State v Rao - Summing Up [2018] FJHC 247; HAC016.2013 (3 April 2018)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 016 OF 2013

STATE

v

SAJNEEL RITESH RAO

Counsel: Ms. S. Kiran for State

Mr. D.S. Naidu with Mr. J. Prakash for Accused

Date of Trial: 27^th and 29^th March, 2018

Date of Summing Up: 3^rd April, 2018

SUMMING UP

Madam Assessor and Gentlemen Assessors:

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. Matters of facts however, are a matter entirely for you to decide for yourselves. So, if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide.
4. The Counsel for Prosecution and Defence made submissions to you about the facts of this case. That is their duty as Counsel. You are not bound by their submissions. However, you may properly take their submissions into account when evaluating evidence.
5. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I deliver my judgment.
6. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proven guilty. The burden of proving his guilt rests on the Prosecution and never shifts.
7. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty. Remember if you have any doubt, it must be reasonable. You cannot speculate. These doubts must be based solely on the evidence or lack of evidence that you have seen and heard in this court room.
8. Your opinions must be solely and exclusively based upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you might have heard or read about this case outside of this court room. Your duty is to apply the law as I explain it to you to the evidence you have heard in the course of this trial.
9. Your duty is to find the facts based on the evidence and apply the law to those facts. You are free to draw reasonable inferences from facts proved by evidence. Approach the evidence with detachment and objectivity.
10. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law to which every one of us is subject to.
11. It would be understandable if one or more of you came to this trial with certain assumptions as to what constitute rape, what kind of person may be the victim of rape, what kind of person may be a rapist, or what a person who is being, or has been, raped will do or say. It is important that you should leave behind any such assumptions about the nature of the offence because experience tells the courts that there is no stereotype for a rape, or a rapist, or a victim of rape. The offence can take place in almost any circumstances between all kinds of different people who react in a variety of ways. Please approach the case with open mind and dispassionately, putting aside any view as to what you might or might not have expected to hear, and form your opinion strictly on the evidence you have heard from the witness.
12. I must emphasize that the assessment is for you to make. However, it is of paramount importance that you do not bring to that assessment any preconceived views or stereotypes as to how a complainant in a rape case such as this should react to the experience. It is impossible to predict how that individual will react, either in the days following, or when speaking publically about it in court or at the police station. The experience of the courts is that those who have been victims of rape react differently to the task of speaking about it in evidence.
13. As Assessors you were chosen from the community. You, individually and collectively represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in a trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
14. I have given you a copy of the Information which contains one count of Sexual Assault and one count of Rape. The Information read as follows:

First Count

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAJNEEL RITESH RAO alias ASHNEEL on the 16th day of January, 2013, at Nadi in the Western Division, unlawfully and indecently placed his hands on the breasts of KARTIKA NAIR, without her consent.

Second Count

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAJNEEL RITESH RAO alias ASHNEEL on the 16th day of January, 2013, at Nadi in the Western Division, inserted his finger into the vagina of KARTIKA NAIR, without her consent.

15. I will now deal with the elements of the offence of Sexual Assault. A person commits the offence of Sexual Assault if he,

(a). Unlawfully and indecently,

(b). Assaults another person.

