IN THE HIGH COURT OF FIJI
AT SUVA 
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 93 of 2016

STATE
V
KAMELI DIANI

Counsel	:	Ms. Shyamala Alagendra with Ms. Mehzabeen Khan for the State
Mr. Lisiate Qetaki with Ms. Lavinia David for the Accused

Dates of Trial	: 	22-25 January 2019
Summing Up	: 	28 January 2019

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “TV”.
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 State and the accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2]	As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law. 
[3]	It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4]	Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning. 
[5]	In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinions. You must take all evidence into consideration, before you proceed to form your opinions. There are no items of evidence which could safely be ignored by you.
[6]	After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions. 
[7]	I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8]	In this case, the evidence is what the witnesses said from the witness box, the document tendered as a prosecution exhibit and any admissions made by the parties by way of 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 and the exhibit put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10]	A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission made by the State Counsel and closing submissions made by both State Counsel and Defence Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11]	As I already indicated to you, a matter which will be of concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
[12]	Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you. 
[13]	You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined?  Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.  
[14]	The experience of the Courts is that those who have been victims of a sexual offence react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others may not. The reason for this is that every victim has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.
[15]	According to the evidence you heard in this case, the complainant, TV, was 9 years old (turning 10) at the time of the alleged incidents as set out in the Amended Information (his date of birth being 10 April 2004) and was 14 years of age when he testified in Court. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of his experience concerning the offences the accused is charged with.

[16]	You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept?  Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist.  It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[17]	You heard in this case the evidence of Inia Rasaku, an uncle of the complainant. He said that TV is like a nephew to him. He testified that on 14 April 2014, the complainant had told him about the alleged incidents. When asked to explain as to what exactly the complainant had told him, the witness said “That Kameli Diani used to pull down his pants, put out his male private part and used to harass him”. “He said that he used to lay him down and lie on top of him”. “To insert it. He used to hold his male private part and insert on his back (backside)”. You should consider whether this could be regarded as a complaint made by the complainant of the alleged incidents, at least in relation to counts 1 and 2. If so you should also consider whether he made that complaint without delay and whether he sufficiently complained of the offences the accused is charged with. 
[18]	The complainant need not specifically disclose all of the ingredients of the offences and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that the complainant made a prompt and a proper complaint, then you may consider that his credibility is strengthened in view of that recent complaint. 
[19]	It must be borne in mind that the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with his evidence given at the trial. It goes to support and enhance the credibility of the complainant. 
[20]	Lady 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 guilty of the charges. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[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.  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. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary facts and the inferences that could be drawn from them.
[27]	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. 
[28]	This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. It is not his task to prove his innocence.
[29]	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?
[30]	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. 
[31]	It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[32]	You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainant or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinions. 
[33]	I must also explain to you as to the reason for the use of screen, when the complainant gave evidence in this case. It was a normal precautionary procedure adopted by Courts in the interests of a vulnerable witness. It is believed that when a screen is placed, the complainant is relieved of any mental pressure to describe the often unpleasant incidents which allegedly took place. Please bear in mind that you must not infer that such a protection to the witness was warranted due to the accused’s behaviour and you should not draw any adverse inference against him on that account.
[34]	The same applies for permitting a closed court proceedings and also for permitting a support person to sit beside him when the complainant gave evidence in this case. The same also applies to the further measures that were taken in this case whereby the Judge and all Counsel dispensed with their wigs and gowns at the time the complainant was testifying; where the Judge sat at the Court Officers’ table below to hear the complainant’s testimony and also where the complainant was permitted to sit outside the witness box during the time he testified.
[35]	Let us now look at the charges contained in the Amended Information filed by the Director of Public Prosecutions (DPP).

[36]	There are three charges preferred by the DPP, against the accused:
				     
COUNT 1

Statement of Offence (a)

RAPE: Contrary to Section 207 (1), 2(a) and 3 of the Crimes Act 2009.

Particulars of Offence (b)

KAMELI DIANI, at an unknown date between the 1st day of January 2014 and the 17th day of April 2014, at Colo-I-Suva, in the Central Division, penetrated the anus of TV, a child under the age of 13 years, with his penis.

COUNT 2

Statement of Offence (a)

RAPE: Contrary to Section 207 (1), 2(a) and 3 of the Crimes Act 2009.

