State v Daugunu - Summing Up [2018] FJHC 850; HAC74.2017 (14 September 2018)

IN THE HIGH COURT OF FIJI AT LABASA

CASE NO: HAC. 74 of 2017

[CRIMINAL JURISDICTION]

STATE

V

COMEKE KATA DAUGUNU

Counsel : Ms. U. Tamanikaiyaroi for State

Ms. K. Boseiwaqa for Accused

Hearing on : 11 – 14 September 2018
Summing up on : 14 September 2018
[The complainant’s name is suppressed. She will be referred to as “MV”.]

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. 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.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, 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.
   
6. 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.
   
7. 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.
   
8. 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.
   
9. 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.
   
10. 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.
    
11. 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.
    
12. 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.
    
13. 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.
    
14. In order to prove that the accused is guilty of the offence, the prosecution should prove all the elements of the offence beyond reasonable doubt. If you have a reasonable doubt concerning any one of those elements, that is, if you are not sure that the prosecution had proved that element beyond reasonable doubt, then you must find the accused not guilty of the offence. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in a short while.
    
15. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the said charge has been proven by the prosecution.
    
16. 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.
    
17. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offence;
    

Statement of Offence

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

Particulars of Offence

COMEKE KATA DAUGUNU, on the 22^nd of October 2017, at Labasa in the Northern Division, penetrated the vagina of MV, with a bottle, without her consent.

18. To prove the offence of rape in this case, the prosecution should prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the complainant’s vagina with a bottle;
    100. without the consent of the complainant; and
    4. the accused knew or believed that the complaint was not consenting; or

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

19. 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.
20. The 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 an object, namely a bottle. It is not necessary to prove full penetration. A slightest penetration is sufficient to satisfy this element.
    
21. The third and the forth elements are based on the issue of consent. To prove the third element of the offence of rape, the prosecution should prove that the accused penetrated the complainant’s vagina without her consent.
    
22. You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give consent and the fact that there was no physical resistance alone shall not constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority.
       
23. Apart from proving that the complainant did not consent for the accused to penetrate her vagina, the prosecution should also prove that, either the accused knew or believed that the complainant was not consenting; or the accused was reckless as to whether or not the complainant was consenting. This is the fourth element of the offence of rape.
    
24. What is meant by ‘reckless as to whether or not she was consenting’? If the accused was aware of the risk that the complainant may not be consenting for him to penetrate her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s vagina, you may find that the accused was reckless as to whether or not the complainant was consenting. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not.
    
25. Please remember that knowledge and intention of the accused can only be inferred based on the other proven facts because you will not find direct evidence regarding same.
    
26. Now let us look at the evidence. Please remember that I will only refer to evidence which I consider important to explain the case and the applicable legal principles to you. If I do not refer to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit.
    
