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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 11 of 2013
BETWEEN:
THE STATE
AND:
1. ILAITIA TUBETA
2. JOVESA VUDIDRA
3. ILIESA TURAGANILALI
4. ILAITIA NAIGANI
5 LAISENIA VOSAYACO
6. ANARE BARO
7. OSEA GOLEA
8. TEMESI COKOBOA
Counsel: Ms. P. Low and Mr. M. Maitava for the State
Ms. M. Lemaki for 1st, 2nd, 4th, 5th and 6th Accused
Mr. R. Tagivakatini for 3rd, 7th and 8th accused
Date of Hearing : 5th, 6th, 7th, 13th, 14th and 15th May 2014
Date of Summing Up : 16th May 2014
SUMMING UP
[With the consent of the prosecution and the defence, it was ordered to suppress the name and the identity of the alleged victim. Hereinafter she will be called Ms. A. D.]
Madam Assessors and Gentleman Assessor:
(i) This is the second last step of this trial in your presence. After my Summing Up you will be asked to retire for deliberations. Once you are ready with your individual opinions, this court will reconvene. You will not be asked to give reasons for your opinions. Your individual opinions can be unanimous or divided. If the opinions are unanimous, it is more desirable, but, what matters is your honest individual opinion on the already led evidence. I am not bound by your opinions when delivering the final judgment of this court. Nevertheless, the due weight and recognition will be given to your opinions.
(ii) In my Summing Up, I will mainly address you on matters of law. That is because "legal issues" are in my domain. Therefore, you have to accept and act upon on my directions in relation to the legal matters. 'Facts' of this case are entirely in your 'periphery'. In fulfilling their duties the counsel for the prosecution and defence made their submissions and made certain suggestions to substantiate their arguments. In my Summing Up, I might, though inadvertently, express or appear to express certain views. You are not bound to accept any of those views, suggestions or arguments, unless you agree with them. That is how you become the 'masters of facts' in this trial.
(iii) In this instance, it is your task to deliberate what exactly took place on 02nd January, 2013 night inside the vacant house or the 'ghetto' in the village of Korosi. That deliberation has to be done based on the evidence led in court and nothing else. There are two conflicting versions before you. The complainant says that the accused had had carnal knowledge with her without her consent. The accused, on the other hand totally denied this allegation. Your duty, after this Summing Up is to decide whose version that you are going to accept and believe.
(iv) As I said earlier, your decisions should be solely based on the evidence presented in court. You must disregard anything you heard or saw in relation to this case from the electronic or printed media or from your family members, relatives, friends or anybody else, before or during the trial. Simply focus on what you heard and saw as evidence within the four corners of this court room. In my Summing Up, I might not touch or mention all the evidence that you might think to be crucial. You are at liberty to take into consideration whatever the piece of evidence you think relevant and important.
(v) Whereas this is a case which solely rests on whose 'word' you are going to accept, either Ms. A. D.'s or accused's, a proper assessment of the credibility and the truthfulness of the witnesses is extremely vital. In deciding that, you have to consider the demeanour of the witnesses when they took the stand, especially the way they faced the cross examination. The firmness or evasiveness in stand can be a guiding factor to determine their credibility.
(vi) When it comes to the truthfulness of the witnesses, you have to utilize your day to day life experiences and common sense. You were chosen to be the judges of facts in this trial as you represent a pool of common sense and experience of human affairs in this community. You are not alien to the life pattern of the ordinary people of the society. It is that experience you have to apply to conclude whether a particular witness is honest and truthful. In doing so, you can accept the whole testimony of a witness or a portion, or else, you can reject the whole testimony or a part of it.
(vii) Madam assessors and gentleman assessor, please recall the oath administered when you assumed duties as assessors; your true opinion to be given without any fear or favour or ill will in accordance with the evidence and the law. You are not supposed to be passionate towards anybody or any party. The complainant was around 17 years when she faced the alleged acts. You cannot be emotionally disturbed over the alleged experiences of a late teenager. The accused are also late teens or in early twenties. Two are in fact juveniles, who were under the age of 18 at the time of the incident. One was a school teacher by then. But, you cannot be sympathetic towards the accused over such things or any other aspect. Any of these factors should not distract you from the main objective. The duty of you madam assessors and gentleman assessor is to base your opinion on the evidence presented in court and nothing else. Please don't speculate or presume anything apart from the evidence what you saw and heard during the trial.
