IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.:   HAC 58 of 2018

			BETWEEN:			STATE																	   PROSECUTION

AND:				PETARIKI LESUMA

ACCUSED PERSON

Counsel:		 Ms. L. Bogitini for State 		
			 Ms. K. Boseiwaqa for Accused 

Date of Hearing:		 17 June 2019
Date of Closing Submission: 17 June 2019	
Summing Up:			 18 June 2019

SUMMING UP
	The complainant’s name is suppressed.
1.		The hearing of this case has now reached to its conclusion.  It is my duty to sum up the 	case to you. As I explained you before the commencement of the hearing, we have 	different functions.  It is my task to ensure that the trial is conducted according to law.  	As part of that, I will direct you on the law that applies in this action. You must accept 	the law from me and apply all directions I give you on matters of law.
2.		Your function is to determine the facts of the case, based on the evidence that has been 	placed before you in this courtroom. That involves deciding what evidence you accept or 	refuse. You  will  then apply the law, as I explain it to you, to the facts as you find 	them to be, and in that way arrive at your opinion. 
3.		I may comment on the facts if I think it will assist you when considering the facts. 	However, you are not obliged to accept any comment I make about the facts. Hence, it is 	entirely upon you to accept or disregard any comment I make about the facts of this case, 	unless it coincides with your own independent opinion.
4.		You must reach your opinion on evidence, and nothing but on the evidence itself.  	Evidence is what the witness said from the witness box. This summing up, statements, 	arguments, questions and comments made by the counsel of the parties are not evidence. 	The opening address of the prosecution is not evidence. The closing addresses of the 	counsel of the prosecution and the defence are not evidence either. They are their 	arguments, which you may properly take into account when you evaluate the evidence, 	but the extent to which you do so is entirely a matter for you.
5.		If you heard, or read, or otherwise learned anything about this case outside of this 	courtroom, you must exclude that information or opinions from your consideration. You 	must have regard only to the testimony put before you in this courtroom during the 	course of this trial. Ensure that no external influence plays a part in your deliberation.  	You are allowed to talk, discuss and deliberate facts of this case only among yourselves. 	However, each one of you must reach your own opinion. You are required to give merely 	your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I 	must advise you that I am not bound by your opinion, but I assure you that I will give the 	greatest possible weight on your opinions when I make my judgment. 
6.		Moreover, I must caution you that you should dismiss all emotions of sympathy or 	prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No 	such emotion has any part to play in your decision, nor should you allow public opinion 	to influence you.  You must approach your duty dispassionately; deciding the facts solely 	upon the whole of the evidence. It is your duty to decide the legal culpability as set down 	by law and not the emotional or moral culpability of the action.

Burden and Standard of Proof
7.		I now draw your attention to the issue of burden and standard of proof. The accused is 	presumed to be innocent until he is proven guilty. The presumption of innocence is in 	force until you form your own opinion that the accused guilty to the offence. 
8.		The burden of proof of the charge against the accused is on the prosecution.  It is because 	the accused is presumed to be innocent until he is proven guilty.  In other words there is 	no burden on the accused to prove his innocence, as his innocence is presumed by law.
9.		The standard of proof in criminal trial is “proof beyond reasonable doubt”.  It means that 	you must be satisfied in your mind that you are sure of the accused’s guilt.  If there is a 	riddle in your mind as to the guilt of the accused after deliberating facts based on the 	evidence presented, that means the prosecution has failed to satisfy you the guilt of the 	accused beyond reasonable doubt.  If you find any reasonable doubt as to the commission 	of the offence as charged or any other offence by the accused, such doubt should always 	be given in favour of the accused. 
Information and elements of the offences 
10.	The accused is being charged with one count of Rape, contrary to Section 207 (1) and (2) 	(a) of the Crimes Act. The particulars of the offence are before you, therefore, I do not 	wish to reproduce it in the summing up. 
11.	The main elements of the offence of Rape as charged are that;
i)	The Accused,
ii)	Penetrated into the vagina of the complainant with his penis, 

