IN THE HIGH COURT OF FIJI
Crim. Case No: HAC 051 of 2010
JOHN HARISH LAL
Hearing: 31st May 2011 – 9th June 2011
Summing Up: 09th June 2011
Counsel: Ms. S. Puamau & Ms. Lomani for State
Accused In person
Madam Assessors and Gentleman Assessor,
 It is now my duty to sum up this case to you. I will direct you on matters of Law which
you must accept and act upon. On matters of fact however, which witnesses to accept as
reliable, which version of the evidence to accept, these are matters for you to decide for
yourselves. So if I express my opinion to you about the facts of the case, or if I appear to
do so, it is a matter for you whether you accept what I say, or form your own opinions.
In other words you are the judges of fact. 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.
 You decide what facts are proved and what inferences you properly draw from those
facts. You then apply the Law as I explain it to you and form your opinion as to whether
the accused is guilty or not guilty.
 The accused made submissions to you about the facts of this case. It is his right as the
accused but, it is a matter for you to decide which version of the facts to accept, or reject.
 You will not be asked to give reasons for your opinions but merely your opinions
themselves, and your opinions need not be unanimous but it would be desirable if you
could agree on them. Your opinions are not binding on me but I can tell you that they
will carry great weight with me when I deliver my judgment.
 On the question of proof, I must direct you as a matter of law that the onus of burden of
proof lies on the prosecution throughout the trial and never shifts. There is no obligation
on the accused person to prove his innocence. Under our criminal justice system,
accused person is presumed to be innocent until he is proved guilty.
 The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This
means you must be satisfied so that you are sure of the accused‟s guilt before you can
express an opinion that he is guilty. If you have any reasonable doubt about his guilt,
then you must express an opinion that he is not guilty.
 Your decisions must be solely and exclusively upon the evidence, which you have heard
in this court and upon nothing else. You must disregard anything you might have heard
about this case, outside of this courtroom.
 Your duty is to find the facts based on the evidence, apply the Law to those facts.
Approach the evidence with detachment and objectivity. Do not get carried away by
 On count 1 the accused is charged with the offence of rape
 I will now explain to you the elements of rape.
 According to the particulars of offence given in the information, the accused is alleged to
have had carnal knowledge of the complainant Joycelyn Sahai without her consent.
 Carnal knowledge is the penetration of the vagina or anus by the penis. It is not necessary
for the prosecution to prove that there was ejaculation, or even that there was full
 The elements that the prosecution has to prove beyond reasonable doubt are;
1. The accused had carnal knowledge of the complainant,
2. Without her consent,
3. He knew or believed that she was not consenting or didn‟t care if she was not
 For the accused to be found guilty of Rape, the prosecution must prove all these elements
beyond reasonable doubt. In this case the prosecution alleges that the accused had carnal
knowledge of the complainant Joycelyn Sahai. Therefore the prosecution must prove
beyond reasonable doubt, that the accused had carnal knowledge of the complainant
without her consent, and that he knew or believed that she was not consenting or didn‟t
care if she was not consenting.
 As far as the element of consent is concerned, where the consent is obtained through fear
or by threat, then that is not consent. However it is not enough for you to be satisfied that
the complainant was not consenting. You must be satisfied beyond reasonable doubt that
the accused knew or believed that she was not consenting and was determined to have
sexual intercourse with her anyway
 In this case the victim Joycelyn said in her evidence that the accused had sexual
intercourse with her without her consent. You may consider all the evidence given in
court including her evidence, to decide whether she consented or not, and whether the
accused knew or believed that she was not consenting.
 Prosecution must prove all the elements mentioned above beyond reasonable doubt to
find him guilty of the charge of rape.
 On count two, the accused is charged with the offence of burglary.
 According to the particulars of offence in the information, the accused is alleged to have
entered into the dwelling house of Joycelyn Sahai as a trespasser with intent to steal an
Apple iTouch IPod valued at $ 2000 the property of the said Joycelyn Sahai.
 The elements of the offence of Burglary which the prosecution has to prove beyond
reasonable doubt are, that :
(i) the accused
(ii) entered or remained in a building as a trespasser
(iii) with intent to commit theft of a particular item of property in the building
 Trespassing is entering into someone‟s property without their permission.