(i) The accused are presumed to be innocent until proven guilty. Even though the accused are charged with the offence of 'Rape', their innocence is presumed until otherwise decides by this court. The burden in proving that the accused are not innocent or guilty as charged rests on the prosecution throughout the trial. That burden never shifts. The accused need not prove anything either to show their innocence or otherwise.
(ii) The prosecution must discharge their burden by proving the charges against the accused beyond reasonable doubt. That is for you to be 'sure' of the guilt of the accused. If you have any reasonable doubt over the guilt of the accused after analyzing the evidence, the benefit of such a doubt should be awarded to the accused. Nevertheless, a 'doubt' must be reasonable or substantial and stemmed out of the evidence. A mere trivial or imaginary doubt won't create a reasonable doubt.
(i) The Director of Public Prosecutions, on behalf of the State has charged the accused on the following count of Rape.
First Count
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.
Particulars of Offence
ILAITIA TUBETA, JOVESA VUDIDRA, ILIESA TURAGANILALI, ILAITIA NAIGANI, LAISENIA VOSAYACO, ANARE BARO, OSEA GOLEA, TEMESI COKOBOA between 2nd January 2013 to 3rd January 2013 at Korosi, Savusavu in the Northern Division, penetrated the vagina of A.D. with their penises one at a time without A.D.'s consent.
(i) The charge against the accused is based on Section 207 (1) (2) (a) of the Crimes Decree 2009. For the prosecution to bring home this charge successfully, they have to prove the following elements in the charge.
- The accused,
- had the carnal knowledge with the alleged victim (Ms. A. D. in this instance)
- without her consent.
(ii) You would see that the Director of Public Prosecutions had framed only one charge against all the eight (08) accused. But, the particulars of the offence say "penetrated the vagina with their penises one at a time". Therefore, you have to consider that each accused person is separately charged and there are eight separate counts of Rape before you. As I mentioned in my opening address to you, the case against each accused has to be considered and assess separately with the available evidence. The prosecution must prove the elements above mentioned against all the eight (08) accused. In this context, it is practically possible for you to reach different opinions on different accused.
(iii) Madam assessors and gentleman assessor, you are well aware by now that five (05)accused admitted having sexual intercourse with Ms. A. D. on this particular night and said all what they did were done with the full consent of her. Thus, all the above mentioned elements are not disputed by the said five (05) accused except the element of 'consent'. It is the duty of the prosecution to prove beyond reasonable doubt that Ms. A. D. did not consent to have sexual intercourse with the said five (05) accused in any of the charged instances. The remaining three accused totally deny any involvement with Ms. A. D. on the night in issue. That means they challenge all the elements in the charge. Then the prosecution must prove all the elements in paragraph (i) against the said three (03) accused.
(iv) The term 'carnal knowledge' can be used in the same context of 'sexual intercourse'. The moment prosecution proves beyond reasonable doubt or an accused admits that his penis penetrated the alleged victim's vagina, may it be a slightest of penetrations, the element of 'carnal knowledge' is proved. Therefore, ejaculation inside the vagina is not a 'must' to prove the penetration. As I have already told you, five (05) accused in this instance, have expressly admitted that they had sexual intercourse with the complainant on the day reflects in charge.
(v) The issue of 'consent' applies to all the eight (08) accused. 'Consent' must be freely and voluntarily given by a person, (Ms. A. D. in this case) with the necessary mental capacity, to have the alleged sexual intercourse. As a matter of law I am directing you that the 'consent' is not freely and voluntarily given if it is obtained by force or threat or intimidation or false and fraudulent representations about the nature and purpose of the act or sexual intercourse. Therefore, 'consent' is not proper or legitimate in the eyes of the law, though it is visible on the face of it, had it been obtained in such a manner described above. I direct you that the alleged victim, Ms. A. D., was around 17 years of age at the time of the alleged sexual acts and thus, she is capable of giving consent to have sexual intercourse as there is no evidence to say that she did not possess the requisite mental capacity to consent.
