State v Naqia - Summing Up [2020] FJHC 488; HAC225.2016 (25 June 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 225 OF 2016

BETWEEN

STATE

AND

INIA NAQIA

Counsel : Ms. R. Uce with Ms. S. Naibe for the State
Ms. L. Volau for the Accused

Hearing on : 10^th, 11^th, 17^th & 19^th of June 2020
Summing up on : 25^th of June 2020

SUMMING UP

Lady and gentlemen assessors;

1. It is now my duty to sum up the case to you. Your opinion is much important to me and I will be considering your opinion to a great extent in preparation of my judgment. In a short while, I will 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 assessors of facts.
   
2. As the representatives of the society, your duty here is sacred. Your role is to assist this legal system to serve justice. In doing so, you are guided by two equally important principals of prudence. To wit;
   1. If a person has committed an offence, he should be meted out with an adequate punishment.

In other words, if you are sure that the accused has committed the alleged offence, then it is your duty to find him guilty. If an offender goes scot-free, he‘ll be ridiculing this legal system. It is your duty to not to let that happen.

ii) An innocent person should never be punished.

There is a saying that it is better to let 100 offenders go free than to punish one innocent person. That is, unless you are very sure that the accused has committed the alleged offence, you should not find him guilty.

If any of the said principles are violated, it would amount to a failure of the system, thus you have failed in your duty to the society. Having reminded you of your duty let me proceed.

3. Evidence in this case is what the witnesses said from the witness box inside this court room and the admissions made. As I have stated to you in my opening address, your opinion should be based only on them. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
4. 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 Counsel for the prosecution or for the defense are not evidence. A suggestion made by a counsel during the examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by counsel in their addresses are not evidence. You may take into account those questions, suggestions, arguments and comments when you evaluate the evidence only to the extent you would consider them appropriate.
   
5. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the available 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 anyone else. Your emotions should not influence your decision.
   
6. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experiences 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 none, a part or all of any witness’ evidence.
   
7. 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 that we all may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment. Sometimes a witness may have other concerns when giving evidence. A witness may be worried that the evidence would incriminate him or reveal a safely guarded secret. Or else he/she might honestly forget things or make mistakes regarding what he/she remembers.
   
8. 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 between the evidence given by different witnesses. 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 isn’t then you can disregard that inconsistency. 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. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you should not expect a witness to have a photographic memory or every detail to be the same from one account to the next.
   
9. 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 the witness is a matter for you to decide.
   
10. 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 provide for the inconsistency and consider him/her to be reliable as a witness.
    
11. 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 a few guidelines. It is up to you, how you assess the evidence and what weight you give to a witnesses’ testimony.
    
12. 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 more than one reasonable inference to draw, against the accused, as well in his favor, based on the same set of proved facts, then you should draw the most favorable inference to the accused.
    
13. As a matter of law you should remember that the burden of proof always rests on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that an 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 a reasonable doubt, for you to find him guilty. That is, you must be sure of the accused person’s guilt.
    
14. In order to prove that an accused is guilty, the prosecution should prove all the elements of the offence against the accused beyond reasonable doubt. If you have a reasonable doubt on whether the prosecution has proved a particular element of the offence against the accused, then you must give the benefit of that doubt to the accused and find the accused not guilty. A reasonable doubt is not a mere or an imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in detail in a short while.
    
15. You are not required to decide on every point the Counsels 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 charge is proved against the accused.
    
16. 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 a must.
    
17. Let us look at the Information. The Director of Public Prosecutions has charged the accused of a count of rape.

COUNT 1
Statement of Offence

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

Particulars of Offence

Inia Naqia, on the 04^th day of September 2016 at Nadi, in the Western Division, penetrated the vagina of Sesenieli Drodro with his penis, without her consent.

18. Now I will deal with the essential elements of the offence of Rape.
Section 207(1) of the Crimes Act reads as;

207. —(1) Any person who rapes another person commits an indictable offence.

Section 207 (2) (a) of the Crimes Act reads as;
(2) A person rapes another person if —

(a) The person has carnal knowledge with or of the other person without the other person’s consent;

19. Accordingly, in this case, to prove the offence of Rape as for the alleged count the prosecution must prove the following elements beyond a reasonable doubt.

