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State v Gounden - Summing Up [2020] FJHC 187; HAC274.2019 (24 February 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 274 of 2019

STATE

vs.

AVYASH MANI GOUNDEN

Counsel: Ms. S. Swastika for the State
Mr. M. Yunus for Accused

Date of Hearing: 17^th, 18^th, 19^th and 20^th February 2020
Date of Closing Submission: 20^th February 2020
Date of Summing Up: 24^th February 2020

SUMMING UP

1. The hearing of this case has now reached its conclusion. I have to sum up the case for you. As I explained to you before the commencement of the hearing, we have different functions. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you to the law that applies to this action. You must accept the law from me and apply all the directions I give you on the matters of law.
   
2. Your function is to determine the facts of the case based on the evidence. That involves deciding what evidence you accept or refuse. You will then apply the law, as I now explain it to you, to the facts as you find them to be, and in that way, arrive at your opinion.
   
   3. I may comment on the facts if I think it will assist you when 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 facts. Hence, it is entirely upon you to accept or disregard any comment I make about the facts of this case unless it coincides with your own independent opinion.
      
   4. You must reach your opinion on evidence and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box and the documents tendered as exhibits. This summing up, statements, arguments, questions, and comments made by the counsel of the parties are not evidence. The purpose of the opening address is to outline the nature of evidence. Therefore, the opening address of the prosecution is not evidence. The closing addresses of the counsel of the prosecution and the defense are not evidence. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
      
   5. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony put before you in this courtroom during this trial. Ensure that no external influence plays a part in your deliberation. You are allowed to talk, discuss, and deliberate facts of this case only among yourselves. However, each one of you must reach your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advise you that your opinion does not bound me, but I assure you that I will give the highest possible weight on your opinions when I make my judgment.
      
   6. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused, witnesses, or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately, deciding the facts solely upon the whole of the evidence. You have to determine the legal culpability as set down by law and not the emotional or moral culpability of the action.
      
   • Burden and Standard of Proof
   7. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused guilty of the offence.
      
   8. The burden of proof of the charge against the accused is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words, there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
      
   9. The standard of proof in a criminal trial is ""proof beyond a reasonable doubt."" It means that you must be satisfied in your mind that you are sure of the accused's guilt. If there is a riddle in your mind as to the guilt of the accused, it means the prosecution has failed to satisfy you the guilt of the accused beyond a reasonable doubt. If you find any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favor of the accused person.
      
   • Information and elements of the offences
   10. The prosecution has charged the accused with one count of Rape, contrary to Section 207 (1), (2) (b), and (3) of the Crimes Act, one count of Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act.
       
   11. The main elements of the offence of Rape as charged are that:
       1. The accused,
       2. Penetrated the vulva of the complainant with his tongue,
          
   12. The prosecution claims that the complainant was eight years old at the time of these offences took place. Hence, she was incapable of giving consent to any kind of penetration into her vulva. If you are satisfied that the complainant was eight years old at the time of these offences took place, then the consent of the complainant is not relevant for these offences. The defence does not dispute the age of the complainant.
       
   • The Accused
   13. The prosecution has to prove beyond a reasonable doubt that the accused is the alleged perpetrator. According to the admitted facts, the prosecution and the defence do not dispute the identity of the accused.
       
   • Penetration
   14. I will now explain to you the element of penetration. Evidence of the slightest penetration of the vulva with the tongue is sufficient to prove the element of penetration. Hence, it is not necessarily required to adduce the evidence of full penetration.
       
   15. The main elements of the offence of Sexual Assault are that:
       1. The accused,
   2. Unlawfully and Indecently,
      3. Assault the complainant.
         
16. The word "unlawfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act as indecent. You have to consider whether the accused had indecently touched the vagina of the complainant without any lawful excuse.
    

Alternative Count

17. If you find the accused had sucked the vulva of the complainant but not find or sure whether he penetrated the vulva with his tongue, then you can consider the alternative counts of Sexual Assault instead of Rape as charged under count one.
    

