State v Chand - Summing Up [2019] FJHC 484; HAC98.2018 (23 May 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 98 of 2018

[CRIMINAL JURISDICTION]

STATE

V

RAJESH CHAND

Counsel : Mr. I. Rakaria for the State

Mr. A. K. Singh with Mr. P. R. Sharma for the Accused

Hearing on : 20 - 23 May 2019
Summing up on : 23 May 2019

[The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “SK”. No newspaper report or radio broadcast of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of the said complainant.]

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. Please remember that you should accept the directions on law that I will be giving you in this summing up and should 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 you agree with that opinion. You are the judges of facts.
   
2. 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. Evidence you should assess in this case is what the witnesses said from the witness box inside this court room, the admitted facts and the exhibit tendered. A few things you heard inside this court room are not evidence. This summing up is not evidence. Arguments raised by the lawyers for the prosecution and the defence during the proceedings, their questions and comments 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 if you agree with them.
   
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. The complainant said he is 15 years old and he gave evidence about an incidents that had allegedly taken place last year in 2018. You may have come across children of his age. You will have an idea of the way a child of a particular age behave, think, talk and the way they describe things.
   
7. 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 what they were doing was wrong.
   
8. 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.
   
9. 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 when recalling past events.
   
10. 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 any inconsistency you may come across. 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. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. In this regard, 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.
    
11. 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.
    
12. 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.
    
13. 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.
    
14. 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 proven facts and reasonable inferences. However, you should bear in mind that the inference you draw should be 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.
    
15. 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.
    
16. 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 an accused beyond reasonable doubt in order for you to find him guilty. You must be sure of the accused person’s guilt.
    
17. In order to prove that an 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.
    
18. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not those charges have been proved.
    
19. I must explain to you as to the reason for the use of the screen when the complainant gave evidence. It was a normal procedure adopted in courts on the request of the prosecution to make a particular witness relatively more comfortable when giving his/her evidence. You must not infer that such a protection to the witness was warranted due to the accused’s behaviour and should not draw any adverse inference against him on that account.
    
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. Let us now look at the amended Information. The Director of Public Prosecutions has charged the accused for the following offences;
    

COUNT ONE

Statement of Offence

Rape: contrary to section 207(1) and (2)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

RAJESH CHAND, on the 28^th day of January, 2018 in Nausori, in the Central Division, penetrated the anus of SK, with his penis without his consent..

COUNT TWO

(Representative Count)

Statement of Offence

Rape: contrary to section 207(1) and (2)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

RAJESH CHAND, between the 29^th day of January and 30^th day of January, 2018, in Nausori, in the Central Division, penetrated the anus of SK, with his penis without his consent.

22. The accused is charged with two counts. However, please remember that you should consider each count separately. That is, you must not assume that the accused is guilty of the other count just because you may find him guilty of one count.
    
23. On both counts the accused is charged with the offence of rape. To prove the offence of rape this case, the prosecution should prove the following elements beyond reasonable doubt.
    1. the accused;
    2. penetrated the anus of the complainant with his penis;
    100. without the consent of the complainant; and
         • (i) the accused knew or believed that the complaint was not consenting; or
         • (ii) the accused was reckless as to whether or not he was consenting.
           
24. The first element is concerned with the identity of the accused. In this case this element is not in dispute in respect of both counts.
    
25. The second element involves the penetration of the complainant’s anus with the penis. The law states that this element is complete on penetration to any extent. Therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.
    
26. 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 anus without his consent.
    
27. 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.
       
28. Apart from proving that the complainant did not consent for the accused to insert his penis inside his anus, 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.
    
29. It is not difficult to understand what is meant by the sentence “the accused knew or believed”. But you may wonder as to how you could determine whether the accused was reckless. If the accused was aware of the risk that the complainant may not be consenting for him to penetrate his anus and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate the complainant’s anus, 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.
    
30. You should also remember that no witness can look into an accused’s mind and describe what it was at the time of the alleged incident. Therefore, it is not possible to have direct evidence regarding an accused’s state of mind. Knowledge or intention of an accused can only be inferred based on relevant proven facts and circumstances.
    
31. 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.
    