iii)	The complainant did not consent to the accused to penetrate into her vagina with his penis,
iv)	The Accused knew or believed or reckless that the complainant was not consenting for him to insert his penis in that manner. 
Admitted Facts
12.	I now take your attention to the admitted facts, which are before you. They are the facts 	that the prosecution and the defence have agreed without any dispute. Hence, you are 	allowed to take them into consideration as proven facts beyond reasonable doubt. 
13.	According to the admitted facts, the accused had a conversation with the complainant in 	the sitting room on the night of 11th of June 2018. He had then took the complainant to 	the bedroom and asked the complainant if he could hug her. He then hugged her and the 	complainant started to cry. The accused had asked the reason for her cry, for which the 	complainant did not answer. He then kissed her lips and then sucked her breast. He had 	then kissed her vagina and pressed his penis on her vagina over the short that she was 	wearing at that time. 
14.	According to the admitted fact, the main dispute in this matter is whether the accused 	inserted his penis into the vagina of the complainant and the complainant did not consent 	to the accused to insert his penis into her vagina. 
Identity of the Accused
15.	In view of the admitted facts, there is not dispute between the parties regarding the 	identity of the accused. 

Penetration
16.	Evidence of slightest penetration of the penis of the accused into the vagina of the 	complainant is sufficient to prove the element of penetration. Hence, it is not necessarily 	required to adduce the evidence of full penetration. 
Consent
17.	Consent is a state of mind which can take many forms from willing enthusiasm to 	reluctant agreement. In respect of the offence of rape, the complainant consents only, if 	she had the freedom and capacity to voluntarily make a choice and express that choice 	freely. A consent obtained through fear, by threat, by exercise of authority, by use of 	force or by intimidation could not be considered as a consent given freely and 	voluntarily. A submission without physical resistance by the complainant to an act of 	another person shall not alone constitute consent.
18.	The complainant must have the freedom to make the choice. It means that she must not 	being pressured or forced to make that choice. Moreover, the complainant must have a 	mental and physical capacity to make that choice freely. The consent can be withdrawn at 	any time. The consent is an ongoing state of mind and is not irrevocable once given. It 	should not be an optional choice. The consent of a person should not be assumed. 
19.	If you are satisfied, that the accused had inserted his penis into the vagina of the 	complainant and she had not given her consent, you are then required to consider the last 	element of the offence, that is whether the accused honestly believed or knew or reckless 	that the complainant was freely consenting for this alleged sexual intercourse. I must 	advice you that belief in consent is not the same thing as a hope or expectation that the 	complainant was consenting. You must consider whether the accused knew either that the 	complainant was not in a condition or a position to make a choice freely and voluntarily, 	or the complainant had made no choice to agree to sexual act. If you conclude that the 	accused believed or  knew that  the  complainant  was consenting, you must then consider 
	whether such belief of the accused was reasonable under the circumstances that was 	prevailed at the time of the alleged incident.
Alternative Count I
20.	If you find the accused did not penetrate the vagina of the Complainant with his penis as 	charged, you are then allowed to consider a lessor alternative count of “Attempt to 	Commit Rape, though it is not formally charged in the information. The main elements of 	the offence of “Attempt to Commit Rape” are that:
i)	The accused, 
ii)	Attempt to penetrate the vagina of the complainant with his penis.
iii)	The complainant did not consent to the accused to penetrate into her vagina with his penis,
iv)	The accused knew or believed or reckless that the complainant was not consenting for him to insert his penis in that manner. 
21.	In respect of the element of attempt, you have to consider two things.  First is  	whether he intended to penetrate the vagina of the complainant with his penis without 	her consent. The second is, with that intention, whether he did something which was 	more than mere preparation for committing that offence.  It is for you to decide what he 	did was more than mere preparation. 
22.	Accordingly, you have to be satisfied that the accused had an intention to penetrate the 	vagina of the complainant with his penis without her consent and with that intention he 	attempted to penetrate the vagina of the complainant with his penis.  