 A person‟s intentions are locked up in his mind. The intent cannot be physically
observed. However, the intent can be proved by what he said or told the others, or it can
be informed from his conduct prior to, during and subsequent to the commission of
 You have to consider the evidence on each count separately. Just because you find the
accused guilty of one count, that does not necessarily mean that the accused is guilty of
the other count as well. The prosecution has to prove each count separately beyond
 To prove the elements of the offences, the prosecution relies direct evidence as well as
circumstantial evidence. As a matter of law, may I now direct you on circumstantial
 In circumstantial evidence, you are asked to piece the story together from witnesses who
did not actually see the crime committed, but give evidence of other circumstances and
events, that may bring you to a sufficiently certain conclusion regarding the commission
of the alleged crime.
 I cite the following situation as an example for circumstantial evidence. In a silent night
you hear cries of a man from a neighboring house. You come out to see that a man named
„X‟ is running away from that house with an object in his hand. Out of curiosity, you go
inside the house of your neighbor to see what really happened. You see your neighbor
„Y‟ lying fallen with injuries. Here you don‟t see „X‟ committing any act on „Y‟. The two
independent things that you saw, were the circumstances of the given situation. You
connect the two things that you saw and draw certain inferences. An inference that you
may draw would be, that „X‟ caused the injury on „Y‟. In drawing that inference, you
must make sure that it is the only inference that could be drawn, and no other inferences
that could have been possibly drawn from the said circumstances. That should also be the
inescapable inference that could be drawn against „X‟ in the circumstances.
 Further, in evidence, one witness may prove one thing and another witness may prove
another. None of those things separately alone may be sufficient to establish guilt, but
taken together may lead to the conclusion that the accused committed the crime.
 Therefore you must consider all direct evidence as well as circumstantial evidence.
 It must not be mere speculation guesswork. It is not sufficient that the proved
circumstances are merely consistent with the accused person having committed the crime.
To find him guilty you must be satisfied so as to feel sure, that the inference of guilt is the
only rational conclusion that could be drawn from the combined effect of all the facts
proved. It must be an inference that satisfies you beyond reasonable doubt, that the
accused person committed the crime.
 Before you can draw any reasonable inferences you must first be satisfied beyond
reasonable doubt, that the evidence given by witnesses relating to the circumstances
giving rise to the issues of fact to be proven is credible and truthful.
 Prosecution called the alleged victim Joycelyn Sahai to give evidence first.
 She had been residing in Carew Street, Flagstaff during the relevant period. It‟s a two-
storey apartment and that had been her family home. Her father, sister in law and her 6
year old son, one year old daughter and the elder brother had been residing the top flat
and the witness had been occupying the bottom flat. Bottom flat consisted of 4 rooms
and she occupied the Master bedroom she said. 1st room had been occupied by Nanny.
 On 28/2/2010 after watching TV,she went to sleep by 11.30-12.00 midnight, she said. As
usual she has checked all doors and windows, switched off all the lights and switched on
the front verandah light before she went to sleep, she said.
 She had woken up with a shock as she felt something on top of her. There had been a
hand on her mouth and another hand on her thigh. She realized that her house has been
broken into. She tried to speak and she had asked the person “How many of you in the
house?” He had said only him. She had feared for her family upstairs.
 She tried to push him but failed, as he had been strong. At that time it was too dark to
identify the man she said. He had some objects in his hand. They were her camera,
phone and the case of the camera, which were placed on her bed, she said. She had told
him not to hurt her. She had been wearing a sulu. He had forcefully pushed on to her.
He gagged her mouth still, with his hands she said. She said he went down on her,
penetrated his finger inside her, and used his tongue to penetrate her vagina . She could
not scream as his hand was still on her mouth. She said she tried to kick him, but he did
not move and he had punched her face. Then he penetrated his penis into the vagina she
said. She said to that point it would have taken about 15-20 minutes from the time she
was woken up. He had told her not to scream or he would hurt her again.
