IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 378 of 2016

STATE

V

JOHN ROHIT PAL

Counsel		:	Ms. Swastika Sharma for the State
				Mr. Filimoni Vosarogo for the Accused

Dates of Trial		: 	4-7 June 2018
Summing Up		: 	8 June 2018
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “MT.”
SUMMING UP

Madam Assessors and Gentleman Assessor,

[1]	It is now my duty to sum up the case to you.  We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2]	As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law. 
[3]	It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4]	Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning. 
[5]	In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.
[6]	After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions.  I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions. 
[7]	I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8]	In this case, the evidence is what the witnesses said from the witness box, the documents tendered as prosecution exhibits and any admissions made by the parties by way of admitted facts.
[9]	If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration.  The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10]	A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence.  Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submissions made by the State Counsel and Defence Counsel and closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you. 
[11]	As I already indicated to you, another matter which will be of concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it.  You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
[12]	Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you. 
[13]	You have seen how the witnesses’ demeanour 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? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.  
[14]	The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account.  It all depends on the character and personality of the individual concerned.
[15]	According to the evidence you heard in this case, the complainant, MT, was 10 years old at the time of the alleged incidents, and was 12 years old when she testified in Court. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused is charged with.

[16]	You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory?  You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist.  It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[17]	You heard in this case the evidence of Giria Kapa, the Class 5 teacher of the complainant, who said that the complainant had informed her around October 2016 of the alleged incidents. You should consider whether this could be regarded as a complaint made by the complainant of the alleged incidents. If so you should also consider whether she made that complaint without delay and whether she sufficiently complained of the offences the accused is charged with, at least in respect of the allegations set out in the third count.
[18]	The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that the complainant made a prompt and a proper complaint, then you may consider that her credibility is strengthened in view of that recent complaint. 
[19]	It must be borne in mind that the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant. 
[20]	In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in their evidence. This includes omissions as well. 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 and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission 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 or omission, you may conclude that the underlying reliability of the account is unaffected.
[21]	However, if there is no acceptable explanation for the inconsistency or omission, 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 inconsistency or omission 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. Therefore, if there is an inconsistency or omission 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 her evidence is inaccurate. In the alternative, you may accept the reason she provided for the inconsistency and consider her to be reliable as a witness.
[22]	Ladies and Gentleman Assessor, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[23]	Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law.  You must follow these directions.
[24]	When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not to the charges. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[25]	It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged. 
[26]	In determining questions of fact, the evidence could be used in the following way.  There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you.  Some evidence may directly prove a thing.  A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.
[27]	But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred.  That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[28]	In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary fact and the inferences that could be drawn from them.
[29]	I must emphasize, it does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.
[30]	Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused. 
[31]	This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence.  It is not his task to prove his innocence. 
[32]	I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or degree of proof, as expected by law?
[33]	For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason. 
[34]	It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[35]	You should disregard all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinions. 
[36]	I must also explain to you as to the reason for the use of screen, when the complainant gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents. Please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.
[37]	The same applies for permitting a closed court proceedings and for allowing a support person (in this instance her mother) to sit beside the complainant when she gave evidence in this case. 
[38]	Let us now look at the charges contained in the Amended Information.
[39]	There are three charges preferred by the Director of Public Prosecutions (DPP), against the accused:
COUNT ONE
(Representative Count)
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence
JOHN ROHIT PAL between the 1st day of January 2016 and the 29th day of February 2016 at Vatuwaqa, in the Central Division, unlawfully and indecently assaulted MT, by touching her breasts.

COUNT TWO
(Representative Count)
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009.
Particulars of Offence 
JOHN ROHIT PAL between the 1st day of January 2016 and the 31st day of December 2016 at Vatuwaqa, in the Central Division, penetrated the vagina of MT, a child under the age of 13 years, with his finger.

COUNT THREE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) and (3) of the Crimes Act 2009.