(i) The accused;

(ii) Penetrated the vagina of Sesenieli Drodro with his penis

(iii) Without the consent of Sesenieli Drodro; and

(iv) Either the accused;

knew or believed that Sesenieli Drodro was not consenting; or

was reckless as to whether or not she was consenting.

20. The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond any reasonable doubt that the accused and no one else committed the offence. This element is not contested in this case.

21. In the second element ‘carnal knowledge’ means having sexual intercourse or in this case, the penetration of Sesenieli Drodro’s vagina; with the accused’s penis. The law states, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of Sesenieli Drodro with his penis, to any extent. This element too was not contested by the accused in this case.
    
22. 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. This is a contested element in this case.
    
23. 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;

i) by force; or

ii) by threat or intimidation; or

iii) by fear of bodily harm; or

iv) by exercise of authority.

24. Apart from proving that the complainant did not consent for the accused to insert his penis inside 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.

25. It is not difficult to understand what is meant by the words “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 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.

26. Please 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 upon relevant proven facts and circumstances.

27. If you find a reasonable doubt in respect of any of the above, you shall find the accused not guilty of the count of Rape.

Summary of Evidence

28. The PW1, Sesenieli Drodro is the main witness for the prosecution. The law requires no corroboration. Therefore you can act on the evidence of a sole witness. However, my direction is that if you are to rely on a sole witnesses’ evidence you must be extremely cautious of the credibility and the dependability of such evidence. Her evidence is that;
    1. She has been residing in Saunaka village since she was six years old.
    2. In 2016, she was attending the Technical college at was residing with her father, step-mother, two brother, their wives and her own daughter.
    3. On the 03^rd of September, 2016 at around 11.00pm, she has been drinking with two of her cousin brothers, Apakuki and Asaeli at Apakuki’s house at Saunaka.
    4. Then around 1.00am, they have finished drinking and walked on to the main road and taken a taxi to go to the White House night club. At there, whilst drinking, they have met some boys known to her cousins and she has gone to dance with them. When she returned from dancing, her cousins were gone and the boys have invited her to go to the After Dark night club. At around 4.00am, she has gone with them to the After Dark night club in a taxi. When she entered there, she has seen her uncle Inia Naqia and another cousin of hers, Epeli there.
    5. At there, she has had drinks and when went to the toilet, she has met a woman, who is said to be an aunt of hers and she has invited the witness to go and drink together at her place. She has gone with her aunt and the aunt’s boyfriend in a taxi to that boyfriend’s house in Votualevu. They have bought drinks on the way and when went there, her uncle Inia and cousin Epeli were already there, drinking. She has had drinks with them. After a while she went to the toilet and when she returned, her aunty was gone. She has continued drinking with Inia, Epeli and the other boys. They have gone on drinking until the drinks finished at about 8.00am – 8.30am.
    6. Then her uncle Inia has asked her to go with him to his house at Black Rock and then his wife will call her father and inform that she is with them. She has agreed to go with him. Then she has left on foot with Inia and Epeli. Then halfway through, Epeli has left them and gone home. She has continued walking with Inia through a shortcut to reach Black Rock. Inia has taken the lead and she has followed him. They have followed a track across a creek and then Inia has told her that it is a wrong way and gone on another track and asked her to take the lead. She has come across the bushes and when was about turn back, Inia has kissed, hugged and has tried to lay her down. She has told him to not to do that since he is her uncle. He has not listened to her and kept on kissing her. He has made her lay down and punched her on the thighs so that her legs would go weak and he can remove her trousers.
    7. She has shouted, cried and tried to push him away. But could not as he was strong and her legs were already weak. He has removed her trousers and the panty. Then he licked her vagina. Though she tried to push him away using her hands and tried to shout. But he was blocking her mouth with his hands. Then he put his penis into her vagina and had sexual intercourse. This has taken about 15 minutes. All that time she had been crying and trying to push him away. Thereafter he has ejaculated and having put the zip of his trousers, told her to wear her pants.
    8. Then she has asked him to show her the way for her to go home. They have followed the same way which he said to be the wrong way before and after about 10 minutes of walking they have come to the main road and they have stopped a taxi. She has asked the driver to take her to Saunaka. The taxi was on its way to black Rock to pick up a job to go to Saunaka. She sat on the front passenger seat and Inia sat on the back seat. They went to Black Rock, Inia got down and Inia’s wife, son and another uncle of the witness, Tevita got into the vehicle. They went to Saunaka and on the way Tevita has been asking her of what happened but she has not told him anything as Tevita is related to Inia and she did not trust him. She got down at Saunaka and having borrowed a wrap-around to cover her trousers, she has gone home.
    9. When she reached home, her dad, step-mom, her brothers and their wives were at home. She has stood up crying and told everything to him and her dad was angry as she was not at home all night. Then her dad has seen the long grass marks on her legs and hands. He has asked her to rest for a while. Having taken a rest she has woke up and had a bath. Her dad has called for Limiva and having told her of the incident, asked her to go to the police station with her cousin Limiva, who is a police woman to report the matter.
    10. She identifies the accused as Inia Naqia, her uncle and states that she did not consent to have sexual intercourse with him.
        