Separate Consideration

18. The prosecution has charged the accused with two separate counts. You have to consider each of these two counts separately. If you find the accused guilty of one count, that does not automatically make him guilty of the remaining count. Likewise, if you find the accused not guilty of one count, that does not automatically make him not guilty of the other count.
    

Admitted Fact

19. I now request you to draw your attention to the agreed facts, which are before you. They are the facts that the prosecution and defence have accepted without dispute. Hence, you are allowed to consider them as proven facts by the prosecution beyond a reasonable doubt.
    

Evidence of Corroboration

20. You must bear in mind that offences of sexual nature do not need the evidence of corroboration. It means that if you are satisfied with the evidence given by the complainant and accept it as reliable, credible, probable, and truthful, you are not required to look for any other evidence to support the account given by the complainant.

21. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, you must leave behind such assumptions as there is no stereotype of circumstances for a rape, a rapist, or a victim of rape.
    
22. Offences of this nature can take place in any circumstance between any kind of person, who acts in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard.
    
23. You have to assess the evidence to determine whether the accused has committed these crimes to the complainant. You must not bring in to the assessment of the evidence any preconceived views, as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her way of coping with such an incident. Some may display apparent signs of distress, and others may not. Demeanours of the complainant in the court while giving evidence is not necessarily a clue to the truth of the complainant's account.
    

Evidence of the Prosecution

24. Let me now remind you of the evidence presented by the prosecution and the defence during the hearing. The prosecution called four witnesses, including the complainant, and the defence called two witnesses. I will now summarize the evidence of the prosecution.
    
25. The first witness of the prosecution is the complainant. She is eight years old girl. On the evening of the 14th of July 2019, she had gone to the accused place with his father. There were two to three visitors at the accused's home. She was sitting in the living room with her father. After a while, she got her father's mobile phone and started to watch the cartoon on it. While she was watching the cartoon, she received a call from her mother. Her mother asked her, "Is everything okay." The complainant had responded, saying, "yes." Her mother then finished the conversation, informing the complainant that she will pick her from the school on the afternoon of Monday.
    
26. In a while, the accused asked the complainant to go to the room and play with the young boy. The accused has two daughters and one young son. The complainant then went to the room and laid down on the bed. She continued watching the cartoon. None of the daughters of the accused was present in the room. The small boy then told the accused to do something. The accused then started to touch the genitals of the complainant. She used the word "tutu" The complainant said the “tutu” used in the washroom. You have seen the complainant pointed out the place where the accused touched and then sucked using a toy bear.
27. The complainant was wearing a t-shirt and pajama. The accused lift her pajama up to her knee. After touching the genitals of the complainant, the accused went down and started to suck the genitals of the complainant. He used his mouth. When he sucked, it went a little deep inside. The wife of the accused then walked into the room. The accused suddenly got up and lifted the pajama of the complainant. He started to talk to the little boy.
    
28. The complainant said that he did not cover her mouth, but she did not shout or asked for help. She was scared. Her father was sitting in the living room, which was next to the room. The room had no door. However, she thought, if she told her father, there would be a fight. Hence, she decided to inform this incident to her teacher on the following day. At the time this incident took place, the visitors had gone.
    
29. At around 10 p.m., the complainant went home with her father. They went in his car. Though she was with her father and the accused was not around, she still decided to inform this incident to her teacher and not her father. The complainant said her father is a good man, and she likes him. On her way back home or at home, she did not receive any call from her mother. When she went home, she watched the cartoon again and then went to sleep.
    
30. On the following morning, that was Monday, she went to school and waited under the tree. Other kids of the school crowded around her. Ms. Sharma, her class teacher, came to her. The complainant went to the teacher and told her the incident that happened to her on the previous night. The teacher then took her to the head teacher. They called and asked the parents to come. Once the parents arrived, they went and reported this matter to the police. Afterward, the complainant went for the medical examination.
    
