IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 126 of 2019

STATE

V

NITIN NEERAJ KUMAR

Counsel		:	Ms. Swastika Sharma for the State
				Mr. Avinesh Reddy for the Accused

Dates of Trial		: 	27-31 July 2020
Summing Up		: 	04 August 2020
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “VW”. 
SUMMING UP

Madam Assessor and Gentlemen Assessors,

[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 Accused and the State 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 document tendered as a prosecution exhibit and the admissions made by the parties by way of admitted facts and additional admitted 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 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 submissions made by the State Counsel and closing submissions made by both Defence Counsel and State 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 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]	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 perceive (or know) in any other way 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.
[16]	In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in their 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. 
[17]	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). 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. 
[18]	This is how you should deal with inconsistencies and 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 for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.
[19]	However, if there is no acceptable explanation 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 inconsistency or 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 and consider the witness to be reliable.
[20]	Madam Assessor and Gentlemen Assessors, 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. 
[21]	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.
[22]	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 to the charge. 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.
[23]	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. 
[24]	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.
[25]	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.
[26]	In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench of this Court room. 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 fact and the inferences that could be drawn from them.
[27]	I must emphasize, it does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.
[28]	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. 
[29]	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. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence.  It is not his task to prove his innocence. 
[30]	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?
[31]	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.
[32]	It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the two 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.
[33]	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 in this case 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.   
[34]	Let us now look at the charges contained in the Information.
[35]	There are two charges preferred by the Director of Public Prosecutions (DPP), against the accused:
COUNT ONE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Act 2009.

Particulars of Offence
NITIN NEERAJ KUMAR, on the 4th day of March 2019, at Nasinu, in the Central Division, penetrated the mouth of VW, with his penis, without her consent.
COUNT TWO
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
NITIN NEERAJ KUMAR, on the 4th day of March 2019, at Nasinu, in the Central Division, penetrated the vagina of VW, with his penis, without her consent. 

[36]	As you would observe the accused has been charged with two counts of Rape, the first contrary to Section 207 (1) and (2) (c) of the Crimes Act No. 44 of 2009 (Crimes Act) and the second contrary to Section 207 (1) and (2) (a) of the Crimes Act.
[37]	Let me now explain the elements of Count One which is a count of Rape contrary to Section 207 (1) and (2) (c) of the Crimes Act. 
[38]	Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
[39]	Section 207(2) (c) of the Crimes Act is reproduced below.
(2) A person rapes another person if — 
(a)……;  
(b)……;
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.
[40]	Therefore, when Section 207(1) is read with Section 207(2) (c) it would read as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
(2) A person rapes another person if — 
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.
[41]	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) 	On the specified day (in this case the 4 March 2019);
(iii)	At Nasinu, in the Central Division;
(iv) 	Penetrated the complainant’s mouth, 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. 