Particulars of Offence 
JOHN ROHIT PAL between the 1st day of September 2016 and the 30th day of September 2016 at Vatuwaqa, in the Central Division, penetrated the mouth of MT, a child under the age of 13 years, with his penis.

[40]	Let me explain the elements of count one, Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act No. 44 of 2009 (Crimes Act).
[41]	Section 210 (1) (a) of the Crimes Act reads as follows:
(1) A person commits an indictable offence (which is triable summarily) if he or she—
(a) unlawfully and indecently assaults another person; 
[42] 	Therefore, in order for the prosecution to prove the first count of Sexual Assault, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	During the specified period (in this case between the 1 January 2016 and 29 February 2016); 
(iii)	At Vatuwaqa, in the Central Division;
(iv) 	Unlawfully and indecently assaulted MT, the complainant.
[43]	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 and no one else committed the offence. 
[44]	The second element relates to the specific period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.  
[45]	The accused would be guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainant. The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As such, it is for you as Assessors to consider and decide whether the act of touching the complainant’s breasts by the accused is an indecent act and thereby amounts to Sexual Assault.   
[46]	Let me now explain the elements of count two, Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act.
[47]	Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
[48]	Section 207(2) (b) of the Crimes Act is reproduced below.
(2) A person rapes another person if — 
(a) …………………; or 
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent. 
[49]	Therefore, when Section 207(1) is read with Section 207(2) (b) it would read as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
(2) A person rapes another person if — 
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent. 
[50]	Section 207(2) (b) refers to a person penetrating the vulva, vagina or anus of the other person, to any extent, with a thing or a part of the person’s body that is not a penis.
[51]	Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.” 
[52]	Therefore, in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	During the specified period (in this case between the 1 January 2016 and 31 December 2016); 
(iii)	At Vatuwaqa, in the Central Division;
(iv) 	Penetrated the complainant’s vagina, with his finger; and
(v)	At the time the complainant was under 13 years of age. 
[53]	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 and no one else committed the offence.
[54]	The second element relates to the specific period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.  
[55]	The fourth element involves the penetration of the complainant’s vagina, with his finger.  It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration. The element is complete on penetration to any extent. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the complainant’s vagina, with his finger, to any extent.
[56]	The final element is that at the time of the incident MT was a child under 13 years of age.
[57]	The issue of consent will not arise in this case.  A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was 10 years of age at the time of the alleged incident, and therefore, she had no mental capacity to consent. 
[58]	Let me now explain the elements of count three, Rape contrary to Section 207 (1) and (2) (c) and (3) of the Crimes Act.

[59]	Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
[60]	Section 207(2) (c) of the Crimes Act is reproduced below.
(2) A person rapes another person if — 
(a) …………………; or 
(b) …………………; or 
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.  
[61]	Therefore, when Section 207(1) is read with Section 207(2) (c) it would read as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
(2) A person rapes another person if — 
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent. 
[62]	Section 207(2) (c) refers to a person penetrating the mouth of the other person to any extent with that person’s penis.
[63]	Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.” 
[64]	Therefore, in order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	During the specified period (in this case between the 1 September 2016 and 30 September 2016); 
(iii)	At Vatuwaqa, in the Central Division;
(iv) 	Penetrated the mouth of MT with his penis; and 
(v)	At the time MT was a child under 13 years of age.

