Next witness was the doctor who medically examined the complainant. She said;
    1. This is her 10^th year as a medical practitioner. She said she had filled out many Fiji Police medical examination forms and have examined thousands of patients. The medical report she prepared after examining the complainant on 16/09/16 was tendered as PE 1. She said the complainant’s mother and one Sister Alanieta were present when the complainant was medically examined. She had observed that there were no vaginal injuries. She said if the patient was raped in February 2016 any injuries would have healed by September 2016. She said she was able to ascertain whether the complainant’s hymen was intact or not but she did not write it down. She said “I am sure it (hymen) was still there but I did not probe further into the vagina”. She also said “we don’t check the vagina unless it is not there, unless she is sexually active”. She said the hymen will not necessarily break with a slight penetration. She said, given the examination conducted on the complainant it is possible that a slight penetration could have taken place. She said what she had noted at D 10 in PE 1 is what the complainant relayed to her.
    2. During cross examination she was asked to read out what she had noted at D 10. D 10 reads, ‘alleges that her neighbor Zuber called her to her bedroom, when she entered, he forced her top off her, pushed her onto the bed, touched her boobs and then tried to insert his penis inside her vagina but was unsuccessful because she kept pushing him away’. She said she wrote exactly as the complainant told her. She said some hymens are soft and some are firmer and the shape differs depending on the person. When she was asked how she would rate the complainant’s hymen she said she “did not go into the detail of examining that”. When she was asked whether there is a possibility that the hymen will break if a fully erected penis is pushed past the vulva she said ‘yes’.
       
42. 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 give sworn evidence and to call witnesses.
    

Defence case

43. The first defence witness was N, the friend of the complainant. She said;
    1. The complainant told her about something happened to the complainant and she told the same to the police. She said that the complainant told her about two incidents. The first incident happened on a wedding and the second one in a kitchen when the complainant was washing dishes. According to what she was told about the second incident, he tried to hug the complainant from behind and the complainant turned back and hit him with a pot. According to her, the complainant did not tell her what exactly happened in the first incident.
    2. During cross examination she agreed that what the complainant told her was meant to be a secret and the complainant was upset when she told her about the incidents.
       
44. The accused said in his evidence that;
    1. He did not go to the complainant’s house on 13/02/16 or on 14/02/16. He said his sister’s engagement was on 14/02/16. On 13/02/16 he woke up around 8.30am to 9.00am and then went to do shopping with his father. After that they were doing the preparations for the engagement ceremony. He said that the complainant’s mother did not come to his house on the 13^th. He said he was sleeping around 6.30am on 13/02/16 with his wife. On the 14^th he woke up at about 5.30am and thereafter he was helping the cook. He was with the cook from 6 o’clock in the morning until 10.30am - 11.00am. He said he did not meet the complainant’s mother at his house on the 14^th February. He said the cooking was done in a shed at the back of their house besides the outside toilet.
    2. On 30/04/16 they had his sister’s wedding at his house. Everything finished around 3 o’clock and thereafter from 6.30pm he started drinking kava with his close relatives and the cook beside the outside washroom. He said the ladies were inside the house and it was only his wife, mother and his sister. He said the complainant and her mother were not there at his house around 9pm and no one invited the two for dinner that night. He denied the allegations made against him.
    100. During cross examination he said he had been residing at Lal Singh Road for almost 17 years and therefore he has built a good relationship with the complainant and her mother during those years. He agreed that the complainant calls her Zubair Bhaiya. He agreed that he had gone to the complainant’s house on more than one occasion during those 17 years. He agreed that he is familiar with the surrounding of the complainant’s house from outside but he denied being familiar with the inside of the house. He said ‘as Muslims we don’t play music’. When he was asked whether the cake for the engagement was at the complainant’s place he said he was not aware of that. He denied going to the complainant’s house on 13/02/16 and inserting his penis into her vagina.
    4. When it was suggested to him that the engagement was on the 13^th but the registration of marriage was on the 14^th, he said the engagement was on 14/02/16. He said he does not know whether the complainant’s mother was invited for dinner on 30/04/16. When it was suggested that the complainant and the mother were in the living room with the ladies that night, he said “I am not sure, she was there or no, only thing I know is that our close relatives were there”. When it was suggested to him that there was no reason to make false allegations against him, he said he knows that the complainant and her mother had started going to the house of a neighbor of him who is not in good terms with him and he thinks that they have planned to do this. Then when it was suggested that he never told that to the police he said he did.
    5. During re-examination he said, from where he was sitting on the night of 30^th April it was not possible for him to see where the complainant was sitting as suggested to him by the prosecution because there was a concrete wall blocking the view. He said in answer to Question 47 of his caution interview he has told the police that he is suspecting that one Krishneel is trying to use the complainant to take revenge.
    6. He said on the 30^th April in the night he did not see the complainant going to the toilet. He said that apart from the family members he mentioned, no outsiders were present that night.
       