31. The second witness of the prosecution is Renuka Sharma. She is the class teacher of the complainant at Vudi Methodist Primary School. On the 15th of July 2019, she saw the complainant was sitting on a bench and crying. The other students in her class were standing around her. The complainant was crying. The students told her that the complainant was crying and not telling them the reasons for her cry. Ms. Sharma then asked the students to go back to the classroom. The complainant also went to the classroom. Ms. Sharma then proceeded to attend the teachers' devotion on Monday morning. Once she returned from the devotion, she had inquired the complainant why she was crying. The complainant was still crying. The complainant told Ms. Sharma "Madam, this is something serious, and I will only tell you." Ms. Sharma then took her to her table. The complainant then told her that she went to her uncle's place with her father last night. The uncle had told her to go to the bedroom and play with his small son. When she was in the bedroom, the uncle came and put her on the bed. He had then grabbed the mouth of the complainant and removed her clothes. After that, the uncle had licked her vagina. Ms. Sharma said the complainant used the word "Madam, the uncle came and licked my “tutu”.” Ms. Sharma had then took the complainant to the head teacher and informed him about this incident.
    
32. During the cross-examination, Ms. Sharma said the complainant did not voluntarily come and told her the story. She was crying. Ms. Sharma had not called the parents of the complainant. It was the head teacher who had called the parents of the complainant.
    
33. The next witness of the prosecution is the mother of the complainant. Ms. Devi was at home on the morning of the 15th of July 2019. She found two missed calls on her mobile phone. One was from the class teacher of the complainant, and the other one was from an unknown number. She then received another call from the head teacher. The head teacher asked her to come to school as something unwanted had happened to her daughter on the previous night. Ms. Devi then went to school with her father-in-law. She had asked the head teacher that she wants to see the complainant. The complainant came to Ms. Devi with the teacher. She looked afraid and teary, though she was not crying. When she arrived, Ms. Devi took her to her lap and started to cry. With that, the complainant also started to cry. Ms. Devi then asked the complainant what had happened to her.
    
34. The complainant had told Ms. Devi that the accused had come to the room and then pampered the little boy. He had then pulled her cheeks. After that, the uncle had pulled her pants down. He then licked her private place, and also placed his fingers inside her vagina.
    
35. Ms. Devi explained the accused is a cousin of her ex-husband. She usually sees him at the market as he sells vegetables in the market. She hardly visits the accused.
    
36. Ms. Devi does not suspect the accused as the person who sent a video of her to her ex-husband. She further said she had no intention of taking revenge from the accused. Ms. Devi said she would never use her daughter to make false allegations.
    
37. You have heard the learned Counsel for the defence asked several questions about the statement she made to the police. The statement states that Ms. Devi had received a call from Ms. Sharma on the morning of 15th of July 2019. The parents of the complainant are separated. They had made a mutual arrangement about the custody of the complainant. The father would have access to the complainant during the weekend, and the mother keeps her during the weekdays—however, Ms. Devi had filed a custody matter and obtained an order from the court. According to the court order, the complainant goes to her father on Saturday. She would return on the evening of Sunday.
    
38. The last witness of the prosecution is the father of the complainant, Mr. Binod Prasad. He had gone to the accused's place on the 14th of July 2019, with the complainant. There were visitors at the accused home. They all drank beer in the sitting room. The complainant was with him while playing on his phone. The complainant got tired of the mobile phone. Mr. Prasad had then told her to go and play with the little son of the accused. She then started to run here and there with the little boy. They then went to the room. The bedroom is a few meters away from the sitting room. Mr. Prasad was sitting in the sitting room, facing the settee. Once the visitors left, only Mr. Prasad and the family of the accused were in the house. One of the two daughters of the accused was at home, but she was not playing with the complainant and the little boy. The accused then got up, saying that he is drunk. He then went to the bedroom. He was there for about 10 to 15 minutes. The wife of the accused was cooking at that time. Mr. Prasad cannot see where was the complainant in the bedroom. The bedroom had no door. When the accused was in the bedroom, Mr. Prasad only heard the laughter of the little boy.
    
