IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 384 OF 2018

STATE
V
ARE AMAE

Counsel 			: Ms. U. Tamanikayaroi for State
: Ms. L. David for for Defence

Dates of Trial 			: 20, 21, 22 October 2020 
Date of  Summing-Up 	: 23 October 2020 

(Name of the Complainant is suppressed)

SUMMING-UP

Madam Assessors:

1.	We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial, to sum- up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinions as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2.	I will direct you on matters of law which you must accept and act upon. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So, if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

3.	In other words, you are the judges of facts. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

4.	The counsel for the Prosecution and the Defence made submissions to you about the facts of this case. That is their duty as the Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

5.	You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I come to deliver my judgment.

6.	On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the prosecution and never shifts.

7.	The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

8.	Your opinions must solely and exclusively be based upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case outside of this courtroom. Your duty is to apply the law as I explain it to you to the evidence you have heard in the course of this trial. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

9.	Your duty is to find the facts based on the evidence and apply the law to those facts. You are free to draw inferences from proved facts if you find those inferences reasonable in the circumstances.

10.	As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of facts in a trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

11.	In assessing the evidence, you are at liberty to accept the whole of the witness’s evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of a witness, you should take into account not only what you heard but what you saw. You must take into account the demeanor or the manner in which the witness gives evidence. You are to ask yourselves, was the witness honest and reliable. But, please bear in mind that many witnesses are not used to giving evidence and may find court environment distracting.

12.	In evaluating evidence, you should see whether the story relayed in evidence is probable or improbable; whether witness is consistent in his or her own evidence and with his or her previous statements or with other witnesses who have given evidence in court. It does not matter whether that evidence was called for the Prosecution or for the Defence. You must apply the same test to evaluate evidence.

13.	If it is shown to you that there is an inconsistency, a contradiction or an omission, you must be satisfied that such inconsistency or contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether there is an acceptable explanation for the inconsistency and whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another, for example by a police officer, in recording the statement where the witness is alleged to have given that version.

14.	Merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility.

15.	When you evaluate evidence of a witness, you should take into account his or her intellectual capabilities, personal circumstances, level of education and maturity. Try to look at things from his or her perspective. Some people do not have the same standards of logic and consistency, and their understanding may be severely limited for a number of reasons, such as immaturity.

16.	You should consider whether there is a delay in making a complaint to someone or to an authority or to police on the first available opportunity about the incident that is alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation for such delay.

17.	In evaluating evidence, you should consider whether there is a motive on the part of the complainant to make-up an allegation against the accused. If the complainant had such a motive, then you might think that this allegation has been fabricated. 

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

19.	Documentary evidence is evidence presented in the form of a document. In this case, the medical report is an example if you believe that such a record was made. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time upon examination of the complainant.

20.	In this case, the doctor gave evidence as an expert witness. He tendered the medical examination form he filled after the examination of the complainant. Expert evidence should not be accepted blindly. You will have to decide the issues before you by yourself and you can make use of doctor’s opinion if his reasons are convincing and acceptable to you; and, if his opinion had been reached by considering all necessary matters that you think fit. In accepting doctor’s opinion, you are bound to take into account the rest of the evidence led in the case. You have to bear in mind that the doctor’s medical report does not implicate the accused or link him to the alleged offences even if you decide to rely on it. The doctor was not present when the alleged offences were committed and therefore you should only use doctor’s evidence to test the consistency and credibility of complainant’s evidence.

21.	A screen was put up in front of the accused so that the complainant, while being in the witness box, could not see the accused. That was done because the complainant in this case is a child thus a vulnerable witness. You must not draw any negative inference against the accused from that.

22.	The accused in his evidence informed the court that he was charged in a criminal case in Lautoka. It has nothing to do with this case and you should not assume that because he was charged in another criminal case, he must have committed this offence. 

23.	In this case, the accused takes up the position that he was not present where the alleged rapes were committed and therefore he could not have committed the alleged rapes. The defence taken up by the accused that he was elsewhere at the time of offence is known as the defence of alibi. Although the accused has raised the defence of alibi, there is no burden on him to prove that he was elsewhere at the time the offence. The prosecution should prove that it was the accused that committed the offence and therefore the alibi is not true. 