(vi) As a matter of law, I am directing you that there is no need to look for any corroboration of the alleged victim's evidence for an accused to be convicted on a charge of 'Rape'. If the evidence of the alleged victim is so convincible that you can place your reliance beyond reasonable doubt, you can solely act upon it even in the absence of any corroborative evidence.
(vii) As a matter of law I am directing you that the absence of injuries or remarks for physical resistance on the alleged victim does not necessarily mean that she 'consented' to the alleged sexual acts.
(viii) The legal aspects pertaining to the doctor's evidence will be discussed in paragraph 7 (xi) under the Analysis part.
(ix) The law which has to be applied on admissions or confessions in the caution interview statements is in paragraph 7 (xii) of the Analysis part.
(i) Ms. A. D. is the alleged victim in this case. She is almost 18 years old now and she was over 16 years at the time of the alleged incident. Her Birth Certificate was tendered to court marked as Prosecution Exhibit No. 01. She was born on 28th of May 1996. She recalled the events which took place around midnight on 02nd of January 2013.
(ii) She had gone for the church service to Korosi village and joined one Marica for the dinner. Both of them had gone around the village for 'water splashing' as the New Year celebrations were still going on and returned back to Marcia's house around mid-night. While Ms. A. D. and Marica were talking, Tubeta (1st accused) and Jovesa (2nd accused) had come there. Upon Marica telling the two boys to call Iliesa (3rd accused), they had gone back. Ms. A. D. had joined the boys, leaving Marica at home as they have called her.
(iii) When the 2nd accused went to call for the 3rd accused, both Ms. A. D. and the 1st accused had been waiting on the road, in front of the vacant house or 'the ghetto' as they call it, until the 2nd accused returned with the 3rd accused. Then the 1st accused had asked her to go inside the vacant house. Whilst sitting and talking with the 1st accused inside the house, Ms. A. D. said, that he pushed her on the floor and came on top of her. He had removed her clothes, a sulu and a panty, and then inserted his penis into her vagina.
(iv) She said that she wanted to shout but could not do so as the 1st accused pressed her neck. Ms. A.D. said that she could not do anything else as she was angry for what he did and felt pain. She was very specific that she did not 'consent' to have 'sexual intercourse' with the 1st accused.
(v) After the sexual intercourse, Ms. A. D. said that the 1st accused got up from her body and she stood up to wear her clothes. At that point, Jovesa, the 2nd accused had come inside the room and pushed her down. Then he had come on top of her and inserted his penis into her vagina. Ms. A. D. identified Jovesa as her cousin brother.
(vi) Once Jovesa, the 2nd accused finished, Ms. A. D. said that Iliesa (3rd accused), Ilaitia (4th accused), Laisenia (5th accused), Anare (6th accused), Osea (7th accused) and Temesi (8th accused) took their turns respectively and had sexual intercourse. She said Laisenia, the 5th accused is also a cousin of hers. She stressed that she did not consent to have sexual intercourse with any of these eight (08) accused and by the way things were happening, her body got really weak to resist.
(vii) When all the eight accused finished their turns, Ms. A. D. had got up and wore her sulu. Tubeta, the 1st accused, had taken her to her aunt's house, and told her to go home. Ms. A. D. said that she did not tell or complain this incident to anybody, including her uncle Lemeki and parents, as she was scared and ashamed. She accepted that it was her uncle who complained to the police and as a result of that report, the police officers from Savusavu came to question her.
(viii) Mr. Semesa Biaulevu, a member of the Crimes Committee, in Korosi village testified next. Mr. Semesa had witnessed Jovesa (2nd accused) coming and calling to Iliesa, 3rd accused while having grog at Pita Wise's house. Later, Tubeta, the 1st accused had informed Mr. Semesa that if he wants, he can be a part of the 'convoy' with Ms. A. D. at the 'ghetto'. The witness said, to his understanding, a 'convoy' means several boys having sex with one girl at the same time.