Alternative Count II
23.	If you find that the accused neither guilty of the offence of Rape nor the offence of 	Attempt to Commit Rape, you are still allowed to consider another alternative count, that 	is Sexual Assault though it is not formally charged in the information. The main elements 	of the offence of Sexual Assault are that:
i)	The accused, 
ii)	Unlawfully and Indecently, 
iii)	Assault the Complainant. 
24.	The word “unlawfully” simply means without lawful excuse.  An act is an indecent act if 	right-minded persons would consider the act as indecent. It is your duty as Assessors to 	consider and decide whether the acts of rubbing of the penis of the accused over the 	vagina of the Complainant, sucking the breast of the complainant, kissing lips and kissing 	her vagina over her short, are indecent acts, making it a sexual assault. 
Corroboration
25.	You must bear in mind that offences of sexual nature do not need the evidence of 	corroboration. It means that if you are satisfied with the evidence given by the 	complainant and accept it as reliable, credible and truthful; you are not required to look 	for any other evidence to corroborate the account given by the complainant.
26.	One or more of you may have assumptions as to what constitutes rape, what kind of 	person may be the victim of rape, what kind of person may be the rapist or what a person 	who is being or has been raped will do or say. Though such assumptions are natural in 	ordinary life, it is important that you must leave behind such assumptions as there is no 	stereotype of circumstances for a rape, a rapist or a victim of rape. 

27.	Offences of this nature can take place in any circumstance between any kinds of persons, 	who act in a variety of ways. You must approach the case dispassionately, putting aside 	any view as to what you might or might not have expected to hear, and make your 	judgment strictly on the evidence that you have heard from the witnesses during the 	course of the hearing. 
28.	You must be mindful that not to bring in to the assessment of the evidence any 	preconceived views as to how a victim of rape in a trial such as this should react to the 	experience that the victim had gone through. Every person has his or her own way of 	coping with such incident. Some may display obvious signs of distress and others may 	not. Demeanors of the victim in the court while giving evidence is not necessarily a clue 	to the truth of the victim’s account.
Evidence of the Prosecution
29.	Let me now remind you briefly the summary of the evidence presented by the 	prosecution during the course of the hearing.  I trust that you can properly and correctly 	recall all of the evidence adduced during the hearing.
30.	The complainant was staying at her grandparents place in the year 2018 as her father was 	transferred to another location, where she couldn’t find a secondary school. Hence, she 	had been staying with her grandparents together with her younger brother. The accused 	is the younger brother of her father. She used to call him as father as well. 
31.	On the 11th of June 2018, the complainant made the dinner for the accused and two 	others after the accused brought fish. After the dinner she had gone back to her room. The 	grandfather was sleeping on the bed, which was at the sitting room. The location of the 	bed of the grandfather was partitioned with a curtain. Her younger brother was also 	laying on the floor beside the grandfather’s bed. While she was laying on the bed, the 	accused called her to the sitting room, saying that he knows that the complainant cannot 	get sleep. The accused was sitting on the settee. The complainant was seated on the other 	settee. The accused asked about her boyfriend and also the status of their relationship. He 