16. For the assault to be indecent it must be accompanied by a circumstance of indecency. A conduct is unlawful when it is done without a lawful excuse. A conduct is indecent when it is as such that ordinary people would so describe it, in light of prevailing standards of morality and, more specifically, in light of whether the victim has consented to the conduct in question. However, Prosecution is under no burden to prove that the particular assault took place without the consent of the victim so long as it constitutes an unlawful and indecent act.
17. The 2^nd count is that of Digital Rape. This count is based on the allegation that the Accused penetrated the vagina of the Complainant with his finger, without her consent. In order to prove the 2^nd charge of Rape, the Prosecution must prove beyond reasonable doubt that the Accused penetrated Complainant’s vagina, with his finger without her consent. Insertion of finger fully into vagina is not necessary. A slightest penetration is sufficient to satisfy this element.
18. On the issue of consent, it must be proved that the Accused either knew that the Complainant did not consent or was reckless as to whether she consented. The Accused was reckless as to whether the Complainant consented to digital penetration if you are sure that he realised there was a risk that she was not consenting and carried on anyway when in the circumstances known to him it was unreasonable to do so.
19. Consent as defined in Section 206 of the Crimes Act, means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. Simply put, if somebody does not resist physically it does not necessarily mean that she or he had given consent. Different people react differently to situations. You don’t necessarily need violence, kicking, and shouting etc. to show that one is not consenting.
20. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a complainant who saw, heard and felt the offence being committed. In this case, for example, the Complainant was a witness who offered direct evidence as to what she saw, heard or felt.
21. Documentary evidence is evidence presented in the form of a document. In this case, no document was tendered in evidence by either party. The Counsel for Defence referred to the medical report of the Complainant when Complainant was giving evidence. However, this particular document was not tendered in evidence because the author of that document was not called as witness. Therefore, you must simply disregard what is stated in the medical report.
22. In evaluating evidence, you should see whether the story relayed in evidence is probable or improbable; whether witness is consistent in his or her own evidence and with his or her previous statements or with other witnesses who gave evidence. It does not matter whether that evidence was called for the Prosecution or for the Defence. You must apply the same test to evaluate evidence.
23. While cross-examining witnesses of Prosecution, Defence Counsel referred to previous witness statements recorded by police. A previous statement made by a witness is not evidence in itself unless it is adopted and accepted by the witness under oath as being true. You can of course use those statements to test the consistency and credibility of the witness.
24. In testing the consistency of a witness you should see whether the witness is telling a story on the same lines without variations and contradictions. You must however, be satisfied whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another, for example by a police officer, in recording the statement where the witness is alleged to have given that version.
25. You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility.
26. Another relevant aspect in assessing truthfulness of a witness is his or her manner of giving evidence in court. You have seen how the witnesses’ demeanor in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers or were they evasive? But, please bear in mind that many witnesses are not used to giving evidence and may find court environment distracting.
27. You must bear in mind that the evidence comes from human beings. They cannot have photographic or video graphic memory. The witness can be subjected to the same inherent weaknesses that you and I suffer insofar as our memory is concerned.
28. In testing the credibility of a witness, you may consider whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that is alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation for such delay.
29. Bear in mind, a late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. There can be a reasonable explanation for the delay. It is a matter for you to determine whether, in this case, the lateness of the complaint and what weight you attach to it. It is also for you to decide, when complainant did eventually complain, whether it was genuine.
30. I wish to direct you on recent complaint evidence. You heard that the Complainant said that she complained to her husband Sanjay about the alleged sexual assault when he returned home. Sanjay gave evidence and said he received a complaint from his wife. However, Sanjay was not present during the alleged incident and therefore, he is not capable of giving evidence as to what actually happened between the Complainant and Accused. What he heard from the Complainant is not evidence as to what actually happened between the complainant and the Accused. Recent complaint evidence is led to show consistency in the conduct of the Complainant and is relevant in assessing her credibility. If you find Sanjay a credible witness than you can use the complaint he received to test the credibility of the Complainant.
31. You may also consider whether there is a reason or motive on the part of the Complainant and her husband to make up an allegation against the Accused. If he or she had such a motive, then you may think that this allegation has been fabricated.
32. The offence of Rape requires proof that the complainant did not consent. The offence may or may not be accompanied by violence, force or the threat of force, but please note that it is no part of the prosecution’s obligation to prove that the accused used force or the threat of force or that Complainant had received injuries.
33. Please remember, there is no rule in Fiji for you to look for corroboration of complainant’s story to bring home an opinion of guilt in a case of sexual nature. The case can stand or fall on the testimony of complainant, depending on how you are going to look at her evidence.
34. I will now remind you evidence led in the trial. I will only summarize the salient features. If I do not mention a particular piece of evidence that does not mean it is unimportant.
    