39. The accused was also helping her wife to cook. Mr. Prasad cannot remember whether the little boy started to cry when the accused and his wife were cooking in the kitchen. He further said that he could not remember whether the accused and his wife went to the room when the little boy started to cry. The complainant appeared normal when they were going home and also on the following morning.
    

Evidence of the Defence

40. The accused, in his evidence, denies the allegation. According to his testimony, the accused, Mr. Prasad, and two sons of his brother were drinking beer at the sitting room. His wife was cooking. The second daughter, the son, and the complainant were in the bedroom. The elder daughter was also in the house. When the two sons left, he went to the kitchen to help his wife. While he was helping the wife, he heard the son started to cry. He knew the second daughter had made him cry. The accused and the wife went to the room. He held the son and pampered him a while. Once he stopped crying, he came out of the room. His wife stayed in the room and started to breastfeed the son.
    
41. During the cross-examination, the accused denies the allegation. The accused said that he did not do anything to the complainant, as alleged.
    
42. The first witness of the defence is his second daughter, Arpana Chand. Ms. Chand was in the room with the complainant and her little brother. Her brother was playing on the mobile phone. When he kept the mobile phone, she picked it and started to watch a move on it. The complainant was also watching the cartoon on her father's mobile phone. They both were on the bed. The little brother wanted the mobile phone back, which she refused. He then started to cry. The accused and the wife came to the room. The accused pampered the little boy for a while. Once he stopped the cry, the accused left the room. The wife of the accused then breastfed the little boy.
    
43. Ms. Chand said the accused did not do anything as alleged, and she was there when he came to the room. During the cross-examination, Ms. Chand said she is not giving evidence to save her father. Ms. Chand and her mother had gone to the police to make a statement about what she saw, but the police officer had chased them away. While the complainant was watching the cartoon, she received a call on her mobile phone. The complainant only answered yes and no, and the call lasted for a few minutes.
    
44. I have summarized the evidence presented during this hearing. However, I might have missed some. It is not because they are not important. You have heard every item of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main issues of evidence and help you in remembering yourselves of the evidence.
    

Analysis and Directions

45. The prosecution alleges the accused had gone to the bedroom when the complainant and his little son were in it. He then removed her pajama and penetrated the vulva of the complainant with his tongue. Moreover, the accused had touched the vagina of the complainant.
    
46. The defence denies the allegation. The accused only went to the bedroom because of the little boy's cry. He went with his wife and then pampered the boy for a while. Accordingly, you have to determine whether the accused had gone to the bedroom and committed these two offences as charged. To do that, you have to evaluate the evidence presented by the prosecution and the defence. First, you need to determine the reliability and credibility of the evidence presented in the trial.
    

Reliability of Evidence

47. You have to satisfy that you could rely on the evidence as true, reliable, and credible evidence. To do that, you have to convince yourself that evidence is free from mistakes, errors, and inaccuracies. If you find the evidence is free from such mistakes, errors, and inaccuracies, you can consider the evidence as reliable evidence.
    

Credibility of Evidence

48. The assessment of the credibility of evidence focuses on the lies or inaccurate facts that are intentional and motivated attempts to deceive. The credibility of the evidence depends on the individual who gives evidence, his motivations, his relationship to, and the reaction to the particular situation.
    
49. Evaluation of the reliability and credibility of evidence will assist you in determining what evidence you may accept and what part of the evidence you may refuse. In doing that, you may accept or reject such parts of the evidence as you think fit. It is for you to decide whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
    
50. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear, and feel what the witness is talking about in the evidence. You should then find whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Besides, you have to consider the consistency of the witness, not only with his or her evidence but also with other evidence presented in the case.
    