(ix) Since he wanted to find out who all are participating to this 'convoy', Mr. Semesa had gone to the ghetto. Upon entering to the 'ghetto', from the main door, Mr. Semesa said that he was stopped by Ilaitia, the 4th accused and told him that Master Lai is still inside the room with Ms. A. D. When going a bit further, he had crossed Tubeta, the 1st accused and seen Osea Golea, the 7th accused lying on the floor. Osea had in fact switched on his mobile light to Mr. Semesa as well. Then Mr. Semesa said, without going inside to the room of the 'ghetto' he made his way out and went back to drink grog.
(x) Then the prosecution called seven (07) police officers, mainly to talk about the caution interview statements of the accused. Detective Constable 1970 Jone Toga had recorded the caution interview statements of the 1st accused and the 4th accused. The original I-taukei scripts of those were tendered to court marked as Prosecution Exhibit No. 2A and No. 03A. (English translations were marked as 02B and 03B).
(xi) Detective Corporal 3521, Saiyasi tendered the caution interview statement of the 2nd accused as Prosecution Exhibit No. 04A. (English translation No. 04B).
(xii) Women Police Constable 3184, Maca Baleinamato was the one who recorded the caution interview of 3rd accused. The original I-taukei script of the statement was tendered to court marked as Exhibit No. 05A and its English translation as 05B.
(xiii) Police Constable 3556 Kesi Ratavo, tendered the caution interview statement of the 6th accused marked as Exhibit No. 6A. (The English translation as 06B).
(xiv) Police Constable 4375 Eveni Vunibola had recorded the caution interview statement of the 7th accused. The original I-taukei transcript that was tendered to court marked as Exhibit No. 07A and its English translation as 07B.
(xv) Women Police Constable 3489 Taraivini tendered the caution interview statement of the 8th accused to court marked as Prosecution Exhibit No. 08A and its English translation as 08B.
(xvi) Corporal 3458 Peni Lebaivalu was the Interviewing Officer of the 5th accused and the overall Investigating Officer. The caution interview statement of the 05th accused, Mr. Laisenia Vosayaco was tendered to court marked as Prosecution Exhibit No. 09A (the I-taukei version) and its English translation as 09B.
(xvii) all the charge statements of the accused from 1st to 8th respectively, were tendered to court marked as Exhibit No. 10A and 10B (I-taukei as "A" and English translation as "B") to 17A and 17B as the defence did not have any objection to do so.
(xviii) The last prosecution witness was Doctor Dinesh Lingam of Savusavu hospital. He had examined Ms. A. D. on 06th of January 2013. He tendered the Medical Examination Form prepared by him after examining Ms. A. D., marked as Exhibit No. 18. He said that Ms. A. D. told him that she was sexually defiled by 6 Fijian youths on Wednesday (2/1/13) around midnight at Korosi village, Navatu. Referring to the specific medical findings, he said that Ms. A. D.'s hymen was 'perforated' and observed only a 'slight healing bruise' on the anterior neck with no injuries seen on her private area. His professional opinion is "inconclusive". In evidence he told that since the patient been sexually active prior to this alleged rape and was examined by him four (04) days after the alleged incident, led his professional opinion to be inconclusive.
(xix) That is the summary of the prosecution case. The court then decided to call for the defence and all the accused informed court that they will offer evidence from the witness box, but will not call any witness on their behalf.
(i) The essence of the defence case is that 1st, 2nd, 3rd, 4th and 7th accused had sexual intercourse with Ms. A. D. with her full consent and the 5th, 6th and 8th accused did not take part at all to the 'incident' which took place on 02nd of January 2013 at the 'ghetto' or the vacant house.
(ii) Mr. Ilaitia Tubeta, the 1st accused told court that he along with the 2nd accused went to Marcia's house around mid-night on 02nd January 2013 and arranged Ms. A.D. to have 'sex' with both of them (1st and 2nd accused) and Ilaitia Naigani, the 4th accused. Whilst the 2nd accused went to call Iliesa, the 3rd accused as per the request of Marica, the 1st accused and Ms. A. D. had gone towards the ghetto. After going inside the 'ghetto' and talking for a while, the 1st accused said, he requested to have sex with her and she responded positively. Then he had asked her to lay down on the floor. He said that both of them got undressed and kissed each other for a while before him inserting his penis into her vagina. After ejaculation, he had got up and dressed while Ms. A. D. was still lying. Claiming that Ms. A. D. is his cousin through marriage, the 1st accused said that in fact he had sexual intercourse with her two times prior to this day.