Particulars of Offence (b)

KAMELI DIANI, at an unknown date between the 1st day of January 2014 and the 17th day of April 2014, at a separate incident from Count 1, at Colo-I-Suva, in the Central Division, penetrated the anus of TV, a child under the age of 13 years, with his penis.

COUNT 3

Statement of Offence (a)

RAPE: Contrary to Section 207 (1), 2(c) and 3 of the Crimes Act 2009.

Particulars of Offence (b)

KAMELI DIANI, at an unknown date between the 1st day of January 2014 and the 17th day of April 2014, at Colo-I-Suva, in the Central Division, penetrated the mouth of TV, a child under the age of 13 years, with his penis.

[37]	As you would notice the accused has been charged with two counts of Rape, contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act No 44 of 2009 (Crimes Act) (counts 1 and 2); and one count of Rape, contrary to Section 207 (1) and (2) (c) and (3) of the Crimes Act (count 3). 
[38]	Let me now explain the elements of counts 1 and 2 together, which are counts of Rape contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act.
[39]	Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
[40]	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;  
[41]	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. 
[42]	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. The law provides that carnal knowledge includes sodomy, which is anal sexual intercourse or anal penetration.
[43]	Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.” 
[44]	Therefore, in order for the prosecution to prove the first count of Rape, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	During the specified time period (in this case between the 1 January 2014 and the 17 April 2014);  
(iii)	At Colo-I-Suva, in the Central Division;
(iv) 	Penetrated the anus of TV with his penis; and
(v)		At the time TV was a child under 13 years of age. 
[45]	 Similarly, in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	During the specified time period (in this case between the 1 January 2014 and the 17 April 2014), but on a separate occasion to count 1;  
(iii)	At Colo-I-Suva, in the Central Division;
(iv) 	Penetrated the anus of TV with his penis; and
(v)		At the time TV was a child under 13 years of age.  
[46]	Let me now elaborate on these elements together in respect of counts 1 and 2.
[47]	The first element is concerned with the identity of the person who committed the offence. The prosecution must prove beyond any reasonable doubt that the accused and no one else committed the offence. 
[48]	The second element relates to the specific time period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.  
[49]	The fourth element involves the penetration of the complainant’s anus; 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 anus of the complainant with his penis to any extent. 
 [50]	The final element is that at the time of the incident TV was a child under 13 years of age.
[51]	The issue of consent will not arise in this case.  Only a child 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 9 years of age at the time of the alleged incidents (turning 10), and therefore, he had no mental capacity to consent.  
[52]	Let me now explain the elements of count three, which is a count of Rape contrary to Section 207 (1) and (2) (c) and (3) of the Crimes Act.
[53]	Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence. 
[54]	Section 207(2) (c) of the Crimes Act is reproduced below.
(2) A person rapes another person if — 
(a) …………………; or 
(b) …………………; 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.  
[55]	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. 
[56]	Section 207(2) (c) refers to a person penetrating the mouth of the other person to any extent with that person’s penis.
[57]	Section 207(3) of the Crimes Act provides that “For this section, a child under the age of 13 years is incapable of giving consent.” 
[58]	Therefore, in order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;
(i) 	The accused; 
(ii) 	During the specified period (in this case between the 1 January 2014 and the 17 April 2014);  
(iii)	At Colo-I-Suva, in the Central Division;
(iv) 	Penetrated the mouth of TV with his penis; and  
(v)	At the time TV was a child under 13 years of age.
[59]	The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[60]	The second element relates to the specific period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.  
[61]	The fourth element involves the penetration of the mouth of TV with his penis. It must be noted 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 mouth of the complainant with his penis to any extent. 
[62]	The final element is that at the time of the incident TV was a child under 13 years of age.
[63]	As stated earlier, the issue of consent will not arise in this case. Only a child of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. As indicted earlier, the complainant in this case was 9 years of age at the time of the alleged incident (turning 10), and therefore, he had no mental capacity to consent.   
[64]	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 a Sexual Offence. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.
[65]	If you are satisfied beyond any reasonable doubt that the accused, between the 1 January 2014 and the 17 April 2014, at Colo-I-Suva, penetrated the complainant’s anus with his penis, then you must find him guilty of the first count of Rape.  
[66]	If you find that the prosecution has failed to establish any of these elements in relation to the first count of Rape, then you must find him not guilty of Rape.
[67]	If you are satisfied beyond any reasonable doubt that the accused, between the 1 January 2014 and the 17 April 2014, at Colo-I-Suva, but on an occasion other than that referred to in count 1, penetrated the complainant’s anus with his penis, then you must find him guilty of the second count of Rape.  
[68]	If you find that the prosecution has failed to establish any of these elements in relation to the second count of Rape, then you must find him not guilty of Rape.
[69]	If you are satisfied beyond any reasonable doubt that the accused, between the 1 January 2014 and the 17 April 2014, at Colo-I-Suva, penetrated the complainant’s mouth with his penis, then you must find him guilty of the third count of Rape.   
[70]	If you find that the prosecution has failed to establish any of these elements in relation to the third count of Rape, then you must find him not guilty of Rape.
[71]	These are some of my directions on law and I will now briefly deal with the evidence presented before this Court. 
[72]	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.	TV is the complainant in this matter.
2.	The complainant was residing with Kameli Diani and other family members at Naisoqo Settlement, Colo-I-Suva in the year 2014.
3.	On the 4th day of April 2014, the complainant was at home with Kameli Diani at Naisoqo Settlement, Colo-I-Suva.

