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State v Prasad [2012] FJHC 1240; HAC161.2010S (13 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 161 OF 2010S


STATE


vs


1. JACK PRASAD
2. KRISHNEEL SHARMA
3. SADA NAND SINGH
4. PREMILA DEVI
5. ANA REPEKA PRASAD


Counsels: Ms. I. Whippy and Ms. L. Latu for State
Mr. R. Chaudhry for Accuseds No. 1, 2 and 5
Mr. W. Pillay for Accuseds No. 3 and 4


Hearings: 5th to 8th June and 12 June, 2012


Summing Up: 13th June, 2012


SUMMING UP


A. ROLE OF JUDGE AND ASSESSORS


  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B. THE BURDEN AND STANDARD OF PROOF


  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.
  3. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

C. THE INFORMATION


  1. You have a copy of the information with you, and I will now read the same to you:

"... [read from the information]...."


D. THE MAIN ISSUE


  1. In this case, as judges of fact, each of you will have to answer the following questions:

(i) On count no. 1, did Jack, Krishneel, Sada, Premila and Ana wrongfully confine the complainant, on 16th August 2010, at Suva in the Central Division?


(ii) On count no. 3, did Krishneel rape the complainant, on 16th August 2010, at Suva in the Central Division?


(iii) On count no. 4, did Jack indecently assault the complainant, on 16th August 2010, at Suva in the Central Division?


E. THE OFFENCES AND THEIR ELEMENTS


  1. On count no. 1, for the accused to be found guilty of "wrongful confinement", the prosecution must prove beyond reasonable doubt, the following elements:

"Wrongfully" means "to do something that's not right or correct". To "confine" means "to keep a person in a small or closed space". It is wrong in law to keep a person in a closed space, without lawful authority, or without a legal justification.


  1. Previously, under the repealed Penal Code, Chapter 17, count no. 3 was treated as "indecent assault". Under the Crimes Decree 2009, count no. 3 is now classified as "rape". For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(iii) he knew that the complainant was not consenting to (i) above, at the time.


  1. The slightest penetration of the complainant's vagina by the accused's finger, is sufficient to satisfy element 10(i) above. It must also be shown by the prosecution, beyond reasonable doubt that, the complainant did not consent to 10(i) above, at the time. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all. It must also be shown that the accused knew the complainant was not consenting to 10(i) above, at the time. To decide this issue, you must consider what the complainant and the accused did at the time, including the surrounding circumstances.
  2. For the accused to be found guilty of "indecent assault" in count no. 4, the prosecution must prove beyond reasonable doubt, the following elements:

(v) the female complainant.


  1. "Assault" in law, has two meanings. The first meaning is as follows. It is conduct which causes the victim to apprehend immediate unlawful violence to his person, for example, when A threatens B with a weapon, or alternatively, when A fires a shot in B's direction. Any threatening act or gestures suffices, as long as the victim apprehends immediate violences to his person. In the context of this case, if a co-accused says "its your turn!" and the accused comes towards the victim, opens his pants and shows his penis to her, and she apprehends immediate unlawful violence to her person, these acts could amount to an assault. This is the meaning the prosecution is relying on to prove its case on count no. 4.
  2. The second meaning of assault consist of the unlawful application of force to the person of another. For example, A takes a stick and hit B with the same, that is, by hitting B with the stick, A is applying unlawful force to the person of B. Likewise, if A opens his pants, shows his penis to B (female) and then rubs the same on B's mouth, that is, the unlawful application of force by A on B's person. This was originally charged by the prosecution against Accused No. 1, but the evidence of the complainant appear to fall on the first definition of assault, discussed above.
  3. The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent; for example, a man opening his trousers and showing his penis to the female complainant. The prosecution must not only prove beyond reasonable doubt that an assault had occurred, it must also prove beyond reasonable doubt that the assault was "indecent", in the sense that right-minded people, would consider the act to be indecent.
  4. In count no. 1, the prosecution, in their particulars of offence, began with the phrase, "...Jack Prasad, Krishneel Sharma, Sada Nand Singh, Premila Devi and Ana Repeka Prasad..." The prosecution is alleging that the five accuseds committed the above offence, as a group. As a matter of law, I must direct you that when two or more persons form a common intention to commit a crime, and in committing the crime, each of them performed different roles, they are all deemed in law, to have committed the crime, that is, the offence. It matters not, whether or not one committed a minor role or major role, they are each deemed to have committed the offence. This is because each of them helped and encouraged each other to commit the offence. It is not strictly essential for all accuseds to be present at the crime scene, at the material time, to be committing the offence. If any one of them planned the offence, or assisted in any manner whatsoever, in its implementation, while not at the crime scene at the material time, he is also deemed, in law, to have committed the offence. This is because he assisted in the commission of the offence. In other words, he aided and abetted the commission of a crime.
  5. Furthermore, in this case, there are five accuseds on trial. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accuseds separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements, the statements therein are only admissible against the maker of the statement, and on no other. In other words, for each accused person's police caution interview statement, you must totally disregard what the accused said about his co-accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