27. The complainant said in her evidence that;
    1. She is 24 years old. The accused’s elder brother was a neighbour in October 2017. She got to know the accused and one evening she requested the accused to cut her hair. When the accused cut her hair, he told her “if your hair can be cut in the night”. She just smiled when he said this. They used to message each other through Facebook. She gave evidence on certain instances where she was alone with the accused after they came to know each other.
    2. On 22/10/17, she went to Fusion Nightclub with her cousin and his friends. On their way back they had to wait near Home & Living for her cousin’s friends. Then she met the accused and she left with the accused to go home.
    100. While walking, the accused put his arms around her shoulder and he kissed her. She kissed him back. When they reached their driveway, the accused picked up a 1 litre plastic bottle containing liquor which he had previously hidden near the Fiji Teachers Union (FTU) Building and then they went to the wharf to drink that.
    4. Thereafter they went and sat down beside the Sawmill and the back road. While they were sitting there, the accused asked her whether they can have sex and she said ‘no’. She said the accused asked her three times and her answer was the same.
    5. Then the accused forcefully removed her pants including her underwear by pulling them down. Before the accused pulled her clothes, she was sitting on the ground leaning against the fence of the Sawmill. Her legs were stretched in front. She kicked the accused when he removed her clothes and then the accused inserted the side of the bottle where the lid was, inside her vagina. She said the accused did not insert it straight but slanted it downwards towards the bottom of her vagina and it was painful. She screamed when he did that. She felt the lid of the bottle going inside her vagina.
    6. The accused inserted the lid and pulled it out which took about 3 seconds. He then stood up and left with the bottle. He told her to wait for his signal to leave the place but he did not signal or came for her after that. This incident happened between 1am and 2am. She waited there till around 3.00am and then she went towards her house.
    7. She said that the accused did not ask her whether he could insert the bottle inside her vagina and she did not give her consent for him to do so. She said, when the accused inserted the bottle she was afraid and was ashamed. She did not say anything, but was crying when he did that. She did not do anything with her hands because her hands were weak as she was drunk. She also said that the accused did not use much power when he inserted the bottle.
    8. She said the accused was at the gate when she approached their driveway and the accused followed her until she reached her house but they did not talk to each other.
    9. She said that on 23/10/17 the accused told her “vinaka na crack” at the passage to their house. She got angry and felt ashamed when the accused said that.
    10. She first relayed to her boyfriend Paula about what the accused did to her that night. This was on Tuesday. Paula told her to inform her mother and accordingly she informed her mother on the same day of what the accused did to her. She did not inform anyone before that because she felt ashamed and her parents did not know that she went to the nightclub.
    11. After she informed her mother, her mother and Paula confronted the accused and the accused denied the allegation. Then her mother wanted to report the matter to the police. When she was following her mother to stop her from reporting the matter, the accused followed the complainant and told her not to report the matter and he can give her anything she wants. She stopped her mother by telling her that she will report the matter herself. She reported the matter to the police on the next day which was a Wednesday.
    50. She said Paula did not know about her meeting the accused and kissing him but the accused knew that she had a boyfriend. She said she is highly ashamed of the rumours regarding the incident that are spread after she reported the matter to the police.
    13. During cross-examination, referring to the instances where she went to few places together with the accused and the instance where the accused cut her hair, she agreed that she liked the accused at that time. She agreed that there were security guards in the surrounding area where the Sawmill was situated.
    14. She denied the suggestion that the accused’s friends were following her and the accused, when the accused picked the bottle near the FTU building and the suggestion that the accused gave that bottle to his friends. She denied the suggestion that she had consensual sex with the accused at the back of the Sawmill.
    15. When it was suggested that the reason the accused told her that he will signal her when to leave was because his friends that were following her and the accused were sitting at the empty block next to the Sawmill, she said, she saw them at that block when she left the place around 3.00am. When it was suggested that she could have gone through the empty block, she said, she was afraid to take the shortcut and she went the long way because the accused and his friends were on the road.
    16. She agreed with the suggestion that the accused did not deny having sex with her but he denied using the bottle when her mother and the boyfriend confronted the accused.
    17. When it was suggested to her that she did not report the matter though she had many opportunities since Sunday morning, she said, she didn’t report because she felt ashamed of what the accused did to her, it was a downgrading behaviour and at that time she could not share that with anyone.
        
28. With regard to making a complaint about the alleged incident, please note that, 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 in making a complaint, you should see 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 offence the accused is charged with.
    
29. The defence says that the complainant is lying and she had fabricated the allegation against the accused in this case to protect her reputation because rumours were going around that she slept with the accused that Sunday morning.
    