	then told her to come and sit closer to him. The complainant was shy and was answering 	while smiling and looking downwards. The complainant thought that he is her father and 	wanted to ask such things as he was going to advice her about such things. The accused 	then went to the bed room and called her into the room. While in the room, the accused 	asked her if she allows him to hug her. She did not say anything as she was afraid and 	shocked as she did not expect such a request from the accused.  The complainant started 	to cry. The accused then hugged her and then kissed her forehead. The accused then 	kissed her lips and sucked her breast. Afterward, the accused rubbed his penis over the 	vagina of the complainant on the top of her short. The complainant said that she was 	afraid and shocked and did not want to shout and alarm anyone as she feared that the 	accused might have a knife or something. She kept on pushing the accused and cried. He 	then put his hands into her short and touched her vagina over her undergarment. She then 	pushed away the hand of the accused. The accused then removed her short and 	undergarment. The complainant tried to cover her body, but the accused removed her 	hands. She then covered her face from her hands and cried. 
32.	The accused then tried to insert his penis into the vagina of the complainant. You have 	heard that the complainant said that he was pushing his penis around her vagina but 	found it difficult to insert it as her vagina was small. However, the accused managed to 	insert his penis into her vagina and it took about three minutes. The complainant said that 	it was painful and she tried to push the accused away when he was inserting his penis into 	her vagina. After doing that, the accused got up and dressed the complainant with her 	undergarment and short. He too put up his short back and went back to the sitting room. 	The complainant was tired and just laid on the bed as she could not sleep thereafter. She 	woke up in the following morning and found the blood strains on the bed sheet. She took 	the bed sheet and went to the kitchen, where she made her lunch. She then went to 	school. Once she came back from the school, she met one of her aunts and related this 	matter to her. You may recall that the complainant said that she did not try to go out of 	the room and tell her grandfather after this incident as she knew the accused was still in 	the sitting room. Moreover, she explained the reason for not shouting or alarming for help 	as she feared the  accused  might do  something  to  her. The complainant  said  that  there 
	were no boys sitting under the nearby mango tree when the accused committed this crime 	to her. 
Right to Remain Silence 
33.	At the conclusion of the prosecution case, the accused was explained about his rights in 	defence. The accused opted not to give evidence on oath and exercised his right to remain 	silent. The accused does not have to give evidence. You must not assume that he is guilty 	because he has not given evidence. The fact that he has not given evidence proves 	nothing.  It does nothing to establish his guilt.
Analysis and Directions 
34.	The prosecution alleges that the accused in the pretext of discussing about the 	relationship of the complainant and her boyfriend started a conversation with the 	complainant on the night of 11th of June 2018. He then hugged her. Thereafter, the 	accused kissed the lips of the complainant and sucked her breast. He had pressed his 	penis on the vagina of the complainant on the top of her short. He had then removed the 	short and undergarment of the complainant and inserted his penis into her vagina without 	her consent. 
35.	The accused has admitted every events that have taken place up to the allegation of 	insertion of his penis into the vagina of the complainant in the admitted fact, but denies 	that he penetrated into the vagina of the complainant with his penis. As I told you before, 	it is for you to decide whether the accused inserted his penis into the vagina of the 	complainant without her consent. In order to do that, you have to evaluate the evidence of 	the complainant presented in the hearing. 
Evaluation of Evidence 
36.	I now take your attention to the directions of the evaluation of evidence.

