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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 196 of 2019
STATE
V
SANJEET SINGH
Counsel : Ms. Sheenal Swastika for the State
Ms. Swarvana Prakash for the Accused
Dates of Trial : 20-23 July 2020
Summing Up : 28 July 2020
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “SSN”.
SUMMING UP
Madam Assessors and Gentleman Assessor,
[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.
[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinions. You must take all evidence into consideration, before you proceed to form your opinions. There are no items of evidence which could safely be ignored by you.
[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.
[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8] In this case, the evidence is what the witnesses said from the witness box, the documents tendered as prosecution and defence exhibits and any admissions made by the parties by way of agreed facts.
[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission made by the State Counsel and closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11] As I already indicated to you, a matter which will be of primary concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.
[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.
[14] The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.
[15] According to the evidence you heard in this case, the complainant, SSN, was between 10-15 years old at the time of the alleged incidents, and was 17 years old when she testified in Court (As per her birth certificate her date of birth was 10 March 2003). Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused is charged with.
[16] Furthermore, the experience of the Courts is that victims of sexual offences react to the incident 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, may not complain or go to the authorities for some time. There is, in other words, no classic or typical response by victims of sexual offences.
[17] In this case witness Sashi Lata, an aunt of the complainant, testified as to how in October 2018, the complainant informed her that the accused was abusing her and beating her with a wire.
[18] This is no doubt a belated complaint made by the complainant of the incidents. You must bear in mind that a late complaint does not necessarily signify a false complaint; any more than an immediate complaint necessarily demonstrates a true complaint. In this matter, it is for you to determine regarding the lateness or belatedness of the complaint and what weight you attach to it. It is also for you to decide, when eventually the complainant did complain to her aunt, the genuineness of the said complaint.
[19] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[20] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his or her evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This could be in relation to the testimony of the witness given in Court or in comparison to any previous statement made by that witness.
[21] A statement made to the Police by a witness can only be used during cross-examination to highlight inconsistencies or omissions. That is, to show that the relevant witness on a previous occasion had said something different to what he or she said in Court (which would be an inconsistency) or to show that what the witness said in Court was not stated previously in the statement made to the Police (which would be an omission). [I must point out to you that in this case no omissions were highlighted]. You have to bear in mind that a statement made by a witness out of Court is not evidence. However, if a witness admits that a certain portion in the statement made to the Police is true, then that portion of the statement becomes part of the evidence.
[22] This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible or fragile and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected.
[23] 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. 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 his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency and consider him or her to be reliable as a witness.
[24] Ladies and Gentleman Assessor, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[25] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.
[26] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not guilty of the charges. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[27] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged.
[28] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts or direct evidence.
[29] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. This is also referred to as circumstantial evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[30] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this morning, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary facts and the inferences that could be drawn from them.
[31] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.
[32] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. It is not his task to prove his innocence. This is so even though the accused was not present in Court during the course of this trial. He is still presumed innocent. No adverse inference should be drawn against the accused by his absence from Court during the course of this trial.
[33] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or degree of proof, as expected by law?
[34] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason. The doubt must only be based on the evidence presented before this Court.
[35] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[36] You must not let any external factor influence your judgment. You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainant or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must also not speculate about what evidence there might have been. You must adopt a fair, careful and reasoned approach in forming your opinions.
[37] I must also explain to you as to the reason for permitting a closed court proceedings when the complainant gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when it is closed court proceedings, the complainant is relieved of any mental pressure or any form of embarrassment she may have to describe the often unpleasant incidents which she alleged happened to her. However, please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.
[38] Let us now look at the charges contained in the Amended Information.
[39] There are eight charges preferred by the Director of Public Prosecutions (DPP), against the accused:
COUNT ONE
(Representative Count)
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) and (3) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, between the 1st day of January 2014 to the 31st December 2014, at
the Manoca Squatter Settlement, Nausori, in the Eastern Division, had carnal knowledge of SSN, a child under the age of 13 years.
COUNT TWO
(Representative Count)
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, between the 1st day of January 2015 to the 31st December 2015, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, had carnal knowledge of SSN, a child under the age of 13 years.
COUNT THREE
(Representative Count)
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, between the 1st day of January 2016 to the 31st December 2016, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, had carnal knowledge of SSN, without her consent.
COUNT FOUR
(Representative Count)
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, between the 1st day of January 2017 to the 31st December 2017, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, had carnal knowledge of SSN, without her consent.