30. The second prosecution witness was the complainant’s boyfriend. He said that;
    1. On 24/10/17, the complainant told him over the phone that on the previous Sunday she went to a nightclub with her cousin and on the way back she met the accused and then the two of them came together. They went behind the Sawmill and there the accused asked the complainant whether they can have sex and the complainant refused. Thereafter the accused forcefully pulled the complainant’s pants down and inserted a plastic bottle inside her vagina.
    2. After the complainant told him this, he came to the barracks where the accused was living and confronted the accused along with the complainant’s mother. He said the accused denied the allegation. He said that the accused told him that the accused asked the complainant and the complainant said ‘yes’, but the accused did not insert the bottle.
    100. During cross-examination he agreed that, by the time he confronted the accused people had heard that the complainant and the accused had slept together.
         
31. The prosecution says that they are relying on the evidence given by the second prosecution witness as recent complaint evidence. In this regard you should consider whether the complaint made to this witness was a prompt complaint regarding the incident and whether the complainant sufficiently complained of the offence the accused is charged with.
    
32. Such complaint need not specifically disclose all the ingredients of the offence and describe every detail of the incident. But it 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 was told to him by the complainant is true because he did not actually witness the incident relayed to him. His evidence 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.
    
33. The third prosecution witness was the complainant’s mother. She said that;
    1. On 24/10/17 the complainant told her that the accused inserted a bottle with a lid in the complainant’s female body part. After the complainant told her this, she confronted the accused and the accused told her that he did not do anything to the complainant.
    2. Thereafter she wanted to go to the police station to make a complaint but the complainant stopped her stating that the complainant herself will go to the police.
    100. During cross-examination she denied the suggestion that the accused admitted that he had sex with the complainant.
         
34. You have to bear in mind that the third prosecution witness’ evidence cannot be considered as recent complaint evidence as she is not the first person the complainant made the complaint to. Further, the third prosecution witness also cannot confirm whether what she was told by the complainant is true because she did not herself witness the alleged incident.
    
35. The fourth prosecution witness was Dr. Vika Vuniwa. She said that;
    1. She is a medical doctor with 03 years of service. She said she serves in the obstetrics and gynecology department at the Labasa Hospital since 2017. She examined the complainant on 25/10/17. She tendered the medical report as PE 1. She said she observed a cleft on the complainant’s vaginal orifice at 5 o’clock position. She drew a diagram while giving evidence and pointed out where she had noted the said injury. The diagram she drew was tendered as PE 2.
    2. She said a cleft is a split or a separation in the continuity of a smooth surface. She said when she tapped the said cleft with a swab, the complainant expressed pain. She said that the said injury could have been caused by a blunt object including the top of a bottle. She also said that in a certain percentage of sexually active women, this is a normal finding. She said the injury was recent and it could have been 3 to 4 days old.
    100. She said if there was a rough penetration by a penis she would expect to see such injury but would not expect if it was slow sex. She said she would not expect to see much of a difference where a bottle or a penis is used to penetrate.
    4. During cross-examination she further explained that a cleft would be a normal finding in certain women and would not indicate an injury. She agreed that it could be caused by scratching.
       
36. The fourth prosecution witness gave her medical opinion based on what she observed and her 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 her evidence will therefore include a consideration of her expertise, her findings and the quality of the analysis which supports her opinion.
    
37. When you consider PE 1, you should remember that what is written in A(4) and D(10) are not admissible when you are to decide the issue 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. The prosecution is not relying on the appendix on page 5 of the report which is blotted out.
    
38. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give evidence on oath and to call one witness.
    