[42]	Let me now explain the elements of Count Two which is a count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act. 
[43]	Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
[44]	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; or 
[45]	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.
[46]	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.
[47]	Therefore, in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	On the specified day (in this case the 4 March 2019);
(iii)	At Nasinu, in the Central 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. 
[48]	Let me now elaborate on these elements together in respect of the said two counts.
[49]	The first element is concerned with the identity of the person who committed the offences. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offences.
[50]	The second element relates to the specific day on which the offences were committed. The third element relates to the place at which the offences were committed. The prosecution should prove these elements beyond any reasonable doubt.   
[51]	The fourth element differs in the two counts. In respect of Count 1 it involves the penetration of the complainant’s mouth; 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 mouth of the complainant with his penis to any extent. 
[52]	In respect of Count 2 it involves the penetration of the complainant’s vagina; with the accused’s penis. Again I must emphasize that in law 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.  
[53]	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 mouth, with his penis, without her consent (For Count 1); and that the accused penetrated the complainant’s vagina, with his penis, without her consent (For Count 2). 
[54]	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 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: 
(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. 
[55]	Apart from proving that the complainant did not consent for the accused to penetrate her mouth with his penis (For Count 1) or that the complainant did not consent for the accused to penetrate her vagina with his penis (For Count 2), 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 the charge beyond any reasonable doubt.   
[56]	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 in this case was 24 years at the time of the incident, and therefore, she had the mental capacity to consent. 
[57]	It must also be noted that in our law, no corroboration is needed to prove an allegation of a Sexual Offence; Rape is obviously considered as a Sexual Offence. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters. 
[58]	If you are satisfied beyond any reasonable doubt that the accused, on 4 March 2019, at Nasinu, penetrated the complainant’s mouth with his penis, without her consent, 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 First Count of Rape. 
[59]	If you find that the prosecution has failed to establish any of these elements in relation to the charge, then you must find the accused not guilty of the First Count of Rape.  
[60]	If you are satisfied beyond any reasonable doubt that the accused, on 4 March 2019, at Nasinu, penetrated the complainant’s vagina with his penis, without her consent, 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 Second Count of Rape. 
[61]	If you find that the prosecution has failed to establish any of these elements in relation to the charge, then you must find the accused not guilty of the Second Count of Rape.  
[62]	These are some of my directions on law and I will now briefly deal with the evidence presented before this Court. 
[63]	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 “Admitted Facts” without placing necessary evidence to prove them: 
1. 	The complainant is VW.
2.	At the time of the alleged incident, the complainant was working at Movie Electro shop as a Sales Girl.
3.	The accused is Nitin Neeraj Kumar.
4.	The accused’s date of birth is 8 September 1993 and he is 26 years old.
5.	Movie Electro shop’s main branch is at Nakasi.
6.	After opening the shop, the complainant went to Movie Electro shop at Centre Point at around 11.00 a.m. [Although not specifically stated this should be on the day of the alleged incident-4 March 2019].
7.	When the complainant reached the shop at Centre Point, she met the accused.
8.	The accused asked the complainant to get CDs from Nakasi. Since the accused was alone at the shop, the complainant went to get movies from Nakasi.
9.	At around 12.30 p.m. the complainant reached the shop at Centre Point and only the accused was at the shop.
[64]	Furthermore, In terms of the provisions of Section 135 of the Criminal Procedure Act, the prosecution and the defence have consented to treat the following as “Additional Admitted Facts”.
1.	The admissibility of the following document and its contents are not contested and the same will be tendered during trial by consent:
	Photographic booklet dated 8th March 2019.
[65]	Since the prosecution and the defence have consented to treat the above facts as “Admitted Facts” and “Additional Admitted Facts” without placing necessary evidence to prove them you must therefore, treat the above facts as proved beyond reasonable doubt. 
Case for the Prosecution
[66]	The prosecution, in support of their case, called the complainant (VW). The prosecution also tendered the following document as a prosecution exhibit: 
	Prosecution Exhibit PE1- Photograph No 5 in the Photographic booklet dated 8th March 2019.  
[67]	Evidence of the complainant VW
(i)	The complainant testified that she is currently residing at Waidamudamu Settlement in Nakasi, with her husband, two daughters (who are 4 years and 2 years old), her mother-in-law and father-in-law. She is 25 years of age and is currently unemployed (she is a housewife).
(ii)	She testified that she got married to her husband in March 2019. 
(iii)	The complainant testified to the events that took place on 4 March 2019. At the time she was residing at the Raiwaqa Settlement, with her father, mother, six siblings and two daughters.
(iv)	At the time she was working as a Salesgirl at Movie Electro Shop. She had been working there for about three months prior to the 4 March 2019.
(v)	The Movie Electro Shop has 3 branches. The main branch was at Nakasi. The other 2 branches were at Yatu Lau Arcade in Suva and Centre Point. She had been working at the Suva branch. The Movie Electro Shop deals with selling movies – CD movies. 
(vi)	She said she had been working at Movie Electro Shop to support her kids and her family.
(vii)	On the morning of 4 March 2019 she had come to open the shop in Suva. When the other salesgirl had come to work at the Suva shop, she went to the Centre Point branch. The complainant said that it was her boss Jonathan Amhaz’s decision for her to work at the Centre Point branch that day.
(viii)	It is an admitted fact that when the complainant reached the shop at Centre Point, at around 11.00 a.m., she met the accused Nitin Neeraj Kumar. It is also an admitted fact that the accused asked the complainant to get CDs from the main branch at Nakasi. It is also admitted that since the accused was alone at the shop, the complainant went to get movies from Nakasi. It is also admitted that around 12.30 p.m., the complainant reached the shop at Centre Point and at the time, only the accused was alone at the shop.
(ix)	When asked as to how often she had met Nitin Kumar prior to 4 March 2019, the witness answered: “It was the first time”.
(x)	The complainant said that at the time she reached the shop at Centre Point, the accused was alone at the shop. She testified as follows: “When I reached the shop after 12.30 p.m., I wanted to go to use the washroom. And there was no toilet paper in the washroom. Then I came and asked Nitin for the toilet paper. And then he went to buy toilet paper from R. B. Patel. And then when he came back, I went to use the toilet. I went inside the toilet, but I never locked the door. I only pushed the door (closed but never locked it).”
(xi)	The admissibility of the Photographs of the Movie Electro Shop at Centre Point and its contents are not contested by parties and the Photographic Booklet, dated 8 March 2019, was tendered to Court with the consent of parties as additional admitted facts. Photograph number 5 in the booklet was tendered to Court separately as Prosecution Exhibit PE1.
(xii)	The complainant was shown these photos and was asked to explain as to where exactly the alleged incidents took place on the 4 March 2019.
(xiii)	The following questions were then asked from the complainant and she answered as follows:

Q.	You told us you went to the toilet, you never locked it – you only pushed the door?
A.	Yes.

Q.	Why did you only push the door?
A.	Because I did not expect anything to happen.

Q.	When you came to the toilet where was Nitin?
A.	He was inside the counter as shown on Photograph No. 3.

Q.	Then what happened?
A. 	I went inside the washroom, I pushed the door but I did not lock, I pulled down my pants till my knee, as I was just about to sit down, he pushed the door inside.

Q.	What were you wearing that day?
A.	I was wearing jeans and a t-shirt.
Q.	What else were you wearing?
A.	A panty and a bra.
	I was about to sit down on the toilet pan.

Q.	Who pushed the door?
A.	Nitin.

Q.	What do you mean he pushed the door inside?
A.	He pushed the door inside to come inside the toilet. 

Q.	When he pushed the door, how did you feel?
A.	I was scared.

Q.	What did you do?
A.	I tried to stop him but I couldn’t, because he had got in, closed the door and he stood there at the door.

Q.	How did you try to stop him?
A.	I tried to push him away, but I couldn’t because he was standing there, and his legs were blocking the door.

Q.	How did you try to push him away?
A.	I tried to pull him to one side but I couldn’t, because he had blocked the entrance and he braced himself using his hands on the wall.

Q.	Which wall did he put his hands on?
A.	Photo No. 4. From inside the washroom (he put his hands) on the closed door.

Q.	Then what did you do?
A.	I couldn’t do anything because he had braced himself firmly on the wall.

Q.	And then what happened?
A.	At that time my pants were already down on my knee, he then pulled down his pants also until his knee, then he told me to suck him.

Q.	What was Nitin wearing?
A.	He was wearing long pants and a t-shirt.

Q.	What tone did he tell you to suck him in?
A.	He did not tell me to suck him – but he just pulled down his pants, then he pulled my head down to suck him.

Q.	What did he use to pull your head down?
A.	His hands.

Q.	Which hand?
A.	His right hand.

Q.	When he was pulling down his pants, what were you doing?
A.	I was asking him not to do it but to open the door.

Q.	What happened after that?
A.	After he pulled my head down to suck him, he then turned me around to face the pan.

Q.	What do you mean by ‘suck him’?
A.	To put my mouth into his balls (polo).

Q.	Is there any other word for polo or balls?
A.	Penis.

Q.	What did you exactly mean by ‘to put my mouth into his balls’ (penis)?
A.	For his ball to go inside my mouth.

Q.	For how long was his penis inside your mouth?
A.	2 minutes.

Q.	When his penis was inside your mouth, what were you doing?
A.	Nothing because he had already pushed down my head, and his hands were pressing my head.