COUNT FIVE
(Representative Count)
Statement of Offence
SEXUAL ASSAULT: Contrary to section 210 (1) (b) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, between the 1st day of January 2017 to the 31st December 2017, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, unlawfully and indecently assaulted SSN, by fondling her breasts.
COUNT SIX
(Representative Count)
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, between the 1st day of January 2018 to the 21st October 2018, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, had carnal knowledge of SSN, without her consent.
COUNT SEVEN
Statement of Offence
SEXUAL ASSAULT: Contrary to section 210 (1) (b) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, on the 22nd day of October 2018, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, unlawfully and indecently assaulted SSN, by fondling her breast.
COUNT EIGHT
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
SANJEET SINGH, on the 22nd day of October 2018, at the Manoca Squatter Settlement, Nausori, in the Eastern Division, had carnal knowledge of SSN, without her consent.
[40] As you may observe there are a total of eight counts. These include two counts of Rape, contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act No. 44 of 2009 (Crimes Act) (Counts 1 and 2); four counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act (Counts 3, 4, 6 and 8) and two counts of Sexual Assault, contrary to Section 210 (1) (b) of the Crimes Act (Counts 5 and 7).
[41] Let me first explain the elements of the six counts of Rape together. The first two counts of Rape are contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, while the remaining four counts of Rape are contrary to Section 207 (1) and (2) (a) of the Crimes Act.
[42] Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
[43] Section 207(2) (a) of the Crimes Act is reproduced below.
(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;
[44] Therefore, when Section 207(1) is read with Section 207(2) (a) it would read as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
(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.
[45] In layman’s terms, having carnal knowledge with or of the other person, as stated in Section 207(2)(a), means having penile sexual intercourse with that other person or having sexual intercourse with the use of the penis.
[46] Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.”
[47] Therefore, in order for the prosecution to prove the first count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between 1 January 2014 and 31 December 2014);
(iii) At the Manoca Squatter Settlement, Nausori, in the Eastern Division;
(iv) Penetrated the complainant’s vagina, with his penis; and
(v) At the time the complainant was a child under the age of 13 years.
[48] Similarly, in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between 1 January 2015 and 31 December 2015);
(iii) At the Manoca Squatter Settlement, Nausori, in the Eastern Division;
(iv) Penetrated the complainant’s vagina, with his penis; and
(v) At the time the complainant was a child under the age of 13 years.
[49] In order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between 1 January 2016 and 31 December 2016);
(iii) At the Manoca Sqautter Settlement, Nausori, in the Eastern Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[50] Similarly, in order for the prosecution to prove the fourth count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between 1 January 2017 and 31 December 2017);
(iii) At the Manoca Squatter Settlement, Nausori, in the Eastern Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[51] Similarly, in order for the prosecution to prove the sixth count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified time period (in this case between 1 January 2018 and 21 October 2018);
(iii) At the Manoca Squatter Settlement, Nausori, in the Eastern Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[52] And similarly, in order for the prosecution to prove the eighth count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this instance the 22 October 2018);
(iii) At the Manoca Sqautter Settlement, Nausori, in the Eastern Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[53] Let me now elaborate on these elements together in respect of the said counts.
[54] 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.
[55] The second element relates to the specific day or time period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[56] The fourth element involves the penetration of the complainant’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 or ejaculation. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his penis to any extent.
[57] In respect of Counts 1 and 2, the final element is that at the time of the incident the complainant was a child under 13 years of age.
[58] In respect of Counts 1 and 2, the issue of consent will not arise. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As indicated earlier, the complainant in this case would have been below 13 years old at the time of the alleged incidents as described in Counts 1 and 2, and therefore, she had no mental capacity to consent at the relevant time.
[59] In respect of the other four counts of Rape (Counts 3, 4, 6 and 8), the fifth and sixth elements are based on the issue of consent. To prove the fifth element, the prosecution should prove that the accused penetrated the complainant’s vagina, with his penis, without her consent.
[60] You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance shall not alone constitute consent. A person’s consent to an act is not freely and voluntarily given if it is obtained under the following circumstances:
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
[61] Apart from proving that the complainant did not consent for the accused to penetrate her vagina with his penis, the prosecution must also prove that, either the accused knew or believed that complainant was not consenting or he was reckless as to whether or not she consented. The accused was reckless, if the accused realised there was a risk that she was not consenting, but carried on anyway when the circumstances known to him it was unreasonable to do so. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond any reasonable doubt.
[62] As I have stated before a woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant would have been over 13 years of age at the time of the alleged incidents as described in the said four counts, and therefore, she had the mental capacity to consent.
