7s Star Not Guilty: Assessors
It is judgment day today for former national 7s rugby star Amenoni Nasilasila at the High Court in Lautoka. 27-year-old Nasilasila is charged with rape of a 24-year-old woman at Olosara in Sigatoka on December 22, 2018.
The three assessors in the trial returned a unanimous not guilty opinion against Nasilasila yesterday after he appeared before Justice Daniel Goundar for the summing up after a two-day trial, which started on Monday and concluded on Tuesday.
Nasilasila has pleaded not guilty of the charge.
The State prosecution is represented by Mehzabeen Khan and Moira Konrote from the Office of the Director of Public Prosecutions. Nasilasila is represented by Mark Anthony and Unaisi Baleilevuka.
Nasilasila walked in with his counsels, family and friends in court wearing a black sulu, long sleeve blue shirt and a tie.
The complainant, a flight attendant, walked into court with her family and friends wearing a knee-length dress, a black blazer with her hair tied in a bun.
Summing up by Justice Goundar:
In his summing up, Justice Goundar told the three assessors that they were to decide the facts applying the directions and to give him their opinions as to the accused’s guilt or innocence.
“In going through the evidence, I may express an opinion,” he said.
“If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence.
“At the end of this summing up and after you have given your individual opinions, the final decision on the facts rests with me.
“I am not bound to perform to your opinions. “However, in the writing of my judgment, I shall place much reliance upon your opinions,” Justice Goundar said.
He highlighted to the assessors and the court that the burden of proof throughout the trial rested upon the prosecution.
“In our system of justice there is the presumption of innocence in favour of the accused,” Justice Gounder said.
“The prosecution brings the charge against the accused therefore it is the prosecution to prove the charge against the accused. “Each element of the charge must be proved, but not every fact of the story.
“This burden never changes never shifts to the accused.
“The prosecution must prove its case beyond reasonable doubt, that means before you express an opinion that the accused is guilty of the charge, you must be satisfied that you are sure of his guilt beyond reasonable doubt.
“If you consider the innocence of the accused, you must give your opinion that he is not guilty.
“The accused elected not to give evidence. That is perfectly his right.
“You must not assume that he is guilty because he has not given evidence.
“You must decide this case upon the evidences presented to you.
“If a witness was not called, you must not speculate the reasons why the witness was not called.
“You must only consider the evidence which were presented in the trial.
“Each one of you will be required to state his or her opinions on the charge against the accused, which will be recorded.
“Neither speculations nor theories of one’s own were evidence. Media coverage, ideal talk or gossip are not evidence. “Anything you may have read in the newspapers about this case, focus solely on the evidence which you have seen, heard or examined in this court.
“This summing up is not evidence either nor are the counsels’ addresses.
“If a witness is asked a questioned in crossexamination, and agrees with what the counsels are suggesting, the witness’ answer is evidence.
“If she or he rejects the suggestion, neither the question nor the answer can become the evidence.
“In arriving at your opinions, use the common sense you bring to bear in your daily lives and at home and at work.
“Observe and assess the witness’ evidence and dilemma.
“Consistent with your oath, you should put away both prejudice and sympathy.”
Justice Goundar highlighted that to prove rape, the prosecution must prove three elements.
These were:
First, the prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with the complainant;
Second, the prosecution must prove beyond reasonable doubt that the accused committed the offence without the complainant’s consent; and
Third, it must be proved that the accused knew that the complainant did not consent. “The term consent means freely and voluntarily given by the complainant for the accused to have sex with her.
“Consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words, it also may be communicated in other ways.
“Consent obtained after persuasion is still consent, however, the laws specifically provides that a person who does not offer actual physical resistance to sexual acts, is not by reason only of that fact, to be regarded as consenting to the sexual acts.
“A person who submits to sexual acts with another person as a result of threats or violence is by law not to be regarded as consenting to sexual acts,” Justice Goundar said.
The assessors retired to deliberate on the case and opinions and the matter was adjourned.
Assessors’ verdicts:
At 12.30pm, the court resumed and the assessors took their stand to deliver their individual opinions.
The court clerk asked each assessor individually if he or she found the accused, Amenoni Nasilasila, guilty or not guilty of the charge of rape.
Each assessor delivered a not guilty verdict for Nasilasila of the offence of rape.
Judgment:
Justice Goundar, after the assessors delivered their verdicts, retired the assessors from the case.
He adjourned the matter to this morning to deliver his judgment at 10am.