Q.	Which hands?
A.	His right hand.

Q.	What was he doing with his left hand?
A.	He used it to pull down his pants.

Q.	What were you doing with your hands?
A.	Nothing, because when I tried to push him I couldn’t.

Q.	How did you feel when you had his penis in your mouth?
A.	I felt scared, I felt yucky.

Q.	After that what happened, what did he do?
A.	He then forced me to face the (toilet) pan.
Q.	How did he turn you?
A.	He hold my head and he turned me to look at the back/facing the wall.

Q.	How did he hold your head?
A.	He was still holding on to my head and he turned me to face the pan, towards the wall.

Q.	Which wall are you referring to?
A.	Photo No. 4 – to face that pan (toilet pan), and facing that wall at the back.

Q.	What were you doing when he did that to you?
A.	I couldn’t do anything because he was holding on to my head.

Q.	Can you show which part of your head did he hold?
A.	Witness demonstrates by holding the top of her head.

Q.	And how was his grip when he was holding your head?
A.	He was holding my hair firmly so I couldn’t do anything.

Q.	Then what happened (after he turned you to face the wall)?
A.	After he turned me towards the pan, he then told me to bend down and then he inserted his balls into my female part.

Q.	What do you mean by balls?
A.	Penis.

Q.	What do you mean by female part?
A.	Vagina.

Q.	For how long did he insert his penis into your vagina?
A.	For 5 minutes.

Q.	What were you doing in those 5 minutes?
A.	I was scared, I did not know what to do.

Q.	When Nitin was inserting his penis into your vagina, what was he doing with his hands?
A.	 He used his hands to grip on my lower waist.

Q.	How did you feel at that time?
A.	Scared.

…………..

Q.	You said Nitin had pulled down his pants. Can you tell us at the time he was inserting his penis into your vagina, how was his pants?
A.	His pants were on his knees.

Q.	What position were you in at the time he was inserting his penis in your vagina?
A.	I was bending down facing the wall.

Q.	After 5 minutes, after inserting his penis in your vagina, what happened?
A.	After that he wore his pants, and he went out of the toilet.  Also I wore my pants, took my bag and I left the premises.

Q.	Where did Nitin go to?
A.	He went out of the toilet and went and stayed at the counter.

Q.	When Nitin went out of the toilet, how did you feel?
A.	I was scared but I just took my bag, went out and I left.

Q.	What were you scared of?
A.	I was scared because it was the first time it had happened to me.

(xiv)	The complainant then testified that she had left Centre Point. She had got into a bus from there to Suva and come to the Movie Electro Shop in Suva. She had asked her friend Salanieta for her boss’s number. The complainant said that she did not know her boss’s number.
(xv)	The complainant had then called her boss (Jonathan Amhaz). He had told her that he’s busy that day, and told her to come and see him on the next day. Thereafter, she had proceeded home.
(xvi)	On the morning of the next day she had gone and met her boss at his workplace at ANZ Bank. She had told him all that the accused had done to her the day before. Her boss had told her to do what she wanted to do (to do whatever she wished to do).
(xvii)	The complainant said the reason she went and informed her boss was because he is the owner of the shop and (she thought) he is the first person she should inform.
(xviii)	The witness said she had just remained at home since she did not know what to do. On the next day her boss had called her again. He had come and picked her up from Nabua and taken her to the main branch in Nakasi. Her boss had told his wife (Komal) to take her and the accused Nitin to the Police Station. After that his wife took her and Nitin to the Valelevu Police Station to lodge the complaint.
(xix)	When asked what kind of relationship she had with Nitin, the complainant said: “When I came in that day, I introduced myself to him and he introduced himself to me. That’s all.” When asked whether prior to that day she knew Nitin, the witness said no.
(xx)	The complainant identified Nitin as the person in the dock.
(xxi)	The complainant was cross examined at length by the defence. The defence also put several suggestions to the complainant. 
(xxii)	The following suggestions were, inter-alia, put to the complainant and she answered as follows:

Q.	I put it to you that you knew Nitin well before this particular day, had met 
	him, seen him, spoken to him and worked with him?	
A.	No.