[63] Let me now explain the elements of the fifth and seventh counts together. Although in the Statement of Offence it has been referred to as Sexual Assault, contrary to Section 210 (1) (b) of the Crimes Act, when reading the Particulars of Offence it is made clear that these are in actual fact counts of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act.
[64] Section 210 (1) (a) of the Crimes Act reads as follows:
(1) A person commits an indictable offence (which is triable summarily) if he or she—
(a) unlly and indecently asly assaults another person;
[65] Therefore, in order for the prosecution to prove the fifth count of Sexual Assault, they must establish beyond any reasonabubt that;
(i) The aThe accused;
(ii) During the specified time period (in this case between 1 January 2017 and 31 December 2017);
(iii) At the Manoca Squatter Settlement, Nausori, in the Eastern Division;
(iv) Unlawfully and indecently assaulted the complainant, by fondling her breasts.
[66] Similarly, in order for the prosecution to prove the seventh count of Sexual Assault, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this instance the 22 October 2018);
(iii) At the Manoca Squatter Settlement, Nausori, in the Eastern Division;
(iv) Unlawfully and indecently assaulted the complainant, by fondling her breast.
[67] Let me now elaborate on these elements together in respect of the said counts.
[68] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[69] The second element relates to the specific day or time period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[70] The accused would be guilty of Sexual Assault, if he unlawfully and indecently assaulted the complainant. The word “unlawfully” simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As such, it is for you as Assessors to consider and decide whether the act of fondling the complainant’s breasts is an indecent act and thereby amounts to Sexual Assault.
[71] It is also my duty to mention another relevant legal requirement concerning Counts 1 to 6. The said counts are titled as representative counts. The representative counts of Rape (Counts 1-4 and 6) and Sexual Assault (Count 5) against the accused is based on an act or series of acts done during the specified time periods as stated in the respective counts. Such charges are described generally as a representative count in legal terminology. The prosecution is expected to prove just one incident of Rape and Sexual Assault, which falls within the period stipulated in the said counts. They need not prove a continuous or a series of incidents of Rape and Sexual Assault in support of a representative count.
[72] It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Rape and Sexual Assault are obviously considered a Sexual Offences. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.
[73] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2014 and 31 December 2014, at the Manoca Squatter Settlement, Nausori, penetrated the vagina of the complainant, with his penis, and at the time the complainant was a child under the age of 13 years, then you must find him guilty of the first count of Rape.
[74] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find him not guilty of the first count of Rape.
[75] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2015 and 31 December 2015, at the Manoca Squatter Settlement, Nausori, penetrated the vagina of the complainant, with his penis, and at the time the complainant was a child under the age of 13 years, then you must find him guilty of the second count of Rape.
[76] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find him not guilty of the second count of Rape.
[77] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2016 and 31 December 2016, at the Manoca Squatter Settlement, Nausori, penetrated the vagina of the complainant, with his penis, without the consent of the complainant and the accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting, then you must find him guilty of the third count of Rape.
[78] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find him not guilty of the third count of Rape.
[79] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at the Manoca Squatter Settlement, Nausori, penetrated the vagina of the complainant, with his penis, without the consent of the complainant and the accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting, then you must find him guilty of the fourth count of Rape.
[80] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find him not guilty of the fourth count of Rape.
[81] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2017 and 31 December 2017, at the Manoca Squatter Settlement, Nausori, unlawfully and indecently assaulted the complainant by fondling her breasts, then you must find him guilty of the fifth count of Sexual Assault.
[82] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the fifth count of Sexual Assault.
[83] If you are satisfied beyond any reasonable doubt that the accused, between 1 January 2018 and 21 October 2018, at the Manoca Squatter Settlement, Nausori, penetrated the vagina of the complainant, with his penis, without the consent of the complainant and the accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting, then you must find him guilty of the sixth count of Rape.
[84] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find him not guilty of the sixth count of Rape.
[85] If you are satisfied beyond any reasonable doubt that the accused, on 22 October 2018, at the Manoca Squatter Settlement, Nausori, unlawfully and indecently assaulted the complainant by fondling her breast, then you must find him guilty of the seventh count of Sexual Assault.
[86] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find the accused not guilty of the seventh count of Sexual Assault.
[87] If you are satisfied beyond any reasonable doubt that the accused, on 22 October 2018, at the Manoca Squatter Settlement, Nausori, penetrated the vagina of the complainant with his penis, without the consent of the complainant and the accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting, then you must find him guilty of the eighth count of Rape.
[88] If you find that the prosecution has failed to establish any of these elements beyond reasonable doubt, then you must find him not guilty of the eighth count of Rape.