29. In answering the cross examination by the counsel for the accused, the witness states;
    1. Inia, the accused is an uncle of hers from her mothers’ side. She admits that drinking alcohol with her uncle is not a norm.
    2. She had started consuming alcohol around 11.00pm on the 3^rd of September 2016, at Saunaka. Then she has gone to the White House night Club and had more alcohol there. Then around 4.00am on the 4^th she has gone to the After Dark night club and drank more alcohol. From there, she has gone to the Aunt’s boyfriends’ house and consumed some more alcohol.
    3. Though she had been consuming alcohol since 11.00pm, previous night, she states that she was not much drunk when at Votualevu. The music was on there at the house at Votualevu, but she has not danced there. She admits that between 8.00am and 9.00am on Sunday the 4^th they finished drinking and she came to the main road with Inia and Epeli.
    4. She is aware that Inia lives in Black Rock and it is much closer to Votualevu than Saunaka. In 2016, she was 22 years old and had a child aged 4 years. Though she stated that Inia punched her on her thighs, she admits that she has not mentioned such to the police in her statement. Furthermore, she admits that she has not mentioned to the police in her statement that she cried during the sexual intercourse. She further admits that when Inia was licking her vagina, there was nothing restraining her upper body and contradicts her earlier stance that he covered and held her mouth at that time. Again the witness states that Inia covered her mouth only when she shouted.
    5. Though her thighs and legs were weak due to Inia’s punches, and could not resist Inia with them, after the sexual encounter, she managed to walk for about 10 minutes without any assistance from anyone else, till the taxi came by. She states that she cannot recall whether there were any bruises on her thighs as a result of his punching. Further, though she stated in her evidence that she stopped the taxi, in her statement she states that the taxi stopped there and spoke to Inia. When queried of the inconsistency, she states that she could not remember clearly since the incident happened 5 years back.
    6. The witness denies that she having had forbidden consensual sexual intercourse, cried rape to protect the dignity of herself and her family.
       
30. In answering the re-examination by the prosecuting counsel, the witness states that;
    1. While having sexual intercourse, Inia was not covering her mouth throughout, but covered only when she shouted.
    2. She was ashamed of what the people will say and held herself to not to worry about others. She knew that her father would accept her. She was not worried that her father would get angry with her for being out the whole night.
       
31. The PW2 was Mr. Seruveveli Bogisa. He is the father of the PW1. His evidence was that;
    1. He is 58 years old and was born and bred in Saunaka Village.
    2. He has two sons, two daughters and a grand-daughter.
    3. Sesenieli Drodro is one of his daughters.
    4. On the 04^th of September 2016, he was alone at home around 10.00am. Sesenieli has arrived home then. She has sadness in her eyes and was crying and shivering. He knew that something has happened. She has come running to him and they have hugged each other.
    5. He thought that it is not the best time to talk and has asked her to go and have a rest. When she woke up in the evening, he has asked her to have a bath and dinner and then to talk. Then after dinner, he has sat with Sesenieli and she has told him of what happened on the previous night.
    6. She has told him that her uncle Inia hassled her on the road. She has told that Inia forced her to have sex with him. Despite of telling him not to do it, he still did it. While talking, whole time she was crying and it has appeared like she could not believe that her uncle did that to her.
    7. He has asked her to call Limiva, a police officer who is a cousin of hers, and relay the same story that she relayed to him and to report the matter to the police station.
    8. He knows Inia for a long time since he has stayed with him before and Sesenieli’s mother and Inia’s father were siblings of the same family. He has maintained a good relationship with Inia before and still maintains the same. He identifies the accused as Inia.
    9. In answering the cross-examination, he states that the relationship between an uncle and niece is sacred in the village settings. It is not a norm for an uncle and a niece to have alcohol together. He admits that he would be angry if he learned that Sesenieli was drinking alcohol with Inia. On the night of the 3^rd of September 2016, Sesenieli went out without telling him where she is going. When she did not return that night, he was concerned as a father. Generally his children will be in and around Saunaka village. When Sesenieli came home around 10.00am, on the 4^th she was drunk.
    10. Answering further, the witness states that if people in the village found out that Sesenieli has had sex with Inia, it would cause embarrassment for his family. However, he states that he doesn’t condone rape , forcing a woman to have sex with someone.
        