Q. I put it to you that as usual you started flirting with Nitin?
A.	No.

Q. I put it to you that he flirted back?
A. No.

Q.	I put it to you that you and Nitin inevitably started kissing in the kitchen 	area?
A.	No.

Q.	I put it to you that you then had oral sex with my client outside the toilet, 
	but beside the sink area?
A.	No.

Q.	I put it to you that you then proceeded into the washroom to have full 
	vaginal sex (or else) from that point people could have seen you?
A.	No.

Q.	I put it to you that after consensual sex, my client ejaculated inside your 
	vagina during the sex?
A.	Yes.

Q.	I put it to you that you then proceeded to ask my client to get toilet paper 
	since there was none in the toilet?
A.	No.

Q.	I put it to you that Nitin went and brought toilet paper for you so that you 
	can wipe the sperm off and around your vaginal area?
A.	No.
Q.	I put it to you that you proceeded outside to smoke with your friends?
A.	No.

Q.	I put it to you that from there, you went to Suva branch and met 
	Salanieta?
A.	Yes.

Q.	I put it to you that you only told her that you want to see the boss about 
	something?
A.	No.

Q.	I put it to you that you then left somewhere, came back and told her that 
	Nitin raped you?
A.	No.

Q.	I put it to you that when she told you that you could have shouted and 
people could have heard you, you replied with a laugh and went to see your boyfriend?
A.	No.

(xxiii)	The defence highlighted certain inconsistencies in the testimony given in Court by the witness vis a vis her statement made to the Police:

i.	In her testimony in Court, the witness said that no threats were made by the accused of physical violence before, during or after the incident.

However, in her statement made to the Police, it is recorded as follows:
“After that he removed his penis and wear his clothes back and told me not to tell anyone about this, and if he hear that I told anyone about this, he will slap me”.

ii.	In her testimony in Court, the witness said that when she went to meet her boss Jonathan on Tuesday 5 March 2019, he had told her to do whatever she had to do.

However, in her statement made to the Police, it is recorded as follows:
“He then told me that he is very busy and asked me to do whatever I want”.
(xxiv)	In re-examination, the State Counsel clarified from the witness the answers given by her in cross examination, especially with regard to the suggestions made by the defence.
[68]	That was the case for the prosecution. At the end of the prosecution case, this Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could give sworn evidence from the witness box and/or call witnesses on his behalf. He could also address Court by himself or his counsel. 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. In this case, the accused opted to offer evidence under oath and also called three witnesses in support of his case.  