39. The accused said in his evidence that;
    1. He was not well acquainted with the complainant until the day she requested him to cut her hair. After that day, he met up with her on a few occasions. He said he went to the complainant’s cousin’s room because the complainant texted him to come. He asked her to switch off the lights because the neighbours can easily see them talking as the flats were situated close to each other. He said the complainant did not push him away and they kissed each other. He was there only for about 1 to 2 minutes.
    2. He said he asked the complainant whether she has a boyfriend when he went with her to buy grog and the complainant told him ‘no’.
    100. He said one morning he called the complainant to his room when he saw her washing outside. The complainant came to his room and they kissed each other for less than a minute.
    4. On 21/10/17 after taking part in CMF sevens, he went with his team to Naodamu to have a team-talk. There were around 12 team members and supporters and they had grog there till 11.30pm. Thereafter they drank 2 bottles of homebrew. At about 12.00am, they went to Pontoon Nightclub and drank beer. After the nightclub closed he went with the others to the place where he had hidden the 1 litre homebrew bottle. This was near the FTU Building.
    5. On their way he met the complainant near Home & Living. He asked the complainant’s cousin whether he can go home with the complainant and he left with the complainant. The team members were following them. After he retrieved the bottle, he gave the bottle to one Meli and told him to go to Naodamu and he will come later.
    6. Thereafter he went with the complainant to the back of the Waiqele Sawmill Yard and sat down at a place which was a bit far from the road. They were leaning onto a concrete wall. He said they started talking and the complainant complemented on his performance. Then they started kissing. After that he requested the complainant to have sex but she said she can’t because she is a virgin. Then he wanted them to leave the place. The complainant then told him that she can have sex, but she is afraid. He told her if she is ready they can have sex and she responded by nodding her head.
    7. Thereafter they had consensual sexual intercourse. He said the complainant undressed herself. He said the complainant felt when he penetrated her vagina with his penis. He said he lost his erection and thereafter they got dressed and started walking. Then the complainant pulled him back and they sat down again. He said the complainant wanted to have sex again. Though he agreed, he could not get an erection. The complainant then got angry and she slapped him and also threw his shirt in the nearby drain. He said she later apologized.
    8. After that he told her to wait there for his signal and he went to his team members who were drinking. He wanted to signal her to come later when it is clear because of his team members. When he went to them they had already finished the bottle. After about 10 minutes he saw the complainant coming towards them. He then went to the complainant and escorted her because the others were drunk.
    9. When he saw her again on the following Monday afternoon, he passed a remark to her saying “thank you for the crack”. What he meant was that it was the first time for the complainant to have sex. He said he was just joking. He said he realised that the complainant was not a virgin. He said he did not insert a bottle inside the complainant’s vagina.
    10. He said, when the complainant’s mother and the boyfriend confronted him on the following Tuesday, he denied inserting a bottle but admitted having sex with the complainant. Thereafter the complainant’s mother left to go to the police station to report the matter and the complainant followed her. He also followed them as the complainant asked him to do so. He said he was scared and he told the complainant not to report and told her that he will give her anything she wants.
    11. During cross-examination he said that Meli is related to him as his uncle. He admitted that the first time he asked the complainant to have sex that morning she said ‘no’. He said that the complainant told him that she is a virgin, when he asked the second time. He denied asking the complainant to have sex with him a third time.
    50. He said the complainant came to the road before he could signal her.
        
40. The second defence witness was Meli S. He said that;
    1. He knows the accused and the complainant. He said on 21/10/17 he was drinking with his teammates after CMF games until next morning. That morning he was at the Pontoon Nightclub with the accused. After that they left the nightclub to get the 1 litre bottle with ‘Daru’ which was hidden by the accused near the FTU Building. On their way, he saw the complainant standing with her friends in front of Home & Living. He said the accused went to the complainant. Then the accused and the complainant went together along the footpath and he was walking with others in the middle of the road.
    2. He said the accused retrieved the bottle and gave it to him. He then with the others left towards Naodamu to continue drinking while the accused and the complainant remained there. But they decided to drink beside the FEA post opposite the gate to the flats and they came back. When they came back the accused and the complainant were not there.
    100. After awhile the accused came through the crosscut from the Waiqele Sawmill. Thereafter he saw the complainant coming along the long way towards the CJ Patel Building. He said the complainant stood there for about 10 minutes. Thereafter she crossed the road and the accused saw her. The accused then went with her towards the flats.
    4. He said the accused did not have a bottle with him when he left the accused after receiving the bottle from the accused and the accused did not have a bottle with him when the accused came to where they were drinking thereafter.
    5. During cross-examination he said the accused is his nephew. He said they would not have followed the accused if it was not for the bottle and they wanted the accused to give that bottle to them.
       