32. The complainant (PW1) said in his evidence that;
    1. He is 15 years old and his date of birth is 13/05/2004. On 28/01/18 he came to Nausori town to exchange a DVD. While he was going home after exchanging the DVD, he met the accused in front of Wishbone.
    2. He said he first met the accused in 2017 during Ram Naumi celebrations. He said the accused introduced himself and told him to sit beside the accused. Then the accused asked him personal details. He said that the accused is not related to him. He said he can’t recall whether he met the accused since that day until 28/01/18.
    100. When he met the accused on 28/01/18, the accused asked him whether he can help the accused to clean the accused’s video shop. He agreed and went to the video shop with the accused. The accused locked the door when they went inside. The accused asked him whether he wants any movies and he said ‘no’.
    4. Thereafter, the accused took a piece of cloth and a bottle of gel from the counter and called him to a corner. The accused told him to lie down on the tiles. Nothing came to his mind when the accused said this. He then lay down facing downwards.
    5. The accused opened his pants and he asked the accused what he is doing. The accused told him to shut up or otherwise the accused will call his friends from the billiard shop and hit him. The accused also told him not to tell anyone about this.
    6. After that the accused opened his (accused’s) underwear, applied the white gel from the bottle inside his anus and then the accused inserted the accused’s erected penis in his anus. He said he could feel when the accused inserted his penis because it was hard and he felt the pain. He said he did not allow the accused to put his penis inside his anus. When he felt the pain he told the accused that it was paining and the accused did not say anything. The accused then took the penis out from his anus and put it underneath, [between] his thighs.
    7. He said he felt afraid when the accused inserted his (accused’s) penis inside his anus. He said he did not yell because no one was there in that building. He said that after the accused put his penis underneath, the accused “kept on doing it until the sperm came out”. The accused then wiped the sperm with the piece of cloth he brought.
    8. Thereafter the accused told him to put his pants on and they went outside the shop. He said that the accused told him to go home and not to tell anyone about the incident. He said he went home and did not tell anyone about what the accused did to him.
    9. He said that he met the accused again either on 29^th or the 30^th; he could not recall the exact date. He met him near the Nausori Bus Stand around 3.30pm. When he was near the bus stand the accused was returning from the market. The accused asked him to come to the video shop. He replied saying “no, you do bad things there”. Then the accused told him that he won’t do anything today because his boss is there. Then he went with the accused. He said it took them around 5 minutes to reach the video shop.
    10. He said the accused’s boss Abdul and one Fijian boy was there inside the shop. After a while Abdul went down to have his tea. Then the accused called him to where the accused was sitting and the accused kissed his lips. The accused then told him not to tell that and about what happened on Sunday, to anyone. He said that he did not allow the accused to kiss his lips.
    11. Thereafter the accused told him to take his pants off. He removed his pants. He said he removed the pants because the accused asked him to remove them and because the accused warned him. He said he was afraid. Then the accused opened a drawer in the counter and took the same gel and a piece of cloth. The accused then applied the gel in his anus and then put the accused’s penis inside his anus. He said the penis went inside his anus on the first time but the second time it went underneath.
    50. He said he did not allow the accused to put his penis inside his anus. He said he told that to the accused that day. When he did that the accused told him, “you want me to call my friends and hit you?” He did not say anything when the accused said this to him. He said he was scared.
    13. Thereafter when the sperm came out, the accused told him to wipe it. But then when the accused saw the boss coming back, the accused told him not to wipe but to go like that. Then he went without wiping. He said he took the accused’s phone with him. He said, at that time he did not know that the phone belonged to the accused and he took it because he thought one customer had left it there.
    14. He said, during the same week, on Friday the accused came with one lady to his school. He was called to the office and the Vice Principal asked him about the phone in front of the accused and the lady. First he said that be does not have the phone. But when the Vice Principal ‘growled’ at him, he said he has it. Then the Vice Principal told him to bring the phone on the following Monday. However he returned the phone to the accused on Saturday at the same video shop.
    15. On Monday the principal called him to the office and asked him about the phone. He told the principal everything about the phone. Thereafter the principal wanted to call his father to inform about him stealing the phone. Then he told the principal not to call his father and that the accused is not good. Thereafter when the principal asked why he said that, he told the principal what happened on 28^th, 29^th and 30^th. Thereafter the principal referred the matter to the police.
    16. He said when the case was going on, the accused wanted him to withdraw the case and offered $2000. He said he agreed and then the accused brought one paper and he signed on that paper. That day the accused gave him $50.
    17. During cross examination he denied the suggestion that he told the accused that his name is ‘Shalen’ when he first met the accused during Ram Naumi. He denied the suggestion that the accused was a friend of his, before 28/01/18. Thereafter when he was shown his police statement where it was stated that “I met my friend namely Rajesh...”, he said he did not say that to the police.
    18. When he was asked whether it is possible that he may be mistaken with regard to the date where it could be 21^st and not the 28^th, he said, “can be”. When it was suggested to him that the evidence he gave about lying down facing downwards took place on 21/01/18, he said “yes”.
    19. He agreed with the suggestion that most of the evidence he gave in court is not there in his police statement.
    20. Being questioned about the second incident, when he was asked whether it is correct that when the accused’s boss left, there were three individuals in the shop, he said he cannot recall. He denied the suggestion that the accused’s boss spoke to him.
    21. He denied the suggestion that he told the accused that his name is Shalen and he was 16 years old.
    5. When it was suggested to him that on Thursday 01/02/18 he went to the same video shop between 3.30pm to 4pm, he said he cannot recall. He admitted that the Vice Principal asked him whether he stole the accused’s phone on Thursday, 01/02/18. He also agreed that he admitted stealing the phone when the Vice Principal told him that the matter will be reported to the police.
    23. He agreed that he returned the phone on Saturday through his cousin. He also agreed that he did not tell the Vice principal or the Assistant Principal on Friday, 02/02/18 that the accused had sexual intercourse with him. When it was suggested that he told the doctor about the first incident only, he said he cannot recall.
    10. During re-examination he said the date of the first incident is 28/01/18. He said he cannot recall whether he met the accused on 21/01/18.
        