[65]	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 and no one else committed the offence.
[66]	The second element relates to the specific period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.  
[67]	The fourth element involves the penetration of the mouth of MT with his penis. It must be noted that, in law, the slightest penetration is sufficient to satisfy this element of penetration.
[68]	The final element is that at the time of the incident MT was a child under 13 years of age.
[69]	As stated earlier, the issue of consent will not arise in this case. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As indicted earlier, the complainant in this case was 10 years of age at the time of the alleged incident, and therefore, she had no mental capacity to consent.  
[70]	It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Sexual Assault and Rape are obviously considered as Sexual Offences. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.
[71]	It is also my duty to mention another relevant legal requirement concerning the first two counts against the accused. It is titled as a representative count. This representative counts of Sexual Assault and Rape against the accused is based on act or series of acts done during a specified time period (In this instance between 1 January 2016 and 29 February 2016, for the count of Sexual Assault and between the 1 January 2016 and 31 December 2016, for the second count of Rape). Such a charge is described generally as a representative count in legal terminology. The prosecution is expected to prove just one incident of Sexual assault and Rape which falls within this period in respect of each of those counts. They need not prove a continuous or a series of incidents of Sexual Assault or Rape in support of a representative count.
[72]	If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2016 and 29 February 2016, at Vatuwaqa, unlawfully and indecently assaulted MT by touching her breasts, then you must find him guilty of the first count of Sexual Assault.  
[73]	If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the first count of Sexual Assault.   
[74]	If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2016 and 31 December 2016, at Vatuwaqa, penetrated the complainant’s vagina with his finger, then you must find him guilty of the second count of Rape.  
[75]	If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the second count of Rape.  
[76]	 If you are satisfied beyond any reasonable doubt that the accused, between 1 September 2016 and 30 September 2016, at Vatuwaqa, penetrated the complainant’s mouth with his penis, then you must find him guilty of the third count of Rape.  
[77]	 If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the third count of Rape.  
[78]	These are some of my directions on law and I will now briefly deal with the evidence presented before this Court. 
[79]	In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts as “Final Admitted Facts” without placing necessary evidence to prove them: 
1.	MT is the complainant in this matter.
2.	John Rohit Pal is the accused in this matter.
3.	The complainant and the accused were neighbours at Wailea Settlement, Vatuwaqa.
4.	The complainant was medically examined on the 15th of October 2016 at MSP Clinic.
[80]	Since the prosecution and the defence have consented to treat the above facts as “Admitted Facts” without placing necessary evidence to prove them you must therefore, treat the above facts as proved beyond reasonable doubt. 
Case for the Prosecution
[81]	The prosecution, in support of their case, called the complainant (MT), her school teacher, Giria Kapa, and a Medical Officer, Dr. Elvira Ongbit. The prosecution also tendered the following documents as prosecution exhibits:
	Prosecution Exhibit PE1- Birth Certificate of the complainant.
	Prosecution Exhibit PE2- Medical Examination Report of the complainant. 
[82]	Evidence of the complainant MT
(i)	The complainant stated that she is 12 years of age. Her date of birth is 12 October 2005. Her birth certificate was tendered to Court as Prosecution Exhibit PE1. 
(ii)	She testified that she lives at Wailea (Wailea Settlement, Vatuwaqa). The others staying at her residence are her father, her mother, her grandmother, her aunt and her two sisters and brothers. She is the eldest in her family. 
(iii)	She is attending Pundit Vishnu Deo Memorial School and is in Class 7. 
(iv)	Even in 2016, she was living at Wailea, at the same resident where she is currently residing. She was in Class 5 at the time. 
(v)	The witness testified that Johnny was her neighbour. Johnny’s house was about 5 meters away from her house. It is a single storied house and has two rooms. In 2016, Johnny, his wife Sindu and his son, Ayush were residing at Johnny’s house.  
(vi)	The complainant testified that in the year 2016 something bad happened to her. When asked to explain, she said that she was raped. 
(vii)	She said that in 2016, she used to go to Johnny’s house to watch movies. On one such day when she had gone to Johnny’s house, with her younger sister, Elenoa, she said she was raped by Johnny. She testified that Johnny had touched her breasts and her private part. 
(viii)	The complainant said that she and her sister had been sitting in the sitting room. Only Johnny was at home at the time. Elenoa had been sitting on top of her and Johnny was sitting beside her. The witness demonstrated in Court as to how close Johnny was seated. She cannot recall the date this happened. However, it was a Saturday in the month of January. 
(ix)	The witness said that Johnny was touching her breasts inside her clothes. She was wearing a T-shirt and pants at the time. She said she felt scared and had looked at Johnny (so that their eyes could meet). The witness demonstrated in Court as to how she looked at Johnny. She had moved away from him. 
(x)	Later the witness said that when Johnny was touching her breasts, Elenoa was not sitting on top of her. She had gone home.
(xi)	After touching her breasts Johnny had touched her private part, inside (under) her clothes. He had used his hands to do this. When asked exactly what part of his hand the witness said ‘his pointer’ (index finger). His pointer (finger) had gone inside and she felt pain. When asked how deep inside his pointer had gone, the witness showed her index finger and demonstrated in Court. He had been touching her private part with his pointer for 3-5 minutes. He had stopped touching her private part (only) when her mother had called her. She had then got up and gone home.  
(xii)	The witness was asked whether she knows any other names by which she refers to her private part. She said ‘Vo’ (a term known in the complainant’s dialect to refer to the private part). When asked what you do with your Vo? She answered urinate. 
(xiii)	After going home, she had not told anybody about what Johnny did to her because she was scared. 
(xiv)	When asked the question “After that day, did you go to his house ever again?” The witness answered “No”. But when she was asked the question “Apart from Johnny touching your breasts and private part, did he do anything else to you?” She answered “Yes”. 
(xv)	The witness explained that she went by herself to Johnny’s house to buy ice block. After she had bought the ice block, Johnny had told her to sit beside him. He had then wanted to take her inside his room. The complainant had wanted to go back outside but he had pulled her forcefully. The ice block had fallen down. Johnny had pulled her right into his room. She doesn’t remember the date or month this happened, but remembers that it was a Saturday. She described Johnny’s room as a very large room. 
(xvi)	After going into the room, Johnny had asked her to lie down on his bed. She did not want to lie down. Johnny had then pushed her (onto the bed) to lie down. He took off his pants and laid on top of her and put his private part into her mouth. She had felt scared. She had then pushed him away and ran home. 
(xvii)	The witness was asked whether she knows any other names by which she could refer to Johnny’s private part? She said “Vo”.  When asked if she knows what males do with their private part, she said “No”.
(xviii)	The witness was asked the following further questions in Evidence in Chief:

Q.	Today you said about Johnny doing 3 bad things to you – he touched your breasts, he touched your private part and he put his private part in your mouth. Can you tell us on how many occasion did Johnny touched your breasts?
A.	I don’t remember.
Q.	Has he touched your breasts more than one time?
A.	Many times.
Q.	On how many occasions did he touch your private part?
A.	I don’t really remember.
Q.	How many times has Johnny put his finger in your private part?
A.	3.
Q.	Can you tell us where his private part on his body is?
A.	I don’t know. 
Q.	How did you feel about these incidents?
A.	Scared.
Q.	Did you tell anyone what Johnny did to you?
A.	No.
Q.	Why didn’t you tell anyone?
A.	I don’t know.
Q.	Did you tell anyone at home about this incident?
A.	No.
Q.	Did you tell anyone outside your home about this incident?
A.	No.

(xix)	The witness clearly identified Johnny as the accused in Court.
(xx)	In cross examination, the witness was asked about her friends who live at the Wailea Settlement. She had admitted that Ana is her friend and her neighbour. Ana is 1 year younger than her. She also remembers a boy named Jone who also lives at Ana’s house.
(xxi)	She was also asked about a cousin of hers named Molly. Molly, her mother and brothers and sisters has also been living at the complainant’s house at one time. Molly was also attending Pundit Vishnu Deo Memorial School. Molly was older to the complainant in age.
(xxii)	It was suggested to the complainant that at the time the Police had come to speak to her teacher, Giria Kapa, at her school, the complainant had a conversation with Molly and had told her that it was Jone who had done the bad things to her. The witness denied this suggestion.   
(xxiii)	It was also suggested to the witness that the reasons why she didn’t tell her mother or grandmother about the incidents which happened in January 2016 was because the incidents did not happen. The witness said she can’t remember. 
(xxiv)	The complainant also admitted in cross examination that the size of Johnny’s room was much smaller than what she described in her evidence in chief. 
(xxv)	It was suggested to the complainant that if it was true that Johnny was lying on top of her, it was physically impossible to have his private part in her mouth. The witness then said that Johnny sat down and put his private part in her mouth. The witness admitted that she had not mentioned this fact in her police statement. 
(xxvi)	The following further suggestion were also put to the complainant:

Q.	The reason why you did not make any complaint with your mother in January 2016 was because the incident you say in evidence never occurred?
A.	I was scared. That was the reason I did not tell my mother.
Q.	I suggest to you that you were upset that Johnny had chased you and Elenoa from his home?
A.	No.
Q.	I suggest to you that the reason why you did not tell anyone about Johnny taking you to his room, is because it not happen?
A.	It happened.
Q.	You were unhappy that Johnny had chased you and your friends from their home?
A.	No.
Q.	I also suggest to you that when you were asked by your cousin Molly as to why Police were in your school to see you, you told Molly that Jone (Ana’s cousin) had done something bad to you?
A.	No.
Q.	I suggest to you that after the weekend when you spoke to Molly, she asked you about the incidents again?
A.	I told her about what happened from school. It was about our case – mine and Johnny. 
	
[83]	Evidence of Giria Kapa
(i)	She is working as a teacher. She has been a teacher for 7 years. Her first posting was at Ratu Latianara Memorial School (taught Year 1), second posting was at Pundit Vishnu Deo Memorial School in Raiwaqa (taught Year 5) and currently she is teaching at Suva SDA Primary (teaching Year 8). 
(ii)	In the year 2016, she was teaching in Class 5 at Pundit Vishnu Deo Memorial School. The complainant was one of her students in her class. 
(iii)	She recalled an incident which happened one morning around 8.00 a.m., in the month of October 2016. The first lesson she was teaching that morning was on “moral values”. Topic was on “Safety”. She had been having a general discussion on this topic with her class. She had stressed a few points to the girls on safety. She had then told them, that if they go through anything that they feel they cannot share with their parents, that they could share it with her.
(iv)	At this point, the complainant had come up to her and said “Madam there is an Indian man at home always touching me”. The complainant had said that this man was fondling her. So she had asked the complainant to accompany her to the library so that this matter could be discussed further. The witness had also informed a Year 8 teacher, Mrs Vakalalabure, and requested her to be present as well. 
(v)	Thereafter, the complainant had told them that the Saturday before that weekend, she had gone to Johnny’s house to watch TV. Johnny was in the bedroom and had called the complainant to come into the room. When she entered the room, Johnny started touching her and fondled with her breasts and she said his finger went into her vagina. She had also told that Johnny took out his balls and put it inside her mouth. The complainant had told her that Johnny was her neighbour. He was an Indian man living next to her place at Wailea. 
(vi)	The witness had then informed her Head Teacher about this incident. 
[84]	Evidence of Dr. Elvira Ongbit
(i)	Currently she is serving as a Medical Officer at Medical Services Pacific (MSP). She has been based at MSP since 2012. She has been practising as a Medical Officer for more than 31 years. She now specialises in Obstetrics and Gynaecology. 
 (ii)	She conducted a medical examination on the complainant, on 15 October 2016 at 11.00 a.m. The Medical Examination Report was tendered to Court as Prosecution Exhibit PE2.
(iii)	In the column D10, history as related by the person to be examined, the Doctor has recorded that “Patient alleged that a certain Johnny Arun Pal  touched her breasts and external genitalia twice in January 2016 and twice in February 2016.”
 (iv)	The doctor testified that the term external genitalia is very broad. It comprises a lot of parts from the mons pubis, labia majora, labia minora, the clitoris, the urethra, the opening of the vagina (the hymen), fossa navicularis and posterior fourchette.  The vagina is inside. The vaginal opening goes inside. It is a tubular organ. Vagina is part of the internal genitalia. 
(v)	 As to her specific medical findings (column D12) or vaginal examination findings, the Doctor testified that there were no signs of fresh nor old injuries.
(vi)	The Doctor confirmed that in this medical examination she did not see any healed hymenal lacerations which meant that the hymen was intact.  
[85]	That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could give sworn evidence from the witness box and/or call witnesses on his behalf. He could also address Court by himself or his counsel. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times. In this case, the accused opted to offer evidence under oath and also called a witness in support of his case.

