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State v Hazelman - Summing Up [2014] FJHC 764; HAC.077.2013 (14 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 077/2013

BETWEEN:

THE STATE

AND:

DENNIS MARK HAZELMAN

COUNSELS: Ms A Vavadakua for the State
Ms K Vulimainadave with Mr P Tawake for the Accused.

Dates of Trial: 20-21/10/2014
Date of Summing Up: 22/10/2014

[Name of the victim is suppressed. She will be referred to as E.W]

SUMMING UP

Ladies and Gentleman Assessors,

1. It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts 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 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 facts. All matters of facts 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.
   
2. You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.
   
3. Prosecution and defence made submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgment.
   
5. 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. This is the golden rule.
   
6. 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.
   
7. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called Documentary evidence.
   
8. In certain circumstances the court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field.
   
9. In assessing evidence of witnesses you need to consider certain tests. Examples:
   
   • Consistency: That is whether a witness saying the story on the same lines without variations and contradictions.
     
   • Probability: That is whether the witness was talking about in his/her evidence is probable in the circumstances of the case.
     
   • Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the available opportunity about the incident.
     
   • Spontaneity: That is whether a witness has behaved in a natural or rational way in the circumstances that he/she talking about.
     
10. The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him.
    
11. The facts which agreed between the prosecution and the defence are called agreed facts. You may accept those facts as if they had been led from witnesses from the witness box. The following facts are agreed between prosecution and the defence:
    

(1) That the accused in this matter is Dennis Mark Hazelman.

(2) That the accused is charged for one count of Rape under Section 207 (1) and (2) (a) of the Crimes Decree No: 44 of 2009.

(3) That the alleged Rape victim in this case is E.W.

(4) That the accused met the alleged victim once, sometime between the 17th of August 2012 and the 3rd of September 2012.

(5) That at around the time specified above, the accused and the alleged victim met at Bureta Street in Samabula.

12. 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 have heard about this case outside of this court room.
    
13. 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 emotions.
    
14. Now let's look at the charge (amended).
    

First Count
Statement of Offence

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

Particulars of Offence

DENNIS MARK HAZELMAN between the 17th day of August 2012 and the 3rd day of September 2012 at Samabula in the Central Division had carnal knowledge of E.W. without her consent.

Alternative Count
Statement of Offence

DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE: Contrary to Section 215 (1) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

DENNIS MARK HAZELMAN between the 17th day of August 2012 and the 3rd day of September 2012 at Samabula in the Central Division had unlawful carnal knowledge of E.W. being a person above the age of thirteen years but below the age of sixteen years.

15. In order to prove the offence of Rape the prosecution has to prove the following elements beyond reasonable doubt.
    

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.

16. Carnal knowledge is the penetration of vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
    
17. As far as the element of consent is concern, in our law, a child is under the age of 13 years is incapable of giving consent. In this case the victim was 13 years and 05 months old at the time of the offence and, therefore, she had the capacity under the law to consent. Therefore, the offence of rape is made out only if there was no consent from the alleged victim.
    
18. In order to prove the offence of Defilement of a girl between 13 and 16 years of age the prosecution has to prove the following elements beyond reasonable doubt.
    

1. The accused

2. Unlawfully

3. Had sexual intercourse

4. With the female complainant

5. Who was or above 13 years and under 16 years.

19. "Sexual intercourse" above means the act of the accused's penis penetrating the complainant's vagina, and in law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute sexual intercourse. Also, the complainant's consent to sexual intercourse is no defence to the offence.
    
20. According to Section 206(1) of Crimes Decree No. 44 of 2009, 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.
    
21. According to Section 206(2) without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained:
    
    1. by force; or
    2. by threat or intimidation; or
    100. by fear of bodily harm; or
    4. by exercise of authority; or
    5. by false and fraudulent representations about the nature or purpose of the act; or
    6. by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.
       