32. With leading the evidence of PW1 and PW2, the prosecution closed their case. Court being satisfied that on the face of it, the prosecution has adduced sufficient evidence covering the elements of the alleged offence, decided to call for a defense, acting under the virtue of section 231(2), of the Criminal Procedure Act, explaining and giving his due rights to the accused.
    
33. The accused having understood his rights elected to give evidence on his behalf. His evidence was that;
    1. In September 2016, he was 29 years old and lived in Black Rock in Votualevu.
    2. On the 03^rd of September 2016, he has attended a Indo-Fijian wedding ceremony at Legalega. He has been drinking kava there and has gone to the ‘After Dark’ night club thereafter at around the mid-night. He has had beer there with two of his friends. They have been drinking there until the lights of the night club were switched on.
    3. When he came out he has met Sesenieli at the main door. He asked her where did she come from and she was happy to see him. Then a lady came and pulled her outside and they came down. He has followed them to the down stairs. Sesenieli and some others got in to a black gas-taxi and he has met Epeli a cousin of him. Another friend of him, who used to train together, was there and he was pulled into another taxi. He, his friend, whom he calls my-tau and Epeli went to Saunawai Stage 1. They have gone to a house there to drink and the gate of the house was open. They were standing outside when Sesenieli and the lady has come in their taxi. He has met Sesenieli again and she has hugged him there.
    4. They have gone to the back porch sat there and started drinking. There was music on and the young boys that were drinking together danced with Sesenieli. There were 8 of them 6 males and 2 females. After some time Sesenieli has come and sat beside him. She was trying to make him dance by using her shoulders to nudge him and he has asked her to keep still.
    5. While drinking Sesenieli has asked whether he could call her dad. Then he has told her that he doesn’t have a phone and when they go home he will ask his wife to call her dad.
    6. Having finished the drinks there, he has come with Epeli and Sesenieli to the main road to go home. They have followed the short cut from Saunawai to Legalega. While they were walking together, Sesenieli put her arms around his waist, hugged him and said my best uncle, my best uncle several times.
    7. When they reached the road that goes to Legalega, Epeli excused himself and said good bye. The two of them, he and Sesenieli has followed the short-cut that goes to Black Rock. Sesenieli has kept on hugging him. They reached the bridge and had to go down the slope. He has taken the lead there. Sometimes he had to go up and pull Sesenieli as they were drunk.
    8. Once when pulled up they have hugged each other and has started kissing. She was responding like she liked it and she kissed him back nicely. Then he has told her that someone might see them and suggested her to go little further. She has agreed to it and they have they have gone little further turning right from where a mango tree is and it was long grass there. Sesenieli was beside him and was hugging him. They have come to a place where there was less long grass, but plenty of mango leaves. There they have stopped and kissed each other.
    9. While kissing Sesenieli was touching his penis. Then they have laid down and she has hugged his head and pulled it closer to her breast. He was on top of her. He has fondled with her breast. Then Sesenieli has asked him to stop and pulled up her t-shirt and the bra. He has sucked her breast and she has wrapped her legs around his hips. Sesenieli, while holding his head has pushed it down for him to lick her body. Then she has opened the button and the zip of her trousers and taken off the trousers and the panty. Thereafter he has licked her vagina. When he tried to get up to take off his pants she was pressing his head so that he could continue licking. After a while he got up and pulled down his track suit trousers and she was lying down with her legs apart.
    10. When he took his penis out, she sat up and took his penis and sucked it. After that she laid down with her legs apart and when he laid on top of her, she took his penis and inserted it into her vagina. Then they have had sex. At that time she has hugged him nicely, continued kissing and wrapped her feet around him.
    11. Thereafter, they have stood up, she has taken her trousers and put them on and he has pulled up his pants. They have taken the same road and when reached the main road, a taxi has stopped and when asked, the driver has told him that he is going to Black Rock to pick up a job to go to Saunaka. He has asked Sesenieli to get in the front seat and he has sat at a rear seat. The taxi has stopped at his place he has got down and his wife, son and a cousin have hopped in. His wife has asked him to have a bath and rest for a while and come to Saunaka later. He has asked them to drop Sesenieli at her place.
    12. He denies punching her thighs, covering her mouth and raping her and states that he had sex with Sesenieli only with her consent.
        