24.	If you think that the alibi of the accused is true or it may be true, then you must find the accused not guilty of the offence. You should not assume that the accused is guilty of the offences merely because you decide not to accept his alibi. Sometimes an accused may invent an alibi to bolster his defence. The main question remains the same. That is, whether you are sure that it was the accused who had committed the offence.

25.	I have given you a copy of the information which contains the charges against the accused. Please refer to it. The information reads as follows:

COUNT 1
Statement of Offence
RAPE : Contrary to section 207(1) and (2) (b) and (3) of the Crimes Act 2009.

Particulars of Offence
ARE AMAE on the 5th day of October 2018 at Samabula in the Central Division penetrated the vulva of MN, a child under the age of 13 years, with his tongue.

         COUNT 2

Statement of Offence
RAPE : Contrary to section 207(1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of Offence
ARE AMAE on the 5th day of October 2018 at Samabula in the Central Division penetrated the vagina of MN, a child under the age of 13 years, with his penis.
Count 3
Statement of Offence

RESISTING ARREST: contrary to Section 277(b) of Crimes Act 2009.

ARE AMAE on the 5th day of October 2018 at Suva in the Central Division resisted Special Constable 4349 Tevita whilst effecting arrest in the due execution of his duty.

26.	I will now deal with the elements of the offence of Rape. 

A person rapes another person if:
(a) The person has carnal knowledge of the other person without other person’s consent; or
(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person’s body that is not a penis without other person’s consent; or
(c) The person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

27.	Vulva is the external female genitalia that surround the opening to the vagina. Insertion of penis fully into vagina is not necessary to constitute the offence of Rape. A slightest penetration is sufficient to satisfy this element.

28.	Consent as defined by Section 206 of the Crimes Act means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent. A person under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The complainant in this case was 12 years of age at the time of the alleged rape offence and therefore, she did not have the capacity under the law to consent. So, the Prosecution does not have to prove the absence of consent on the part of the complainant because law says that she, in any event, cannot consent.

29.	In this case the complainant was 12 years of age at the time of the alleged rape offences and therefore to establish the count 1, the Prosecution must prove the following elements beyond reasonable doubt:
(a) The accused Are Amae;
(b) Penetrated the vulva of the complainant with his tongue;

30.	To establish the count 2, the Prosecution must prove the following elements beyond reasonable doubt:
(a) The accused Are Amae;
(b) Penetrated the vagina of the complainant with his penis;

31.	In respect of the count 3, you must be sure that the accused resisted PC Tevita’s attempt to effect the arrest in the due execution of his duty. 

32.	Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-person that connects him to the offence that he is alleged to have committed.

33.	Please remember, there is no rule in Fiji for you to look for corroboration of complainant’s story to bring home an opinion of guilt in a case of sexual nature. The case can stand or fall on the testimony of the complainant, depending on how you are going to look at her evidence.

34.	I will now remind you of the Prosecution and Defence cases. It was a short trial and I am sure things are still fresh in your minds. I will refresh your memory and summarizes the salient features. If I do not mention a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision in this case.

