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State v Vibote [2012] FJHC 890; HAC081.2011 (16 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 081 of 2011

BETWEEN:

STATE
Prosecution

AND:

LAISENIA KATO VIBOTE
The Accused

Dates of Trial : 13-15 February 2012
Date of Summing-Up : 16 February 2012

Ms L Vateitei for the State
Mr E Maopa for the Accused

SUMMING UP

Madam Assessors and Gentleman Assessor

1. Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
   
2. In my summing-up to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
   
3. In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly.
   
4. Your duty, therefore, is noble and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.
   

5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason of your selecting to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately could be utilized to decide the case before you.

6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected. They are matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard such opinion if that does not match your thinking on the matter. You must instead form your own opinion without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.
   
7. Counsel for the State and counsel for the accused have made submissions to you as to how you should find the facts of the case. They have done so on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you to accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by them.
   

8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

9. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an alleged incident of rape of a woman. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
   
10. Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
    
11. The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of rape. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.
    
12. In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof on the accused-person to prove that he is innocent. You will recall that the accused-person is presumed to have been innocent. Therefore, there needs not be any burden on him to prove his innocence. His innocence is presumed by law.
    
13. In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt.
    
14. Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test in a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of rape as I go on.
    

15. Ladies and gentleman, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.

16. Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.
    
17. Let us now look at the charge of rape on the information, as amended and filed on 21 July 2011, which was read over to the accused-person, upon which this trial proceeded.
    

18. The charge is under Section 207 (1) (2) (b) of the Crimes Decree No 44 of 2009. The particulars of the offence, as alleged by the prosecution, are:

'Laisenia Kato Vibote on the 09 day of March 2011 at Nadi, Western Division had penetrated the vagina of S P with his finger without her consent.'

I will refer to the victim by her initials S and P.

19. (i) I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this court. Section 207(2) states as follows:

(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,

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c ) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent

(ii) Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. Such penetration should not be to the extent of ejaculation or should not go through the full passage of the vagina. So, in simple language, to have carnal knowledge is to cause penetration of the vagina of a woman by the penis of a man. So, if penetration takes place without the consent of a woman, that is rape under Section 207 (2) (a) of the Crimes Decree.

(iii) If a person penetrates the mouth of a woman with the penis to any extent without the consent of the woman then again it becomes rape under Section 207 (2 (c) of the Decree.

These two parts of the offence are irrelevant to the facts of this case.

(iv) If a person penetrates the vulva or vagina to any extent with a part of another's body, which is not the penis of that person, without the consent of the woman, that is rape under Section 207 (2) (b).

This is what we are concerned with in this case according to the charge.

(v) Consent, as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. You should bear in mind that the submission by a woman without a physical resistance by itself shall not mean that there was consent. A woman of or over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The lady in this case was of 61 years of age and therefore she had the capacity to consent. So, absence of consent on the part of the woman is an essential item to be proved in this case.

(vi) Consent is considered not to have been given freely and voluntarily if it is obtained by force, by threat or intimidation, or by fear of bodily injury/harm or by false and fraudulent representations about the nature or purpose of the act or by a mistaken belief induced by the accused person that he was the woman's sexual partner.

20. So, the elements of the offence in this case are that the accused penetrated the vulva or vagina of SP to some extent, which means that the insertion of a finger/s fully into the vulva or vagina is not necessary. Such penetration should have taken place without the consent of SP.

21. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence on identification of the accused-person and connect him to the offence that he is alleged to have committed. I will deal with more on identity after dealing with the evidence

22. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, the alleged victim was a witness who offered direct evidence, if you believe her as to what she saw, heard and felt.

23. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, interview and charge statements, which are before you, are documentary evidence. If you believe such records were made, as the prosecution presented to you, then you can act on such evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time.

24. Expert evidence is also important to be borne in mind. Usually, witnesses are not allowed to give opinions on something. They are allowed to give evidence on what they have seen, heard or felt by their physical senses only, as I described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid court and you to decide the issue/s before court.

25. The doctor in this case, for example, came before court as an expert witness. The doctor, like any other witness, gives evidence and tells us her conclusion or opinion based on her examination of the patient. That evidence is not to be accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if her reasons are convincing and acceptable to you and if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are entitled to take into account the rest of evidence in the case.

26. You must consider all admissions, direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence and expert evidence that form the mass of evidence in this case. I will deal with admissions later in my summing-up.