(iii) According to the 1st accused, it was only him, 2nd accused and 4th accused had sexual intercourse with Ms. A. D. on that night. He said that after they had 'sex' with her, he accompanied Ms. A. D. to Salome's house. On the way to Salome's house, the 1st accused said that they met Anare Baro, the 6th accused, standing beside the village shed. He confirmed that either the 5th accused or the 6th accused were not in the 'ghetto' on that night. Whilst denying that he raped Ms. A. D., the 1st accused said that Ms. A. D. is trying to safe guard herself by framing charges against the boys.
(iv) Mr. Jovesa Vudidra, the 2nd accused testified next. He confirmed going to Marica's house to talk with Ms. A. D. and thereafter 1st accused going to the 'ghetto' with her. After left to call the 3rd accused at Pita's house, Jovesa said he went straight to the 'ghetto' as it was already discussed by him and the 1st accused, about 'what to do' with Ms. A. D. The 2nd accused said that after the 1st accused finished his turn, he went to the room and asked Ms. A. D. to have sex and she said 'yes'. He admitted that he had 'sexual intercourse' with Ms. A. D. with her consent and after that he called the 4th accused to have 'sex'.
(v) Mr. Iliesa Turaganilali, the 3rd accused said that when he was coming back from Marica's house after going there with the massage of the 2nd accused, the 1st accused called him inside the 'ghetto' and told that Ms. A. D. is inside. He said that when he went inside the room, it was dark and he could not see anybody. Thereafter he had called her name and in response, she had asked who it is. After telling his name, Iliesa said that he asked her to have 'sex' and she had consented for that. He admitted having sexual intercourse with Ms. A. D. with her consent. Then he had gone back to Pita's house to have grog. He had seen nobody inside the 'ghetto' except the 1st accused.
(vi) The 4th accused, Mr. Iliaitia Naigani took the stand next. He said whilst he was having grog at Pita's house, the 1st accused came and told him that 2nd accused and Ms. A. D. are in the 'ghetto'. Then the 4th accused had also gone there and had 'sexual intercourse' with Ms. A. D., after the 2nd accused finished his turn, and getting the 'consent' of Ms. A. D. to go ahead. He said Ms. A. D. enjoyed what he did. When coming out of the room, he said that he met the 5th accused. He had even met Semesa when he was about to leave the 'ghetto' and told him that the 5th accused is inside. Then he had gone back to have grog at Pita's house. Finally, he said that when police questioned him, he thought that 'a convoy' and 'a rape' is the same and therefore he admitted what police said.
(vii) Mr. Laisenia Vosayaco, the 5th accused, simply denied having 'sexual intercourse' with Ms. A. D., his cousin, on 02nd January 2013, but said on a prior occasion he had sex with her at the village coconut dryer. He admitted only to the extent him going to the 'ghetto' looking for Anare Baro, the 6th accused, but remained inside only for several seconds. He said that he saw the 4th accused inside the 'ghetto' at the time he was inside. Referring to his caution interview statement, the 5th accused said that he had to 'admit' the allegation of 'rape' after a certain extent as Corporal Peni started threatening him with a pointed finger. He said that he got afraid of been punched as it was the first time he had been to a police station.
(viii) The 06th accused, Mr. Anare Baro also denied the allegation of him having 'sexual intercourse' with Ms. A. D. on this particular night, but once at Pita's house on a prior occasion. He said he did not even go inside the 'ghetto' but asked the 1st accused, who was standing at the door facing Paula's house while talking to someone inside, whether he saw the 5th accused. The 6th accused said, Tubeta, the 1st accused told him that he is talking to Ms. A. D. and he did not see the 5th accused. Then he had gone to the village hall to have a smoke. There he had seen the 1st accused walking along the road with Ms. A. D. passing him.
(ix) The next defence witness was Mr. Osea Golea, the 7th accused. He confirmed the presence of Semesa in the 'ghetto' while he was lying in the main room. After Semesa left the 'ghetto', he said that the 2nd accused came and told him to go inside the room. Upon going inside the room, he had seen Ms. A. D. lying there. He said, he spoke to her for a while and requested to have sex. Upon she agreeing, the 7th accused said that he had 'sexual intercourse' with her. He went on to say that he had 'sex' with Ms. A. D. three times prior to this occasion. Finally, the 7th accused said that he cannot understand why Ms. A. D. is making all these allegations, but may be because she was caught up by her parents and relatives.