Case for Prosecution

PW1 - MN (The Complainant)
35.	The Complainant MN is 14 years old student of Arya Samaj College. From her birth she lived with her mother’s parents in Delainavesi. 
36.	In August 2018, when she was in year 6, she went to Newtown, Khalsa where her father’s mother, his stepfather and her uncle Are Amae and his wife Sushil lived. She stayed there for two months. 
37.	During her stay in New Town, uncle Are used to drink inside the house and tell her to go and sleep in the room with her aunty and her family. Her relationship with Uncle Are was not that good. He did not sit properly in front of her and he spoke to her in a harsh way. In October 2018, she went back to Delainavesi where her mother was as she could not study properly for her exam in that house. 
38.	On 5 October 2018, while staying with her mother in Newtown, she was returning from school after 3 pm. and was at Lami bus stand in Suva with her neighbor friend George. She was in school uniform wearing her bag. When she was about to board the bus, uncle Are pulled her from her bag and told her to go with him. She refused saying that her mother will get angry. But he pulled her and insisted that she go with him to get her grandmother’s medicine. 
39.	Both of them boarded the Namadi bus and got to Superfresh, where they got off at the bus stop. Then they walked straight towards Superfresh. When they reached one house that had a fence beside, Are pulled the leaves, the herbal medicine. 
40.	Then they proceeded to a Taxi stand, where Are met two of his friends. Then Are took her to Wairua Road. The road was slippery with rocks. He told her that either her father or her uncle will come and pick her. They then went down one hill where he said there was another medicine, and he also wanted to get an extension code from his house in Wairua. 
41.	While proceeding down the hill, Are pushed her down to the mud. Then he kissed her. He pulled the button of her dress, the vest and the bra. She said ‘I did not believe that you would do such thing to me’. He said for her to ‘shut up’ because he wanted to do that to her long ago. 
42.	She shouted. He closed her mouth and nose with his hand. She pushed him away. Then he told her not to shout, if she did he will kill her. She was scared. She did not shout again or call out for help because it was already dark, no one could hear her and he might kill her. Although it was dark, she was able to see his face from the light coming from the street light. 
43.	He made her lie down, took off his trousers, pulled her underwear down. He also took off his tights and put his penis into her vagina for a long time. She felt the pain in her vagina. She was crying. He said that the two of his friends, whom they had met at the taxi stand, also wanted to do something to her. 
44.	He then started licking her vagina and sucked her breasts. She was ashamed and scared. He started pulling his pants up again. She also wore her tights and clothes. Her uniform was wet. She saw blood coming from her vagina. He said that he will go to Tamavua-I-wai to get a jacket for her. He told her not to tell anyone what had happened; he will give her whatever she wants. She promised that she will not tell this to anyone. 
45.	When he went to get a jacket, she ran up to the road and straight to a house, but no one was there. When she turned back, she saw uncle Are standing beside her with a jacket. She wore the jacket and went straight to the bus stop. 
46.	While she was sitting at the bus stop, uncle Are went to the two guys whom they had met before. Beside her was an i-Taukei man whom they had met at the bus stop. He asked her, if something happened to her because she was still wearing a school uniform, late at 9 o’clock. Then she told him that her uncle did something to her. 
47.	All of them boarded the bus and went to the Suva bus stand. Uncle Are dropped her at the Delainavesi bus stand and was standing a bit away from her. While she was sitting at the bus stand, she saw 3 police officers, one of them wearing a police uniform, coming towards her with that same i-Taukei man. They went to get uncle Are from the bin cut. The officers took her and Are to Market Police Post. She was taken to Totogo Police Station and then to the CWM Hospital where she was admitted until next Sunday. 
48.	Under cross- examination, MN agreed that, in her statement to police, she had not mentioned the fact that her uncle had told her that he was going to Wairua road to take an extension code. She agreed that in her statement to police she had stated that he first started licking her vagina for some time and then he forcefully put his private part into her vagina. She also agreed that she had never told police that 2 of his friends met at the taxi stand also wanted to come and do something to her. 
49.	MN did not agree that when she was staying at her grandmother’s place, she would get into trouble because she would come home late from school. She denied that Are would be harsh to her because she used to come home late from school on certain school days. She denied that on 5 October 2018 at 9.00pm, she was seated with an i-Taukei male friend when Are had approached her. She denied that she made up the story of being raped by her uncle as he had seen her in town late, and she was worried that she would be in trouble with her family. 
	PW- 2 Dr. George Sikivou: 
50.	On 5 October 2018 Dr. Sikivou, medically examined the complainant at CWM Hospital at 11pm. He tendered in evidence the Fiji Police Examination Form (PE1) which he had filled after the examination of the patient. 
51.	The first impression was that the patient was very shy and was hesitant for the examination. 