Case for Prosecution

PW 1 Kartika Latchmi Nair (Complainant)

35. Prosecution called Kartika, the Complainant as their first witness. In January, 2013, Kartika was residing in a rented house with her husband at Votualevu, Nadi. They were sharing the rent with Ashneel for nearly a month after they were asked to vacate their house in Yako.
36. On the 16^th of January, 2013, Kartika’s husband, Sanjay left home for work at about 7.30 a.m. Kartika was lying down on her bed after cooking. Ashneel came to her room and sat beside her. Then he told her that he wanted to kiss her. She thought he was joking, but suddenly he put his hands on her back. She asked him to leave the room but he was still sitting there. Then she tried to get up, but he pushed her down on the mattress. Then he put his both hands on her breast and pressed her down. She couldn’t get up so she pushed him but he forced her and tried to open her clothes. She didn’t let him open her clothes; but he stretched her dress and pushed his hand in her private part, her vagina. She felt the pain because she was three months pregnant. She did not allow him to do it. She was wearing a nighty and his hands went inside the nighty. After that she pushed him so hard with her legs and stood up. Then she slapped him and told him to get out of the house. Then he stood up and told her not to tell anything what happened to anyone and went away from the house. She went inside the bathroom.
37. She called one of husband’s friends who was working with her husband on his mobile phone and told him that she wants to talk to her husband, Sanjay. Then he told her that Sanjay had gone on delivery. Then she asked him to call her as soon as he comes. When Sanjay called her around 3.00 p.m., she told Sanjay everything what had happened.
38. Sanjay came home around 4.00 pm. She told Sanjay everything in detail. Sanjay took her phone and called Ashneel’s mobile. It was switched off, so they were waiting for him to come. Ashneel came home around 7.00 p.m. and, as soon as Ashneel came, Sanjay started asking about the incident, but Ashneel didn’t say anything. Then Sanjay slapped him. Ashneel then told everything that happened and admitted. Ashneel begged him not to tell anyone. Sanjay told him that they are going to report the matter to the Police. Ashneel started to cry and told them not to tell anyone. Then Sanjay called his friend to come and pick them. But he was not in town so they stayed at home. The next morning they went to report the matter to the police. When asked to clarify as to how Ashneel put his hand in her vagina, Kartika said that she felt his four fingers inside her vagina.
39. Under Cross-examination, Kartika said that she had known Ashneel from the time she got married in 2009 as he was staying beside her house. On the day of the incident she was lying sideways facing the wall. She was wearing only a nighty and a panty. She said that she was very scared of Ashneel and went inside the bathroom after the incident. She also said that she did scream and shout and told Ashneel quite loudly to get out of the house.
40. Kartika denied that she had made up this story after the theft allegation was brought against her. She admitted that, in her statement dated 17^th of January 2013, she had not told police that Ashneel had tried to kiss her; that she had slapped him, that she had called her husband on a friend’s phone; that he had told her not to tell anyone and that she had gone to the toilet and locked it. She said she was really scared when she gave the statement to police.
41. When questioned about her statement to police where she had told that Ashneel put the second finger in her vagina, Kartika said that she felt all his fingers inside her vagina.
42. Kartika did not dispute her husband’s statement to police that he had received a call from her at 8.00 p.m. on the 16^th January and that she had only told him to come straight home because she had something important to tell him. She admitted that she did not tell her husband that Ashneel had done something bad to her. In her explanation, Kartika said that she did not tell the whole story over the phone because she was calling on someone else’s phone.
43. She later admitted that her husband did not come home at 4 p.m. but he came home around 9.00 p.m. She denied that she had asked Ashneel for a loan of $5.00 on the 16^th. She denied that she had stolen Ashneel’s money and that she was accused of theft when Ashneel came back from his shower.
44. Kartika admitted that they had a big fight on 16th where her husband told Ashneel to return $50.00 to clear his house. Then Ashneel went to the owner’s daughter to bring $50.00. She emphasized that Ashneel had never told them that he had some money and she had stolen it. She denied the proposition that the reason why she did not report to police on the same day was because she was making up this story, and reported on the following day just to counter the allegation of theft made by Ashneel against her. She denied that she had gone to Ranjita’s place for a meal on 16th, the day the alleged incident happened. Kartika admitted that she did not receive injuries in the encounter. She said that she told the doctor that Ashneel pushed her down and put his fingers in her vagina and she felt the pain. She denied that she had never paid any rent to the Accused.
    