[89] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
[90] In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the
prosecution and the defence have consented to treat the following facts as “Agreed Facts” without placing necessary evidence to prove them:
The following document is tendered by consent:
Birth Certificate of SSN.
[91] Since the prosecution and the defence have consented to treat the above facts as “Agreed Facts” without placing necessary evidence to prove them, you must therefore, treat the above facts as proved beyond reasonable doubt.
Case for the Prosecution
[92] The prosecution, in support of their case, called the complainant, SSN, her cousin brother, Rajwansh Nikhil Singh, her aunt Sashi Lata and Medical Officer, Dr. Nikotimo Bakani. The prosecution also tendered the following document as a prosecution exhibit:
Prosecution Exhibit PE1 – Medical Examination Report of the complainant.
[93] Evidence of the complainant SSN
(i) The complainant testified that she is now 17 years old. Her date of birth is on 10 March 2003. A copy of her birth certificate has been tendered to Court by consent of both parties and is attached as part of the Agreed Facts.
(ii) The complainant said she is currently residing at Vutuni in Ba and is staying at home.
(iii) The witness said that her mother is Nazreen Nisha Ali and her real father (biological father) is Abdul Saiyaz. She said that her real dad had separated from her mother when she was one year old. She has not seen him for many years.
(iv) The complainant testified that in 2014 she was living with her mother, her step-father and her younger brother at the Manoca Settlement, in Nausori. She said she used to address her step-father as papa or dad. It is an agreed fact that the accused Sanjeet Singh is the step-father of the complainant.
(v) The witness described the set-up of her house in Manoca as follows: “First is the porch and the sitting room. Front is the porch, then the sitting room. Then there is a passage. Then first, second and third rooms. In that passage there is a door that leads to the back porch and on that same passage we have our dining room and our kitchen. And besides the last room we have our toilet and bathroom.”
(vi) When asked as to how her relationship with her step-dad was in 2014, the witness said: “In front of everybody he used to act as if he is a very good father of mine. But he used to swear at me and hit me every time when there was no one and also in front of my mum.”
(vi) The witness testified to the events which took place between 1 January 2014 and 31 December 2014. She said that in 2014 she was in Class 6 at Nausori Primary School.
(vii) The complainant was then asked the following questions in evidence in chief:
.............
(viii) The witness testified to the events which took place between 1 January 2015 and 31 December 2015. During that period she lived at Manoca in Nausori together with her step-dad, her mum and her younger brother.
(ix) The complainant said that in the year 2015 the accused continued to have sex with her. “He used to put his penis in my vagina for a few minutes, had sex with me and warned me not to tell anyone. He used to hit me sometimes when I tell him not to do whatever he is doing”.
(x) When asked what did he do first, the witness answered: “He pulled my hand – when I stopped him he used to force me to come to his room. Sometimes he used to drag me to come to his room....If it’s week days when I go to school, he sends my brother to school – and when I get ready in my room, he used to pull me from my room to his room. When he used to pull me like this, no one else was present in the house that time.....After pulling me to his room – he always asks me to remove my clothes but I deny – he told me it is just natural, nothing will happen. Do it as I say.”
(xi) The complainant further testified that when she says no, the accused used to slap her and make her sit on the bed and remove her clothes. “I pushed him. I said I don’t want it. It is not the only time I did. But he used to force me to have sex with him. He used to put penis into my vagina.” When asked for how long the accused use to do this, the witness said “It takes him only a few minutes.” “He used to put his penis inside my vagina – in and out – when he released his sperm outside he tells me to wear my clothes. When I say it hurts me he says it will pain for a few minutes and it will be ok.”
(xii) The complainant was then asked the following further questions in evidence in chief:
In that year I told my mum that my vagina hurts me but not what happened. She neglected by saying that there is a problem that girls always have. Maybe you are starting with your menstruation.
(xiii) The witness testified to the events which took place between 1 January 2016 and 31 December 2016. She said that in 2016 she was in Class 8 at Nausori Primary School. During that period she lived at Manoca in Nausori together with her step-dad, her mum and her younger brother.
(xiv) However, the witness said that in the middle of the year, her step-sister and her grandmother came to live with them. This was her step-father’s mother. She was in her 60s or 70s and the witness said “She is a stroke lady, she can’t walk or talk.”
(xv) The complainant testified that it was only in the year 2016 (when she was in Class 8) she got to know what was happening to her. “At that time they used to teach us in our school what is sexual abuse, good touch, and bad touch. And I told him I won’t sleep with you or I won’t allow you to have sex with me.”........”And they also teach us whom to touch, whom to hug – then I realised that all the things that are happening to me is bad touch.”