27. In assessing evidence of witnesses you need to consider a series of tests. They are for examples:

(a) Consistency: That is whether a witness has been saying the story on the same lines without variations and differences. You must see whether a witness is shown to have given a different version elsewhere. If so, whether what the witness has told court contradicts with her earlier version. You must consider whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time.

(b) You must remember that merely because there is a difference, a variation or a contradiction in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility. Equally you must consider whether a witness has omitted to do something and see whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave that, you may consider, could be even a contradiction so as to affect the credibility or weight of the evidence or both.

(c) In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses.

(d) Belatedness: That is whether there is a delay in making a prompt complaint to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication.

(e) Spontaneity is another factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that she/he is talking of, whether she/he has shown spontaneous response that demanded at the occasion.

(f) Motive: That is whether there was some animosity or enmity or some other reason for a complaint to be made against the accused person and falsely implicate him.

You need to consider all these matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to evaluate the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.

28. I will now deal with the evidence in this case briefly.

29. Makereta Robanakadavu of Voivoi, Legalega, step-mother of the accused said that the accused was the son of her late husband Jone Uluma from his previous marriage. On 09 March 2011, she woke up around 4.00 a.m. to prepare her daughter to school and went back to bed around 7.00 a. m. When she was in bed, she felt that someone was inside the room and found it was Kato, her stepson. She saw him fully naked, masturbating near her bed; and, he was drunk. As she shouted at him, he ran away to the other room. The accused came back and wanted to lie beside her. She stood up and went to the next door and told what happened. She returned home around 2.00 p.m. and saw policemen coming looking for Kato. She awoke Kato from the bed and gave him trousers for him to come out after being dressed.

30. Answering cross-examination, she said that she was legally married to Jone Vuluma, who had an ex-wife and Kato was one of their children. Kato never lived in Legalega but with the mother. She said that she did not dislike Kato visiting the father.

31. S P, 62, of Votualevu, Legalega said in her evidence that she was sitting down at the door cleaning dhal as Kato jumped and got hold of her hands. She said that he used to come to her house but this time he had a clothe tied around his head. She said that there were two beds and he dragged her on the passage between two beds in the room. When he took her to another room, he pushed her against the bed and took off her under garments. The accused hit her when she was screaming and her face and ribs felt numbed and her head dizzy.

32. When he took off her clothes, she saw blood stains on her dress and she felt that something was going inside and pressing against her. She said that she tried a lot to free herself, but he was holding on tightly. She said she was being raped but did not know whether it was by finger or by the penis.

33. Her husband came after about ½ -1 hour. She told him the story as he asked what happened to her face. 'Did a hornet bite you?' He asked, She said 'No, and it was Kato who hit me'. Then, they went to Namaka Police Station and reported the incident. She again went to Namaka Police Station next day and gave the statement. She told the full story because there was a woman Police Officer present on that day with whom she felt comfortable.

34. She said that she could not tell the full story on first occasion to the doctor but she was able to tell the full story to the second doctor on the second day. She identified the accused as Kato and as the person who committed the offence on her.

35. Answering cross-examination, the witness said that she could remember the first day being 09 March 2011 and the time between 11.00 am - 12.00 noon. She said that she could see Kato's father's house from her home, which was at a little distance.

36. She said that she was sitting at Police Station, Namaka on 09 March 2011 when Kato was brought in handcuffed and at that time her statement had not been recorded. The statement was recorded only on next day by WPC Shobna.

37. She said that when she reported on 09 March 2011, she told about assault by a Fijian boy and did not tell about alleged rape because she was ashamed. On 10 March 2011, Shobna recorded statement. She still feels ashamed but reported because she thought it was her responsibility.

38. Answering court she said that when she was being dragged, he had still covered his face.

39. Leba Buadromo was living in a house of Jone Vuluma's on rent. In her evidence, she said that around 9.00 a.m. Makereta came and said Kato was masturbating in front of her. She saw him going in and out with a black sulu. He was touching his penis. And, the witness was watching from inside the house beside a window.

40. Answering cross-examination, witness said that on 09 March 2011, Makereta came to her house in the morning around 9.00 o'clock and said what Kato did inside her house. She saw Kato going in and out of the house and it was roughly after 9.00 a. m.

41. Jitendra Prasad, 65, said that he was married to S P and was living in Legalega in Voivoi for 47 years. He remembered that on 09 March 2011, he had gone to Lautoka with a friend leaving his wife alone at home and returned around 1.00 p.m. or ½ past.

