State v Sharma - Summing Up [2018] FJHC 412; HAC337.2017 (11 May 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 337 of 2017

[CRIMINAL JURISDICTION]

STATE

V

ANIL DUTT SHARMA

Counsel : Mr. T. Tuenuku for State

Ms. S. Kant and Mr. V. Kumar for Accused

Hearing on : 07 -10 May 2018
Summing up on : 11 May 2018
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “ZK”.)

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, the admitted facts 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 the complainant. No such emotion should influence your decision.
   
6. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behaviour 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 08 years old and she gave evidence about an incident that had allegedly taken place last year. You may have come across children of this age. You will have an idea of the way a child of a particular age behave, think, talk and the way they describe things.
   
8. Children can be confused about what has happened to them. 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.
   
9. I mention these possibilities because 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.
   
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. You may also find inconsistencies when you compare the evidence given by witnesses on 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 that witness 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 the witness’ evidence is inaccurate; or you may accept the reason the witness 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 the witness 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 an offence, the prosecution should prove all the elements of that offence beyond reasonable doubt. If you have a reasonable doubt in respect of any element of an offence 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 the charges have been proved.
    
20. Please remember that 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.
    
21. I must explain to you as to the reason for the use of the screen when the complainant gave evidence. It is 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.
    
22. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offences;

FIRST COUNT

(Representative Count)

Statement of Offence

Rape: Contrary to Section 207 (1) and (2)(b) and (3) of the Crimes Act 2009.

Particulars of Offence

ANIL DUTT SHARMA, between the 1^st day of August, 2017 and 31^st day of August, 2017, at Vusuya, Nausori in the Eastern Division, penetrated the vagina of ZK [name suppressed] a child under the age of 13 years with his finger.

SECOND COUNT

(Representative Count)

Statement of Offence

Indecent Assault: Contrary to Section 212(1) and (2) of the Crimes Act, 2009.

Particulars of Offence

ANIL DUTT SHARMA, between the 1^st day of August, 2017 and 31^st day of August, 2017 at Vusuya, Nausori in the Eastern Division unlawfully and indecently assaulted ZK, a child under the age of 16 years by fondling her breasts with his hands.

23. To prove the offence of rape in this case, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the complainant’s vagina with his finger;
    100. without the consent of the complainant; or

that the complainant was below the age of 13 years at the time of the incident.

24. The first element of the offence of rape 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 and no one else.
    
25. Second element involves penetration. To establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his finger. A slightest penetration is sufficient to satisfy this element.
    
26. Law says that ‘a child under the age of thirteen years is incapable of giving consent’. It is an admitted fact in this case that ZK was 07 years old at the time of the alleged incident. Therefore, you should consider that the third element above is proven beyond reasonable doubt.
    
27. 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.
         
28. The first element again 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.
    
29. Assault is the use of unlawful force. A touch constitutes an assault if it is done without a lawful excuse.
    
30. The word “unlawfully” simply means without lawful excuse.
    
31. An assault is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
32. Please remember that knowledge and intention of the accused can only be inferred based on the other proven facts because it is not possible to look inside the mind of the accused.
    