45. Next defence witness was W.D.C. Angeline Kumar. She said;
    1. She recorded the statement of the complainant. She said the statement was given to the complainant and to her mother to read before it was signed by the complainant and her mother. She said the complainant’s statement contains whatever the complainant told her and not something made up by her.
    2. During cross examination she said that she spoke to the complainant in Hindustani language but recorded the statement in English. When it was highlighted that the blanks in the declaration that the statement was read back was not filled by her and that she should have filled them, she said she did not feel it is necessary because the complainant was a high school student and she very well understood the contents after reading it. She agreed that she did not read the statement back to the complainant.
    100. She denied the suggestion that she rushed in recording the statement because it commenced at 11am and had concluded at 11.30am and said that the said ½ an hour was only for writing the statement in the statement form but before that she would talk to the victim, take notes and then relay the story back to the victim.
         
46. Next witness was one Amjad Ali. He said;
    1. The accused’s father is like a brother-in-law to him. He was asked to help in cooking for the engagement at the accused’s house on 14/02/16. He went there at 5am on 14/02/16 which was a Sunday. When he went there he was told by the accused’s mother that the accused is still sleeping so he asked her to wake the accused. He said the accused came at 5.30am and thereafter the accused assisted him in cooking till 10.30am and the accused was with him during that time. He cooked only chicken palau and the menu for that day was palau and tamarind chutney. No puri or any other curry was made that day.
    2. He said he was also the cook on the wedding day which was 30/04/16. Accused’s father picked him in the morning from his house and when he came to the accused’s house, the accused was not there. He told the accused’s mother to wake him up. The accused joined him at 5.30am. That day he cooked goat palau. After the function they pulled down the shed. Thereafter there was a grog session in the garage where there was a toilet about 4ft away. He said the accused, accused’s friends and his father were drinking grog with him. The grog session went on till 9.30pm. He said from 7 o’clock to 9.30pm he did not see any female using the outside toilet.
    100. During cross examination he said he was paid $50 per day for cooking at the accused’s house.
         
47. The final witness for the defence was the accused’s wife. She said;
    1. The accused’s sister’s engagement and the legal marriage took place on 14/02/16 and not on the 13^th. She said she did not make a phone call to the complainant’s mother on 13/02/16 or on 14/02/16 asking her to come and assist in the preparations. She said the complainant’s mother did not come to assist because they had a cook to prepare the food for the function. She said no loud music was coming from their house on the 13^th February.
    2. She said the accused’s sister’s wedding was on the 30/04/16 and the program finished around 3pm. Everyone left apart from the immediate family members. Around 6.30pm the gents went to the carport to drink grog and the ladies went inside. No female neighbour was present in their house that evening. She said the complainant or her mother were not at their house that evening. She said she did not invite anyone else apart from the people she mentioned in her evidence.
    100. She said on 13/02/16 she woke up together with the accused around 8.00am to 8.30am. She said they wake up together mostly during weekends. She said she knew that the engagement cake was placed in the complainant’s mother’s fridge and it was her sister who put it there. The cake was put there on 13/02/16 around 1.30 to 2pm. She said she is the one who made that cake just one day before the engagement. She said only her sister, herself and her mother-in-law knew about the cake at the complainant’s house.
    4. During cross examination she said that the accused did not know that the cake was kept at the complainant’s house because he was very busy preparing for the sister’s engagement on the next day which was 14/02/16. She denied making up her story.
       
48. That is a summary of the evidence adduced by the prosecution and the defence. Please note that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I have not referred to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit.
    
49. The defence says that there are inconsistencies in the evidence adduced by the prosecution. The defence points out that the account given by the complainant is different from what the third prosecution witness who was the teacher, the fourth prosecution witness who was the doctor and the first defence witness who was the complainant’s friend said in their evidence as what the complainant had told them. It was also pointed out that there are inconsistencies between the complainant’s evidence and her mother’s evidence and inconsistencies between the complainant’s evidence and what is recorded in her statement made to the police. I have explained you on how to deal with inconsistencies. You should consider the inconsistencies noted in my summary of the evidence and any other inconsistency you may have noted according to the said directions I have given you when you assess whether the complainant was a credible witness.
    

Analysis

50. The defence totally denies the allegations. The defence says that the complainant is lying and she had not been consistent with her story but the accused had been consistent with regard to his version.
    
51. With regard to the first count, the prosecution relies on the evidence where the complainant said that the accused inserted his penis inside her vagina without her consent inside her mother’s bed room.
    