51. You have to consider the demeanour of the witnesses, how they react to being cross-examined, and re-examined and were they evasive. That will help you to decide the credibility of the witness and the evidence. You have to keep in your mind that some witnesses are not used to giving evidence in court and may find the different environment in the courthouse distracting.
    
52. Moreover, you must bear in mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
    

Evidence of the Defence

53. I now kindly draw your attention to the evidence adduced by the defence. The accused elected to give evidence on oath and also called one witness for the defence. The accused, in his evidence, denies this allegation. He claims that he neither touched the vagina of the complainant nor penetrated her vulva with his tongue. Furthermore, he explained his version of the events that took place on the evening of the 14th of July 2019.
    
54. The witness of the defence gave evidence explaining that the accused never touched the vagina of the complainant. The witness further said the accused never penetrated the vulva of the complainant either.
    
55. It is for you to decide whether you believe the version of the accused. The accused is not required to establish the defence beyond a reasonable doubt. If the accused establishes that the defence is or may reasonably be true, although it is not convinced that it is true, then you have to find the accused not guilty of these two offences as charged. Accordingly, if you consider that the account given by the defence is or may be true, then you must find the accused not guilty of the two offences as charged.
    
56. If you neither believe nor disbelieve the version of the accused yet, it creates a reasonable doubt in your mind about the prosecution case. You must then find the accused not guilty of any of the two offences as charged.
    
57. If you reject the version of the defence, that does not mean the prosecution has established the accused guilty of these offences. Still, you have to satisfy the prosecution has proved on its evidence beyond a reasonable doubt that the accused has committed the two offences as charged.
    

Presentation of the Evidence of the Child Complainant

58. The complainant gave evidence from the child witness room via skype. Giving of evidence in this way is perfectly normal in cases like this. It enables the child witness to feel more at ease when giving evidence. It does not intend to prejudge the evidence which the witness gives. You must not, in any way, consider the fact that the manner of giving evidence by the complainant as prejudicial to the accused.
    

Evidence of the Child Complainant

59. The most important part of your task is to determine the evidence of the child complainant. You have to consider whether she told the truth, and has given a reliable and credible account of the events that she was describing. The complainant was eight years old when this alleged incident took place.
    
60. Some of you may have children, grandchildren, nieces, or relatives who are of a similar age to the complainant. If so, I think you will recognize the sense of the advice that I am going to offer you about your opinion of the evidence of the complainant, but remember that I am speaking only about an approach to consider the evidence. Still, the evaluation of the evidence is your responsibility. You do not have to accept my advice if you do not agree with it.
    
61. Children do not have the same life experience as adults. They do not have the same standards of logic and consistency. Their ability to understand certain events may be severely limited for several reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life seen by an adult. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may be embarrassed about it. They might think that using some words are wrong, and therefore find it difficult to speak.
    
62. Remember how you usually talk to children of this age. You should bear those difficulties in mind when you consider the answers given by the child complainant. All decisions about the evidence are for you to make.
    

Evidence of Recent Complaint

63. You have heard that the complainant had related this incident to Ms. Sharma, who is the class teacher, and then to her mother, Ms. Devi, on the morning of the 15th of July 2019.
    
64. This form of evidence is known as an evidence of recent complaint. It is not evidence as to what happened between the complainant and the accused. Neither Ms. Sharma nor Ms. Devi was present and witnessed what happened between the complainant and the accused.
    
65. You can consider the evidence of recent complaint to decide whether or not the complainant has told the truth. It is for you to determine if the evidence of a recent complaint helps you to reach a decision. Still, you must understand that the evidence of a recent complaint is not independent evidence of what happened between the accused and the complainant. It, therefore, cannot of itself prove that the complaint is true.
    