 Then he had got off her and sat on her bed. She had been standing naked ,crying. She
had gone to the kitchen naked and got hold of a knife thinking of doing something to
herself. There she had had lot of thoughts in her mind including her family upstairs and
also whether she should let some street rat to rape her, hurt her, steal from her and let him
get away with it. She had put the knife back, came to the bedroom she said. Then the
bedroom light had been on. The man had his clothes on she said. During the time of
rape the man only had his T shirt on, she said. When she came back to the room the
lights had been on and his clothes on she said. She had felt disgusted . She then had
pulled a pair of shorts and a T-shirt from the laundry bucket she said. She had asked him
“Are you done?” He did not reply she said. When asked for the name he had said Joe.
She had sat down on her bed and had asked him to sit down beside her. She offered him
a cigarette. While they were smoking his phone kept ringing but he kept cutting it off she
said. He had asked for more money and when she said no money, he had wanted her to
get money from the ATM. She said that her idea was to play along and get to his mind.
When asked, he had given her his mobile number.
 In her car she had taken him to the ATM at Fatty Shop opposite U.S.P. When going, she
said she passed Flagstaff Police Post, M.H. and turned to her right at the Flagstaff
roundabout and gone to the ATM at Fatty Shop. She had not stopped near Flagstaff
Police Post or at MH ATM, as she feared that he would harm her. She had been driving
and he had been in the passenger seat. She had withdrawn $100 from the ATM. He had
told her to get back home which she did. He had snatched the money from her. She
drove back down Carew Street where he got on to a taxi and drove off she said. She had
gone inside the house and looked through the window to ensure that they have gone.
 She said from the time she went to the kitchen and to the time she got into the car to go to
the ATM it would have taken about 15 minutes.
 The time when the men left in a taxi would have been about 2.00-3.00am she said. Then
she had gone upstairs and had told what exactly happened to her to her sister in law. She
had told her that she had been raped and burgled. Father had been sleeping. Sister in law
called her husband, who is witness‟s brother who is working in a resort in an island.
Sister in law Ana was advised by him to seek help from Police.
 She had gone to the Police Station Raiwaqa with a friend named Sam. Initially she had
told the police that she was burgled and robbed.
 After lodging her report she had spoken to the officer who took her complaint she said.
After she told her the actual story at the police station itself, she was asked why she
didn‟t tell her the actual story first. She had said that she was embarrassed and ashamed,
as she was holding a reputed position. Then her complaint was taken.
 The next day on 2/3/2010 two medical examinations were done on her. First one was at
Suva Private Hospital and 2nd one at CWM hospital. She said although Suva Private
Hospital was convenient she wanted to do an independent examination because any one
would think that she was working for Suva Private Hospital .
 She identified the accused, as the person who raped her.
 On 2/3/2010 her mind had been clearer and she discovered that her Apple i touch, and
about $30 dollars from her wallet were missing. Her driving licence, FNPF and other
cards were scattered all over she said.
 She identified her itouch in court which was marked in evidence. She had informed the
police of the missing items. She said that the itouch was found from the taxi which the
accused came the previous night. It had been on the dash board of the taxi and was found
in the presence of her and in the presence of the arresting officer she said. She said the
taxi was taken into her driveway and parked inside her driveway where the accused had
come again. Then she had the officer from Raiwaqa Police Station. She and her friends
had been there when the accused got arrested by the officers.
 Answering a question by court about his arrest, she said that the accused had been calling
her phone and the police had advised her that the accused would come again due to her
vulnerable state. She said that the accused appeared at her door step by 6.00pm and she
called the police.
 In cross-examination she first denied having told police, that she went off to sleep after
working on her laptop. However, once the statement was shown, she admitted telling
that to police. She admitted that she told the police that she was nude as it was too hot
and that she had no clothes on her body, but that she was covered with a sheet only.
When she was questioned about what she said in court, that she was wearing a sulu, she
said that she told police exactly what she said in court. Then again she admitted that she
had said that she was nude, no clothes on but was covering with a sheet in her statement
to police.. Then she said, wrapped with a sulu and covered with a sheet are the same.
 She admitted that it was incorrect when she told the police that she had a shower after she
was raped. When she was asked as to why she gave an incorrect statement to police, she
said that police could have got a wrong impression on her, if she told police that she went
to the kitchen to commit suicide and therefore she simply told the police that she had a
 She confirmed that she was punched by the accused, but admitted that it was not recorded
in her statement. Then she said she told it to the police orally.