(xvi) When asked how did the accused react? The witness said: “He said it is not a bad touch, it is a good touch. You are still small, you don’t know what this is.”....... “When I used to stop him having sex with me, then from then onwards he used to hit me, pull me and have sex with me (putting his penis into my vagina)”.
(xvii) When asked how she stopped him, the witness said: “Sometimes I used to push him, I used to stop him from taking off my clothes. Then he used to hit me and swear at me, and still have sex by putting his penis into my vagina.”.......”I was unable to tell him anything because I was really scared of him.”
(xviii) The witness said that in the year 2016, when the said incidents happened, everybody else was out of the house except for her grandmother. However, she explained that she could not reach out to her grandmother because her grandmother had suffered a stroke and fumbles everything together. She could not remember anything.
(xix) The witness said that she cannot recall the dates or months in 2016 when the incidents took place. However the witness said that the accused used to have sex in weeks and in months. “Sometimes 2 to 3 times in a week. Sometimes in a month, he goes 2 or 3 months and he stops in another month.”
(xx) The complainant said that every time she tried to stop the accused, but could not stop him because the accused used to assault her by hitting and slapping her.
(xxi) The witness next testified to the events which took place between 1 January 2017 and 31 December 2017. She said that in 2017 she was in Form 3 (Year 9) at Vunimono High School. During that period she lived at Manoca in Nausori together with her step-dad, her mum, her younger brother, her step-sister and her grandmother.
(xxii) The witness said that in 2017 the accused used to have sex with him mostly when her mother travels to Labasa. This is because her mum’s mother (her maternal grandmother) was usually sick.
(xxiii) The witness testified to the events that took place in May 2017. She said the accused used to send her brother, step-sister and grandmother to bed early, and tells her to go and sleep with him the whole night on his bed.
(xxiv) The complainant was then asked the following further questions in evidence in chief:
After he removed my clothes, he got new ideas – he started touching my breasts. He used to squeeze it hard and it used to pain. It is a new thing that he started doing. Before he put his penis into my vagina, he used to touch all my body parts, and then he used to put his penis in my vagina.
That day I started feeling shame on myself. I realized it will never end in this life. I knew it will continue forever. Sometimes I used to think I should do something to me to stop all this. I love my studies a lot and because of whatever he was doing to me, it used to hurt me and sometimes the marks he left on my body by hitting me. All the pain I got on my body stopped me from going to school.
(xxv) The witness next testified to the events which took place between 1 January 2018 and 21 October 2018. She said that during that period she was in Form 4 (Year 10) at Vunimono High School. During that period she lived at Manoca in Nausori together with her step-dad, her mum, her younger brother, her step-sister and her grandmother.
(xxvi) The witness said that around September 2018, one Rajwansh came to the house and about 2 weeks later, a boy named Sosi came to stay in the house. The witness explained that Rajwansh is her aunty’s son (Sashi Lata’s son) and Sosi is one of Rajwansh’s friends. They both came to build her cousin sister’s house. They are contractors and were working for her step-father.
(xxvii) The complainant said that even during this period, the accused continued having sex with her like before, when no one was at home. He used to touch her body and put his penis into her vagina. As usual she tried to stop him but could not do so. The witness said: “When there was no one at home, then he used to take me to his room and then he used to ask me to take off my clothes. Even though I stopped him, I get slapped by him and he removes my clothes. ....... I used to push him. I remember one time I kicked him to get off me.”
(xxviii)The witness continued: “I used to stop him. But doing this every time, I got fed up of him and I even tried to run away from my house one time......I felt disgusted of myself, I even didn’t like it. Because he used to touch my body in a disgusting way, and even slap me when I refuse him.”
(xxix) The witness next testified to the events which took place on 22 October 2018. On that day she was at home in Manoca. Her mum had gone to work in the morning, and her brother and sister had gone to school. Rajwansh and Sosi had gone to her cousin-sister’s place to build her house. Her step-father had sent them there by saying that he will come later. Only her sick grandmother was at home with her and the accused.
(xxx) On that day, it was school holidays. During the holidays she had started working at Hemal’s Milk Bar in Nausori Town. Although she wanted to go to work by 7.00 in the morning, the accused had wanted her to go at 8.30. The accused had said: “You know why I’m saying this.”
(xxxi) The complainant had told the accused that she is fed up of all what he’s doing to her, and that she’s going to report it herself. The accused had gotten angry. He had taken a solar inverter wire and hit her with the wire. The witness had said: “Don’t hit me. I will listen to whatever you say.” The witness said: “Because he was hitting me, and it was so painful. I got the marks of those wires on my body, and he said: “These marks will always remind you don’t ever cross my words.””
