IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case Number HAC 021of 2013
(consolidated with HAC 017 of 2013)

STATE

v

PRAVIN SAMI
SUMEET GOUNDAR

Counsel: Mr. M. Vosawale for the State
Mr. J. Reddy (with Mr. A. Chand) for the Defence

Dates of hearing: 7, 8 July 2014.
Date of Summing Up: 10 July, 2014 

SUMMING UP

Ladies and Gentleman assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

2. Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

3. The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you have heard but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

4. In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be. 

5. You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences; that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate what evidence that may have been or allow yourselves to be drawn into speculation.

6. In assessing the evidence, you are at liberty to accept the whole of a witness' 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?

7. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in 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 upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

8. I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with this trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. In this regard I ask you to ignore the fact that these two young girls appeared to be somewhat precocious. You will not judge the case on what sort of girls you think they are, but on the evidence that they give, along with the other evidence. 

Onus and burden of proof

9. In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

10. How does the prosecution succeed in proving the accused are guilty? The answer is – by making you sure of it. Nothing else will do. If after considering all the evidence you are sure that the defendants are guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

11. You have a copy of the charges that each of the accused faces. The formal name for this document is an information. As you know, the first accused has pleaded not guilty to a charge of rape and the second accused not guilty to a charge of defilement. It is for you to tell me whether you think they are guilty or not guilty.

12. You must consider the case against and for each accused separately in this trial. Just because you think that one of the accused is guilty, does not necessarily mean the other accused is guilty.

13. Remember that I told you that you are not to deliberate on Count One and Count Three in the information. I have withdrawn these Counts from you because there was not enough evidence on those Counts at the close of the Prosecution case. 

14. The first accused faces one count of rape. You may be surprised to know that there are several ways rape can be committed in our law, but for the purposes of this case, rape is committed when a man has sexual intercourse with a woman without her consent. The penetration by the man's penis may be full penetration or partial penetration. Consent must be freely and voluntarily given by the victim.

15. The second accused faces one count of defilement of a young person between the age of 13 and 16 by having carnal knowledge of her (ie sexual intercourse with her). All that the State must prove is that the young girl was over 13 and less than 16 at the time and that there was an act of sex. It is however a defence to this charge if the accused had reasonable cause to believe and in fact did believe that the girl was of or over the age of 16 years. So the accused must prove to you that it is more probable than not that he had reason to believe that she was more than 16 and that in fact he did so.

16. Therefore ladies and gentleman, the issues in this case are not difficult. For the first accused you must decide firstly whether there was sex and if there was whether she consented to it or not. If there was no sexual intercourse then there cannot be any rape and you will find him not guilty: however if there was sexual intercourse and it was with her consent than you will also find him not guilty. Lastly if there was sexual intercourse without her consent it is only then that you may find him guilty. 

17. In the case of the second accused there are only two elements to the offence namely that there was an act or acts of sex and that the girl was between the ages of 13 and 16. It is not in dispute that the girl was 14 years old at the time (you have seen her birth certificate) nor is there any dispute that there was consensual sexual intercourse. That then would seem to prove the case against the second accused except for the statutory defence available to him. If he has shown you that it is more probable than not that he thought that she was over 16 years old and that he had good reason to think that, then you will find him not guilty of the offence. If you think it is not very probable that he didn't think she was over 16 or that he didn't have any reason to think that she might have been then you will find him guilty of defilement of a girl between the age of 13 and 16. 

18. It is now my duty to remind you of what I consider to be the important evidence. I must advise you however, what I consider important is not important if you think otherwise. It is for you of course to decide what is important. You ultimately will make the final decision as to the guilt or otherwise of these two accused on the evidence as you find it.

19. The first witness for the prosecution was Nikita, who the prosecution say is the victim of the second Count of rape against the first accused. She was a very reluctant and embarrassed witness. She told of the plan she had with her friend to run away from home. They had nowhere to go so they went to the bus station and rode around in a bus for some hours. Whether it was their idea or whether it was on the invitation of the bus driver is in dispute and is a matter for you to decide if you think it is relevant. The bus driver contacted his friends and they all met for what was going to be a party evening with beer. There were the two girls and four boys including the two accused. They drank beer and smoked cigarettes. When it came to the difficult part she asked the court if she could write down her evidence which I allowed her to. What she wrote was this:

 "I was sitting in the sitting room and then Para came to me and he took my clothes off and then carried me to the room. Then he tried to have sex with me. He kissed me all over. He also made love bites and then he put his penis into my vagina. I was trying to stop him but I couldn't as I was drunk."