42. He saw the doors closed and the wife sitting inside. Wife came out at the hoot of the horn and saw her face swollen. He asked whether a hornet had bitten her. She said that Kato hit her. He knew Kato very well as he used to come to their house very frequently.

43. He identified the accused in court.

44. He did not enter house and instead asked her to get into the car straightaway to report the matter to Police Station.

45. He said that it was on second day that he had found the real truth beyond the incident of assault. He took the wife to Police Station and then they went to hospital. Doctor sent them home after treating her and the wife told him that she was raped.

46. Answering cross-examination, witness said that wife had told him that Kato hit her. He came with Police to Kato's house after visiting witness's house. On 09 March 2011, no statement was recorded and his statement was recorded on 19 April 2011.

47. PC Jitend 3158 said in his evidence that he was at Police Station, Namaka at present and was on duty on 09 March 2011. Report received from Legalega. Complainant came with her husband and reported a case of assault and he attended to the report of assault.

48. Medical report was prepared and drove to Namaka Health Centre with victim and victim's husband. Then he went to visit the scene at Voivoi, Legalega. Victim's husband showed them the place and noticed blood on floor and bed sheet. Victim's husband showed them the accused's house, which was 2-300 M away from his house. Witness and Rajiv went to accused's house. He was sleeping. There were two ladies. One lady told them that the accused was sleeping inside. The police spoke to the accused and found him to be staggering. PC Rajiv arrested and handcuffed the accused. He said that they did not assault, or threaten, or promised him anything and witnessed nobody doing so.

49. PC 3847 Rajiv giving eveidence said that he was at Namaka Police Station in Traffic Branch. On 09 March 2011, a report received from Legalega. He arrested the accused. Jiten, victim's husband and the witness went to arrest him at Voivoi, Legalega. Accused's house was 2-300 M away from the scene. Accused was sleeping when the witness got in there. The accused was arrested and handcuffed and brought to Police Station. He did not come to be in contact with the accused. He said that he never assaulted the accused and did not witness anybody else assaulting. Nor, did he receive any complaint from the accused on assault.

50. PC Saten Kumar said that he was routinely checking on the accused whilst under custody at the police station Sabeto. He was not assaulted and did not witness anyone else assaulting or threatening the accused. The accused too did not make any complaint.

51. Dr Salman Hanifa said that she had only two years in medical practice after being qualified in MBBS after six year study course. The doctor was at Namaka Health Centre in March 2011. She examined an Indian lady with a history of being beaten-up by a man and punched in the face. She was distressed and was in pain. She did the examination only on complainant's history. She saw bruises on the face, blackish discoloration under eye and facial swelling and saw multiple cuts and bleeding in oral cavity.

52. Dr Karalaini Saumiramira too had two years in medical practice. She studied in Medicine for MBBS for 6 years. She had a recollection of examining a patient, who was old, in a rape incident. She had special findings recorded as laceration on inner labia minora. She said that labia minora was a soft surface interior to the labia majora closer to the vagina passage. Laceration by blunt trauma could be by penis, hand or any blunt object. She did only vagina examination because the victim was examined day before by a doctor at Namaka.

53. In Cross-examination, she said that she did not refer to any professional texts before coming to her finding.

54. Detective Constable Emosi Rotukana said that he had served 23 years in Fiji Police Force and had served at Sabeto for one year. On 10 March 2011, he received a report of assault from Namaka Police Station and a suspect was brought in. He was the Investigating Officer. Initial report was that of an assault; and, later revealed it was a case of rape. He investigated into the assault and rape.

55. The suspect was brought on 10 March 2011 morning. He was interviewed under caution in the presence of PC Semi. No harm caused to him and he did not see any other officer causing harm. The suspect was normal and very co-operative. He explained his right to see a solicitor, and/or a family member. The suspect did not choose to exercise any of those rights. The suspect was Laisenia Kato and he identified the accused in the accused box as the person he interviewed under caution.

56. The witness said that admissions were made by the accused in the statement that he made to him, which was reduced to writing. Caution interview statement was shown and was identified as the one that was recorded on 10 March 2011 from the accused.

The cautioned-interview statement was produced as PE-1.

57. Answering cross-examination, the witness said that the suspect was questioned in Fijian and he answered in Fijian and they were typed in English. He said that the record of interview had the exact words spoken by the suspect. The suspect was taken, having suspended the interview at midday, to reconstruct the scene.

58. Answering further he said:

Q: In [the statement of 10 March 2011] the name of Kato was not given?

A: Yes.

Q: Was it prudent to have identification parade?