[73]	Since the prosecution and the defence have consented to treat the above facts as “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

[74]	The prosecution, in support of their case, called the complainant, TV, his grandfather, Tu Cebu Kuruvaki, and his uncle, Inia Rasaku. The prosecution also tendered the following document as a prosecution exhibit:
	Prosecution Exhibit PE1- Birth Certificate of the complainant.
[75] Evidence of the complainant TV
(i) 	The complainant testified that he is currently 14 years old. He does not remember his date of birth.
(ii)	However, as per the Birth Certificate of the complainant that was tendered to Court as Prosecution Exhibit PE1, it is revealed that the complainant’s date of birth is 10 April 2004.
(iii)	The complainant testified that he is currently residing at Naitasiri with his mother, Livia. His father, Ilai, also resides with them. 
(iv)	The complainant said that he goes to the Suva Special School and he is a senior. Prior to that he had attended Nausori Special School. However, he does not remember when he attended Nausori Special School nor when he started at Suva Special School. 
(v)	The complainant testified that his grandfather is Tu Cebu and resides at Colo-i-Suva. The complainant had been living with his grandfather at Colo-i-Suva, but does not remember for how long he was living at his grandfather’s house. He said it was a “long time”. 
(vi)	The witness testified that Tu Cebu’s children were also staying at Tu Cebu’s place. 
(vii)	In 2014, the complainant was living in Colo-i-Suva with Kameli Diani. He knew Kameli Diani because they stayed together at Tu Cebu’s house.
(viii)	The witness was asked the following further questions in evidence in chief:
Q.	Did anything happen to you when you were living with Kameli Diani at Colo-i-Suva?
A.	Yes.
Q.	What happened?
A.	He did to me.
Q.	What did he do to you?
A.	He took off my pants.
Q.	What did he do when he took off your pants?
A.	He did a bad thing.
Q.	What do you mean?
A.	He put his balls (polo) out and put it in my anus (socomu).
…………..
Q.	What do you do with the polo? 
A.	He put it in my anus.
Q.	What do you use the polo for?
A.	To urinate.
Q.	This part of the body, do you know any other name?
A.	No.
Q.	What did he do when he put his balls into your anus?
A.	He did it hard.
Q.	What did you feel at that time?
A.	Pain.
Q.	What did you do?
A.	I cried.
Q.	What did he do when you cried?
A.	Nothing.
Q.	How long did he put his penis inside your anus?
A.	Many times.
Q.	When you say many times, what do you mean by that?
A.	I don’t know.
Q.	Do you recall how many times he did this?
A.	I don’t know.
Q.	Can you describe how did this happen?
A.	It happened during the day.
Q.	Did the incident happen again?
A.	No.
Q.	How were you positioned when this incident happened to you?
A.	I was at home.
Q.	Were you sitting down or standing?
A.	I was lying down.
Q.	Were you lying down on your stomach or your back?
A.	I was lying on my stomach.
Q.	When did Kameli Diani take off your pants?
A.	I don’t know.
Q.	When you lying on your stomach, what else happened?
A.	He did a bad thing.
Q.	Did he do anything else apart from the bad thing you referred to?
A.	No.
Q.	How many times has he done these bad things to you?
A.	Many times.
Q.	The incident you are talking of now, when did this happen?
A.	Day time. 
Q.	How old were you?
A.	I don’t know.
Q.	Do you remember whether you were very young?
A.	Yes
Q.	Were you going to school at the time?
A.	Yes. Nausori Special.
Q.	Do you remember which year was this?
A.	I don’t know.
Q.	You have informed the Court of one incident and said it happened many times. Do you remember the other times it happened?
A.	No.
Q.	Can you tell the Court, what he did on other times?
A.	No.
Q.	You said he did bad things to you many times?
A.	Yes.
Q.	What is the bad things he did to you?
A.	He took off my pants.
Q.	What did he do when he took off your pants?
A.	I don’t know.
Q.	What is the bad thing you said he did to you after taking out your pants?
A.	He put his balls out. 
Q.	What did he do after he took his balls out?
A.	He put it in my anus.
Q.	What did he do when put his penis/polo in your anus?
A.	I wanted to escape but then he held me. 
Q.	How did he hold you?
A.	The witness demonstrated in Court by showing his chest area.
Q.	After he held you what did he do?
A.	I wanted to escape, then he laid me down.
Q.	After he laid you down, what did he do?
A.	He did the bad thing.
Q.	What is the bad thing?
A.	He put his soresore out.
Q.	What did he do?
A.	He put it in my anus.
Q.	Do you remember, how long was this after the first incident you mentioned?
A.	I don’t know.
Q.	Do you remember which year?
A.	No.
Q.	Do you remember how old you were?
A.	No.
Q.	Do you remember if you were going to school at the time?
A.	No.
Q.	Do you remember or not?
A.	No.
Q.	“No” as you don’t remember?
A.	No.
Q.	Where did this incident happen?
A.	Inside the house.
Q.	Which part of the house?
A.	Tu Cebu’s house.
Q.	Where was Tu Cebu when this incident happened?
A.	He went to sell food.
Q.	Where does he go to sell food?
A.	Crest Chicken
Q.	Do you remember what time during the date this incident happened?
A.	No.
Q.	When this incident happened, how did you feel?
A.	Pain.
Q.	What did you do when you felt pain?
A.	Nothing.
Q.	Did you tell anyone about this?
A.	Yes. To Inia.