(xxxii) The witness continued: “That day he really forced me by pulling me and dragging me to his room. That was a bad day I had ever had from all the days before. He dragged me to his room. He pulled my clothes with one of his hands, and with the other hand he pulled my hand. He dragged me to his room. That day he didn’t ask me to remove my clothes by myself. He removed my clothes by himself. Without saying anything, he pushed me on bed and he had sex with me by inserting his penis into my vagina while he touched my breast. He was so rough and so hard that day. While having sex, he said to me: “Your mum is your sautan” (meaning her mum is the other woman).”
(xxxiii)The witness further testified: “I know he meant that – he’s having sex with me and also with my mum. He also said ‘I am more happy with you than your mum’. I didn’t have any words to say to him because I already got beaten up by him.”
(xxxiv)The witness said that she had then left for work and was thinking not to return home that day. However, she had come back home because of her mum. “I used to like my mum a lot because she used to support me before.”
(xxxv) The complainant then testified to the incident which happened the next day (23 October 2018). She said her mum left to work and her brother and sister had gone to school. Although the accused had asked Rajwansh and Sosi to go to the work place, he didn’t notice that Rajwansh had not left for work.
(xxxvi)The accused had come to her room and taken her to his room. He had tried to take off her clothes but was unable to do so because the complainant was fighting back at him, and pushed him away. The accused had opened the sulu he was wearing and was trying to remove her pants, when suddenly Rajwansh came into the accused’s room to ask for a lighter. The witness said: “I was under my dad, I was fighting with my dad not to take off my clothes. When Rajwansh came, he moved aside and said ‘where is my sulu’. He was panicked and confused and then Rajwansh went into the sitting room, and my step-dad sent me outside of his room too.
(xxxvii)The witness said that Rajwansh had urged her to go to the Police Station and report the matter. However, the witness had begged him not to go to the Police Station because the accused had threatened her that he will kill her and mother as well.
(xxxviii)The complainant testified that after this incident the accused had told Rajwansh to go back to his house in Ba. She said: “He told a lie and made Rajwansh a bad person.”
(xxxix)The witness then testified as to how she had gone together with Rajwansh to her aunt’s place (Sashi Lata's place) in Ba. She told Sashi Lata what exactly her step-father had been doing to her; that her step-father used to have sex with her and beat her.
(xl) The matter had been then reported to the Ba Police and subsequently to the Nausori Police Station, who conducted investigations into the case.
(xli) The complainant had been medically examined by Dr. Elvira Ongbit on 30 October 2018 at the M.S.P Clinic in Suva.
(xlii) The complainant was cross examined at length by the Counsel for the Defence (based on instructions previously given to the Defence Counsel by the accused). Several suggestions were put to the complainant by the defence counsel in the said cross examination.
(xliii) A rough sketch of the house where the alleged incidents took place was tendered to Court as Defence Exhibit DE1.
(xliv) The defence suggested to the witness that the accused had never had sexual intercourse with her from 2014 until 22 October 2018, as alleged. The complainant answered by saying: “No that’s a lie. He used to abuse me. He used to have sex with me.”
(xlv) It was further suggested to the complainant that the accused had never touched her breasts in 2017 or on 22 October 2018, as alleged. The complainant said: “He did from 2017 to 2018.”
(xlvi) It was also suggested that after Rajwansh had arrived at their house in 2018, that she and Rajwansh were having an affair, and also that she and Rajwansh were having sexual intercourse whilst Rajwansh was staying in the house. The witness denied the suggestions.
(xlvii) It was further suggested to the complainant that she was making false allegations against the accused because she did not want Rajwansh to get into trouble with the Police and to save him. The complainant denied this suggestion and said that she did not make any false allegations against the accused.
(xlvii) The defence also denied that the complainant had been hit or assaulted by the accused on numerous occasions as alleged by her. The defence stated that the accused had only hit the complainant once in 2018, and that too because she did not go to school and she did not sit for her Form 4 exam. The complainant denied this suggestion and said that the accused had hit her so many times.
[94] Evidence of Rajwansh Nikhil Singh
(i) He is currently residing at Koronubu, Benei, Ba. He is a Carpenter by occupation. He has been working as a carpenter for almost 8 years. His nickname is Raju.
(ii) The witness said that in October 2018, he was working for a private contractor in Varadoli in Ba. He got leave and came to Nausori with his friends. The day when he reached Nausori was a bit late so he went to the accused’s house to get shelter.