Prosecution case

33. The complainant said in her evidence that;
    1. In August last year the accused inserted his pointer finger in the place from where she urinates. She said this happened when her mother had gone out of the house. At this time her sisters, grandparents and the accused’s wife were at home.
    2. She said she was sleeping in the sitting room and the accused was sleeping between her and her sister. She said the accused took her pants off and inserted the finger and it was painful when he did that. She said the accused also touched her breast.
    100. After that the accused put her pants on and went to sleep. When her mother returned, her grandmother opened the door. When her mother saw that the accused was sleeping with her and the sister the mother lifted them up and took them to the bed. She said that night she forgot to tell her mother about what happened. She told her mother about what the accused did to her when she was admitted in the hospital. She recognized the accused in open court.
    4. During cross examination she admitted that one Arav who was one of the students in her school poked her where she urinates from. This was after August last year. She agreed that she told her mother about this incident. She said it did not hurt when Arav poked her because he did it on top of her clothes. She admitted that she went to her grandfather’s house during the second school holidays last year.
    5. She agreed that her grandfather’s friend inserted his finger to the place where she urinates from. She said this happened in her grandfather’s friend’s house. She said it was painful when the grandfather’s friend inserted the finger. She told her mother about the incident. She also said that she cried loudly when this happened but her grandfather did not see the incident.
    6. She agreed that her mother and the accused’s wife used to fight a lot because of the car bought together by the accused and her step-father. She agreed that her mother does not like the accused and his wife.
    7. She said when the incident took place she was sleeping on a mattress and the light was not on. She agreed that she danced with her sister and the accused’s daughter while they were watching a movie. She agreed that her grandparents, aunt and the accused were watching TV while she was sleeping. She also agreed that they were still watching TV when her mother came back from the prayers.
    8. She said she was sleeping when her mother and father came after the prayers and she knows that her mother came inside because the mother was talking to her father. She said she opened her eyes a little bit when her mother came. She said the mother carried her to the bed.
    9. When she was asked how she knows that the accused inserted the pointer finger when the lights were off, she said she felt pain and felt something going inside her. Again when she was asked whether she saw the pointer finger she said ‘yes’. Then when it was suggested that she won’t be able to see the finger when the lights are off, she said ‘yes’.
    10. She said it was very painful when the accused inserted the finger and she admitted that she cried out loud. She said the pain was there for two days. She agreed that she was admitted at the hospital two times before the incident and on both occasions the doctor examined where she urinates from.
    11. During re-examination she said grandfather’s friend inserted his finger at the time she was in the kindergarten. She said she did not tell her mother or anyone about what Arav did to her. She said when she cried her grandfather and grandmother could not hear. Grandfather could not hear because he was sleeping and also he had to go to the market. She said the grandmother was looking after the baby, and was closing her eyes.
        
34. The second prosecution witness who is the complainant’s mother said that;
    1. The complainant is 8 years old. She said one night in August 2017 she went to her neighbor’s place for a prayer ceremony. She went with her husband and Sushil around 8.30pm and came back around 10.45pm. She said her mother-in-law, father-in-law, sister-in-law and her husband, their daughter and her three kids were at home. When she came back, her mother-in-law opened the door. As soon as she entered the house she saw her two daughters sleeping in the sitting room and that the accused was sleeping between them. They were sleeping on a mattress. She saw this from the light in the porch.
    2. She said the accused’s wife and his daughter were sleeping on the settee. She told her daughters to go to the room when she saw them sleeping in the sitting room with the accused in the middle because her daughters always complain that the accused is smelly. She said they took their pillows and went to the room. The next morning the complainant when she went to the washroom complained that her stomach was paining when she urinates. She said she noticed that the complainant was going to the washroom every 2 to 3 minutes.
    100. On the next day she told the complainant’s teacher over the phone that the complainant is unable to come to school because she is having a washroom problem. After one week she saw brown discharge in the complainant’s underwear. In September she took the complainant to the health centre because she noticed there was bleeding.
    4. Because the bleeding could not be stopped the complainant was transferred to the CWM hospital. This was in October. She said when the doctors examined the complainant they were able to see a cut from a nail. Later she was informed by the doctor that the complainant has been subjected to sexual assault. Complainant did not tell her and the doctor what happened but after the complainant went for counselling for two days the complainant told them that when she (the witness) went for the prayer ceremony the accused put the complainant’s three-quarter pants up to the knee and put his finger where the complainant urinates from and that the accused touched the complainant’s breast. The complainant told her that it was paining. She also said that the complainant told her that the accused turned the finger inside after inserting it.
    5. She said that the complainant told her that her class mate Arav poked the complainant on the thigh using a pencil and they were just playing and were touching each other. The complainant also told her about a man using his finger when the complainant was taken by the witness’s father to one of his friends place. She said that was two years before when the complainant was in the kindergarten.
    6. She said she did not get along with the accused’s family. She said she was doing everything in the house like a house-girl and the accused’s wife never helped her and was passing comments. Before the incident accused’s wife was always growling at the complainant.
    7. During cross examination she said she carried the daughters’ pillows and the blankets and the daughters walked with her to the bedroom. She said in the sitting room two sofas were kept in an L-shape and the mattress was placed on the floor. One side of the mattress was touching the sofa the daughter was sleeping. When it was put to her that she had stated in her police statement that she had gone to the prayer ceremony on 29^th August she said she can’t remember the exact date. When it was suggested to her that there used to be a lot of arguments between her and the accused’s wife, she denied. She also denied that there were arguments regarding a Pro-box car between her and the accused’s wife.
    8. She agreed that during the 2^nd school holidays last year the complainant went to live with her father at Nasole and she said it was for 3 to 4 days. She denied telling the complainant’s school teacher that the complainant was staying with her step-father.
    9. When she was asked whether the complainant was fast asleep when she came back home from the prayer ceremony she said the complainant was sleeping and they woke her up.
       