PW 2 Sanjay Vikash Nath

45. The second witness for Prosecution is Complainant’s husband, Sanjay. On 16^th of January, 2013, Sanjay left home around 6.30 a.m. for work at RB Patel. Ashneel and his wife were home at that time. Around 7.55 p.m., the boy who was working in the other shop came and informed him to call home because there is something important. Sanjay called Kartika using the boy’s phone. Kartika informed him to come home early because there is a problem, but she did not mention about the problem. Sanjay informed her that he will come home once the lorry comes. He reached home at about 10.30 p.m., after unloading the lorry.
46. When he reached home, Ashneel was not there. Kartika was telling her what had happened. Kartika said that Ashneel was forcing and touching her and her clothes were being pulled and his fingers being inserted inside her. Kartika also said that she had pushed Ashneel away.
47. After a while, Ashneel came home, but he did not say anything. He took his bag and went away. Asneel came back 15 – 20 minutes later. He inquired about the incident. Ashneel said nothing happened. Sanjay asked Ashneel again when he was eating. He saw tears in Ashneel’s eyes. Then Ashneel said, uncle, don’t hit me, I have done a mistake. He was angry and he slapped Ashneel two to three times. After that Ashneel went to sleep. In the following morning, Ashneel went away without informing. Then Sanjay went to Namaka Police Station with his wife to report the matter. Sanjay said that he waited till the next day to go to the police because he did not have money to arrange a transport.
48. Under cross-examination, Sanjay said that, on the day of the incident, he left home at 6.30 a.m. because he had to leave early to unload a lorry. He said that his fellow workmate who was working in the other shop conveyed Kartika’s message at 5 to 8 p.m. and after that he called Kartika at 8.00 p.m. He said he was not able to go home till 10.30 p.m.
49. Sanjay admitted that he had told police in his statement that Kartika told him to come straight away as there is a very important thing to tell. He denied that, on the 16th, Ashneel had told them to leave the house because of the money that was stolen. He also denied that the landlord had told them to leave because they were not paying the rent on time as Ashneel claimed.
50. Sanjay admitted that on the 16th January, he and Kartika had only the bus fare because on the 15th, he had done shopping. He said he was offloading a truck and hadn’t gone on deliveries on that day.
51. Sanjay said that Ashneel met him at RB during day time on the 16th but he never told that his money had gone missing. He said that there are four flats altogether and only the daughter of the landowner was present during day time when the alleged incident took place.
52. He did not relay the incident to anybody because he didn’t want everybody to know what had happened to his wife. He did not want to go to police the same night because he wanted to ask Ahneel first about the incident. He went to police the following morning in a mini-van.
53. He denied making up a story because they were not sure if Ashneel had gone to report Kartika to police about the theft of $200.00.
54. Sanjay said that the land owner’s daughter told him that Kartika had stolen money from Ashneel. He denied that they had an argument with Ashneel on the 16th regarding stolen money. He also denied that Ashneel had told them to vacate the premises after the theft allegation.
55. Under re-examination, Sanjay said that the person whose phone he used to speak to his wife was working at Jet Point Branch whereas he was at Nadi Town Branch on the 16th.
56. That is the case for the Prosecution. At the close of the Prosecution case, you heard me explain to the Accused what his rights were in defence and how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined.
57. As you are aware, Accused elected to give evidence and call a witness on his behalf. That is his right. Now I must tell you that the fact that an Accused gives evidence in his own defence does not relieve the Prosecution of the burden to prove their case to you beyond reasonable doubt. Burden of proof remains with 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.