 In cross-examination it was shown to her, that she had told the police, that she asked the
accused to switch on the light after he raped her, and that she told in court that when she
came from the kitchen the light was on. She said that both these statements are the same
and that there is no difference. She admitted in evidence that she asked him to put the
light on. When she was asked which statement was true when she told the police that she
wrapped herself with a towel after she was raped and that she told in court that she
walked naked to the kitchen after being raped, she said that what she said in court was
 She said that she could not remember if he had a weapon with him when they went to the
ATM. She further said that she didn‟t run away at the ATM, as the accused could have
stolen away her car and further he could have run after her and hurt her. She said, she
kept the engine running purposely. She said that she told the police verbally that she kept
the engine running and that it is not in her statement.
 She said that she was in the flat but she never saw the accused being assaulted or
punched. She further said that she was in the sitting room and never saw him injured.
She said that her friend Sam apprehended the accused and there was no assault. She said
only Sam was there at that time and no one else. She said that she was not lying in court
she said only Sam was there inside house.
 She denied 3 other boys were inside the house when police arrived. However, she said
that a crowd gathered in the vicinity when the police came. She denied lying in court.
She denied pulling his tooth with pliers. She said that it was correct when she told the
police that the accused had a tooth missing. She denied wanting to stab his face with a
knife. She denied picking the accused up from Dolphins. She denied saying that there
was a forceful entry to the house. She said she didn‟t know why she didn‟t run away
when she came out to go to the ATM.
 When she was asked about that she told to the police, that when the she came back from
ATM a taxi was stopped at her driveway and that she told in evidence in court that when
she came, a taxi turned from the roundabout, she said both statements are true and she
denied lying in court. However, she admitted stating to police that a taxi was waiting at
 She denied calling the taxi driver to come inside her house the 1st day. She said that the
accused was apprehended by the police on the 2nd March 2010 and denied lying in court.
 In re-examination she said, that at the police station on 1/3/2010 she spoke to one Police
officer by the name of Vula who took her statement. She said that it was the same lady
officer that she told about the rape after giving the 1st statement. She said some time after
making the 1st statement she told the same officer that she was raped. When she gave the
statement on the 1/3/2010 her friend Sam had been there with her.
 She said that when the police came to arrest the accused, her dad, sister in law and her
two children had been upstairs. She said that she gave the phone number to accused on
the night of the incident and that the accused made the initial call. She had got the 1st call
from accused on 1/3/2010 around 6.00am and that she got several calls. She said that the
1st consecutive calls she did not answer and on the day he was arrested she answered the
call as she knew that he is going to come back again and that she informed the police.
However, she said that he did not say anything as she never answered the calls.
 The next witness was Ana Sahai, the sister in law of the victim Jocelyn Sahai.
She said that on 28/2/2010 evening Jocelyn was upstairs with them and went downstairs
at about 8.00pm. Possibly before 9.00pm she had come again to get a panadol.
 From the kitchen upstairs around after 1.00am she had seen Jocelyn getting out of the car.
She said when she went to the kitchen for daughters‟ milk, the car had gone and she had
thought that Jocelyn had gone to hospital. Although she called Jocelyn she had not
answered the phone. When she returned to the room she heard the car coming. Jocelyn
got from the drivers‟ side and he got out from the passenger side she said. She had
thought it was weird as he was not a person that Jocelyn knew. Jocelyn had called over
the phone and wanted to come upstairs. She was crying and ran passing her upstairs she
said. When she asked what was wrong, she had not responded. She was crying, shaking
and she was wet she said. When she kept asking Jocelyn, she had said that she was raped
in her bedroom. She had started describing how it happened. She had said that when she
woken up he was standing by her bed. She said that she couldn‟t remember clearly what
 She had called her husband and convinced Jocelyn to call the police. Jocelyn had been
scared that he would come again she said. In the morning Jocelyn had given a statement
to police and the witness had given her statement about 2 days later. Answering court,
as to what Jocelyn said as to how she was raped, she said that Jocelyn had woken up, he
had been standing beside her bed, threatened that he wanted to have sex with her and that
she agreed as she feared for the witness and her children.