66. You may recall Ms. Devi said in her cross-examination that the head teacher told her everything about this alleged incident and not the complainant. However, she explained in her evidence in chief, that the complainant explained her the incident when she asked about it. If you find the complainant told Ms. Devi, about the incident, then you can consider the evidence of Ms. Devi as evidence of recent complaint. On the other hand, if you find the head teacher told Ms. Devi, about the incident, then you must not consider her evidence as evidence of recent complaint. Then Ms. Devi's evidence becomes hearsay, and you must not consider it.
    

Inconsistency and Omissions

67. You have heard that the learned Counsel for the accused crossed examined Ms. Devi about the inconsistent nature of the evidence she gave in the court with the statement she made to the police during the investigation.
    
68. You can consider such inconsistencies and contradictions when you determine the credibility and reliability of the evidence given by the witnesses. However, you have to be mindful that the previously made statements are not evidence of the truth of its contents. The evidence is what a witness testified in the court.
    
69. The passage of time will affect the accuracy of memory. Memory is fallible, and you might not expect every detail to be the same from one account to the next. A victim of sexual assault or close relative of such victim may find it challenging to gather every detail immediately after such an incident. She or he may struggle to gather herself or himself after encountering or hearing such a traumatic ordeal. Therefore, you have to be mindful of these practical limitations and conditions when you consider these inconsistencies and contradictions.
    
70. In respect of the inconsistency between the evidence presented in the court and the previously made statement, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is substantial, you will next need to consider whether there is an acceptable explanation for it. If there is a satisfactory explanation for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then you have to decide as to what extent that influences your judgment of the reliability of such witness.
    

Delay

71. You had heard the complainant had not informed her father about this incident. She had waited until the next day and then told her class teacher about this incident. You may recall that the learned Counsel for the defence suggested to you to consider the delay in reporting this matter.
    
72. It is a matter for you to consider and resolve. You have to decide whether it was a delay. If so, then you have to determine whether it was a substantial delay. Then you can proceed to determine whether such a delay would affect the reliability and credibility of the evidence of the complainant.
    
73. However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the courts is that victims of sexual offences can react to the trauma that they have faced in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go-to authority for some time. It takes a while for self-confidence to reassert itself. There is, in other words, no classic or typical response. A late complaint does not necessarily signify a false complaint; likewise, an immediate complaint does not necessarily demonstrate a true complaint.
    

Final Directions

74. Ladies and Gentleman, I now take your attention to the final directions of the summing up.
    

Count One

75. Upon consideration of the whole of the evidence adduced during the hearing, if you are satisfied that the prosecution has proven beyond a reasonable doubt that the accused has committed the offence of Rape as charged under count one, you can find the accused guilty of the said offence of Rape.
76. If you are not satisfied or have doubt whether the prosecution has proven beyond a reasonable doubt that the accused has committed the offence of Rape as charged under count one, you must find the accused not guilty of the said count of Rape.
    
77. If you find the accused not guilty of count one, then you can proceed to consider the alternative count of Sexual Assault.
    
78. If you are satisfied that the prosecution has proven beyond a reasonable doubt that the accused has committed the alternative offence of sexual assault, you can find the accused guilty of the said alternative offence.
    
79. If you are not satisfied or have doubt whether the prosecution has proven beyond a reasonable doubt that the accused has committed the alternative offence of Sexual Assault, you must find the accused not guilty of the said, alternative count.
    

Count Two

80. If you are satisfied that the prosecution has proven beyond a reasonable doubt that the accused has committed the offence of Sexual Assault as charged under count two, you can find the accused guilty of the said offence of Sexual Assault.
    
81. If you are not satisfied or have doubt whether the prosecution has proven beyond a reasonable doubt that the accused has committed the offence of Sexual Assault as charged under count two, you must find the accused not guilty of the said count of Sexual Assault.
    

Conclusion

82. Ladies and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached your opinion, you may please inform the clerks, so that the court could reconvene.
83. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R.D.R.T. Rajasinghe

Judge

At Suva

24^th February 2020

Solicitors

Office of the Director of Public Prosecutions for the State.

YLAW for the Accused.