(iii) The witness testified that the accused is related from his mother’s side. The accused is his mother’s cousin brother. His mother is Sashi Lata.
(iv) Later the witness said that he would have come to the accused’s house in September 2018. He said he does not remember the exact date, but it must have been before 22 September 2018, since that day was his birthday. He stayed at the accused’s house for almost 2 months.
(v) The witness said that while he was staying at the accused’s house: “I saw things which I really seen it on television.” When asked to specify he said: “Like step-father trying to have intercourse with the step-daughter, assaulting her.....”
(vi) The witness specifically referred to the incident which happened in October 2018. He said in the morning that day, he woke up early. He said it was between 6.00 and 6.30 in the morning. He had heard the complainant in a lower voice saying ‘nahi karo Papa’ meaning don’t do it father. The witness continued: “I walked slowly – floor is very squeaky when you walk – so I walked slowly as an excuse to get a lighter for the matches. There was no door on that room. I removed the curtain fast so I can see what’s happening. Then I saw Sanjeet was naked. He was holding her hands – forcing her on bed with both of his hands. Sanjeet was on top of SSN holding both of her hands and forcing her on the bed. SSN was struggling and trying to force her way out.”
(vii) On seeing the witness the accused had asked him what he was doing there. The witness said he was embarrassed. He had said he came to get the lighter. “When he saw me he was like shocked. He said I’m trying to find my sulu.” The witness had gotten the lighter and come out of the room.
(viii) The witness said that he had urged the complainant to report the matter first to her mother. The complainant said that she had already told her mother but that her mother does not believe her. He had then told her to report the matter to the Police but the complainant had said she didn’t want to do so since the accused had threatened her.
(ix) The witness said that he had remained at the accused’s place for about one and a half weeks more, and then gone back home to Ba.
(x) He testified as to how the complainant had accompanied him when he travelled to Ba.
(xi) In cross-examination of the witness, an inconsistency was highlighted by the defence with regard to the testimony he gave in Court vis a vis his statement made to the Police. In his testimony in Court, the witness said that the incident he referred to which happened in October 2018, took place between 6.00 and 6.30 in the morning. However, in his Police statement it is stated thus: “The incident happened at around about 5.15 a.m to 5.45 a.m.” The witness explained that he had told the Police that the incident happened between 6.15 a.m and 6.45 a.m.
[95] Evidence of Sashi Lata
(i) She is currently residing at Koronubu, Benei, Ba. She is a housewife by occupation. Rajwansh Singh is her second son.
(ii) The witness testified to the events which transpired in October 2018 and how the complainant came to her residence in Ba along with her son Rajwansh.
(iii) The witness said that the complainant had informed her that the accused had been abusing her and beating her with a wire. “SSN told me that my father is forcing me and putting my clothes up, and he touches me on the private parts.”
(iv) The witness had asked the complainant whether she had told her mother about it. The complainant had said that she had told her mother plenty of times but her mother does not listen to her.
(v) The witness testified as to how the matter was reported to the Ba Police. Later the complainant together with Rajwansh had been taken to Nausori and the matter had been reported to the Nausori Police.
[96] Evidence of Dr. Nikotimo Bakani
(i) The doctor testified that he is currently at home (in Delai Labasa) waiting for renewal of his contract with Medical Services Pacific (MSP).
(ii) He has been practising as a Medical Officer for 17 years, after having graduated from the Fiji School of Medicine, with a MBBS Degree, in 2003.
(iii) From March 2018 - March 2020, he has worked with MSP managing the clinic at Labasa (the MSP Labasa Clinic).
(iv) The witness testified that he has worked with Dr. Elvira Ongbit in 2018 and 2019 and he is familiar with her work. Dr. Ongbit handled the MSP Suva Clinic.
(v) The witness said that a medical examination on the complainant was conducted by Dr. Elvira Ongbit, on 30 October 2018, at 18.30 hours. The Medical Examination Report was tendered to Court as Prosecution Exhibit PE1.
(vi) The Doctor testified as to the specific medical findings as found in column D12. Under vaginal examination, it is stated:
- Very wide vaginal opening: accommodates three fingers (3) easily.
- Old healed hymenal laceration at 3.00 o’clock, 6.00 o’clock and 9.00 o’clock positions.
(vii) The Doctor further explained these findings with reference to diagram done by Dr. Ongbit at Appendix 1. The diagram shows the female external genetalia-also known as the vulva.
(viii) The Doctor explained further that a laceration means a tear. The diagram/findings shows that there were tears in the hymen at the 3.00 o’clock, 6.00 o’clock and 9.00 o’clock positions. These have been labelled as old healed hymenal lacerations.