F. THE PROSECUTION'S CASE


  1. The prosecution's case were as follows. The complainant (PW1), on 16th August 2010, resided at Raralevu, Nausori, with her husband, daughter and in-laws. She worked for Vodafone, at Princess Road, Tamavua. After work, she came to Suva. She met Jack Prasad (accused no. 1) and his wife, Ana Repeka Prasad (accused no. 5), at the "Hot Bread" shop, opposite the bus stand. Jack and Ana were in a vehicle registration no. EY 014, and the two resided at Raralevu, Nausori, opposite the complainant's house. Jack and Ana were also related to the complainant's husband.
  2. They offered to take PW1 to Nausori, in EY 014. Because PW1 knew them, she agreed to Jack and Ana's offer. She got into the car, and they drove towards to the sea side, opposite the National Stadium. At the sea side, they took PW1's mobile phone. Jack suddenly questioned PW1 of her whereabout at 1 pm, and started to accuse her of having an affair with Sada Nand (accused no. 3). Accused No. 3 called Jack on his mobile phone. Suddenly, Accused No. 3, his wife Premila (accused no. 4), and Krishneel Sharma (accused no. 2) arrived in another vehicle, EQ 411. Vehicle EY 014 and EQ 411 are both owned by accused no. 3.
  3. Premila came out of EQ 411, and assaulted PW1. Ana came and cut PW1's hair. Accused No. 3 then told the others to take PW1 away. Krishneel came and drove EY 014 away, with Ana sitting beside him, and PW1 and another girl, sitting in the back. Jack went to drive EQ 411, with accused no. 3 and his wife, in the same. Krishneel drove PW1 up Khalsa Road, and to a Tamavua Bus Depot. Jack, Accused No. 3 and his wife, arrived later in EQ 411. They told Krishneel, through his mobile phone, to take PW1 to Colo-i-Suva. PW1 wanted to escape, but Krishneel and Ana threatened her with serious injuries, if she escaped.
  4. Krishneel then approached PW1. He began to touch her legs, and then her private part. It was very dark at the time. He then touch her vagina with his fingers, pushed her legs apart, and poked her vagina with his fingers. Ana and another woman were outside the car, and giggling. They remained there for a while. Later Krishneel drove EY 014 to Sawani, where accused no. 3 lived. EQ 411 was also parked there. PW1 wanted to run away, but was scared the others might hurt her. PW1 was taken from EY 014 to EQ 411.
  5. Krishneel then told Jack, "it's your turn!" Jack went towards PW1. He pushed PW1 back on the car seat. He opened his pants, and showed her his penis. Then Jack moved away. He drove EQ 411 away, with PW1 and Premila in it. They drove towards Nausori, where the police stopped the car. PW1 asked to be taken to the Nausori Health Centre. According to the prosecution, all the accuseds wrongfully confined PW1 from Nasese to Nausori in vehicle EY 014 and EQ 411; Krishneel inserted his finger into PW1's vagina without her consent, and Jack indecently assaulted her by showing his penis to her, on 16th August 2010. The prosecution, asks you, as assessors and judges of fact, to find all accuseds guilty as charged on count no. 1, 3 and 4. That was the case for the prosecution.