52. The defence had raised the following with regard to the allegation relevant to the first count among others;
    1. There are inconsistencies regarding the date of offence
       1. Though the complainant said that the incident took place on 13/02/16 which was the day the accused’s sister’s wedding took place, according to the defence, the wedding took place on 14/02/16. According to the accused there was no reason for the complainant’s mother to be at his house around 6.30am and he had no reason to go to the complainant’s place on 13/02/16;
       2. According to the third prosecution witness the complainant had told her on 16/09/16 that the first incident which took place in December 2015 after Zubair came to collect the cake kept in the complainant’s fridge which was for the accused’s sister’s wedding.
          
    2. There are inconsistencies as to what took place
       1. The first person to whom the complainant informed about the incident was her friend N who was called by the defence. N said in court that the first incident happened on a wedding and did not tell her what exactly happened. However, N admitted that what was told by the complainant was meant to be kept as a secret;
       2. According to the third prosecution witness, the complainant told her on 16/09/16 that when ‘Zubair’ came to her place to collect the cake, he went to her bedroom and then when he tried to kiss her and remove her top, she ran outside. The complainant denied giving the said version to the third prosecution witness;
       3. According to the fourth prosecution witness, the doctor who examined the complainant, the complainant told her that ‘Zuber’ called the complainant to her bedroom, tried to insert his penis inside her vagina but was unsuccessful. The fourth prosecution witness had not noted down whether the hymen was intact or not. She said “I am sure it (hymen) was still there but I did not probe further into the vagina”;
       4. There were inconsistencies between the complainant’s evidence and what is written in her police statement relating to where the complainant found the accused standing, what she told the accused and the threats made by the accused.
          
    100. There is a delay in making a complaint to anyone including the police
         
    4. Reason behind making a false allegation
       1. When the complainant was cross-examined, it was suggested to her that the complainant made up a story because she got inspired by N’s sexual stories. She said “I did not make up the story. I know what happened with me, you were not there”;
       2. The accused said during cross-examination that he suspects that one neighbour who is not in good terms with him is using the complainant to take revenge.
          
53. If you believe the account given by the complainant on the first count you should then decide whether the elements of the offence of rape as I have explained earlier are proven beyond reasonable doubt.
    
54. With regard to the third count, the prosecution relies on the complainant’s evidence that the accused pushed her from her shoulders back into the bathroom, and pulled her tights down when she was coming out of the outside bathroom at the accused’s place on 30/04/16.
    
55. The defence had raised the following with regard to the allegation relevant to the third count among others and also in addition to (c) and (d) in relation to the first count as stated above;
    1. The complainant was not there at his house around 9.00pm on 30/04/16.
       
    2. There are inconsistencies as to what took place
       1. In her police statement it is stated that the accused approached her as she entered the toilet and the accused tried to open her dress and pulled her panty;
       2. According to the police statement of the complainant’s mother, the complainant had told the mother that the accused called her to the toilet and told her to remove her cloths.
          
    100. The third and fourth prosecution witnesses and the first defence witness have not been told about this incident
         
56. If you believe the account given by the complainant on the third count you should then decide whether the elements of the offence of indecent assault as I have explained earlier are proven beyond reasonable doubt.
    
57. In this case there was a delay of about 8 months from the alleged first incident when the matter was reported to the police. 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.
    
58. 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. However, if there is a delay that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. You may consider whether there is a reasonable explanation for the delay in this case in making the complaint to the police. It is for you to decide whether the delay in making the complaint affects the credibility and the reliability of the evidence presented by the prosecution in this case. At the end, 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.
    
59. You heard the evidence of the fourth witness, the doctor who examined the complainant. She gave her opinion based on what she observed when she examined the complainant. The medical report she prepared was tendered as PE 1. 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.
    
60. Further, when you assess PE 1 you should remember that what is written in A(4) and D(10) are not admissible in considering whether the facts stated therein are true because the individuals who filled those parts in the form did not actually witness the facts written there. D(10) was filled by the fourth prosecution witness and she said that what is written there is what the complainant told her during the medical examination. According to the complainant she said something else to the fourth prosecution witness. If you believe the fourth prosecution witness’ evidence in this regard, you should only take into account what is written in D(10) in deciding whether the complainant was consistent.
    
61. 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 the accused beyond reasonable doubt.
    
62. 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. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
63. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of 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 the accused and/or his witnesses, that itself does not make the accused guilty. The situation would then be the same as if he had not given any evidence at all. You should still consider whether the prosecution has proved all the elements beyond reasonable doubt.
      
64. Any re-directions?
    
65. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. You may inform the court clerk if you wish to peruse the original exhibits. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
66. Your possible opinion should be as follows;

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

3^rd count (indecent assault) – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitor for the Accused : Jiten Reddy Lawyers, Nakasi.