52.	Describing his specific medical findings, the doctor said that soil/dirt particules were found on patient’s back as well as on her perennial region. A 0.3 cm laceration was found on the vaginal introitus at the 6 o’clock position and there was a discontinuity of the hymen at the 6 o’clock position. In his opinion, the most common cause of those kinds of injuries would be things such as penetration, either by penis or any foreign object. He said that it is not very common to see a discontinuity of the hymen in a 12 year old child.
53.	The doctor described the valva as a collective for the external genetalia including the external libea minora, libea majora and the cletorial boot, which is the superior aspect of the vagina. 
PW 3- PC 4329 Tevita 
54.	In 2018, Tevita was a Special Constable of the Fiji Police Force. On 5 October, 2018, he was based at Suva Market Police Post doing his afternoon shift. 
55.	At around 9.30pm, an i-Taukei man named Penisoni came in to the post and lodged a report. He called 2 other police officers and went to the Lami bus stand with the i-Taukei man. The i-Taukei man pointed out the little girl and the suspect. 
56.	He was in uniform when he approached the suspect. When the suspect saw him, the suspect stood up and started walking away. He told the suspect to stop walking. But the suspect just walked away. He and PC Tamani ran after him. PC Tamani managed to catch the suspect. He helped PC Tamani to bring the suspect to the Post. 
57.	The suspect was so aggressive for about 5 minutes. He was throwing his elbows on them, wanting to run away. He was just swearing and saying, ‘just leave me I didn’t do anything’. PC Tevita identified the accused as the suspect who was arrested on that day.
58.	Under cross examination, the witness admitted that he failed to get a statement from Penisoni because he had left as soon as they had apprehended Are Amae. He agreed that, in his statement, there is no mention that the suspect had used his elbows during the arrest. 
PW-4 PC 4543 Tamani
59.	Tamani is a police constable. At around 9.30pm on 5 October 2018, he was at the Market Police Post in Suva. He was in civilian clothing. A young i-Taukei man had come to the police post to lodge a report. He was then requested by the Post Orderly- PC Tamani to assist him in attending to the report as he was alone at that time. Then they proceeded to the Suva bus stand. The person who lodged the report pointed to the suspect. They approached the suspect. As soon as the suspect saw the police officer in uniform, the suspect stood up and started walking in the opposite direction. SC Tevita yelled for him to stop at which he started running. He pursued and arrested the suspect. He informed, as soon as he touched suspect’s shoulder, that he is a police officer. He told the suspect to calm down and comply with his instructions. When he put his hands on suspect’s shoulders, the suspect gave him an elbow and attempted to resist his efforts. The suspect then started kicking, struggled violently, and was also swearing loudly. Special Constable Tevita, and another constable Dominiko, assisted him in subduing the suspect and bringing him under control. 
60.	Under cross-examination, the witness admitted that no statement was recorded from the informant. He agreed that, in his statement, there is no mention that the suspect had given him an elbow. 
61.	That, is the case for the Prosecution.
62.	At the close of the Prosecution’s case, you heard me explain to the accused what his rights were in defence and how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined.
63.	The accused elected to give evidence under oath. That is his right. By electing to give evidence, accused has not assumed any burden to prove his innocence or his alibi. He has nothing to prove in this case. You must take into consideration the evidence presented by the accused and his version when evaluating evidence.
The Case for Defence
Are Amae (The Accused) 
64.	In 2018, Are was staying in Khalsa Road with his wife, grandmother and the complainant. The complainant stayed with his family only for about 2 weeks. 
65.	The complainant used to come home late, his grandmother told him to give her a hiding, if not, take her back to her father. 
66.	On 5 October 2018 between 5am and 6am he went to attend a court case in Lautoka and returned on the same day. He left Lautoka between 3 to 4pm.and took about 4 hours for the journey. Whilst in Lautoka, he went to Anupam Street to meet with his co-accused Asele Waqanivalu and Jemesa Vakacegu and had lunch at Asele’s house. After lunch, they played billiard and boarded the bus to Suva with Jemesa. 
67.	It was dark when they reached Suva bus stand. When they were at the Suva bus stand, he saw MN sitting with another young man, talking to him. When he was heading towards the girl, the young man stood up and walked away. 
68.	He asked MN what she was doing there around that time. She never answered his question. So he told MN that he will ring her father and tell him that she was sitting down at the bus stand with another man. When he was still talking to her, the same young man came with some boys. They told for him to go to the police post. Then he walked straight to the police post with them. When they reached the police post he came to know that they were police officers. He denied acting violent and aggressive manner to resist his arrest. Jemesa was standing there when he was arrested. 
69.	Are said that MN made up this story because he saw her in town with another man and he told her that he will call her father and tell him. MN came to stay at his house with the grandmother as she didn’t have any other house to go. He was the one who used to look after her. She used to run away from home to her mother’s side. He denied all the allegations.  
70.	Under cross-examination, he agreed that he would smack MN at home and she was afraid of him. He denied that he was medically examined because he had injuries when he was resisting arrest. 
Analysis
71.	Madam assessors, you are called upon to express your opinion on three counts. You must consider evidence against each count separately.