Case for Defence

DW 1 Sajneel Ritesh Rao alias Ashneel (Accused)

58. Accused is the first witness for Defence. In 2013, Ashneel used to live in a rented house at Votualevu, Nadi. He said he was selling peas at ANZ bank. One day, Sanjay came and told him that he was asked to vacate the house at Yako. He called two or three places to find a house for him. There was no place therefore, he told them to come and live with him. They had no money, so he paid $20.00 for a van to transport their stuff to Vatualevu. Sanjay and his wife came and stayed with him for three weeks. Ashneel said that they had not given their share of the rent because it wasn’t yet one month when the alleged incident happened.
59. On the 16^th of January, 2013, when he woke up at around 7.30 a.m., Kartika came and asked for $5.00. He said, ‘I don’t have any money’. Then he went to have a bath in the bathroom. After having a bath, he was getting ready to go when he found that his money was not there. He had $150.00 - $200.00, including $ 60 that was given to him by the landlord to settle the electricity bill. Then he asked Kartika whether she had seen it. Then Kartika said; ‘now I had asked you for $5.00 but you said you don’t have any money’. She got angry and asked, ‘You think I am a thief?’
60. Then Ashneel said ‘you people didn’t pay the rent then why don’t you look for a house for rent and vacate the house’. Then he went to landlord’s place and informed that the money that she had given had gone missing and told the landlord to inform Sanjay and Kartika to vacate the house. Then landlord told him that he is the one who had given the house to them and therefore he is responsible for them. After that he went to work at 8.00 a.m.
61. Ashneel denied that on the 16^th he had tried to kiss Kartika, touched her breast, got on top of her on the mattress, put her hand on her private part, and that Kartika had pushed and then kicked him.
62. Ashneel said that, on the 16^th night, he was not aware about the rape allegation and when police came to arrest him on the 17^th only he came to know about the rape allegation. He denied that he had admitted the allegation on the 16^th night. He also denied that he had met Sanjay at RB Patel on the 16^th .
63. Under cross examination, Ashneel denied having said in his evidence-in-chief that he had told Kartika and Sanjay to leave because they were not paying the rent. Ashneel admitted that he went to landlord’s house at 8.00 a.m., after he had a discussion with Karitika about the money and about vacating the house.
64. He said that he did not report the theft to police because they were his family. He only wanted them to return the money back. He said that when he was taken to police station to record his statement, he reported the theft to police however officers did not want to listen to him. He admitted that he did not complain to any higher authority against police officers.
65. He denied that he had approached Kartika and Sanjay’s family to reconcile this case. He said that he can’t recall what police were questioning him about. He thought police officers were taking him to police station to give him a notice to let them not vacate the house.

DW2: Ranjita Devi

66. Ranjita said that she was living together with Ashneel in a de facto relationship for nearly one year. Kartika used to call her on her mobile number very often. During hurricane time they went to Inland Tours building where her husband worked. On Wednesday the 16th January 2013 at about 8.45 a.m. Kartika called her and informed that she wanted to visit her. Then she told Kartika if she is coming she will only cook dhal and rice because she did not have any stuff with her. Then Kartika said she will bring one tin of mutton. Kartika came alone by bus. Kartika had lunch with her and left in the afternoon. She did not say anything about Ashneel.
67. Ranjita said that she could remember very well that Kartika did not come on 15th January which was a Tuesday. Her husband used to get his wages on the 16th and that’s how she could remember that Kartika visited her on the 16th. Ranjita also said that she saw Kartika had a lot of coins and notes in a brown bag.
68. Under cross-examination, Ranjita said that she came to know about the rape allegation against Ashneel when he was released from remand after 3 months. When Ashneel mentioned the day the alleged incident happened, she realized that, on the same day, Kartika had visited her. She did not make a note of this anywhere. That was her recollection.