33. The second prosecution witness was Wasu Deo (PW2). He said;
    1. He is the principal of the school where the complainant was schooling in 2018. He said he can recall the date 05/02/18 which was a Monday. He said he was on leave on the previous Thursday and Friday. When he resumed work on 05/02/18, he was briefed about the complainant stealing a phone.
    2. He called the complainant as he wanted to know why the complainant did that. When he asked, the complainant told him that the complainant was angry with the person who owned the mobile because that person was touching him asking him to remove the pants. He said that the complainant told him “he did it”. Then he directed the Assistant Principal to take the complainant to the police station.
    100. During cross-examination he said that he was available in his office on 29^th, 30^th and 31^st January 2018.
         
34. The third prosecution witness was Dr. Tuamoto (PW3). She said that;
    1. She had been a medical officer for 5 years. She said she examined the complainant on 05/02/18. The relevant medical report was tendered as PE1. She said she observed an abrasion at 6 o’clock position and mild bruises in the anus on the perineal area. She said this injury could have been caused by a foreign object including a penis. She said the injury looked fresh and recent.
    2. She said that she was informed that the date of the incident is 28/01/18.
    100. During cross-examination she agreed that she cannot say the age of the injury.
         
35. The fourth prosecution witness was the Assistant Principal of the School the complainant attended in 2018 (PW4). He said that;
    1. He was present when the Principal questioned the complainant on 05/02/18 about being touched and that he took the complainant to the police station.
    2. During cross-examination he agreed that a man called Rajesh Chand who came with a lady reported on 02/02/18 that the complainant stole his (Rajesh Chand) phone on Thursday afternoon.
    100. He said that the two of them did not know the complainant’s name.
         
36. The fifth prosecution witness was Mr. Abdul Ziad (PW5). He said that;
    1. He is the owner of the video shop the accused was working at the material time. He said the video shop is open from Monday to Saturday but closed on Sundays. He said he does not allow his employees to open the shop on Sundays.
    2. During cross examination he said the employees are not allowed to open the shop for cleaning on Sundays.
    100. He said that the complainant came to the video shop on 29^th, 30^th and 31^st January and on 01^st February in 2018.
    4. He agreed that on Monday 29^th January he left the shop to have his tea from 3.30pm to 4.00pm. When he left the shop, the accused, the complainant and some customers were there in the shop. He said, the complainant was still there when he returned. He said it was him who asked the complainant to leave that day and that would have been around 4.00pm.
    5. He said, on Tuesday when the complainant came to the shop a lady by the name of Premila was there. He said, on Thursday 01/02/18 the complainant was there in the shop between 3.30pm and 4.00pm and that day he sent the accused to deliver one movie to another video shop. He said the complainant was sitting on the accused’s chair when the accused left the shop.
    6. He said the complainant left before the accused returned. As soon as the accused returned, the accused noticed that his (accused) phone is missing. When the accused asked him he told the accused that the complainant was sitting there and Premila was charging the phone. Then he sent the accused to look for the complainant at the bus station. After the accused came back, he closed the shop and went with the accused and Premila to look for complainant. He said they went as far as Naduru Road but they couldn’t find the complainant.
    7. When he was asked whether the complainant complained to him that the accused did anything to the complainant, he said “no, but I asked him do you know Rajesh and he said yes”.
    8. During re-examination he said that it is not possible that he is mistaken about seeing the complainant on 29, 30, 31 and 1^st because he saw the complainant on those days.
       
37. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he do not have to prove anything. The burden of proving an accused’s guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give evidence.
    