Q.	How long after this incident you told Inia?
A.	I don’t know.
Q.	Who is Inia?
A.	I don’t know his second name. 
Q.	Is he related to you?
A.	He is related to my mother.
Q.	How is he related to your mother?
A.	His mother. 
Q.	So how is Inia’s mother related to your mother?
A.	I don’t know.
Q.	What do you call Inia?
A.	Uncle.
Q.	What did you tell Inia?
A.	That Kameli did to me.
Q.	What do you mean?
A.	He did a bad thing to me. 
Q.	What is the bad thing you told Inia that Kameli Diani did to you?
A.	He put his balls out and put in my anus.
Q.	What else did you tell Inia?
A.	That’s all.
Q.	Do you remember any other time this happened to you?
A.	No. 
Q.	Can you remember what else Kameli Diani did to you?
A.	No.
Q.	You said Kameli Diani put his penis into your anus. Do you remember if he put his penis anywhere else?
A.	No.
Q.	Do you remember any other time this incident happened?
A.	No.
Q.	Do you recall if any incident happened in the night?
A.	Yes
Q.	Tell us what happened?
A.	He put his balls into my mouth.
Q.	What exactly did Kameli Dianii do to you when he put his balls inside your mouth?
A.	He put his balls in my mouth, that’s it.
Q.	How did he do it?
A.	He opened my mouth.
Q.	How did he open your mouth?
A.	The witness demonstrated in Court how this happened.
Q.	What were you doing when he opened your mouth?
A.	I was sleeping.
Q.	You said you were sleeping when Kameli Diani opened your mouth and put his penis inside?
A.	Yes.
Q.	How did you feel?
A.	I felt that he has put his polo/balls inside.
Q.	When did he do this?
A.	When I woke up he was doing it to me. 
Q.	How did you react to this?
A.	I tried to go but then he held me.
Q.	Do you remember when was this?
A.	No.
Q.	Do you remember how old you were?
A.	No.
Q.	Do you remember if this happened when you were schooling?
A.	Yes. At Nausori Special.
Q.	Do you remember how many times he put his penis into your mouth?
A.	One.
Q.	You have given three different incidents – two times he put his penis in your anus and one time into your mouth. Do you remember any other incident? 
A.	No.
Q.	Is there anything else you want to tell the judge, what Kameli Diani did to you?
A.	No.
Q.	You have told us two incidents where Kameli Diani put his penis into your anus. Apart from these two times, was there any other time he put his penis into your anus?
A.	No.
Q.	You said that when Kameli Diani put his penis into your mouth you were sleeping. Where were you sleeping?
A.	On top of the bed.
Q.	Whose house?
A.	Tu Cebu’s, at Colo-i-Suva.
Q.	Did you tell anyone about Kameli Diani, putting his penis into your mouth?
A.	No. 
Q.	Why didn’t you tell anyone?
A.	I don’t know.
Q.	What do you call Kameli?
A.	I don’t know.
Q.	When he was living in Colo-i-Suva, what did you call him?
A.	Kameli.
…………
Q.	You said (yesterday) that Kameli Diani put his penis in your socomu. Can you tell this Court, what you mean by socomu?
A.	I don’t know.
Q.	This socomu – what do you use your socomu for?
A.	To pass out poo.
Q.	Yesterday you said, that Kameli Diani put his penis in your socomu on two occasions. The second incident, you said happened when your grandfather went to sell food at Crest Chicken?
A.	Yes.
Q.	Do you remember what year was this?
A.	I don’t know.
Q.	At that time, were you still schooling?
A.	Yes.
Q.	Which school?
A.	Nausori Special School.
(ix)	The witness was cross examined at length by the counsel for the defence. 
(x)	The defence position was that when the complainant was staying with Tu Cebu, there were at least five other children of Tu Cebu living in the same house. This included, Marisi, Tepola, Jiwa and Kameli Diani.
(xi)	The following suggestions were put to the witness in cross examination: 
Q. 	I am suggesting to you that you are making up that something happened, that Kameli Diani had put his balls into your mouth?
A.	He did it.
Q.	I suggest to you that if something did happen that night, everyone in the house would have known? 
A.	They were all sleeping.
……….
Q.	You also referred to another incident that happened in the morning, that Kameli Diani has put his polo in your socomu?
A.	It was during the day time.
Q.	Isn’t it true that in the day time, you spend it more with Marisi, Tepola and Jiwa?
A.	Yes.
Q.	And in the day time you were never alone? 
A.	I used to be alone with Kameli. 
Q.	And what you are saying that Kameli Diani did in the day time you agree you made it up?
A.	No.
Q.	Do you agree, you always take Kameli Diani’s things without his permission?
A.	I don’t take it.
Q.	I suggest that you take Kameli Diani’s things without his permission?
A.	I don’t take his things.
Q.	Do you agree that in the house, Kameli Diani is the only one that always gets angry with you?
A.	No.
Q.	There are other people that also get angry with you?
A.	No.
Q.	I suggest that at the day time when you said that this had happened, Kameli Diani had been at work at this time?
A.	No. He used to be at home in Colo-i-Suva.
Q.	You agree that when he is at home in Colo-i-Suva, he is always helping his father?
A.	I don’t know.
Q.	I suggest that nothing you are saying today, ever happened?
A.	I really don’t know.
Q.	I suggest that everything you have said in regards to Kameli Diani putting his balls in your mouth, never did happen?
A.	It happened.
Q.	I suggest that the two incidents, you said that he put his balls on your socomu, this did not happen?
A.	He did it.
			
