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State v Raj [2010] FJHC 195; HAC009.2010 (7 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC. 009 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

ANAND ABHAY RAJ
ACCSUED PERSON

Counsel: State - Ms. Segran J.
Accused Person - Mr. Vosarogo V.

Date of Hearing: 31st May, 2nd 3rd 4th June 2010
Date of Summing Up: 7th June 2010

SUMMING UP

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 Counsels for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. 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 opinion 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 emotion.

There is more than one count on the information. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty on the others.

You will also see that the counts are representative counts and that they cover a length of time. You have heard the complainant in this case Shayal Nitica Kumar give evidence of multiple incidents if sexual intercourse and indecent assault during a period of time. The accused is not charged with multiple counts of rape and indecent assault and counts one to five are representative counts. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of exact dates, where the alleged offending has taken place over a period of time.

As a matter of law you must ask yourselves whether between the dates specified in the information, there was at least one offence of rape committed on each count one to four and whether there was at least one offence of indecent assault was committed on count five by the accused on the complainant. And you must be satisfied of that beyond reasonable doubt.

The accused is charged on four counts of rape contrary to sections 149 and 150 of the Penal Code.

The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence 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 consenting.
   

For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt then you must find the accused not guilty.

Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

In this case the accused denies any form of sexual contact with the victim and that is the position he has taken in his caution interview statement given to the police which was read in evidence.

As far as the element of consent is concerned, in this case the victim is a child, not an adult. At the time she gave evidence she was 12 years old and was 10 and 11 years old at the time of the alleged offences were committed. You saw her giving evidence in court. With regard to consent, as a 10 or 11 year old child you must decide whether she had the capacity to give consent. You decide whether Shayala had sufficient understanding and knowledge to decide whether to consent or resist. If you decide that she did not have the capacity to consent as mentioned above, element of absence of consent need not be proved by the prosecution. How ever if you decide that she had the capacity to consent then you decide whether the element of absence of consent is proved in evidence beyond reasonable doubt.

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 child said that she didn’t allow him to insert his penis into he vagina. Further she said she felt bad when he did it and also said that she pushed him away. Evidence on each count you have to consider separately and it is a matter for you to decide whether she consented or not. Prosecution must prove all the elements mentioned above on each count beyond reasonable doubt to find him guilty on each count.

On the 5th count accused is charged with the offence of indecent assault. The penal code provides that any person who unlawfully and indecently assaults a woman is guilty of an offence. The offence has several elements, which the prosecution must prove beyond reasonable doubt.

1. The accused,
2. Unlawfully,
3. Indecently assaulted,
4. A girl.
   

The word unlawfully simply means without lawful excuse. Indecently assault means that the act must have some element of indecency and that right minded persons would consider the conduct indecent. Section 154 provides that in the case of a child under the age of 16, the fact that the child may have consented to the indecent assault is no defence to the charge. You heard the evidence of the victim Shayal that the accused touched her breasts and the vagina. Whether or not a child victim agrees to an act of indecency is irrelevant to the charge. Even if she consented and you believe that the assault did take place, the accused would still be guilty of the offence of indecent assault. As to whether the acts alleged, touching of the breasts and touching of the vagina are indecent you must ask yourselves what right minded persons would think of these acts. Were the acts so offensive to contemporary standards of modesty and privacy as to be indecent. In considering these questions you may consider the fact that the complainant was the accused’s step daughter, and the general nature of their relationship to decide whether or not the acts were indecent. In particular you must be satisfied beyond reasonable doubt that the accused intentionally did an act to the victim and that the act was such that right minded persons would consider to be indecent.

The Evidence

The alleged victim child Shayal Nitika Kumar gave evidence for the Prosecution first.

Accused is her step father. She has two sisters. She said during the 1st school term in year 2008 at her step fathers’ place the step father accused touched her breasts and vagina. Further accused came on top of her and inserted his penis into her vagina. After the act accused went to the bathroom and there was something milkfish on the bed. While doing so accused had said that he will rape her and he would make a baby in her stomach. He has threatened her that he would kill her if she tells anybody. She said she never allowed him to touch her breasts or to put his penis into her vagina and that when Accused did it she did not like it and she felt bad.

Accused had touched her neck with hands and mouth too. She had not told the mother but told the cousin sister in year 2009. In 2008 during the 1st term holidays she said that the accused did the same thing to her. He was inserting his penis slowly but he didn’t insert fully because she pushed him as she didn’t like it and after he inserted the penis she felt bad. Whenever accused didn’t go to work he used to do it. Year 2008 2nd school term and holidays too accused had done the same thing to her and also during the 2008 3rd school term and holidays. She said she didn’t allow him to insert the penis. But after inserting he wanted to push his penis quite inside and she pushed him away. He applied oil into the vagina and tried to insert again. It was not going in and she pushed him away.

When she told accused that she would tell mother accused had said "If you want you tell, but I will beat you up".

In the year 2009 1st and 2nd school term and holidays the accused had done the same thing to her.

She said her mother left the work and looked after her and at that time accused only touched her. She said during the period of 26/1/2009-31/8/2009 he always used to touch her.

Once two (2) boys named Danny and Pai who were in the sitting room has seen accused touching her body.