Case for the Defence
[86]	The accused gave evidence in support of his case. He also called witness Molly Tabaka. 

[87]	Evidence of John Rohit Pal
(i)	The accused testified that he is 48 years of age. His date of birth is 1 June 1971. So he is actually 47 years of age. He currently resides at Korociri in Nausori and is working at S K Motors. 
(ii)	He testified that he went to live in Canada when he was about 4 years old. He went to school in Canada. However, his father left them when he was only 10 years of age. So he left school to take care of his 3 sisters and younger brother, together with his mother. 
(iii)	He went to a vocational school and learned body work and spray painting and some mechanical work. 
(iv)	He was about 20 years old when he returned to Fiji. He came back on 18 September 1995. 
(v)	He is married to Sindu Lata Singh and they have a 14 year old son. After marriage, he and his wife resided in Wailea Street in Vatuwaqa. He has lived there since the day he got married. 
(vi)	He knows the complainant’s family. They live right across from his house in Vatuwaqa. There is a road in between. The complainant’s dad is Sikeli. In the past he has worked with Sikeli. 
(vii)	He explained that Sikeli was always struggling for money and had asked him for a job. The witness is a private contractor as well. So he got a contract at Ashok Transport. He, his wife and Sikeli went to work there for 1 week. 
(viii)	He testified that one night, his wife had informed him that she had seen Sikeli packing beer (a carton of beer) in duffle bag. When Sikeli came to collect his pay, the witness had asked him about this incident. Sikeli had denied the incident. Therefore, the witness had terminated Sikeli from working with him anyone. 
(ix)	The witness testified that Sikeli had been very frustrated and angry and had been swearing at him. “He said one day he will get even with me”. 
(x)	The witness testified that this incident took place sometime before 2016.
(xi)	When asked as to Sikeli’s attitude towards him since the incident, the witness testified that Sikeli calls him “kaidia” whenever they meet on the street. 
(xii)	He testified that he recalls a time in January 2016, where the complainant and her sister Elenoa had come home to watch TV. He came home from work. He put his bag down. He saw the 3 of them (the complainant, Elenoa and his son Ayush) watching TV on the long settee. He was frustrated when he saw them. So he chased them out of the house. He explained that he was frustrated because he had a stressful day at work. His wife and he had decided that they did not want anyone at their home in their absence, as his son does not do his homework.
(xiii)	The accused categorically denied all the allegations against him.
(xiv)	He testified to the day he got to know of these allegations against him. He remembers it was a Thursday but does not remember the month. He had returned from work and was sitting in the living room having coffee. The complainant’s mother’s sister came to the porch and she started threatening him. That is how he got to know that something was wrong. 
(xv)	The accused testified as to the time when he was arrested by the Police for this case, interviewed and then produced in Court. He had not been granted bail and was remanded in custody. While in remand, he had met the complainant’s father Sikeli. Sikeli had been arrested and remanded for assaulting his son (Ayush) and for breaking into his home. The complaint against Sikeli had been made by the accused and his wife. 
(xvi)	The witness then stated as to what Sikeli had told him whilst they were in remand. He had asked the accused $10,000.00 to settle the case. The accused had said that he does not even have a bank balance of that much. Thereafter, Sikeli had wanted $5,000.00. However, the accused had told him that he does not have that much of money. 
(xvii)	The accused was cross examined at length by the Prosecution. However, he continued to deny all the allegations against him. 