(x) The last defence witness was Mr. Temesi Cokoboa, the 8th accused. He is also an accused who totally denies his presence in the 'ghetto' and having 'sexual intercourse' with Ms A. D. on 02nd January 2013. He said he did not even go to the 'ghetto' on that day. But, he admitted having 'sexual intercourse' with Ms. A. D. somewhere in mid 2012. He claimed that Ms. A.D., being one of his cousins, had implicated him to this case because of their 'past' or the 'history'.
(i) Madam assessors and gentleman assessor, you heard all the evidence of both parties presented from the witness box. The matter to be deliberated is quite straight forward. The alleged victim, Ms. A. D. says that she was raped by all the eight (08) accused on the late hours of 02nd January 2013 and early hours of 03rd January 2013 inside the 'vacant house' or the 'ghetto' in Korosi village. She is very specific that she did not consent to perform sexual intercourse with any of the accused on that particular night, but she was forced to do so.
(ii) Mr. Laisenia Vosayaco, (5th accused), Mr. Anare Baro (6th accused) and Mr. Temesi Cokoboa (8th accused) totally deny this allegation. Nevertheless, the 5th accused admitted that he had sexual intercourse with Ms. A. D. at the 'village coconut dryer'on a previous occasion. The 6th accused said that he had sexual intercourse with Ms. A. D. at one 'Pita's' house in mid 2012. The 8th accused also claimed that he had sexual intercourse with the complainant somewhere in 2012, but not in this instance. Ms. A. D. also agreed that she had sexual intercourse with the 8th accused in 2012 and denied the previous sexual encounters alleged by 5th and 6th accused. She maintained her stance that on the charged night, 5th, 6th and 8th accused also had forceful sex with her along with the other five (05) accused.
(iii) The remaining five (05) accused, 1st, 2nd, 3rd, 4th and 7th said that they had sexual intercourse with Ms. A. D. on 02nd of January night, but, it is with her full consent. Now you have to decide madam assessors and gentleman assessor, which version out of these two, you are going to believe. I remind you once again, as I told you from the very out-set, that you have to assess evidence against each accused separately. You have to consider that each accused is charged with a separate offence of 'Rape' and therefore you have to formulate eight (08) different opinions in respect of each accused. Thus, opinions need not be the same.
(iv) In support of their argument of 'consensual sexual intercourse', the learned defence counsel highlighted certain facts; from the point of Ms. A. D. entering the 'vacant house' until the arrival of the police to record Ms. A. D.'s statement. Firstly, Ms. A. D. admitted that she went inside the 'ghetto' on her own with the request of the 1st accused and there were three (03) close by houses, just 10 – 12 metres away from the 'ghetto' occupied by her relatives. She answered to court that she could have waited on the road without going inside the 'ghetto' until the 2nd accused returned with the 3rd accused and by the time she went inside, the occupants of these three houses were awake, even though, they have not seen her. Further to the close by houses, Ms. A. D. admitted that there is a road going beside the 'ghetto', which is been used by the villagers and most of the villagers were awake on this night as the New Year celebrations were still on.
(v) Then it was admitted by Ms. A. D. that she knew this vacant house is normally occupied by village boys and went on to say that the 8th accused is not a regular, occupant of the 'ghetto', but his namesake or another boy called 'Temesi' is so. Further to that, she said all the doors and windows of the 'ghetto' were open at the time whilst she was inside and all the accused whom she made allegations took off their clothes by using their both hands.
(vi) Referring to the 1st instance, the sexual intercourse with the 1st accused, Ms. A. D. said that she kissed him back for some time when he kissed her. In re-examination she said, she had to kiss him as he forcefully kissed her lips. It was suggested to her that the 1st accused had sexual intercourse with her for two times before this incident. She refused the suggestion.