 In cross-examination she said that she identified the accused from the lights along the
neighbours fence wall and the porch light downstairs. She could not remember the
clothes that the accused was wearing and she said she identified from the face, from the
kitchen door upstairs. She couldn‟t recall the accused hair style. She said that she was
there upstairs on the day accused was arrested. She said that the accused was arrested on
1st of March on a Monday. When the police came she had not seen him. She didn‟t
know who all were at the bottom flat. She didn‟t know even whether Sam was there or
 The next witness was PC 3629 Lawane Sukanisoro. On 1/3/2010 he was deployed for
duty at Flagstaff Police Post. He received a phone call from WPC Fiona that there is a
rape case at 20 Carew Street. On the instructions he went to the house at 20 Carew
Street. He noticed 2 boys already being injured in their mouths and some gentlemen he
believed to be Islanders were already there. The victim lady Jocelyn had pointed to the
accused (he said the short one) that he is the one who raped her. He said that he arrested
the accused and escorted towards the Police Post. As they reached the road, police
vehicle had arrived and he had handed over the accused to the police officers.
 In cross examination he said, when he arrived at the house, the accused was inside the
house and it was about 7.00pm. Accused had been already injured and blood was coming
out from the teeth. There had been about 3 people or more inside the house but less than
5, he said. He only knew Jocelyn as a daughter of one of their community. The men who
were there, he didn‟t know whether they were Jocelyns‟ friends or from the community.
Apart from the accused, he said that he did not take anything else to his custody. No
other article was taken in to custody by him.
 The next witness was W/D/Sgt 2345 Sunita Devi who was attached to the Sexual Offence
Unit. She received a report from Raiwaqa Police Station on a rape, on 2/3/2010. Victim
had come to their office at Vinod Patel Building. Victim Jocelyin Sahai had alleged, that
she was raped by an unknown male Fijian, after he had broken into her flat. She had
been shaking and uncomfortable she said. She had already been to a doctor and had
asked for a medical form. So she had given her a medical form to be filled by the doctor.
Then realizing that she had gone to a doctor at Suva Private hospital ,where she was
working the witness arranged for another doctor at CWM hospital, Dr Viliame. P3
statement was recorded by her.
 The next witness was WDC 3671 Vularua Naisimi who was the investigating officer.
She has recorded the very first statement of the victim Jocelyn Sahai. Her further
statement was recorded in the afternoon she said. The 1st statement was recorded at
6.16am and the 2nd was recorded after 6.00pm she said. The 1st statement had been on
report of burglary at her house and later that day she had called into the station to lodge
another report, that she was raped. She said that her initial observation on the victim
when she met her in the morning was, that she was calm.
 The next witness was Dr. Daryl O‟Connor. His qualifications and experience as a
Medical Doctor was not challenged. He has obtained MBBS Medical Degree in year
2002 and a post graduate Diploma in Obstratric and Gynecology in 2006. He is now a
general practitioner in Suva Private Hospital. He has examined the victim on 2 nd March
2010 at Suva Private Hospital. Victim had come on her own accord. A copy of the
medical report prepared by him was produced as P4. He has observed a small superficial
laceration at posterior vaginal wall and tenderness over left low abdomen. He said that in
his opinion the injuries were consistent with forced or rough vaginal intercourse, and soft
tissue injuries consistent with blunt force trauma of moderate force.
 In cross-examination he said that the victim came alone and not with a police officer. He
said in his examination no sperm was found inside the vagina. He found no injuries in
her face or body apart from what he has mentioned in the report. He said that the victim,
if he remembers correct came in the morning first time without a police examination form
and he sent her back to get a form.
 In re-examination he said life span of a sperm is approximately 72hrs and you can expect
to find evidence of sperm for more than 24 hrs. He further answering the question said, if
the vagina has been aggressively cleaned following intercourse or if the perpetrator may
have had vasectomy done, even if there is no sperm found, it does not necessarily mean
that ejaculation had not taken place. However, he said even if vasectomy was done
seminal fluids are released when ejaculating and after 24 hours theoretically it can be
present. On aggressively cleaning the vagina he said, it means by using their fingers or a
tampon. Victim has admitted bathing but not aggressive cleaning of vagina he said.