[76]	Evidence of Tu Cebu Kuruvaki
(i)	He is residing at Naisoqo Settlement in Colo-i-Suva since 1995.
(ii)	He is living with his wife and three children. His wife’s name is Losalini. His ex-wife is Leba, who is Kameli Diani’s mother. They had separated in 2010, Kameli Diani is his eldest child and is about 29 years old. He had raised Kameli Diani, and Kameli was also staying with him at Naisoqo Settlement in Colo-i-Suva.
(iii)	 The witness testified that the complainant is related to him. He is the complainant’s grandfather. The complainant refers to Kameli as his uncle (Momo). 
(iv)	The complainant had been residing with him at Colo-i-Suva since 2007. He testified that the complainant and his mother were residing with the mother’s uncle. They were chased from there. There was no other place for them to stay. So he had asked them to stay at his place. 
(v)	The witness testifies that he plants cassava, dalo and yam. He also prepares food at home and goes to sell at Crest Chicken. He has been selling food since 2004. 
(vi)	The witness testified that the complainant had been enrolled at a Special School on two occasions. The first time it was his ex-wife, Leba who took him for enrolment. The witness had taken the complainant for his second enrolment. 
(vii)	Having shown the witness the statement made by him to the Police (to refresh his memory), the witness said that the complainant was enrolled at a Special School in Nausori in the year 2014. The witness testified that the complainant did not attend the Special School in Nausori for too long. “After a while, he stopped because I gave him to his mother”. The witness did not remember the month the complainant started schooling at the Nausori Special School or the month he had stopped. His evidence was that the complainant was attending the Special School in Nausori for a month. Thereafter, he had handed over the complainant to his mother.
 