(viii) Under the specific medical findings, it is further noted that the vaginal opening admits 3 fingers easily. The Doctor explained that this would be about 3 cm’s in width.
(ix) The Doctor said that from his experience these tears in the hymen could have been caused by blunt objects, such as an erect penis or even fingers.
[97] That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence in respect of all counts. You then heard me explain the several options that were available to the accused. The accused could have addressed Court by himself or through his counsel. He could have also given sworn evidence from the witness box and/or called witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.
[98] Since the accused was not present in Court during these proceedings it is assumed that the accused is exercising his right to remain silent. I must emphasize that you must not draw any adverse inference against the accused due to Court calling for his defence or of his absence from Court during the trial.
[99] As mentioned before, during the cross examination of the complainant, the defence moved to tender to Court a rough sketch of the house where the alleged incidents took place as Defence Exhibit DE1.
Analysis
[100] The above is a brief summary of the evidence led at this trial. The prosecution led the evidence of the complainant, SSN, her cousin brother, Rajwansh Nikhil Singh, her aunt Sashi Lata and Medical Officer, Dr. Nikotimo Bakani, to prove its case.
[101] In this case, the complainant had been medically examined by Dr. Elvira Ongbit. She is the Medical Officer who had examined and prepared the Medical Examination Report of the complainant, which is tendered to Court as Prosecution Exhibit PE1. However, the said Medical Officer is currently overseas and is unable to return to Fiji due to the suspension of international air travel, as a result of the corona virus pandemic. In such situations, in the absence of the Medical Officer who examined and prepared the Medical Examination Report, the law permits for the contents of any report which the prosecution intends to give as evidence and about which notice has been given to the defence, to be referred to and commented upon by any other expert called as a witness in any criminal trial. This is the basis on which the prosecution is relying upon the evidence of Medical Officer Dr. Nikotimo Bakani.
[102] This kind of evidence is given to help you with scientific matters by a witness who has expertise. As you may have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefit, and to express opinions about them, because they are used to doing that within their particular field of expertise.
[103] You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.
[104] As I have informed you earlier, the burden of proving each ingredient of the charges of Rape and Sexual Assault rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[105] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[106] As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved beyond reasonable doubt. Based on the said agreed facts the identification of Sanjeet Singh as the accused is not disputed. He is also the step father of the complainant. It is also agreed that the accused and the complainant resided at Manoca Settlement, Nausori at the time of the alleged offences.
[107] Furthermore, since the birth certificate of the complainant is tendered by consent, her date of birth (10 March 2003) would not be in dispute. Accordingly, the fact that the complainant was a child under the age of 13 years during the period 1 January 2014 and 31 December 2014 (Count 1) and 1 January 2015 and 31 December 2015 (Count 2) would not be in dispute.
[108] However, the prosecution must prove all the remaining elements of the respective offences beyond reasonable doubt.
[109] I have already explained to you how you should deal with inconsistences and even omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation given by the witness for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.
[110] However, if there is no acceptable explanation given by the witness for the inconsistency or omission which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies and omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency or omission and consider him or her to be reliable as a witness. [I must remind you once again that in this case no omissions were highlighted].
[111] The accused (through the suggestions made by his counsel during cross examination) totally denies all the allegations against him. He totally denies that he penetrated the complainant’s vagina with his penis as set out in the Amended Information. He also denies that he unlawfully and indecently fondled with the complainant’s breasts as he is charged in Counts 5 and 7.
[112] It is for you as judges of fact to consider the totality of the evidence and come to a finding on all of the above matters.
[113] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the counts of Rape and Sexual Assault, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offences of Rape and Sexual Assault, beyond any reasonable doubt.
[114] You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty of the other counts as well.
[115] In summary, and before I conclude my summing up let me repeat some important points in following form:
[116] Any re directions the parties may request?
[117] Ladies and Gentleman Assessor, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions on the six counts of Rape and two counts of Sexual Assault separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[118] Your possible opinions should be as follows:
Count One
Rape- Guilty or Not Guilty
Count Two
Rape- Guilty or Not Guilty
Count Three
Rape- Guilty or Not Guilty
Count Four
Rape - Guilty or Not Guilty
Count Five
Sexual Assault - Guilty or Not Guilty
Count Six
Rape- Guilty or Not Guilty
Count Seven
Sexual Assault - Guilty or Not Guilty
Count Eight
Rape- Guilty or Not Guilty
[110] I thank you for your patient hearing.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 28th Day of July 2020
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Office of the Legal Aid Commission, Suva.
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