 The last witness for the prosecution was Dr Viliame Naila. He has obtained MBBS
Medical Degree in 2002 and post graduate Diploma in Obstratric and Gynecology in
2007. He works for the CWM hospital as a Senior Medical Officer, attached to the
Obstratric and Gynecology department. His qualifications and experience as a Medical
doctor was not challenged.
 He had examined the victim Jocelyn on 3/3/2010 and the medical report which was with
him was marked as P5. A copy of the medical report which he gave the police officers
was marked and produced in evidence as P6. However, he said in P5 report in column
(D14) the professional opinion was filled by him the last Monday that is on Monday
before the dayhe gave evidence.
 He had examined the victim on 3rd March 2010 at 11.10pm. According to D12 column of
P5 report, his special Medical findings were : healing laceration over posterior vaginal
wall, Tender lower back and thigh. He explained to you what posterior vaginal wall is.
Answering to the question by court, on the note he had made later in column D(14) he
said that he was going through the notes of the medical report and he wanted to
summarize his findings.
 His professional opinion which he noted later was ;
Specific medical findings consistent with the history; unhealed posterior vaginal
laceration 48 hours after insult, supports her history. He said the laceration to an extent
had not healed due to the nature of the insult. He said that it was positive that he
examined the victim on the 3rd March at 11.10pm, as he has written it in the medical
form. He said that he cannot explain why the medical form was filed by the police
officer on 2/3/2010 and the victim was examined by him on 3/3/2010 at 11.00pm after
more than a day later. Explaining the discrepancies in P5 and P6 on the D10 column
wherein he says in the history given by patient that “he ejaculated into her” in P5 and “he
ejaculated” in P6, he said history given in P5 is correct. Explaining further he said he
could have forgotten the last two words in P6.
 In cross-examination he said he found no sperm when he examined Jocelyn. Further
found no injuries on her face.
 In re-examination he said that he wouldn‟t have expected to see sperm, 48 hours after the
event had taken place. Further he said a microscopic examination may see sperm even
after 5 days. A sperm swab was taken and given to Police. He said that he didn‟t know
the results. He said to ditect injury on face at examination it depends on the type of
 That was the summary of evidence for the prosecution.
 Madam Assessors and Gentlemen Assessor at the end of the prosecution case you heard
me explain several options to the accused. He has these options because he doesn‟t have
to prove anything. The burden of proving his guilt beyond reasonable doubt, remain on
the prosecution at all times. The accused person opted to remain silent and to call
witness on his behalf. That is his right to do so. You must not draw any adverse
inference from his choice to remain silent without him giving evidence. He called
witnesses to give evidence on his behalf and you must give these evidence careful
 The first witness for defence was Dr Osea Volavola. He holds a MBBS Degree from Fiji
School of Medicine and he works for the CWM Hospital, attached to the Accident and
Emergency Department. His expertise in the medical field was not challenged by the
 He has examined the accused on 2nd March 2010 and the Medical report prepared by him
was marked and produced as D1. He said he has made a mistake in the report on the date
of examination when he said 3/2/2010 but it should be on 2/3/2010. He explained the
injuries the accused had. He said around eyes on both sides there were bruises/swelling
and tenderness. There was bleeding from the nose and that there was a deformity in the
nasal bridge. Teeth were shaking, when he stated loose teeth. He said there were no
injuries found to the head.
 The next witness for the defence was Livai Ratudanisi a taxi driver.
 He said on 28/2/2010 between 9-10.00pm he dropped accused at Flagstaff. He had
dropped inside the road which goes to Marist, he said. He had dropped him at the
roundabout. He had not known the accused before. After dropping the accused he had
come back. After 30 – 45 minutes the accused had called him back to come and pick
him again. He said he can‟t recall the time. On 1/3/2010 at about 1.00pm he said when
he reached Dolphin to pick him up he had seen the accused going to one private car,
which was driven by a lady. He had wanted to call him and ask him for his cost, but the
phone was diverted he said. After about 30-45 minutes he had got a call from the
accused telephone, to come and pick him from the same place in Flagstaff. He said he
parked the car inside the lady‟s house for nearly 2 minutes. On his way to the lady‟s
house accused had told him the house, that it was right towards the edge of the
roundabout. After 2 minutes of parking the lady had opened the door of the house, the
grill bar and called him inside. When he went inside there was nobody in the sitting
room he said. She had sat down on a chair. After he sat down, the girl closed the grill he
said. Then four men had come from inside the house to the living room with a baseball
bat and a pinch bar and had started to beat him. At that time he had not seen the accused.