Analysis

69. Lady and gentlemen Assessors, the Accused is charged with one count of Sexual Assault and one count of digital Rape. There are two counts hence you are supposed to consider evidence against each count separately.
70. You should be fully satisfied that Accused touched Complainant’s breast and penetrated her vagina with his finger without her consent before you can find him guilty on each count.
71. There is no dispute as to the identity of the Accused. It is not in dispute that at the time of the alleged incident the Accused was present at home. All elements of Sexual Assault and Rape are disputed by the Accused. The Defence case is one of denial. They say that the Accused did not commit any of the alleged sexual acts.
    72. Prosecution called two witnesses and based their case substantially on the evidence of the Complainant. The resolution of the dispute depends on whether you accept the Complainant as a truthful witness. If you are satisfied that the evidence she gave in Court is truthful and believable, then you can safely act upon her evidence in coming to your conclusion. No corroboration is required.
73. Prosecution says that the Complainant is an honest and credible witness and what she told in Court is believable. They heavily rely on recent complaint evidence to prove Complainant’s consistency. Complainant says that she relayed the incident to her husband, Sanjay, as soon as he came home. Before that, she had tried to contact Sanjay over the phone to ask him to come home straight away. On the following day, they had gone to police to report the incident.
74. It was argued by the Defence that Complainant could have relayed the incident to her husband over the phone and they could have reported it to police on the 16^th itself, if it were true. You heard Complainant’s explanations as to why she did not relay the incident to her husband over the phone. Both Complainant and her husband, Sanjay explained why they did not go to the police station on the 16^th, the day of the alleged incident. You decide what weight to be attached to the recent complaint evidence.
75. Prosecution also relies on Sanjay’s evidence that Accused had made an admission as to the alleged offences. Accused denies making such an admission. You are to decide who told the truth in Court.
76. You observed Complainant’s demeanor in court. You decide if she is an honest and credible witness and what weight should be attached to her evidence.
77. Defence on the other hand says that Complainant did not tell the truth in court. They say that she is not consistent in her own evidence and also that of her husband. They also say that Complainant’s evidence is not consistent with her previous statement to police. In light of the directions I have given, you decide what weight you should give to those so called contradictions and omissions.
78. Defence took up the position that the Complainant had stolen Accused’s money and that she and her husband fabricated this allegation against the Accused in order to counter the theft allegation made against Complainant. Complainant vehemently denies that she had stolen money. She also denies that such a theft allegation had ever been made against her by the Accused on the 16^th. Prosecution further argues that Accused could have reported the theft allegation to police if it were true. You heard Accused’s explanations in this regard. You decide if the version of the defence is acceptable and believable.
79. Defence also called Accused’s ex- de facto partner Ranjita to buttress their case and show that Complainant had visited Ranjita on the very day of the alleged incident (that is on 16^th January, 2013) but Complainant had never relayed such an incident to Ranjita. Complainant denies that she had visited Ranjita on 16^th January, 2013.
80. Prosecution says that Ranjita who is Accused’s ex- partner is an interested witness and therefore not reliable. They also say that it is not possible for her to remember the exact date she had visited the Complainant. You decide if Ranjita is a reliable witness and what weight should be given to her evidence.
81. You watched Accused giving evidence in Court. It is up to you to decide which version is to believe and whether you could accept the version of the Defence. If you accept the version of the Defence you must find the Accused not guilty. Even if you reject the version of the Defence, still the Prosecution should prove their case beyond reasonable doubt. Remember, the burden to prove the Accused’s guilt beyond reasonable doubt on each count lies with the Prosecution throughout the trial, and never shifts to the Accused, at any stage of the trial.
82. If you believe the Complainant is telling you the truth that the Accused touched her breast and penetrated her vagina with his finger in the morning of 13^th January 2013 without her consent then you may express an opinion that the Accused is guilty on each count. But if you do not believe the Complainant's evidence regarding the alleged offences, or if you have a reasonable doubt about the guilt of the Accused, then you must find the Accused not guilty.
83. Your possible opinion is either guilty or not guilty on each count. Please remember, you are to consider each count separately.
84. You may now retire to deliberate on your opinions. Once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

85. Any re-directions?

Aruna Aluthge

Judge

AT LAUTOKA

3^rd April, 2018

Solicitors: Office of the Director of Public Prosecution for State

Pillai, Naidu & Associates for Defence