34. In answering the cross examination, posed on behalf of the prosecution, the accused states that;
    1. By 2016, he was married and had 2 kids. He was residing at Black Rock with them.
    2. The road they followed from the house they were drinking to come to his house, was recently developed and there were not many houses then. He was born and grew up in Saunaka and closely related to Sesenieli’s family.
    3. He admits that the relationship between him and Sesenieli is Uncle and Niece and it is a sacred relationship. He further admits that Sesenieli respected him a lot.
    4. At the police station when he was questioned he did not tell everything to the police because there were so many others and he was embarrassed. The prosecution points out a few inconsistencies in his statement to the police with his evidence in court. Firstly in regards to the one who suggested calling Sesenieli’s father to inform that she is with him. The accused’s position is that when she suggested calling her father, he told her that once they go to his home he will ask his wife to call her father. Therefore I do not see any inconsistency there but an omission. Second is in relation to whether he was wearing long jeans with a zip or track suit pants without a zip. Whatever he was wearing, would not be a material issue in this case as the consent of the girl is the real issue. The third is regards to the fact whether she cried or not while they were walking home after the alleged sexual intercourse. The accused has told police that Sesenieli was crying after he slapped her. You may consider this inconsistency in its proper context and give it an appropriate weight. The fourth is whether the driver of the taxi is a Fijian or an Indo-Fijian, which would hardly, has any bearing on the issues of this case.
    5. He denies raping her and states that he has had sexual intercourse with Sesenieli with her consent.
       

35. In answering the re-examination, the accused states that;

1. He did not tell everything to the police because there were many people there and was embarrassed and he wanted to come to the court and say everything.
2. He is not aware why Sesenieli complained of rape after having had consensual sexual intercourse with him.
   

36. That was a summary of the evidence given by the witnesses. Please remember that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I did not refer to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think appropriate. As I have already explained, which evidence you would accept and which evidence you would not accept is a matter for you and you alone to decide.
    
37. Remember that you should first decide on the credibility and reliability of the witnesses who gave evidence in this case and accordingly decide what facts are proven and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of the offences have been proven beyond a reasonable doubt. You should take into account my directions where relevant, in deciding whether the prosecution has proved all the elements.
    
38. The Accused has indicated his stance and it was that the sexual intercourse they had was done with the consent of Sesenieli. In other words he denies committing rape. Evan in case you do not accept the accused’s stance as true, you should not consider it in-order to strengthen the prosecution case. The accused need not prove that he is innocent. A person may lie as sometimes as it is easier than telling the truth. Therefore even you decide to not to accept the accused’s stance, you should not use it to overlook the weaknesses of the prosecution case if any.
    
39. With the submission of the accused’s stance, one of the three situations given below would arise;
    

(i) You may accept his stance and, if so, your opinion must be that the accused is ‘not guilty’.

(ii) Without necessarily accepting his stance you may think, 'well what he says could be true'. If that is so, it means that there is a doubt in your mind and if you can reason it out in your mind, and call it a reasonable doubt, again your opinion must be ‘not guilty’.

(iii) The third possibility is that you reject his stance. But, that itself does not make the accused guilty. Then the situation would then be that you should consider whether the prosecution has proved all the elements beyond a reasonable doubt. If the prosecution has proved all the necessary elements of the offence and also you reject the accused’s stance only, you should find the accused guilty of the alleged count.

40. Any re-directions?

41. Lady and Gentleman 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 each of you have reached your separate opinion, you will come back to court and you will be asked to state your opinion.
    

41. Your opinion should be;

Whether the accused is guilty or not guilty of the alleged offence of Rape.

Chamath S. Morais
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Lautoka
Solicitors for the Accused : Legal Aid Commission, Lautoka.