35. The third witness for the prosecution was welfare officer Nivita Narayan. She said;
    1. She was present when the complainant’s statement was recorded by the investigating officer as the investigating officer wanted her to be there as a neutral party. She said when she asked the complainant whether the complainant cried for help or tell anyone when the accused inserted his finger in her vagina, the complainant told her that it was painful but she did not cry for help or tell anyone as she was afraid.
    2. She said the complainant mentioned about a friend named Arav and when she asked whether Arav touched the complainant the complainant said ‘no’ and told her that they only touched and poked each other.
    100. She said that the complainant told her that the grandfather had taken the complainant to his friend’s place whom she did not like when she was very small and was not going to school. According to her the complainant told her that this man tried to touch her.
         
36. The fourth prosecution witness was Dr. Nitik Ram. He said;
    1. He is a medical doctor with eight years of service. He had specialized in obstetrics and gynecology. He examined the complainant on 22/10/17. He tendered the medical report as PE 1. He observed that the hymen was dilated and that there was a tear at the 7o’clock position in the hymen. He said the complainant was referred due to chronic vaginal discharge. That is the reason they had to examine the complainant’s vaginal area.
    2. He said in a 6 year old the hymen should be around ½ cm and it was abnormal for it to be 2cm as in the case of the complainant. He said any form of vaginal penetration by a foreign body may have caused the tear. He said a finger could cause that tear. He said dilation also can be caused by vaginal penetration. He said the age of injuries could be one month. He said he cannot exactly say the age of the tear.
    100. During cross examination he said a vaginal dilation can heal without treatment. He said if the dilation is 2cm the penetration has to be at least 2cm or wider. He said a small object can also cause that depending on the manner it is used. He agreed that he cannot tell the age of the tear and it could be even 2 years old.
         
37. The fifth prosecution witness was DC 3660 Gasio Rokodulu. He said;
    1. He is a crime scene examiner and he took photographs of the scene. He tendered the photographic booklet he prepared as PE 2.
       
38. The sixth witness was WDC 3614 Ana Bolaniwere. She said;
    1. She was the investigating officer in this case. She also recorded the statement of the complainant in the presence of the welfare officer Nivita. She said that the complainant told her that the incident regarding the friend of the complainant’s grandfather happened long time ago when the complainant was not schooling. She said she also ruled out the incident involving Arav because she was informed that he did not poke her inside and because the complainant’s teacher said that there was no report of poking.
       
39. 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 evidence and to call two witnesses.
    