She later told her cousin sister Rameeza and also the grandmother. But she had not told them that accused inserted his penis inside her vagina.

She said her grandmother took her to the Social Welfare Office and that she told them what happened.

Once when accused inserted the penis she said it was bleeding and grandmother has taken her to a doctor. She didn’t know the doctor in the hospital. Doctor checked all the places of her body where accused touched. She said grandmother has taken her to the doctor with the mother.

In cross examination she said when her mother left 7 Miles to Muanikoso to live with Accused she and her sister Pinky lived in 7 Miles with her Aunt Rukshana and she joined her mother later. She said she didn’t tell the incident even to the mother or the sister.

She said she never liked the accused as he was strict with her to go to school and said she wanted her mother to advise her, not the accused. She admitted that she has not told the Police in the statement that the accused told her that he would kill her if she tells anybody.

The next witness was Rameeza Rehana Begum the victims’ cousin sister. Her evidence was that the victim told her that her stepfather Anand was touching her. Further she had told her Anand was touching her body and breasts. Then she had told that to her mother and in turn her mother had asked Shayal about it.

In cross examination she said, although she said to Police that Shayal said that Anand did this to her, its written there as a man, not Anands’ name. Police officer never read the statement to her but she was asked to write her name there.
The next witness was Rameeza’s mother Shabana Begum who is the aunt of the victim. Her daughter Rameeza had told her that Shayal told Rameeza that Anand touched Shayals body and breasts. Then she called Shayal and asked her. Shayal first had been reluctant and had been frightened and then told her that Anand touched her body and breasts. Then she had told this to her mother Hazra Bibi.

Prosecution then called the victims grand mother Hazra Bibi. She said her daughter Shabana called and told her that Anand was touching Shayals body and breasts. Then she called Shayals mother to bring Shayal to her. Next day Shayal was brought to her and when she asked her Shayal had started crying and told her the Anand had touched her body and breasts and that she didn’t like it. She also had said that Anand had told Shayal that he will make a baby in Shayals stomach. She took Shayal to Valevevu Social and Welfare office. Shayal was interviewed and was directed to Suva Social and Welfare office. From there they were taken to the Nabua Police station where they were interviewed. They were taken to the hospital where a doctor conducted a medical examination on Shayal. She consented Shayal to be examined.

In cross examination she said that She liked Anand but Anand didn’t want them.

The next witness was Prani Pradeep. He is the next door neighbor of Anand. In June 2009 one afternoon he had been drinking beer with Anand at Anand’s residence. They were sitting in the porch and he could clearly see Anands bedroom. He had been drinking beer with Anand and Danny. After drinking 4 bottles of beer Anand had gone to the bedroom and Anands step daughter had been lying on bed. He saw Anand putting his hands underneath her clothes and touching her breasts and her private parts. He said that the girl was scared and helpless. He had shown Danny what Anand was doing. He then went home and told his wife and the mother in law. When Anand came out his room he had asked Anand what he was doing and Anand had told he was just cuddling the girl. He had told Anand that he saw what he was doing. He said he told his wife to tell Anands wife and that he didn’t report to Police as he thought that as a family matter they would sought it out.

In cross examination while denying the allegation put to him that he stole batteries from Anands garage he said, Anand gave him a battery to use and after returning Anand had complained that he had not returned the same battery. Then he had given him the right battery.

Next witness was Dr. Reapi Mataika who examined the victim. Defence didn’t Challenge her Qualifications as a medical officer and the expertise. Therefore as an expert in the medical field her opinion is admissible in evidence. Medical report which she prepared was produced in evidence and was read in court. Victim Shayal Nitika Kumar had been 11 years of age when she examined and was accompanied by the Grand Mother. She said that there was no evidence of a hymen and she explained how a female can loose her hymen. History related by the victim is recorded and she said loss of hymen could be secondary to the history that was revealed by the victim and her findings were consistent with the victims history. In cross examination she said that she explored the other ways of loosing a hymen and that the victim replied negative to all those. She admitted that it is not in the report.

The next witness was Detective Cpl. Apimeleki Digitaki who recorded the caution interview statement of the Accused. Caution interview statement was produced in evidence and read in court. In his caution interview statement the accused has denied having any sexual activity or indecent assault on the victim Shayal.

In cross examination the witness said that although the accused was not obliged to say anything the accused chose to answer the questions put to him and was cooperative.
Prosecution then called Detective Cpl 2222 Simione Taufa who recorded the charge statement of the accused which was produced in evidence.

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 to prove his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to remain silent and you must not draw any adverse inferences from his choice.

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 gave evidence there were some inconsistencies between the evidence before this court and the statement 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 statement 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 must use your commonsense when deciding on the facts.

The prosecution case rests substantially on the evidence of the victim Shayal. Prosecution says that her evidence is reliable, that it is strengthened by her informing it to the cousin sister, grand mother and the Doctor. Further prosecution relies on the medical evidence and the doctors’ opinion. On count 5 prosecution relies on the corroborative evidence of Prani Pradeep as well.

The position of the defence is that the accused never had sexual intercourse with the victim and never indecently assaulted her.

Which version you are going to accept whether it is the prosecution version or the accused’s version is a matter for you. 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 each count 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 opinion.

Priyantha Fernando
Puisne Judge

7th June 2010