38. The accused said in his evidence that;
    1. He is not married and the reason he did not get married is because he had an accident and after that he cannot get an erection.
    2. He said two years ago he went to Naduru in Ram Naumi. When it was time to eat ‘prasad’ the complainant came and sat beside him. Thereafter they had a conversation.
    100. Thereafter he met the complainant in 2017 when he was going to the market. He said the complainant pinched him from behind and asked him whether he can recognize the complainant. When he said that he does not know, the complainant reminded him that they met in Ram Naumi. Then he told the complainant “you have grown so big”. He said that the complainant replied by saying “yes, I am now 16 years old”.
    4. He recalled meeting the complainant in January 2018. He said he was going to deliver movies and he met the complainant near Wishbone. He said that he asked the complainant’s name and the complainant told him that his name is ‘Shalen Kumar’.
    5. The next time he met the complainant was on 21^st January. He said he wanted to sweep and mop the shop on the 20^th which was a Saturday but since there was no water he came on Sunday which was 21^st January 2018. When he was opening the door the complainant came behind him and when he asked what the complainant was doing there, the complainant said he is just roaming around. When he said that he is going to clean the shop the complainant followed him and told him that the complainant can have a conversation with him while he cleans the shop.
    6. Thereafter while he was sweeping, the complainant was having a conversation with him. He said, before they came inside the shop he closed the door downstairs because it was a Sunday and they do not open the shop on Sundays. After sweeping, he wanted to mop but there was no water. Thereafter the complainant started touching his penis. He said he told the complainant that he cannot have an erection because he had an accident. Then the complainant told him “I want it”. Thereafter the complainant went and lay down on the left corner of the shop and told him ‘just do it’. He again told the complainant that he is unable to have an erection. And he told the complainant “let’s go, I am going”.
    7. He said the complainant had already taken his pants half way down when the complainant lay down. He said he went on top of the complainant between the legs and because he could not have an erection he stood up. He said he was on top of the complainant for one or two minutes and at that time he was wearing his underwear but his penis was out. He said his penis touched outside the anus of the complainant.
    8. He said there was no cloth or gel in the video shop. He said he used to get cloths from the nearby tailor for dusting but thereafter he would throw them away.
    9. He said there was a prayer ceremony at his home on 28/01/18.
    10. He said the complainant came to the shop between 3.30pm and 4.00pm on Monday, 29^th January and the complainant asked for bus fare that day. He said he gave the complainant $1. That day when the complainant was in the shop his boss went to drink tea. When the boss left, one Premila Wati was in the shop who had come to charge her phone. When the boss returned, the boss asked the complainant to go home. He said the complainant also came to the shop the following Tuesday, Wednesday and Thursday. He said that on 29^th and 30^th the shop was busy and Premila and other customers were there in the shop and he did not kiss the complainant on those days.
    11. He said on Thursday 01/02/18 he was there in the shop with his boss between 3.30pm to 4.00pm. Premila was also there. The boss sent him to bring movies. He said the complainant also came to the shop between 3.30pm and 4.00pm. When he left to pick the movie, the complainant was sitting on his stool (chair).
    50. When he returned, he noticed that his phone was missing. His boss told him that the complainant was sitting where his phone was kept and that the complainant had just left. He then went to the bus stand but could not find the complainant. Thereafter he went with his boss and Premila to Naduru to look for the complainant. At that time he knew the complainant as Shalen Kumar. They were unable to locate him.
    13. Friday 02/02/18 around 8.30am he went to Saraswati School with Premila. He was told that there was no one by the name Shalen Kumar. Then they went to look for the complainant in the classroom and managed to locate the complainant. Thereafter they went to the office and the complainant was also called to the office. The Vice Principal asked the complainant about the phone. The complainant first denied but when the Vice principal told the complainant that she will call the police, the complainant admitted.
    14. He said the complainant’s uncle’s son returned the phone on Saturday and the phone was given to him outside the video shop.
    15. He said on 21/01/18 he did not use any force to have sex with the complainant. He said he did not threaten the complainant. He said the complainant consented for what happened on 21/01/18 and such an incident did not happen on the 29^th or the 30^th.
    16. During cross examination he said he does not have a medical report to confirm that his penis cannot erect. He said his medical reports with regard to the injuries he sustained during the accident were swept away during a flood. He confirmed that on the 28/01/18 there was a prayer ceremony at his house and his brother can confirm that. He denied the suggestion that he gave $50 to the complainant and also that he gave a withdrawal letter to the complainant to withdraw this case. He also denied the suggestion that he told the complainant sometime last year that once the case is withdrawn he will pay him $2000.
    17. During re-examination he said that the accident he was referring to, took place 10 to 12 years ago.
        