41. The admitted facts are as follows;
    1. It is agreed that MV is the complainant [hereinafter “the complainant”].
    2. It is agreed that PT is the boyfriend of the complainant [hereinafter “Paula”].
    3. It is agreed that Comeke Kata Daugunu is also known as “Junior” [hereinafter “Junior”] by the complainant.
    4. It is agreed that the complainant and Junior are known to each other.
    5. It is agreed that the complainant and Junior first came into contact directly when the complainant asked the accused to cut her hair.
    6. It is agreed that the CMF Sevens was held on 21^st October 2017.
    7. It is agreed that on the early morning of 22^nd October 2018 [hereinafter “the said date”] the complainant and Junior met and left town together.
    8. It is agreed that before the said date the complainant and Junior would make contact with each other using facebook messenger.
    9. It is agreed that on the said date Junior and the complainant had both consumed alcohol before they met.
    10. It is agreed that on the said date Junior and the complainant went together to get a 1 litre juice bottle containing “Daru” containing liquor that the accused had hidden near the Fiji Teachers Union building.
    11. It is agreed that on the said date the complainant and Junior went together and sat behind the Waiqele Sawmill yard.
    12. It is agreed that on the said date Junior asked the complainant for sex whilst they sat at the back of the Sawmill yard.
    13. It is agreed that on the said date whilst they sat at the back of the Sawmill yard Junior told the complainant that he would leave first and then signal for the complainant to leave the same place.
    14. It is agreed that sometime on Monday 23^rd October 2017 Junior uttered the words “vinaka na crack” meaning “thank you for the crack” to the complainant.
    15. It is agreed that on Tuesday 24^th October 2017 Junior was confronted by Karalaini and Paula about the alleged incident.
        

Analysis

42. In assessing the evidence you may find it useful to consider the following;
    1. According to the complainant the accused forcefully pulled down her pants while she was sitting on the ground and leaning onto a fence. There was no mention of any struggle. Would you consider this evidence to be probable?
    2. The complainant denied the suggestion that the accused’s friends were following the two of them when the bottle was retrieved by the accused but later, answering another question she said that the accused’s friends were there at the empty block when she left the place around 3.00am. Given that the accused’s version is that he gave the bottle to his friends after he retrieved it, what weight would you give to the above evidence of the complainant where she first denies that the accused’s friends were following them but later acknowledges that the friends that followed them were there at the empty block when she was leaving the place; in deciding the reliability of the account given by the complainant?
    100. In her examination in chief the complainant said that after the alleged incident near the Sawmill she met the accused again at the gate, but during cross-examination she said the accused and his friends were on the road. Would you consider this as a material inconsistency and if so, was there any acceptable explanation?
    4. The complainant said that she heard the rumours after she reported the matter to the police; but her boyfriend, the second prosecution witness admitted that by the time he confronted the accused people had heard that the complainant and the accused had slept together.
       
43. Considering the admitted facts, the facts you would consider to have been proved beyond reasonable doubt based on the evidence led in this case and the reasonable inferences you would draw from those proved facts, you have to ask yourselves, firstly, whether you are satisfied beyond reasonable doubt that the complainant had given you a truthful and a reliable account. Thereafter, you should decide whether the elements of the offence have been proved beyond reasonable doubt given the evidence you would consider to be credible and reliable.
    
44. 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.
    
45. 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.
    
46. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise;
    
    • (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.

47. Any re-directions?
    
48. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge 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.
    
49. Your opinion should be whether the accused is guilty or not guilty.
    

Vinsent S. Perera
JUDGE

Solicitors:

Office of the Director of Public Prosecutions for State
Legal Aid Commission for Accused