Case for the Defence
[69]	The accused gave evidence and also called three witnesses, namely Jonathan Ashraf Amhaz, Salanieta Aditubuna and Komal Kushbu Nair, in support of his case.
[70]	Evidence of the accused Nitin Neeraj Kumar
(i)	The accused testified that he is currently residing at Qarase Road, Nadera. He is 27 years of age. He is a Salesperson by occupation.
(ii)	The witness testified to the events that took place on Monday, 4 March 2019. 
(iii)	The witness said that he came to the Centre Point Shop between 10.00 and 11.00 that morning. Then he and Ashley (the Salesgirl working at the Centre Point Shop) started doing their normal work. After that Komal had called and said that Ashley was going to work at the Nakasi Shop and that the complainant was coming to Centre Point. Accordingly, Ashley had left.
(iv)	A few minutes later the complainant had walked in. Since he knew the complainant, he did not have to introduce himself or explain who he was. Thereafter, he had explained to the complainant how to use the new cash register and they were testing the old movies.
(v)	While testing the movies, they had started joking – witness said like dirty jokes. The accused said that the joking went deep. He said “She took it seriously, I took it seriously”.
(vi)	The witness then said: “Then VW stood up, pulled my hand, she said come we will go to the kitchen and both of us went to the kitchen. Then she kissed me and I kissed her back. After we finished kissing I asked her if she wants to suck me – like putting VW’s mouth inside my penis or my balls going inside her mouth. Ball means penis. She agreed. Then she went down. Then I pulled my pants down. Then she started sucking.”
(vii)	The witness said that this incident took place just near the sink and the toilet door. The complainant had been sucking his penis for less than 1 minute.
(viii)	When asked then what happened, the witness said: “Then she came back up again – then we started kissing again. Then she asked me if you want to have sex. And I asked her it’s up to you, if you want it then we can do it….Since my pants was already down, she opened her pants, pulled it down and she turned around. She went into the toilet and had one hand on the pan and the other hand on the wall. She opened her pants before going to the toilet. She pulled down her pants up to her knees. Then she bent down……When I went inside ready to have sex – when I wanted to insert my penis, she guided me through.”
(ix) 	When asked as to what he meant when he said the complainant guided him through, the witness said: “She told me not that part of the private part – she held my balls/penis and guided it into her vagina. Then we started doing it – we started having sex.”
(x)	When asked whether the complainant was co-operating in the sex, the witness said yes, and said that the complainant was stating in Fijian: “Lako Nitin, vamalua, vamalua”meaning “Go Nitin, go slowly, go slowly”. The witness also said that the complainant was making sex sounds (the usual moans while having sex). The witness said this had lasted for about 3 minutes also.
(xi)	The witness said that thereafter, he went back to the counter to serve customers. The complainant had remained in the kitchen. She had shouted from the kitchen saying that there is no toilet paper. So the witness had taken money from the till, gone to R. B. Patel, bought the toilet paper and given it to the complainant. 
(xii)	Thereafter, Komal had called asking him to send the complainant to the main branch at Nakasi. The witness had given the complainant her bus fare and the complainant had left for Nakasi.
(xiii)	The accused said that he got to know that the complainant had made a complaint of rape against him on the next day (Tuesday). His boss Jonathan had called him the next morning and told him that the complainant has said that the accused had forced the complainant in the toilet.
(xiv)	The witness testified that on the next day (Wednesday), his aunt had taken him to Valelevu Police Station to lodge a complaint and what had transpired at the Police Station.
(xv)	On the following day (Thursday), Komal had taken the complainant and him to the Valelevu Police Station. This is how the matter was reported to the Police.
(xvi)	The witness further testified to an incident which happened the following Monday, when the complainant had called him and said that she wants to meet him. They had met at the Suva shop and thereafter, taken a walk for about an hour on the seawall.
(xvii) 	The witness was cross examined at length by the State Counsel. The prosecution also put several suggestions to the witness. 
 [71]	Evidence of Jonathan Ashraf Amhaz
(i)	The witness testified that he is working as the Relationship Manager at the ANZ Bank. 
(ii)	He knows the accused Nitin. He is the cousin brother of his ex-wife and was working at his DVD Shop – Movie Electro Shop – as a Salesperson. The accused had been working for him for more than 2 to 3 years. However, he had left his employment in 2019.
(iii)	The witness said that the complainant was also working for him at his DVD Shop. He testified to the relationship the complainant had with fellow employees and that she used to frequently complain about her fellow employees.
(iv)	The witness testified as to how the complainant had come to his office at the ANZ Bank and complained to him that the accused had forcefully tried to have sex with her.
(v)	The witness confirmed that the complainant would have known the accused from the time she had started working for him at his DVD Shop.
 [72]	Evidence of Salanieta Aditubuna
(i)	This witness said that she is currently unemployed.
(ii)	Previously she had been working as a Salesgirl at the DVD Shop (owned by Jonathan Amhaz). While working there she knew the complainant and the accused.
(iii)	This witness also confirmed that the complainant and the accused knew each other since they were working together.
(iv)	The witness testified to the events that took place on the 4 March 2019. The witness said that that day, the complainant had come to the Suva Shop and was fully joking and laughing. After joking she had said that she had come back from the Centre Point Shop. She had also said that she had just had sex with Nitin. She said “she had sex from the shop and told us the story, and she went out.”
(v)	The complainant had then left saying that she is going to see her boyfriend.
(vi)	The defence put to the witness the following portion of her statement made to the Police and wanted to her to explain what she meant: “She told me that Nitin followed her to the washroom and they had sex. When she told me that Nitin raped her, I told her she could have shout and people could heard you.”