72.	The accused denies all the allegations. The Defence’s case on the two rape counts is that the complainant is not telling the truth. He raised an alibi to show that he was not at the alleged crime scene on that particular time. 

73.	The Prosecution called four witnesses. Prosecution’s case on two counts of rape is substantially based on the evidence of the complainant. The resolution of the dispute over the rape allegations depends on who you believe told the truth in court and whether you could accept the evidence of the complainant as being credible and believable. 

74.	There is no dispute that the complainant was under 13 years of age at the time of the alleged rape offences. 

75.	The Prosecution says that the child complainant told the truth in court and that she was not mistaken as to the identity of the accused. She said that the accused was her uncle and it was him that had accompanied her to the place where she was raped on that day. She further said that she was sure it was her uncle because she could see his face in close proximity from the light coming from the street lamp. If you are satisfied that the complainant told the truth in court, and she was not mistaken, you can safely act upon her evidence in coming to your conclusion. No corroboration of her evidence is required.

76.	The Prosecution says that the complainant’s subsequent conduct and her demeanor are consistent with her evidence that she was raped. Prosecution relies on the medical evidence to prove consistency of the complainant’s evidence. It says that the findings of the doctor upon the complainant being examined on 5 October 2018 are consistent with complainant’s evidence that she was raped on that day. Having taken into consideration the directions I have given, you decide what weight you should attach to the medical evidence and if it is consistent with that of the complainant.

77.	The State Counsel argues that the accused was guilty conscious and that is why he walked away when the policeman in uniform approached him and also attempted to resist the arrest. It is up to you to form your own opinion on the subsequent conduct of the accused after having considered if it was consistent with his guilt.

78.	The Defence Counsel on the other hand highlighted certain inconsistencies between complainant’s evidence and her previous statement made to police and she argues that the complainant was not telling the truth. The complainant gave explanations for those inconsistencies. You decide if those explanations are acceptable and the inconsistencies are material enough to discredit the version of the complainant. 

79.	The complainant was 12 years old at the time of the alleged incident. Having considered the evidence led and, observed her demeanor, you decide if she is telling the truth in court.

80.	You had the opportunity to hear Defence’s side of the story. The accused denies all the charges and says that the complainant did not tell the truth in court. He says that the complainant has made up this story against him to be out of trouble from her family in a context where she was caught with a man in the bus stand in night. You decide if you could believe the evidence of the accused and whether the complainant had such a strong motive to make up these serious allegations against her uncle. 

81.	The accused raised an alibi that he was not present where the alleged rapes were committed and therefore he could not have committed the alleged rapes. He said that he was attending a court case in Lautoka and returned to Suva only when it was dark. You decide if his version is credible and what weight to be attached to his evidence. If you think that the alibi of the accused is true or it may be true, then you must find the accused not guilty of the offence. Even if you reject his version, still the Prosecution must prove beyond reasonable doubt that it was the accused and no one else committed those rapes.

82.	To prove the third count the Prosecution called two witnesses and it says that they are consistent and believable. The Defence on the other hand says that given the inconsistency with their previous statements which she highlighted they are not credible witness and you should not believe them.   

83.	If you believe that the complainant is telling you the truth, then you must be satisfied that all the elements of each offence have been proved beyond reasonable doubt. If you are sure that the accused penetrated the vulva of the complainant with his tongue, you should find the accused guilty on count 1. If you are sure the accused penetrated the vagina of the complainant with his penis you should find the accused guilty on count 2. If you believe that the accused resisted PC Tevita’s alleged attempt to arrest the accused you should find the accused guilty on count 3.

84.	If you do not believe Prosecution’s version of events regarding the alleged offences, or if you have a reasonable doubt about the guilt of the accused, then you must find the accused not guilty. Your possible opinion is either guilty or not guilty on each count.

85.	You may now retire to deliberate on your opinions. Once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

86.	Any re-directions?

Aruna   Aluthge  
      Judge

At Suva
23 October 2020

Solicitors: 	Office of Director of Public Prosecution for State
		Legal Aid Commission for Defence