G. THE ACCUSEDS' CASE


  1. When count no. 1, 3 and 4, were read to the accuseds on 5th June 2012, the first day of the trial, all the accuseds pleaded not guilty to the offences. In other words, they denied the allegations against them.
  2. At the end of the prosecution's case, a prima facie case on counts no. 1, 3 and 4, were found against all the accuseds. The options under section 231(2) of the Criminal Procedure Decree 2009 were explained to them. All the accused choose to remain silent, and called no witness.
  3. As a matter of law, I must direct you that, nothing negative whatsoever should be imputed to the accuseds for choosing to remain silent, and call no witness. That was their right. The burden to prove the accuseds' guilt beyond reasonable doubt remained with the prosecution, throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence. They are totally within their rights, to remain silent and call no witness, as they did here, and to challenge the prosecution to prove their guilt beyond reasonable doubt. The burden of proof remained with the State.
  4. Although the accuseds choose to remain silent and called no witness, you can discover their position in the case if you carefully read their police caution interview statements. Jack Prasad was caution interviewed by police on 19th August 2010, and his caution interview statements, were tendered as Prosecution Exhibit No. 3(a) – hand written version, and 3(b) – typed version. Krishneel Sharma was caution interviewed by police on 19th August 2010, and his caution interview statements were tendered as Prosecution Exhibit No. 4(a) – hand written version, and 4(b) – typed version.
  5. Sada Nand Singh was caution interviewed by police on 19th August 2010, and his caution interview statements were tendered as Prosecution Exhibit No. 5(a) – hand written version, and 5(b) – typed version. Premila Devi was caution interviewed by police on 19th August 2010, and her caution interview statement were tendered as Prosecution Exhibit No. 7(a) – hand written version, and 7(b) – typed version. Ana Repeka Prasad was caution interviewed by police on 19th August, 2010, and her caution interview statement were tendered as Prosecution Exhibit No. 8(a) – hand written version, and 8(b) – typed version.
  6. On all the accuseds' caution interview statements, they denied the allegations against them. None of them confessed to the allegations against them. They ask you, as assessors and judges of fact, to find them not guilty as charged, on all counts, and to acquit them accordingly. That was their case.