He said they had put him inside a room. When they were beating him he had said that he
did not know anything and then they had stopped beating him. Then they have got John
outside the room and he had blood all over his face he said. After about 2 minutes the
police had come and they went to the police station he said. When he was beaten up, the
girl had been standing in front of the closed grill. He said that they wanted to break his
knee and he blocked the baton with his hand and his hand was swollen.
 In cross-examination he said that he told the police that on 28th February 2010 after
dropping accused, that he came back and picked the accused again. But when the
statement was shown he admitted that it was not in the statement.
 He said that he could not recall whether he told the police that on 1/3/2010 accused called
him to pick him up at Dolphins. When statement was shown he said that it‟s not written
in his statement to Police.
 He said when he was at the roundabout, he just called the accused and the accused had
told him the house and he waited for a long time until the lady show up from the door.
 He admitted that it was incorrect when he said that he parked inside lady‟s house for
nearly 2 minutes.
 He said a taxi driver waiting for 3-4 minutes is long. He said it was wrong when he said
that he waited for two minutes for the lady to open the door but it was 3-4 minutes.
 Answering to Court he said, that his statement was not only in one page. However, he
admitted later the P7 was his statement which was given to police.
 When it was suggested to him, that on 28/2/2010 he took John to Carew Street between
12.00am – 1.00am he said that he doesn‟t know about the time and that he is not good at
timing. When it was further suggested that accused called him about 2-3 hours later but
not 30-45 minutes later as he said, he said that he thinks so. When he picked up John
from Carew Street, accused had told him that he had a friend there, he said.
 He said that he was not sure of the time he left home on 1/3/2010. However, he said that
he did not go back home before 6.00pm.
 He said that it is possible, when he said to police, that when he left home at about 5.00pm
when John called again, that that was the time he started work. When he was asked that,
that means that would have been the 1st time John had contacted him since dropping him
off early morning, he said “I think so, yes”. However, he said when he was in the town at
Dolphins ,John called him to pick him up from Flagstaff.
 When it was put to him that he never went to Dolphins that afternoon and that it was
made up for court, he said he was confused about the timing. He further said he was not
confused of the events. He said he thinks that he told the police everything. However, on
questioning further, he admitted again that P7 was the statement he made to Police. He
denied that he made up the events that he mentioned in court to help the accused.
 That was the evidence for the defence.
 Madam assessors and gentleman assessor,
You heard the evidence of many witnesses. If I did not mention a particular witness or a
particular piece of evidence that does not mean it‟s unimportant. You should consider and
evaluate all the evidence in coming to your decision.
 You may have observed that when some witnesses, especially when the victim Joycelyn
and her sister in law and the defence witness Taxi driver gave evidence, there were some
inconsistencies between the evidence before this court and the statements given to the
police. What you should take into consideration is only the evidence given by the witness
in court and not any other previous statements given by the witness. However you should
also take into consideration the fact that such inconsistencies between the evidence before
court and statement to police can affect the credibility of the witness.
 You may remember, the accused posed questions to the victim Joycelyn and her
sister in law Anna about their identification of the accused. You should examine carefully
the circumstances in which the identification of the accused was made by the victim
Joycelyn and the witness Anna. In assessing the evidence you must consider the
following: For how long did the witness see the accused? At what distance? What was
the condition of the light? Did anything interfere with the observation? Had the witness
ever seen the person she observed before?
 Witnesses may give evidence as to what they saw, what they heard and what they
perceived. There are instances where a witness is allowed to give his opinion. To admit
there opinion in evidence, they have to be experts in that particular field. For example,
you get experts in the medical field, in the engineering field, experts in finger prints, etc.
In this case three doctors have given their opinions on the injuries, two on the injuries
caused to the complainant Joycelyn, and the other on the injuries on the accused. Their
expertise in the medical field, were not challenged, and therefore their opinions are
admissible in law.