A: Yes.

Q: You should have done [an] identification parade?

A: Yes.

Q: It was never done?

A: Yes.

59. PC Arvind testifying in court said that he had 22 years in Fiji Police Force and served at Sabeto Police Station. He recalled the report of assault and rape on 09 March 2011. He said that he charged the suspect, who was 21 years of age, after explaining his rights. The charge statement read out to him and that he did not assault or promised him anything.

The charge statement was marked as PE-2.

60. The prosecution closed its case with the evidence of above witnesses and presented the documents marked as PE-1 and PE-2. They were cautioned-Interview statement of the accused and the charge statement.

61. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under a duty to do so. You must not misunderstand that the exercise of my power under law as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and that he can exercise options available under law. The accused decided to give evidence. That is his legal right and you must consider that evidence too in the way you consider the evidence of the prosecution.

62. The accused-Laisenia Kato Vibote, 22 years, gave evidence and said that he was at Voivoi in Legalega in March 2011. Before that, he was at Navakai, Namotomoto with his mother Makitalena Loavuka. He said that at very young age his parents got separated and that it was his mother who raised him. After he left school in 2004 at Form IV, he did not go to mother's place

63. On 08 March 2011, he was at home in Voivoi, Legalega. He woke up early morning and stayed at home until midday, when he went to the church at Korovatu, Legalega. They were preparing tea for youth meeting at church that day and returned home at 6.00 pm. Then he changed his clothes and went to the church to attend a meeting at 8.00 p.m. followed by a kawa session to which he joined. He returned home around 8.30 – 9.00 am in the morning next date (09 March 2011).

64. His stepmother was at home. Nobody else was at home. Father was at work. Step-mother did not like his coming to their home. She was always placing a difference between him and her real child. The stepmother was asleep. After taking a shower, he changed his clothes and asked for breakfast. She said she did not have any breakfast. He opened refrigerator and found nothing inside it. Thereafter, he went to sleep after 9.00 am. Later he heard the stepmother calling from common room for him to wake up around 2.00 pm on 09 March 2011. As he kept on sleeping, the stepmother swore at him and he realized that the police were present outside. He then stood up and went outside.

65. The police said that there was an allegation of assault and wanted him to accompany them to Namaka. They handcuffed him and took to the house of Baru where police vehicle was parked.

66. When he reached Police Station at Namaka, wife of Baru was present at the police station. Baru was Jitend Prasad. He asked 'nani' as to whether he really was the person who did that degrading act causing injuries. 'You are the one', she said to which the accused remarked, 'you must be mad'. Police officers asked him to keep quiet and not to talk.

67. He was transferred to Sabeto next morning on 10 March 2011. Two officers started asking him questions as to what he had done to Indian lady. He was kept in the cell on 10 March 2011 until 6.45 pm. Police did not offer him anything. They punched him inside the cell (by one Semi). For about 20 minutes, he kept on punching him in the cell. He did not know the names of officers who witnessed the assault and said that one of them gave evidence.

68. He said that he did not say anything when the interview was being conducted. Then, he took him inside and asked did he really do this thing. He said 'No'. He told him to take off his pants and used one pen to poke into his anus. He was poking into him and said that that was what they would want to be done to.

69. The accused said that before they went to Legalega, he told them that his only witness was Makareta, the stepmother as she was very familiar until police officers came. But, he said 'yes' to Semi regarding the allegation because, he could not take punches anymore from Semi. This took place, he said, during interview from 7.00am – 9.00 pm on 10 March 2011. The accused further said that he was being questioned in Fijian language and the papers were given to place his signatures on what they were typing.

70. Answering cross-examination, the accused said that certain things in the statement were indeed true. He said that answers given in Arvin's presence were not truthfully given as he still felt terrified. The accused said that some of what he said in the statement was true and others untrue. He said that he did not admit the offence in Magistrate's Court and also did not complain on 11/03 – 25/03/2011 about the assault by police.

71. The accused said what meant by 'Nani' was grandmother

Answering Question 103 at the interview, the accused said 'I am sorry what I had done'

72. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

73. The prosecution relies on two kinds of evidence. Those are direct evidence as spoken to by the victim SP and the other is based on admissions, which really are confessions made to police in the statement P-1. You must consider both kinds of evidence carefully. It is not necessary for you to accept both kinds of evidence to find the accused guilty. You are free to accept one and reject the other. And, you are also free to accept both if both kinds are convincing beyond reasonable doubt. You are equally free to reject both kinds of evidence. You also can consider both kinds individually and see what kind of impact it has on the other. If the impact is to create a doubt in the prosecution case, then you must acquit the accused.