H. ANALYSIS OF THE EVIDENCE


  1. The parties' version of events on the allegations of "wrongful confinement" (count no. 1), "rape" (count no. 3) and "indecent assault" (count no. 4), are obviously at odds with one another. The State alleged that the five accuseds wrongfully confined the complainant on 16th August 2010, and following that, accused no. 2 raped her and accused no. 1 indecently assaulted her. All the accuseds denied the above allegations. So, in a sense, the State's case against the five accuseds, stands or falls, on whether or not, you, as assessors and judges of fact, accept the complainant's evidence. In other words, your decision on the case will depend on whether or not you consider the complainant to be a credible witness. In deciding on her credibility, you will have to rely on how she performed as a witness, in the witness box, while giving evidence, during the trial. Was she a credible witness? Was she truthful? Was she forthright? Was she evasive? Was she argumentative? Was she telling the truth? In assessing her evidence, you will also have to look at other evidence, which tend to confirm or deny, her version of events.
  2. The complainant said, she went to Suva from Vodaphone Tamavua, after work on 16th August 2010. It was after 5.45pm. According to her, she met Jack Prasad (accused no. 1) and his wife, Ana Repeka Prasad (accused no. 5), at the "Hot Bread" shop, opposite the Suva Bustand. Both Jack and Ana are related to her husband, and they live opposite them, at Raralevu Nausori. They were driving Sada Nand's (accused no. 3) car, registration no. EY 014. They offered to take the complainant home. She agreed, and went into the car with them. Jack then drove through Nasese on Queen Elizabeth Drive, and stopped near Rabuka Gym, next to the National Stadium.
  3. According to the complainant, Jack started questioning her of her whereabouts at 1pm on that day. They accused her of being with Sada Nand, and that they were having an affair. Sada Nand is also related to the complainant's husband. Sada Nand called Jack on his mobile phone. The complainant denied been with Mr. Nand. Suddenly, according to the complainant, another vehicle registration number EQ 411, arrived at the scene, with Sada Nand, his wife Premila Devi (accused no. 4) and Krishneel Sharma (accused no. 2), in the same. Accused no. 3 owned both EQ 411 and EY 014.
  4. According to the complainant, Premila came and dragged her out of EY 014, squeezed her neck and forcefully put her head on the ground. Ana came with a pair of scissors and cut the complainant's hair. After that, the complainant said, she heard Sada Nand shouting, "Take her away! The police are coming!" Krishneel then came and drove EY 014 away, with Ana in front with him, and the complainant and another woman, at the back. They went through Khalsa Road and to a bus depot at Tamavua, where they stopped. Later, EQ 411, driven by Jack, with Sada Nand and his wife Premila, in the same, arrived. They called Krishneel, through his mobile phone, and told him, to take the complainant to Colo-i-Suva. The complainant said, she tried to escape from EY 014, but Ana and Krishneel threatened to kill her, if she tried to escape.
  5. The complainant said, Ana then went out of EY 014. It was dark at the time. The complainant said, because of the threats to her life, she was scared and shivering. It was night time, and the complainant said, she doesn't know where they were at the time. According to the complainant, Krishneel came to her, and started touching her legs. He began to touch her private part with his fingers. He then pushed her legs apart, and inserted his fingers into her vagina. The complainant said, she heard Ana and the other woman giggling outside the car. The complainant pointed Krishneel out in court, as the person who did the above to her. After a while, Ana and the other woman came into EY 014. Krishneel was talking through his mobile phone. Later, he drove them to Sawani, where Sada Nand's home was. The complainant said, vehicle EQ 411 was parked there. The complainant said, she wanted to run away, but was scared the others might catch up with her, and kill her.
  6. The complainant said, they later took her from EY 014 to EQ 411. The complainant said, she saw Premila there. She then heard Krishneel tell Jack, "It's your turn!" According to the complainant, Jack came towards her, pushed her back on the car seat, opened his pants, and showed his penis to her and then moved away. Jack then drove the car towards Nausori. The police stopped them at Nausori at a check point, and she later reported the matter to police. An investigation was carried out, and the complainant was medically examined on 17th and 19th August 2010, first at Nausori Health Centre, and then, at CWM Hospital. That was the substance of the complainant's evidence.