[77]	Evidence of Inia Rasaku
(i)		He resides at Naisoqo Settlement in Colo-i-Suva. 
(ii)	He testified that the complainant is related to him. The complainant is like his nephew. Kameli Diani is his cousin. 
(iii)	The complainant was residing with Tu Cebu Kuruvaki, at Colo-i-Suva. Tu Cebu is the uncle of the witness. 
(iv)	The witness testified that the complainant had told him about the shameful act that happened to him. Later, he said that “Kameli used to do bad things to him”.
(v)	When asked to explain as to what exactly the complainant had told him, the witness said “That Kameli Diani used to pull down his pants, put out his male private part and used to harass him”. “He said that he used to lay him down and lie on top of him”. “To insert it. He used to hold his male private part and insert on his back (backside)”.
(vi)	The witness testified that the complainant had referred to this part as ‘soco’’. The witness said, that he understood this to mean, the part where the complainant passes out poo.
(vii)	The witness testified that the complainant told this to him on 14 April 2014. The complainant had told him this when they met between the witness’s house and the house where the complainant was residing.
(viii)	The witness said that he had taken the complainant to the Police on the same day to report the matter. 
[78]	That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could address Court by himself or through his counsel. He could also give sworn evidence from the witness box and/or call witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times. In this case, the accused opted to remain silent. I must emphasize that you must not draw any adverse inference against the accused due to Court calling for his defence or of his choice to remain silent.

Analysis 
[79]	The above is a brief summary of the evidence led at this trial. The prosecution led the evidence of the complainant, TV, his grandfather, Tu Cebu Kuruvaki, and his uncle, Inia Rasaku, to prove its case.    
[80]	As I have informed you earlier, the burden of proving each ingredient of the charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[81]	In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[82]	In this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved. 
[83]	The accused is totally denying all of the allegations against him. 
[84]	The defence is taking up the position that at no point during the trial did the prosecution identify the accused in the dock, as the accused Kameli Diani that the prosecution witnesses were referring to. 
[85] 	It is true that no dock identification of the accused was made by the prosecution in this case. It would have been plain and simple if that was done. Therefore, it is now for you to decide, considering the totality of the evidence led in the case, that the Kameli Diani that the prosecution witnesses have referred to is in fact the accused in Court.
[86]	You should bear in mind that the complainant said that he knew Kameli Diani because they stayed together at Tu Cebu’s house in Colo-i-Suva. Tu Cebu Kuruvaki has said that Kameli Diani is his eldest child and is about 29 years old. He had raised Kameli Diani, and Kameli was also staying with him at Naisoqo Settlement in Colo-i-Suva. Witness, Inia Rasaku has stated that Kameli Diani is his cousin and confirms that the complainant was residing with Tu Cebu Kuruvaki, at Colo-i-Suva. In the admitted facts it is stated that the complainant was residing with Kameli Diani and other family members at Naisoqo Settlement, Colo-I-Suva in the year 2014.

[87]	You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offences, beyond any reasonable doubt.
[88]	You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty of the other counts as well.
[89]	In summary, and before I conclude my summing up let me repeat some important points in following form:
i.	If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charges;

ii. 	If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charges have been established beyond any reasonable doubt. If so you must find the accused guilty.  If not you must find the accused not guilty. 
[90]	Any re directions the parties may request?
[91]	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 on the charges separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[92]	Your possible opinions should be as follows:
Count One

Rape- Guilty or Not Guilty

Count Two

Rape-Guilty or Not Guilty

Count Three

Rape-Guilty or Not Guilty

[93]	I thank you for your patient hearing.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 28th Day of January 2019

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