74. You heard the witness Makreta saying that the accused was engaged in an unusual behaviour. You should not consider that evidence against the accused insofar as the charge of rape is concerned. You can consider, if you believe that evidence only to show that the accused was around the place and that he was having a particular state of mind at that stage.

75. Please remember, there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty. The case can stand or fall on the testimony of the victim depending on how you are going to look at her evidence. You may, however, as a rule of prudence consider whether it is safe to have some corroboration if you feel such corroboration is of necessity according to how you look at the facts of the case. Corroboration is to have another piece/s of evidence in addition to the evidence of the victim to support.

76. Identity of the accused is crucial to the case and therefore you must consider the evidence on the point very closely. The defence was suggesting that the victim could not have identified the accused as he had covered his face. The victim on the other hand says that she could very well identify the accused as the person who committed the offence on her. She says that she had known the accused for very long time and that he had used to come to her place with coconuts. There was also evidence that the accused at times worked at the cane fields of the victim's husband and the accused identified and called the victim as 'nani' meaning grandmother.

77. You must consider whether the accused made contact with the victim only for few seconds, for example, so as to make his identification unclear. Or, whether evidence reveals that the accused came to be in contact while offending on the victim for a length of time to have sufficient opportunity for his identification. In this regard you must also see whether evidence is suggestive of a stranger or a person with whom the victim had been acquainted with for a period of time.

78. The defence also alleged that there was a delay in reporting the case of rape even though the allegation of assault was promptly reported. Even when the case of rape was reported on 10 March 2011, there was no reference to accused by his name. The defence pointed out there should have been an identification parade. The defence therefore says that the identity is not established. Evidence of the victim revealed that she was ashamed of what had happened to her therefore felt uncomfortable in reporting the rape incident on the first opportunity. It is for you to consider whether you accept that explanation and whether it is in consistence with the conduct of a woman in the position of the victim.

79. The prosecution relied on the cautioned-interview and the charge statements. They, in fact, contain confessions. That is a statement admitting or acknowledging all facts necessary for conviction on an offence, which if true, would by themselves satisfy all elements of the offence. It could be made to a person in authority.

80. You must consider whether these confessions were made to police after the accused was assaulted or under threat of assault or under oppressive circumstances. If so, you can reject to act on the statements P-1 and P-2. Or, if you feel that there is at least a doubt as to their voluntariness, then again, you can reject to act upon them. If you decide to act on them you must be sure that those confessions were voluntarily made and therefore they could be acted upon.

81. Please remember, rejection of the confessions is not a reason for you either to accept or reject the evidence of the victim of the accused. Evidence of the victim and the accused should be considered independent of the confessions.

82. If the evidence of the accused is accepted that he did not go anywhere and was sleeping at the house, then the prosecution case fails. Or, if you feel that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted of the charge.

83. In assessing the evidence of the accused, you must apply the same rules as you did for the prosecution witnesses. You can consider his position as given in the statement marked PE-1, if you think that he, in fact, made that statement, to see whether it supports his version or contradicts it.

84. Please remember, even if you reject the version of the accused that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has established its case beyond a reasonable doubt that the accused did put his finger/s into the vulva or vagina of SP without her consent for the prosecution to succeed in the charge of rape.

85. So you must consider the evidence of witness SP very closely in relation to the issue and must be satisfied beyond a reasonable doubt after considering the evidence of the accused too in order to come to a conclusion on the count.

86. You can also consider whether the evidence is consistent and corroborative of each other or whether they fall apart. That is, whether the evidence of the witnesses support each other fully or in material parts or whether they go in two opposite directions. Also, whether surrounding circumstances also reveal the same line of events as narrated by the victim or whether they do not match each other.

87. If you believe that the charge of rape, after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty of the charge. If you believe that the charge, after consideration of all evidence, is not proved beyond reasonable doubts, then you must find the accused not guilty.

88. In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed away by emotions, speculations, your imaginations or wishful thinking. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society.

• Upon being asked both Ms Vateitei and Mr Maopa, whether any further directions require to be given or whether directions already given should be supplemented, both counsel informed that they were content with the summing-up already delivered.
  

89. Madam assessors and Gentleman assessor, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.

90. I thank you for your patient hearing to my summing-up.

You may retire for your opinions now.

Priyantha Nawana
Judge
High Court
Lautoka
16 February 2012