  7. Although all the accuseds choose to remain silent, and called no witness, in their defence, they spoke through their police caution interview statements. You must carefully read and understand their caution interview statements, to find out whether or not they tend to confirm or contradict the complainant's evidence. As far as Jack was concerned, he admitted he was in Suva on 16th August 2010 after 5.45 pm, driving EY 014 and he drove to the Nasese sea wall. He admitted the complainant was his sister-in-law, and he was present when she was assaulted. [See Questions and Answers 13, 16, 21, 26 and 67 of his caution interview statement, ie. Prosecution Exhibit No. 3(a) and 3(b)]. Although, Jack denied the allegations against him, his statements abovementioned appear to confirm the complainant's version of events.
  8. As for Krishneel, he admitted meeting the complainant at the Nasese Seawall on 16th August 2010 after 6 pm. He also admitted seeing the complainant being assaulted at the sea wall. He admitted opening the car door for the complainant to go into EY 014. He admitted seeing the complainant struggling to get out of the car, and been injured at a result. He admitted he drove EY 014 from Nasese to Tamavua and stopped at the Tacirua Bus Depot. He admitted he was with the complainant in EY 014, when the ladies were giggling outside. He admitted he drove the complainant to Sada Nand's house in Sawani. [See Questions and Answers 13, 21, 26, 27, 28, 29, 30, 35, 36, 38, 43, 44, 51, 52, 53 and 54 of Prosecution Exhibit No. 4(a) and 4(b)]. Although Krishneel denied the allegations against him, his statements abovementioned appear to support the complainant's version of events.
  9. As for Sada Nand, he admitted coming to Suva on 16th August 2010 after 6.45 pm in vehicle EQ 411. He admitted knowing the complainant, and he was at the sea side opposite Rabuka Gym, at the material time. He admitted his vehicle EY 014 was at the scene, and he admitted seeing his wife assault the complainant. [See Questions and Answers 10 to 13, 18, 23, 28, 31 to 34 of Prosecution Exhibit No. 5(a) and 5(b)]. Although Sada Nand denied the allegation against him, his statements abovementioned appear to support the complainant's version of events.
  10. As for Ana Repeka Prasad, she admitted she knew the complainant and that she was in EY 014, at the material time, and that she went to Suva point. She also admitted meeting and pulling the complainant from a car, at Suva Point. [See Questions and Answers 21, 24 and 26 of Prosecution Exhibit No. 8(a) and 8(b)]. Although Ana denied the allegation against her, her statements above appear to confirm the complainant's version of events.
  11. Furthermore, you must examine carefully the results of the complainant's medical examinations on 17th August 2010 [Prosecution Exhibit No. 1] and 19th August 2010 [Prosecution Exhibit No. 2]. In D(10) of the reports, the complainant told the doctors her complaints, and the doctors recorded the same. In D(12) of the reports, the doctors recorded their findings. Looking at the reports generally, they appear to confirm some of the matters the complainant said in her evidence. As to the allegation of rape, D(12) of Prosecution Exhibit No. 2 said, "...no injuries to internal and external genitalia..." Doctor Kelera Sakumeni (PW7), who examined the complainant on 19th August 2010 said, "...the vagina can accommodate a substance bigger than a finger. I examined Nisha 3 days after the event. Penetration is not ruled out just because there is no injuries...when examining a vagina, I insert two fingers into the vagina and it does not cause injuries..." In a sense, the medical reports appear to confirm the complainant's version of events.
  12. You must look at all the evidence. You must consider the complainants evidence. You must consider what the accuseds said in their caution interview statements. You must look at and carefully consider the two medical reports. You must consider all the witnesses' evidence. After considering all the evidence, the decision on whether or not to accept the complainant as a credible witness, is a matter entirely for you.

I SUMMARY


  1. Remember, it is for the prosecution to prove each of the five accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' guilt beyond reasonable doubt, and the burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of their guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of their guilt, you must find them not guilty as charged.
  2. Your possible opinions are as follows:

Accused No. 1 - Guilty or Not Guilty


Accused No. 2 - Guilty or Not Guilty


Accused No. 3 - Guilty or Not Guilty


Accused No. 4 - Guilty or Not Guilty


Accused No. 5 - Guilty or Not Guilty


(ii) Count No. 3 - Rape:


Accused No. 2 - Guilty or Not Guilty


(iii) Count No. 4 - Indecent Assault:


Accused No. 1 - Guilty or Not Guilty


  1. You may now retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene, to receive them.

Salesi Temo
JUDGE


Solicitor for the State: Office of the Director of Public Prosecutions, Suva
Solicitor for Accused No. 1, 2 & 5: R. Chaudhry, Barristers & Solicitors, Suva
Solicitor for Accused No. 3 & 4: W. Pillay, Barristers & Solicitors, Suva

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