40. The accused said in his evidence that;
    1. He had been a taxi driver since 1994. He said on the night in the month of August last year when the complainant’s mother went for a prayer ceremony he was at home with his mother-in-law, father-in-law, his daughter, the complainant and her sister. He said they were all watching a movie. He said they were all sitting on the settee and apart from watching the movie the three girls were also dancing. He said that night no one was on the mattress. He said when the complainant’s mother and his brother-in-law came back from prayers he went to sleep and his mother-in-law opened the door. He said he was sleeping in an empty room. He denied the allegations.
    2. During cross examination when he was asked how he was able to know that his wife was sleeping in the sofa and the daughter on another sofa if he was in another room, he said he asked his wife when the wife visited him at night. When he was asked how he knows whether the mother-in-law opened the door he said he asked his wife when the wife came to him that night.
       
41. The second witness for the defence was Farisha Fazlin Chetty. She said;
    1. The complainant was one of her students during August to October last year. She could recall the complainant’s mother informing her over the phone on 29/09/17 that the complainant is bleeding and the doctors are examining her since she is staying with her step-father. She said the complainant’s mother called her again after one week and informed her that the complainant had started the normal menses process. She received another call from the complainant’s mother on a Sunday and was asked about a student named Arav in her class. According to her the complainant’s mother also told her that the complainant is saying that Arav had poked the complainant. She said the complainant did not make any complaint about Arav poking her.
       
42. The third defence witness was Chita Wati. She said;
    1. The accused is her son-in-law. She said on the night the complainant’s mother and Ravin went for a prayer ceremony she was sitting with the baby in one settee and the accused was sitting on another settee. The accused’s wife was also sitting with the accused. The girls were watching a movie. After a while the accused stood up had his tablets and went to his room to sleep. He said the complainant and her sister were dancing after the accused left and thereafter they went to sleep.
    2. Accused’s wife was sitting with her and the accused’s daughter went to sleep on her settee. When the complainant’s mother came back from the prayer ceremony she opened the door. When she opened the door only the complainant and her sister were there on the mattress. She said the complainant and her sister did not go to sleep in their room that night.
    100. She said in August 2017 the complainant went to her grandfather’s place three days before the school holidays and the complainant was there for one week. When the complainant returned she was not eating and was just sitting quietly. She said the complainant was complaining that she has a stomachache and fever. She asked the complainant’s mother to take the complainant to the doctor. She said this happened before the prayer ceremony.
    4. During cross examination she said that the accused went to his room to sleep while the girls were dancing and after he left the girls were still dancing. She said she saw the accused going to the room to sleep at 10 o’clock. She said the complainant’s mother and Ravin came back from prayers at half past 10. She said she went to sleep that night at 11 o’clock.
       
43. That is a summary of the evidence. 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.
    
44. As I have already highlighted, 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. 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. If there is a delay, you should look whether there is a reasonable explanation to such delay. Ultimately 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.
    
45. The prosecution says that they are relying on recent complaint evidence. You heard in this case that the complainant had informed her mother about the incident when she was in the CWM Hospital. In this regard you should consider whether that was a prompt complaint regarding the incident and whether the complainant sufficiently complained of the offences the accused is charged with.
    
46. Such complaint need not specifically disclose all the ingredients of the offence and describe every detail of the incident, but should contain sufficient information with regard to the alleged conduct of the accused. However, please remember that this evidence of recent complaint is not evidence as to what actually happened between the complainant and the accused. The second prosecution witness cannot confirm whether what the complainant told her is true because she was not there. It may only assist you to decide whether the complainant is consistent and whether or not the complainant has told you the truth. In the end you are deciding whether the complainant has given a truthful account of her encounter with the accused.
    
47. The fourth prosecution witness gave his medical opinion based on what he observed and his experience. You are not bound to accept that evidence. You will need to evaluate that evidence for its strengths and weaknesses, if any, just as you would with the evidence of any other witness. 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 fourth prosecution witness. Evaluating his evidence will therefore include a consideration of his expertise, his findings and the quality of the analysis which supports his opinion. In the event you accept his opinion, you should bear in mind that the said opinion would only support the fact that the complainant’s vagina had been penetrated by a foreign object which includes a finger and that this could have taken place a month before 22/10/17 which was the date of the medical examination. According to the witness it could be even two years old. The medical evidence does not establish that the accused penetrated the complainant’s vagina.
    