(vii) Based on the above facts, the defence argued that Ms. A. D volunteered to go inside the 'ghetto' and had consensual sex with the 1st, 2nd, 3rd, 4th and 7th accused. They pointed out that Ms. A. D. had all the opportunities to raise alarm or scream for help from the neighbours or run away through the widely opened doors while the accused were removing or wearing their clothes. They agreed that she had the strength to dress herself after the last person had sex and walk along on the road to her aunty's place without any assistance. In responding to this, Ms. A. D. said that she was sad and not happy for what the accused did and really weak to run away. The prosecution argued that Ms. A. D. going inside the 'ghetto' does not mean an invitation to treat. It was said that a girl is not prohibited of talking and walking with a boy in the night. Now madam assessors and gentleman assessor you have to decide what version of these most appealing to you.
(viii) The other main ground the defence alleged was the failure of Ms. A. D. to tell or report this incident to anybody until police arrived at her place on 06th of January 2013. She admitted that soon after the alleged incident the 1st accused accompanied her to her aunty's house. She admitted that her uncle was the Turaga-ni-Koro of the village and an active member of the village 'crime committee'. She admitted that it was her uncle who had reported the incident to the police without consulting her. The defence was trying to highlight the 'delay' in Ms. A. D.'s part to bring the alleged rape incident to anybody's notice especially when there was no threats or force from accused to say that it was because 'consensual' sexual intercourse. Ms. A. D., on the other hand said that she was afraid to tell this even to her parents as she does not know how they will take it up and ashamed to talk with anybody as to what happened to her. It is left to you now madam assessors and gentleman assessor to deliberate whether you are going to accept Ms. A. D.'s version or not.
(ix) You would recall madam assessors and gentleman assessor that the learned defence counsel pointed out that it was the uncle of Ms. A. D. who had complained to the police and therefore Ms. A. D. had implicated all the boys in the village whom she had sex even on prior occasions. This is the stance of 5th, 6th and 8th accused. Apart from 8th accused, Ms. A. D. denied she having sexual intercourse with anybody else, including the 1st accused, on any previous occasions. It was argued by the defence that when the rumours were spreading around the village that Ms. A. D. had consensual sexual intercourse or 'convoy sex' with 'some boys' in the 'ghetto', she got ashamed and turned the whole episode into a 'rape' to safeguard herself. Ms. A. D. did not agree with this suggestion, and said she was forced by these accused to have sex. You can now decide whether you are going to rely upon the defence argument or not.
(x) Madam assessors and gentleman assessor, you heard the learned counsel for both parties referring to Mr. Semesa Biaulevu's evidence. You might prefer to view him as an 'independent witness' for both sides. He had seen the 1st accused, 4th accused and 7th accused inside the 'ghetto'. But, he had not gone inside the room, alleged to have used for sexual activities. Thus, Mr. Semesa is not aware who actually was inside that room at the time he went inside. He admitted that he was the one who told about this incident to Lemeki, the uncle of Ms. A. D., couple of days later. Defence tried to highlight two points from Mr. Semesa's evidence. Firstly, it is to say that he did not see 5th, 6th and 8th accused in the said vicinity. Secondly, they argued that had there been any force or violence applied to Ms. A. D. or existed inside the 'ghetto', Mr. Semesa, being a member of the village crime committee and knowing his responsibility to safe guard the village women and children would have acted more promptly at least to rescue Ms. A. D., rather than taking his own time to inform Lemeki and returning back to drink 'grog'. But, the learned prosecutor said Mr. Semesa had acted very wisely to avoid another crime in the village. You have to now decide the weight that you are going to attach to Mr. Semesa's evidence.
(xi) Madam assessors and gentleman assessor, you heard Doctor Dinesh Lingam's evidence. In our criminal law, certain witnesses can formulate their own opinions in respect of their specialized subject area as they are considered as 'experts' of that particular area. But, at the end of the day, it is your decision to accept the expert's opinion or not. Therefore, when Dr. Lingam said that he could not be conclusive whether Ms. A. D was raped or not on the night of 02nd January 2013 as she was sexually active prior to that date and he could have missed the opportunity of observing certain injuries as he examined her four (04) days after the alleged incident, it is your task to accept his version or reject it. Same principle applies to his opinion of the 'slight healing bruise' of Ms. A. D.'s neck. He agreed with both counsel saying it could have been a mark of a manual strangulation or a 'love bite'. Referring to the age of the bruise (0.5cm x 0.3cm), he said it could have happened either on 02nd January or even the previous day he examined Ms. A. D. or at any time within that four days. It was highlighted by the defense that Ms A. D. had told doctor that she was raped by 06 Fijian boys and not 08.
