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State v Narayan [2011] FJHC 350; HAC187.2010 (3 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 187 OF 2010

BETWEEN:

THE STATE

AND:

RAKESH NARAYAN

Counsels: Mr. P. Katia & Ms. T. Leweni for State
Accused In Person

Date of Hearing: 31st May 2011 to 2nd June 2011
Date of Summing Up: 3rd June 2011

SUMMING UP

1. Ladies and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Accused person. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel the Accused person made their submissions. That is their duty. The prosecutor to submit how he proved the case and Accused to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused person is guilty or not guilty to offences he is charged.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. 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 the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court are the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
Evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. The Director of Public Prosecution had preferred the following charge against the Accused Rakesh Narayan.

"RAKESH NARAYAN is charged with the following offence:

First Count

Statement of Offence

RAPE: Contrary to section 207 (1) (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

RAKESH NARAYAN, on the 11th day of August 2010, at Nasinu in the Central Division, had carnal knowledge with a girl, namely Anjani Radhika Prasad d/o Vijay Prasad without her consent."

11. To prove the offence of Rape the Prosecution should prove the main ingredients of the charge. Main elements of the charge of Rape are as follows:

1. The Accused had carnal knowledge of the victim

2. without her consent

3. He knew or believed that she was not consenting or didn't care

that she was not consenting.

12. For the Accused to be found guilty for the offence of Rape the prosecution must
prove all these elements beyond reasonable doubt. While considering the evidence before the Court if you find there is a reasonable doubt that in any one of the element then you must find the Accused not guilty.

13. Carnal knowledge means penetrating of the vagina by the penis. It is not necessary that the Prosecution must prove that there was ejaculation or even a full penetration.

14. The next element was the consent. Consent was defined in section 206 of the Crimes Decree.

"(1) The term "consent" means consent freely and voluntarily

given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained –

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature

or purpose of the act; or

(f) by a mistaken belief induced by the accused person that

the accused person was the person's sexual partner."

15. As per section 207 (3) a child under the age of 13 is incapable of giving consent.

16. In the present case the complainant was more than 18 years of age. Unless differently qualified she is capable of giving consent.

17. The complainant Anjani Radhika Prasad related the incident to the Court. She said that she went into the bathroom at about 11pm this Accused who was their tenant suddenly walked in and told her to keep quiet asked her to bend forward, removed the clothes half and had sexual intercourse from the behind, thereafter he hugged and kissed her. Further she said that the Accused told her that he will kill her and her parents. It was the 1st time. She didn't shout or raised her cries.

18. It is evidence before the Court that the Accused had sex with her once again on
another day subsequently. She didn't tell about the incident also to anyone.

19. In the cross examination she said that she made a statement to the police on the 27/08/2010 and she told the truth to them. Now the statement is before you, you may read it to yourself. In that statement she had admitted of an affair and she has requested the police to not to take action against the Accused. Further she told the police that she is making the complaint on the instigation of her parents, in fact she had stated to the police that she was forced to make a statement if not, she will be beaten up by them.

20. You heard in Court that she said that she didn't give consent for sexual intercourse. Further, she told that she complained to the police on her own and she said that she had sex with the Accused without consent. This witness told Court that she started liking him but not now.

21. The Accused marked a contradiction to the effect that she had told something to the police and telling a completely a different version to the Court.

22. Normally in this type of cases the police obtain a medical report to assist their investigation. The complainant told Court that she went to the Doctor on the instructions of her parents to obtain a report, at this juncture you should consider the medical report. Even though she is over 18 years, complainant had not given written consent for a medical examination but the consent was given by her mother.

23. Nileshini Lata who gave the evidence for the prosecution told court that the complainant had told her that she had sex with the Accused twice and she was in love with him and wants to marry him. She said that the complainant had told him that she was threatened by the Accused and she had not told that fact in her statement to the police.

24. Corroborations are not expected in a rape case, but the Prosecution had brought the medical practitioner Dr. Sikiti. She told Court that she had not obtained the consent of the complainant and there are some contradictions in her report. Since the report is in doubt I leave it without any comments.

25. If the consent is obtained through fear or by threat, then that is not a valid 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.

26. You should be convinced that the act of sexual intercourse or penetration was done without the consent of the complainant. If you convinced you can proceed to find the Accused guilty if not you should find the Accused not guilty for the offence of rape.

27. Now I will summarize the evidence of prosecution witnesses. This does not mean you have to consider only what I summarize. I invite you to consider the entire evidence of all witnesses and come to your own conclusion.

28. Prosecution had called 6 witnesses to prove the case. The 1st witness in the virtual complainant Anjani Radhika Prasad. We have discussed major part of her evidence earlier therefore we see it very briefly.

Complainant said that she was subject to sexual intercourse by the Accused and she didn't give consent. She had told the Court that she complaint on her own to the police but in her statement and in Court she told that she complained to the police because of the parents' instigation.

29. The 2nd witness was Nileshini Lata. She is a friend of the complainant Anjani. Anjani had told her that the Accused had sex with her twice. Further she told that both of them were in love.

30. The next witness was WPC Mereseini Matakacu. She was the witnessing officer. She had seen the complainant Anjani had given her statement in English and told them that, she is making the complaint because of her parents' influence. She said parents forcing her to complaint asked them not to investigate.

31. Next witness was WPC Maria Golea. She had recorded the statement of the complainant interview was in English. She further said the complainant didn't have any difficulty in answering in English. She had spoken in English throughout the interview. That particular statement is marked as A and it is evidence before the Court.

She said that she was told by the complainant that she had sex with the Accused and it happened twice. She admitted that the complainant had told her that she was in love with Accused and not to take action against him.

32. Dr. Nanise Sikiti was the next witness. She said she had examined the complainant. She had not obtained consent of Anjani but her mother. There are some contradictions in her report. She had not seen any injuries on Anjani.

33. The last witness was Detective Corporal Avish Chandra he had recorded the cautioned interview of the Accused. He said he is not the investigator of the case.

34. With this the Prosecution closed their case.

35. Defence called from the Accused person. He opted to give evidence and called a witness for him. It should be noted the Accused need to say anything because the prosecution had to prove the case.

36. The Accused gave evidence you heard what he said. He claims that he had an affair with the complainant Anjani and had sexual intercourse on 3 occasions. Further he had taken the proposal of marriage to the parents of Anjani. He claims all these complaint and allegations happened because of his misbehavior of assaulting and shouting after liquor on a subsequent day. Does his evidence go along with the statement of the complainant? If so it may create a serious doubt on the prosecution case.

37. Accused called a witness by the name of Raymond Ravneeth Lal on his behalf. Witness described how a conspiracy was planned and executed.

The State suggested that he is a concocted witness for the Accused. Do you think he is a witness with an agenda or speaking the truth.

It is important to note that the Accused is presently in remand for this case.

38. Please consider all evidence and use your experience in life and common sense and
decide, whether the incident of sexual intercourse happened by force without consent or other way.

39. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt and you are not sure of it. You must find the accused not guilty as charged.

40. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

41. Let me ask both State Counsel and the Accused whether they have anything to be addressed to you?

Mr. Katia: I am satisfied, no issue to be addressed.

Accused: (explained) No.

42. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are happy with the summing up.

43. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Accused in Person