48. When you consider 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 those parts are filled based on information received and not based on what the respective authors had witnessed. For this reason, the contents of A(4) and D(10) are blotted out.
    

Analysis

49. The accused denies the allegation that he penetrated the complainant’s vagina with his finger and that he touched the complainant’s breast. The defence says that the complainant and his mother are lying. Defence points out that the account given by the complainant is not probable.
    
50. The defence says there are inconsistencies in the evidence given by the complainant. You should deal with inconsistencies according to the directions I have already given you. It was also pointed out that the complainant’s mother is not in good terms with the accused and his family, and the complainant was aware of this. According to the defence this is the motive for the complainant and her mother to fabricate the allegations.
    
51. As it is agreed that the complainant was below the age of 13 years at the material time, consent is not an issue in this case. Therefore, the only issue you should decide in this case is whether the prosecution has proven beyond reasonable doubt that the accused penetrated the complainant’s vagina with his finger in relation to the first count.
    
52. According to the fourth witness for the prosecution the doctor who examined the complainant, there was evidence that the complainant’s vagina had been penetrated by a foreign object before one month from 22/10/17. The doctor could not say exactly what object was used but he said it can be a finger. If you accept this evidence you may consider it as supportive of the fact that the complainant’s vagina was penetrated by someone one month before 22/10/17.
    
53. In relation to the first count the question is who penetrated the complainant’s vagina. The prosecution says that it is the accused and the defence says that it is not him. Given the evidence presented before this court, you should ask yourselves whether you are satisfied beyond reasonable doubt that it was the accused who penetrated the complainant’s vagina. In relation to the second count the question is are you satisfied beyond reasonable doubt that the accused touched the complainant’s breasts.
    
54. These are some questions you may consider in your deliberation among others;
    1. The complainant initially admitted that the incident where the grand father’s friend inserting his finger inside her vagina took place during the second school holidays last year and later it came out in evidence that this incident took place two years ago. The doctor said in his evidence that the injury he observed can even be 2 years old. Therefore, in the event you accept the medical evidence, are you satisfied beyond reasonable doubt that the injuries noted in the complainant’s vagina were caused by the accused?
    2. According to the complainant, the light was off when the incident happened. The second prosecution witness said that she saw the complainant sleeping on the mattress from the light that came from the porch. Given the evidence adduced on the lighting condition at the time of the incident, was it possible for the complainant to see the accused insert his pointer finger inside her vagina?
    100. Given the evidence regarding the other individuals who were present in the sitting room and where they were, was it probable that the those individuals could not hear the complainant cry out loud as she said she did when the accused inserted the finger?
    4. Bearing in mind that the complainant was 7 years old at the time, was there an explanation for the complainant not to inform her mother about the incident when the mother returned home that night and on the following day in the light of the complainant’s evidence that she was in pain for two days due to the accused inserting his finger in her vagina?
    5. The complainant said that she was sleeping when the mother returned home that night and the second prosecution witness also said she had to wake the complainant up. However the complainant said that she opened her eyes a little bit when the mother arrived. The complainant also said that the grandmother opened the door when the mother returned and also that when her mother saw that the accused is sleeping with her and the sister, she lifted them up and took them to the room. How would she know what prompted the mother to take her and the sister to the room? Does this evidence support the position taken up by the defence that the allegations in this case are false and they are made up?
       
55. You must remember to assess the evidence for the prosecution and the defence using the same yardstick but bearing in mind that always the prosecution should prove the case against the accused beyond reasonable doubt.
    
56. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
57. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise 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 him, or his witnesses, that itself does not make him 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.
      

If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.

58. Any re-directions?
    
59. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against 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.
    
60. Your opinion should be whether the accused is guilty or not guilty on each count.
    

Vinsent S. Perera
JUDGE

Solicitors:

Office of the Director of Public Prosecutions for the State

Sairav Law, Rakiraki for the Accused