 However, medical evidence in itself alone is not proof of rape. You may consider that
evidence when assessing whether there was rape or not. Same way, the medical evidence
lead by the defence in itself alone is not proof assault. However you may consider that
evidence, when assessing whether there was an assault on the accused.
 You must use your commonsense when deciding on the facts.
 The prosecution must prove beyond reasonable doubt, all the elements on each count as I
explained to you before.
 The victim Jocelyn Sahai states that she was raped and burgled. Accused challenges the
story of the prosecution.
 To find the accused guilty of Rape you have to satisfy yourself beyond reasonable doubt
that the accused had sexual intercourse with Jocelyn without her consent and that the
accused knew that she was not consenting.
 You will have to consider all the evidence lead before court when coming to your
conclusion. You have to decide which witnesses are credible and which are not.
 When Jocelyn gave evidence she was questioned about how the accused entered the
house, whether any damage was done to the house. She said that she never told there was
a forceful entry, nor was there any damage done. She was questioned as to why she did
not stop at the Flagstaff Police Post, when she went pass the Police Post driving her car to
get money from the ATM, to give the accused. She explained saying that if the accused
knew that she was going to change the direction by the Police Post, he could have hurt
 She said he gagged her mouth with his hand and applied oral sex on her, penetrated his
finger inside her, used his tongue to penetrate her vagina. She said she tried to kick him,
but failed and that he punched her face and then he penetrated his penis into the vagina.
 In P4 medical report Doctor says that in his opinion, the injuries are consistent with
forced or rough vaginal intercourse and soft tissue injuries are consistent with blunt force
trauma of moderate force.
 In P5 medical report however the professional opinion was written later according to the
doctor. It was written Monday before the 1 week of the trial. However, he said the
opinion was, the medical findings which was consistent with the history given by the
 In D1 medical report which was not challenged, there were injuries to the accused face
 There were discrepancies shown in the alleged victim Jocelyn‟s evidence and the
statements she gave the Police. There were also discrepancies shown in the defence
witness taxi drivers‟ evidence and his statement to Police.
 When you evaluate the evidence you may consider these inconsistencies and the
explanations given by those witnesses for those, when deciding on the credibility. You
may also consider the probabilities of the events testified by the witnesses.
 In assessing the credibility of the witnesses you have to consider the spontaneity in the
conduct of the witness. If any explanations are given, whether they are probable and
whether they can be accepted. For example, when it comes to the complainant Jocelyn,
whether she had acted in a spontaneous manner. If I put it simply, you have to consider,
whether the complainant‟s conduct, is consistent with the natural resistance or action of a
woman, that could be seen in a situation as this.
 Further you have to consider, the evidence of Anna, the sister-in-law of Jocelyn and the
taxi driver Livai, the witness for the defence. You may decide whether the taxi driver‟s
story was made up for this case as alleged by the prosecution, or whether it is probable.
 On the charge of Burglary you must again consider all the evidence direct and
circumstantial, to decide on the intention of the accused. The complainant Jocelyn said
that the itouch was found in the taxi in the presence of the arresting officers when the
police came to her house.. It had been on the dash board of the taxi. Ipod was produced
in court. However, the only police officer PC Iowane who arrested the accused said, that
he did not take any other article other than the accused, to his custody.
 You have to consider all the evidence lead before you when coming to your decision. It
is a matter for you to decide on the facts and to decide whether the accused has
committed the offences as charged or not, whether the prosecution has proved the charges
against the accused beyond reasonable doubt.
 The prosecution has to prove all elements of the offences of Rape and Burglary which I
mentioned before, beyond reasonable doubt.
 You must decide which witnesses are reliable and which are not.
 I have explained the legal principles to you. You will have to evaluate all the evidence,
and apply the law as I explained to you when you consider the charges against the
accused has been proved beyond reasonable doubt.
 Your opinions on the charges of Rape and Burglary will be either guilty or not guilty.
 Madam assessors and Gentleman assessor,
This concludes my summing up of the Law. Now you may retire and deliberate together
and may form your individual opinions on the charges against the accused. You may
peruse any of the exhibits you like to consider. When you have reached your separate
opinions you will come back to court and you will be asked to state your separate
09 June 2011