20. In allowing the objection of the defence I then asked her to continue her evidence verbally. She continued by saying that she was scared and frightened. She said she was trying to stop him but couldn't and this went on for about 10 to 15 minutes. She then went back to the sitting room and then to the bathroom. The boy who owned the flat followed her and he tried to do the same thing and when she refused he tried to kill her. Back in the sitting room they planned to buy something from the shop so they all went out to go to town. As soon as they reached town the boys got off the bus and she and Kesaia stayed on the bus. I will not repeat any more of her evidence because it is not relevant to the charge, save as to say that when she returned home and told her parents they took her to the police and then on to the hospital for a medical examination.

21. In cross-examination of this witness, Counsel for the first accused asked her many questions about why she did not report the matters that had occurred in the room to the police, to his friends, to the public outside or to anybody else. He also asked her questions which implied that she had acted willingly in the room with Para. He asked if it was her first time and even asked her if there was blood on the sheet. It was never put to her that there was no sexual intercourse at all in the room and all his questions assumed that there had been an act of sexual intercourse in the room between Para and Nikita but with her consent. When we come to examine the evidence of Para and see that he claims that there was no sex at all apart from oral sex, you will realise that this was a very odd situation. At first the first accused's defence as instructed to his counsel appeared to be sex but with consent however the first accused himself then said that there was no sex thereby changing the defence during the trial. 

22. A second Prosecution witness was Kesaia, the alleged victim of the fourth count which is defilement of a girl under the age of 16 years. She told us she was born on 2 March 1998 and you have seen her birth certificate also. So on 31 December 2012 she was only 14. She also told us about the plan with Nikita to run away from home and how they arrived at the bus station and then ended up in a house in Valelevu. When they got in the house they sat down and started to drink. While there were drinking the boys made jokes and she and Nikita got very drunk. She was semiconscious she says and Sumeet, the second accused, dragged her into a room. He said for them to have sex and when they were in the room they did have sex only once. They were there for an hour and when she came out they all went outside and walked to the road to take a bus to town. Sumeet had asked her how old she was and she can't remember what she would have replied.

23. Mr Reddy repeatedly asked PW2 what she said to Summet about her age. She denied that she had said she was 19 and that Nikita was 18 and she repeatedly said in response to Mr Reddy that she couldn't remember what she had said to the second accused about her age. Nothing else that was put to her was relevant. In response to a proposition that she looks older than she is even now, she stepped out of the witness box for all to see. It is a matter for you ladies and gentleman what you think of her appearance now given that this is two years after the date of the offence charged.

24. Nikita's sister gave evidence of being told by Nikita what had happened that evening and the sisters version more or less confirmed what Nikita told us. She said that Nikita told her that there was "forceful sex".

25. Nikita's father also gave evidence of taking Nikita to the Samabula police station to report the rape and from there to CWM hospital so that she could be medically examined.

26. Kesaia's father told us of the worry and concern that the family went through when the daughter had gone missing from home. When she did return he was very angry but she did tell him that she had had sex with some boys when she was drunk.

27. The doctor's evidence is important. On 1 January 2013 he was called to examine both Nikita and Kesaia. He examined them and prepared a medical report which was produced in evidence in which you have seen. With reference to Nikita she had told him that she was forcibly raped by a bus driver with his finger and then his penis. He said there was a love bite on her neck and lacerations on her posterior forcette. He said that both injuries would have been inflicted within the past 24 hours. The hymen was intact but this was not indicative of anything because it was very thin and small and would have dilated easily. He concluded that's the injuries were consistent with the history as related by the patient and he was not able to say with certainty whether there had been sexual intercourse very recently or not.

28. As far as Kesaia was concerned he said that the patient told him she had sex three months earlier and then she had been raped by the Indian man. Vaginal examination revealed no injuries but there was a love bite on the side of her neck.

29. There then followed the evidence of the two police officers who took the records of the caution interviews with each of the accused. These records were read out to you and you have copies. The answers given to the questions in the interviews are evidence for you to consider and for you to give whatever weight you wish, considering that neither accused protested about the interview nor told us that the answers were not correct.

30. That was the end of the prosecution case and you heard me tell the accused in open court what their rights are in defence. I told them that they could give sworn evidence from the witness box and be cross examined or they could remain silent and say that the state had not proved the case against them. Whatever they did in that respect they could call witnesses if they wished. As you know both accused chose to give evidence from the witness box.