[73]	Evidence of Komal Kushbu Nair
(i)	The witness testified that she is currently working at Skyline Engineering. 
(ii)	She had worked as General Manager of the 3 branches of Movie Electro Shop.
(iii)	She knows the complainant and the accused Nitin who were employees working at the shop. Nitin was also her cousin.
(iv)	The witness said that she got to know of the incident that took place on 4 March 2019, through her ex-husband Jonathan the next day.
(v)	The witness denied that she ever asked the complainant to get married to Nitin.
(vi)	The witness also confirmed that the complainant and Nitin knew each other before the incident and the reason for same.

Analysis 
[74]	The above is a summary of the evidence led at this trial. The prosecution led the evidence of the complainant, VW. The defence relied on the evidence of the accused himself and witnesses, Jonathan Ashraf Amhaz, Salanieta Aditubuna and Komal Kushbu Nair. 
[75]	As I have informed you earlier, the burden of proving each ingredient of the two charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[76]	In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[77]	As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as admitted facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved beyond reasonable doubt.
[78]	I have already explained to you how you should deal with inconsistences and 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.  
[79]	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 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.   
[80]	The main issue of contention in this case is the issue of consent. The accused has testified in Court and totally denies the charges of Rape against him. He admits to both sexual acts as referred to the Information, but submits that the said acts took place with the consent of the complainant. The complainant states that the accused penetrated her mouth and also penetrated her vagina without her consent.
[81]	You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witness (the complainant), 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 charges, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution is both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offences, beyond any reasonable doubt. 
[82]	It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence led on behalf of the accused. You must consider his evidence and the evidence of the three defence witnesses also for its consistency and also the probability of their version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case.   
[83]	If you neither believe the evidence adduced by the defence nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charges.
[84]	However, I must caution you that even if you reject the evidence of the defence as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you. 
[85]	You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must necessarily be guilty of the other count as well.
[86]	In summary and before I conclude my summing up let me repeat some important points in following form:
i.	If you believe the evidence of the defence, then you must find the accused not guilty of the charges of Rape;
ii.	If you neither believe nor disbelieve the evidence of the defence, then again you must find the accused not guilty of the charges of Rape;
iii.	If you reject the version of the defence, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution; 
iv.	If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charges of Rape;
v. 	If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charges of Rape have been established beyond reasonable doubt. If so you must find the accused guilty.  If not you must find the accused not guilty.    
[87]	Any re directions the parties may request?
	Defence Counsel Mr. Reddy requested that I remind the Assessors of the following parts of the evidence which transpired in the cross examination of the complainant:
1. 	When the complainant was asked “Did you have sex with one Viliame at or around the time of the alleged incident (based on your Medical Report)” and the complainant replied “I don’t remember”.  
2.	The complainant agreed that there were other shops besides the place of the alleged incidents.
3.	The complainant agreed that she did not scream during the time of the alleged incidents.
4.	The complainant agreed that no weapons were involved (used by the accused at the time of the alleged incidents).
5.	The complainant agreed that the accused was skinny.
6.	The complainant agreed that she sustained no injuries at all during the time of the alleged incidents.
7.	The complainant agreed that if she gritted her teeth (or kept her mouth closed) the accused could not have penetrated her mouth with his penis.
8.	That it was suggested to the complainant that she could have even bitten the accused’s penis after he penetrated her mouth.

Accordingly, I informed the Assessors of the aforesaid.
[88]	Madam Assessor and Gentlemen Assessors, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions separately on the charges of Rape 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. 

[89]	Your possible opinions should be as follows:
Count One

Rape- Guilty or Not Guilty

Count Two

Rape- Guilty or Not Guilty

[90]	I thank you for your patient hearing.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 04th Day of August 2020

Solicitors for the State	: 	Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused	: 	Reddy and Nandan Lawyers, Suva.