Reliability of Evidence 
37.	You must be satisfied that you can rely on the evidence as true, reliable, and credible 	evidence. In order to do that, you have to be satisfied that evidence is free from mistakes, 	errors and inaccuracies. If you find the evidence is free from such mistakes, errors and 	inaccuracies, you can take the evidence into consideration as reliable evidence. 
Credibility of Evidence 
38.	The assessment of credibility of evidence is focused on the lies or inaccurate facts that 	are intentional and motivated attempts to deceive. The credibility depends on the 	individual who gives evidence, his/her motivations, his/her relationship to and the 	reaction to the particular situation. 
39.	Evaluation of the reliability and credibility of evidence will assist you to determine what 	evidence you may accept and what part of the evidence you may refuse. In doing that, 	you may accept or reject such parts of the evidence as you think fit. It is for you to 	determine whether a witness is telling the truth and is correctly recalling the facts about 	which he or she has testified. 
40.	In assessing evidence of the witnesses, you must consider whether the witness had the 	opportunity to see, hear and or feel what the witness is talking in the evidence. You 	should then consider whether the evidence presented by the witness is probable or 	improbable considering the circumstances of the case.  Apart from that you are required 	to consider the consistency of the witness. 
41.	It is your duty to consider the demeanour of the witnesses, how they react to being cross 	examined and re-examined and were they evasive, in order to decide the credibility of the 	witness and the evidence. In doing that you have to keep in your mind that some 	witnesses are not used to giving evidence in court and may find the different environment 	in the court house distracting. 
42.	Moreover, you must bear in your mind that a witness may tell the truth about one matter 	and lie about another; she may be accurate in saying one thing and not accurate in 	another 	thing.
Evidence of The Young Complainant
43.	The most important part of your task is to determine whether the complainant has told the 	truth, and has given a reliable and credible account of the events that she was describing. 	Some of you may have children, grandchildren, nieces or relatives who are of a similar 	age to the complainant. If so, I think you will recognize the sense of the advice that I am 	going to offer you about your opinion of the evidence of the complainant, but remember 	that I am speaking only about an approach to consider the evidence. Still the evaluation 	of the evidence is your responsibility. You do not have to accept my advice, if you do not 	agree with it. 
44.	Young children as of the age of the complainant do not have the same life experience as 	adults. They do not have the same standards of logic and consistency. Their ability to 	understand certain events may be severely limited for a number of reasons such as their 	age and immaturity. Life viewed through the eyes and mind of young adolescent may 	seem very different from life viewed by an experienced adult.
45.	Remember how you normally talk to young adolescent of this age. You should bear those 	difficulties in mind when you consider the answers given by the complainant. All 	decisions about the evidence are for you to make. 
Delay 
46.	You have heard the closing address of the learned counsel for the defence, where she 	invited you to take into consideration the fact that the complainant did not shout or alarm 	her grandfather or the neighbours when this alleged incident took place. She further 	suggested you that due to those facts, the complaint eventually made by the complainant 	is not true. It is a matter that you have to determine. In doing that you can take into 	consideration the explanation given by the complainant for not shouting and alarming the 	others when this incident took place.
47.	As I already explained, you have to remember that there is no stereotype of reaction to 	such unwelcome sexual assault. Victims of such sexual assaults, react to such situation in 	different ways. Moreover, it would be wrong to assume that every person who has been 	the victim of a sexual assault will report it as soon as possible. The experience of the 	court is that victims of sexual offences can react to the trauma in different ways. Some, in 	distress or anger, may complain to the first person they see. Others, who react with shame 	or fear or shock or confusion, do not complain or go to authority for some time.  It takes a 	while for self- confidence to reassert itself. There is, in other words, no classic or typical 	response. A late complaint does not necessarily signify a false complaint, likewise an 	immediate complaint does not necessarily demonstrate a true complaint. 
Final Directions
48.	Upon consideration of whole of the evidence adduced during the course of the hearing, if 	you are satisfied that the prosecution has proven beyond reasonable doubt that the 	accused has committed the offence of Rape as charged, you can find the accused guilty of 	Rape.
49.	If you are not satisfied or have doubt whether the prosecution has proven beyond 	reasonable doubt that the accused has committed the offence of Rape as charged, you 	must find the accused not guilty of Rape.  
50.	If you find him not guilty of Rape, you are then allowed to consider the alternative count 	of Attempt to Commit Rape.  If you are satisfied that the prosecution has proven beyond 	reasonable doubt that the accused has committed the offence of Attempt to Commit 	Rape, you can find him guilty of Attempt to Commit Rape.

51.	If you are not satisfied or have doubt whether the prosecution has proven beyond 	reasonable doubt that the accused has committed the offence of Attempt to Commit Rape, 	you must find the accused not guilty of Attempt to Commit Rape.
52.	If you find him not guilty of Rape and Attempt to Commit Rape, you are 	then allowed 	to consider the second alternative count of Sexual Assault. If you are satisfied that the 	prosecution has proven beyond reasonable doubt that the accused has committed the 	offence of Sexual Assault, you can find him guilty of Sexual Assault.
53.	If you are not satisfied or have doubt whether the prosecution has proven beyond 	reasonable doubt that the accused has committed the offence of Sexual Assault, you must 	find the accused not guilty of Sexual Assault.
Conclusion 
54.	Madam and Gentleman assessors, I now conclude my summing up.  It is time for you to 	retire and deliberate in order to form your individual opinions. You will be asked 	individually for your opinion and will not require to give reasons for your opinion.  When 	you have reached to your opinion, you may please inform the clerks, so that the court 	could reconvene.
55.	Learned counsel of the prosecution and the accused, do you have any redirections to the 	assessors?

R.D.R.T. Rajasinghe
Judge

At Labasa
18 June 2019

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