[88]	Evidence of Molly Tabaka
(i)	She is 15 years old. Her date of birth is 22 September 2002. She is living with her Pastor, Pastor Anna, at Laucala Beach. She is a follower of the Christian Cultural Centre Church. Her parents live at Davuilevu Housing.
(ii)	She is currently attending Davuilevu Methodist High School.
(iii)	In the year 2016, she was attending Pundit Vishnu Deo Memorial Primary School at Raiwaqa. She was in Class 8. She used to travel to school from Davuilevu on a daily basis. 
(iv)	She testified that the complainant is her first cousin. The complainant’s mother and her father are brother and sister. In 2016, the complainant was in Class 5. 
(v)	In 2014 and half of 2015, she had been residing with the complainant in her house at Wailea Street, in Vatuwaqa.
(vi)	She testified to an incident which took place in the year 2016, when the Police had come to school to see the complainant. She does not remember the exact day and month. 
(vii)	She had asked the complainant as to what happened and why the Police had come to school to see her. The complainant had told her that she was being touched by a boy named Jone. The complainant also stated that this had happened at Ana’s house. 
(viii)	The witness testified that after this initial conversation, she had spoken to her cousin again. This is because she had heard from the church that Ayush’s father Johnny had assaulted the complainant. So she was curious. She had asked the complainant “You told me that it was Jone?” However, the complainant had denied that she had told her that it was Jone. 
(ix)	The witness testified that she knows Jone. She had got to know him whilst staying at the complainant’s house. When asked how old Jone was, the witness said probably 17 years at that time (in 2015).

Analysis 
[89]	The above is a brief summary of the evidence led at this trial. The prosecution led the evidence of the complainant, her school teacher, Giria Kapa, and Medical Officer, Dr. Elvira Ongbit. The defence relied on the evidence of the accused himself and witness Molly Tabaka.
[90]	The prosecution relies upon the evidence of the Medical Officer, Dr. Elvira Ongbit. This kind of evidence is given to help you with scientific matters by a witness who has expertise. As you may have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefit, and to express opinions about them, because they are used to doing that within their particular field of expertise. 
[91]	You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.
[92]	As I have informed you earlier, the burden of proving each ingredient of the charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[93]	In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[94]	As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved beyond reasonable doubt. Based on the said agreed facts the identity of the accused is proved as it has been agreed that ‘John Rohit Pal is the accused in this matter’. All the other elements of the three offences must be proved by the prosecution beyond reasonable doubt.
[95]	The accused has testified in Court and totally denies all the allegations against him. The defence is also relying on the evidence of Molly, who is the first cousin of the complainant. 
[96]	The defence also showed certain inconsistencies and omissions in the evidence given by the complainant during her testimony in Court. I have already directed you on how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected. However, if there is no acceptable explanation for the inconsistency or omission, which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. 
[97]	To what extent such inconsistency or omission 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.
[98]	You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of three offences, beyond any reasonable doubt.
[99]	It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence led on behalf of the accused. You must consider his evidence and the evidence of Molly Tabaka also for its consistency and also the probability of their version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case.  
[100]	If you neither believe the evidence adduced by the defence nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charges.
[101]	However, I must caution you that even if you reject the evidence of the defence as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you. 
[102]	You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty of the other counts as well.
[103]	In summary and before I conclude my summing up let me repeat some important points in following form:
i.	If you believe the evidence of the defence, then you must find the accused not guilty of the charges;
ii.	If you neither believe nor disbelieve the evidence of the defence, then again you must find the accused not guilty of the charges;
iii.	If you reject the version of the defence, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution; 
iv.	If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charges;
v. 	If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charges of sexual assault and rape have been established beyond reasonable doubt. If so you must find the accused guilty.  If not you must find the accused not guilty.  
[104]	Any re directions the parties may request?
[105]	Madam Assessors and Gentleman Assessor, this concludes my summing up of the law and evidence.  Now you may retire and deliberate together and may form your individual opinions separately on the charges against the accused.  When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[106]	Your possible opinions should be as follows:

Count One

Sexual Assault- Guilty or Not Guilty

Count Two

Rape- Guilty or Not Guilty

Count Three

Rape- Guilty or Not Guilty

[107]	I thank you for your patient hearing.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 8th Day of June 2018

Solicitors for the State	: 	Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused	: 	Mamlakah Lawyers, Suva.