39. In respect of the first count, the prosecution case is that the accused penetrated the complainant’s anus with his penis without the complainant’s consent on 28/01/18. According to the accused, he did go on top of the complainant, but he could not insert his penis inside the complainant’s anus because he cannot get an erection as a result of the injuries sustained in an accident 10 years ago.
    
40. However, according to the accused, this incident took place on 21/01/18 and it took place with the complainant’s consent. If you consider the evidence, both the complainant and the accused says that the incident relevant to the first count took place on a Sunday. The complainant said that when he met the accused, the accused asked him whether he can help the accused to clean the shop. The accused said that, that day he came to clean the shop and when he told this to the complainant, the complainant wanted to have a conversation with the accused while the accused clean the shop. Therefore, according to both of them, the accused came to the video shop on the day in question to clean the shop. Moreover, at one point, the complainant said that it is possible that he could be mistaken about the date that it could be 21^st instead of 28^th.
    
41. Therefore, given the evidence if you are sure that both the complainant and the accused were referring to what took place on the same day in relation to the first incident and in the event you find that the date should be 21/01/18 and not 28/01/18 as stated in the particulars of the offence, you may consider that such variance between the evidence you accept and the date mentioned in the particulars of the first count is not material as long as you are sure that the accused was not prejudiced in anyway due to that variance.
    
42. When you deliberate on the first count, in the event you find that the accused did insert his penis inside the complainant’s anus, but you find that the elements involving consent are not proven beyond reasonable doubt, you should then consider the lesser offence of defilement.
    
43. To prove the offence of defilement the prosecution should prove the following elements beyond reasonable doubt;
    1. The accused;
    2. Unlawfully penetrated the anus of the complainant with his penis;
    100. The complainant was between the age of 13 years and 16 years at the material time.
         
44. The first element involves the identity of the offender and as I have already pointed out this element is not disputed.
    
45. To establish the second element, the prosecution should prove beyond reasonable doubt that the accused penetrated the anus of the complainant with his penis. I have already explained this element. The word “unlawfully” simply means without lawful excuse.
    
46. To establish the third element, the prosecution should prove beyond reasonable doubt that the complainant was between the age of 13 years and 16 years at the material time.
    
47. Please remember that it is a defence in respect of this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years at the material time. However, it is not a defence that the complainant consented to penetration when it comes to the offence of defilement.
    
48. Further, in the event you find that the prosecution has failed to establish penetration beyond reasonable doubt, you should then consider the lesser offence of indecent assault.
49. 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.
         
50. Assault is the use of unlawful force. A physical contact like touching constitutes an assault if it is done without a lawful excuse. It should be intentional.
    
51. An assault is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
52. It is not a defence to a charge for indecent assault in this case that the complainant consented to the act of indecency. However, it is a defence in respect of this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years at the material time.
    
53. With regard to the second count, the prosecution case is that the accused penetrated the complainant’s anus without his consent either on 29^th or 30^th January 2018. The accused denies this allegation and the accused says that there was no opportunity for him to commit that offence as explained by the complainant as there were others inside the shop on those two days. The defence points out that PW5 who is the shop owner supports his position in this regard.
    
54. With regard to the second count, in the event you find that the accused did insert his penis inside the complainant’s anus, but you find that the elements involving consent are not proven beyond reasonable doubt, you should then consider the lesser offence of defilement.
55. The defence says that the complainant was not a credible witness. The defence took up the position that the complainant fabricated the allegations to put the accused in trouble because he was frightened that he will be reported to police for stealing the accused’s phone.
    
56. You heard during the cross-examination of the complainant, he agreed that certain evidence he gave is not mentioned in his police statement. The defence has also highlighted certain other inconsistencies. For example the complainant when cross-examined said that the accused was not a friend, but it was pointed out that it is mentioned in the police statement that the accused was a friend. I have explained to you how to deal with inconsistencies. You should follow the said directions when you deal with any inconsistency you may come across.
    
57. 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 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 his experience concerning the offences the accused is charged with.
    
58. The third 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 third 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.
    
59. You may note that the third prosecution witness did not say that there were medical findings to support penetration. She could not also give an opinion on the age of the injury she had noted.
    
60. 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.
    
61. 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 against an accused 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.
    
62. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each charge;
    
    • (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, 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.

63. Any re-directions?
    
64. 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.
    
65. Your opinion should be as follows;
    • First count (rape) — guilty or not guilty

-If not guilty

Defilement — guilty or not guilty

-If not guilty

Indecent assault — guilty or not guilty

• Second count (rape) — guilty or not guilty

-If not guilty
Defilement — guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for State.
A.K. Singh Lawyers, Suva for Accused.