31. I have to direct you Ladies and Gentleman that just because an accused gives evidence it does not relieve the Prosecution from proving their case to you so that you are sure. The accused person does not have to prove anything to you and even if you don't believe a word he says, that doesn't make him guilty until you find that the Prosecution has proved their case beyond reasonable doubt. Their evidence is however relevant and it is a matter for you what weight you should give to it.

32. The first accused told us that they had gone into the house in Valelevu, had sat down and started drinking beer. Timoci asked Kesaia where she lived and how old she was. He asked her in Fijian but Para says that she replied in English saying that she was 19 and the other girl was 18 Para said that he first asked Nikita at the bus stand when she borrowed a match; he asked her age and she said that she is 18 and the other one is 19 and he says he believed her because they told him that they were renting a house they lived on their own and they had been working before and he says by the look of it he believed them.

33. When they were drinking Vineel turned on the music from his portable phone and Kesaia started to dance shaking her body. They were laughing, telling jokes to each other and after a while Kesaia was dancing and pointing to all of them saying you can't have sex with me. They were all laughing and not replying. She then pulled Sumeet by the hand, made him stand up and dance. She then took him inside a room. Para said he got a phone call and went outside and when he came back in he saw Nikita lying on Vineel's chest and kissing him on the mouth. He sat near them at which stage she moved from Vineel and came to him starting to kiss him. She told him that she couldn't drink beer any more so he told her to go and rest in the room but she wanted him to go with her. She pulled him by the hand, made him stand up and took him to the room. In the room they sat down and she started playing with his genitals. He says he was aroused and asked her if they could have sex she said no some other time. He opened his pants and then she began to give oral sex to him. She did that for 5 to 6 minutes until he ejaculated. She got up and ran out to the bathroom and he followed her. He told us that he never had sex with her. He went outside to make another phone call and he heard that she was vomiting. He went to the bathroom and found her in the bathroom with Vineel. He says that when they later left the house she was happy and normal and made no complaint. He finished his evidence by saying that he denied having sex with Nikita.

34. Ladies and gentleman, you will have noticed that's all of this evidence from the first accused was elicited by leading questions, which of course suggest the answers to the witness. As a result you may think that his evidence does not carry as much weight as it would have if he had been giving spontaneous evidence but it is of course a matter for you as to how much weight you should give it. You will also recall that I said earlier in this summing up that a lot of the things that he says in his evidence now were never put to Nikita. They should have been so that she could comment on it. For example it was never put to her that she performed oral sex on the first accused. This may be another factor in the weight that you place on his evidence.

35. The second accused also gave sworn evidence. He said that they were drinking and enjoying themselves but before drinking he had asked Kesaia what their ages were. Kesaia had said that she was 19 and Nikita was 18 and he didn't ask anything else. She had pulled his hand to dance and he then went into the room and she followed him. He was lying down when she came in and she lay on top of him kissing him. She took his clothes off and her clothes as well and switched off the light. He said they had full penetrative sex. He said that when he saw her she had long hair and was a bit of fat and because of that he believed her when she said he she was 19. In addition to that he said the fact that she was smoking and drinking made him think that she was older.

36. The defence called two witnesses, Vineel and Timoci. They were originally on the list of prosecution witnesses to be called but the prosecution chose not to call them which is their right. They were therefore made available to the defence to call if they wished. Both witnesses gave evidence consistent with other evidence of the meeting and arrival at the house and both witnesses offered gratuitously the evidence that they had each asked the girls their ages. You may find that such evidence offered at the very beginning of their evidence was unnatural and contrived but of course it is a matter for you and you may well disagree with me.

37. Well ladies and gentleman, that is all I wish to say about the evidence and the time has come to you now to retire and consider your opinions on the one count that each accused faces. Your possible opinion in respect of each accused will be guilty or not guilty. Your decision is straightforward on the rape count but on the defilement count you must consider whether the accused believed that Kesaia was over the age of 16 and that he had good cause to so believe. If you think that then you will find him not guilty of the defilement count. If you don't believe that you will find him guilty; given that he admits that there was sex and given that she was only 14. 

38. You will now leave us to deliberate and when you are ready you will let my clerk know and I will reconvene the Court, however before you do I will now ask Counsel if there any additions or amendments that they would like me to make in this Summing Up. 

39. Counsel?

P.K. Madigan
Judge

At Suva
10 July, 2014