(xii) I must tell you the law which is applicable to the caution interview statements of all the accused. The 5th accused, Mr. Laisenia Vosayaco challenged his caution interview statement. He said that he was threatened by his interviewing officer with a pointed finger and that is why he changed his version of 'innocence' after question 43 of the statement. The Interviewing Officer, Corporal Peni denied all these allegations. The prosecution says that the 5th accused being well educated had not complained of this incident to anybody until he came to this court. So, they say that the confession was made voluntarily and you can rely on the same to assume his guilt. According to the law, first, you have to be sure, before proceeding to rely upon it, that the accused made the so called admission or confession to the interviewing officer voluntarily or on his own free will during the caution interview. Then, you have to be sure that such a confession or admission is true in its contents. If the answers are affirmative, to both the questions you can take the confession into consideration when you are deliberating your opinions. If you are not sure with a reasonable doubt, whether such a confession was made voluntarily or not or else about the truthfulness of its contents, you may disregard it.
(xiii) Madam assessors and gentleman assessor, you heard the learned defence counsel referring to question 52 of the 3rd accused's caution interview statement, question 28 of the 4th accused's statement and question 53 of the 7th accused statement, questioned the respective interviewing officers. That is because the answers to these questions contain 'partial admissions'. The 3rd accused claimed that he was mistaken with the word 'kucu' in I-taukei language as he is used to a different dialect. The 4th and 7th accused said that they got confused with the police questioning as it was their first time to go to a police station. The prosecution strongly refused these claims. When you are deciding the evidential weight that you are to give to these 'partial admissions', you better consider the same legal principles applied to 'confessions' as stated in the above paragraph.
(xiv) Finally, you would recall that there was a discrepancy in between the versions or evidence of 1st accused, 2nd accused, 3rd accused and 7th accused as to the number of participants and the way of participation to the alleged incident. The 1st accused said that it was the 2nd accused, 4th accused and himself had sexual intercourse with Ms. A. D. the 3rd accused said that he was called by the 1st accused to come inside the 'ghetto' and he had sexual intercourse with Ms. A. D. after the 2nd accused. Then the 7th accused went on to say that when he was lying in the living area the 2nd accused came and told him about Ms. A. D.'s presence in the room. Any way, you are required by the law to consider the evidence for and against each accused separately. When doing so, you have to consider the evidence of the co-accused as well. But, when considering the co-accused's evidence, you have to bear in mind that they might be concerned of protecting themselves than talking about the truth or some other interest to serve. Subject to that, you may assess the evidence of the co-accused in the same manner you do with the other witnesses.
(i) Remember that you do not have to believe the Accused's version to find them 'NOT GUILTY'. Disbelieving the accused's stories do not necessarily relieve the responsibility of the Prosecution to prove the case against the Accused beyond reasonable doubt. If you have any reasonable doubt in Prosecution's case you still have to find them 'NOT GUILTY' to the charge.
(ii) Accused are presumed to be innocent until proven guilty and they need not to prove anything, inclusive of their innocence. If you accept the sequence of events narrated by the Prosecution and you are satisfied beyond reasonable doubt so that you are sure of the Accused's guilt, you must find them guilty as charged. If you do not accept the Prosecution version and you are not sure of the Accused's guilt due to reasonable doubts, you must find them 'NOT GUILTY' to the charge.
(iii) Your possible opinions in this instance are 'GUILTY' or 'NOT GUILTY' in respect of all the accused for the charge of Rape.
(iv) You may now retire to consider your opinions. When you are ready, you may inform one of the court clerks so that I will re-convene the court.
(v) Before you retire, I would like to ask the Counsel of both parties if there is anything that they wish me to say in addition or want me to re-direct you on any matter.
Ms. Low?
Ms. Lemaki?
Janaka Bandara
Judge
At Labasa
Office of the Director of Prosecution for State
Office of the Legal Aid Commission for Accused
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