22. Now let's look at the evidence led by the prosecution in this case.
    
23. The victim E.W. is living with her adopted parents since her birth. Now she is residing at Lautoka. Last year she was in Class 08 and now she is in Form 03. Between 17th of August to 03rd of September 2012 she was at her biological parents' house at Samabula. She had come to Suva to celebrate Hibiscus Festival. During her stay in Samabula, one day in the night her cousin brother had told her to buy cigarette from a nearby shop. As it was dark she requested the company of her female cousin Senimili to go to the shop. When she came back from the shop after buying cigarette, she saw the accused talking to Senimili. She did not go close to them but stopped near a garbage dump. Then Senimili came and told her that the accused wanted to talk to her. As she was not interested at the request she went home and gave cigarettes to her cousin brother. While she was lying down Senimili wanted to go for a walk to breathe fresh air. Both then left the house and went near the garbage dump. At that time the accused came in a taxi and talked to Senimili. They then walked up to the ground and on their way the accused introduced himself to the victim. While she was walking with the accused Senimili fell further behind. Thinking that the accused would protect her she walked along with the accused and came to a half constructed house. Before that they passed several houses. The accused first entered the house and she followed him. At that time Senimili was outside the house. They both entered in to a room. Accused then put a T-shirt on the floor and asked her to sit down. When she sat down the accused started to kiss her. Though she resisted the accused continued to touch her breast and her vagina. Senimili entered the house but she remained in the living room of the house. The accused then went up to Senimili and Senimili came in to the room and told her to consent for sex but she resisted. As per the direction of Senimili she kissed the accused but the accused made her lie on the floor and removed her clothes forcibly. She was wearing a top, a vest and a short at that time. Though she tried to run away from the half constructed house, but the accused forced her to remove her clothes. When she called Senimili the accused was on top of her and her mouth was covered by his chest. She was scared and could not resist as the accused was too heavy for her. Further it was dark at that time. The accused then put his penis into her vagina and had sexual intercourse. This is the first time she experienced sexual intercourse. As she was small in 2012 she could not resist the accused at that time. A photograph taken on 09/02/2012 05 months before the incident was marked as P1. She was born on 18/03/1999 and her original birth certificate was marked as P2.
    
24. After the incident she went home with Senimili but did not tell anybody about the incident. Senimili told her to take a wash in the morning. She noted watery stains on her body which came from the accused. When she reached home it was around 10.45pm. At that time her biological parents were drinking grog. Due to fear she did not tell the incident to anybody. As stretch marks appeared on her body she told the entire incident to her Aunty. On 30/05/2013 she delivered a baby boy. She identified the accused in open court. According to her she could not run at the time of the incident as it was dark inside the house.
    
25. In the cross examination the victim said that her adopted mother is a lecturer at Fiji National University. She came to Suva to spend her school holidays with her biological parents. Witness admitted that she gave her statement to the police on 29/01/2013. According to the victim she did not know where she was going with Senimili and the accused. She entered the half built house willingly. The house was dark and no windows or doors. The victim said that she kissed the accused willingly but she was scared at that time. She did not raise any cries or attempt to run away from the scene. Although she wanted to run away from the scene the accused and Senimili were standing near the door. When the accused went out she did not made any attempt to run as she thought her cousin would protect her. Further she said that she did not go to have sex with the accused. Senimili told her only to kiss the accused. She removed her clothes but the accused pulled her panty down. At that time she told the accused that she was uncomfortable. On the following day after the incident she went back to Lautoka. She had seen little blood on her panty and on her thighs. Further the victim said that moon light was available at the time of the offence.
    
26. In the re-examination the victim said that she went into the house thinking that she would be protected by her cousin as she was small at that time. She denied consent for sex.
    
27. Dr. Nitik Ram of CWM Hospital had examined the victim on 11/02/2012 at Ante Natal Clinic. In the history column the doctor had written that this teenager was 24 weeks and 5 days pregnant and revealed to her Aunt that she was defiled in August 2012 by a person called Dennis in Samabula. The doctor in his evidence said that he used the word defile as the victim was under 18 years of age at the time of the examination. Professional opinion of the doctor is that the patient had her last normal menstrual period on 04/08/2012 and most likely is when she was sexually abused and she conceived this pregnancy. The medical examination form was marked as P3.
    
28. In the cross examination the doctor said that he had examined more than 2000 pregnant mothers up to now. And most of the mothers were under 18 years. When an underage pregnancy is reported it is always informed to the police. No DNA or blood grouping test done to this case. The doctor expressed an opinion that the percentage of getting pregnant after intercourse is about 2.5%.
    
29. Finally prosecution called DC 2990 Isireli Tora who recorded the caution interview statement of the accused. His interview recorded was marked as P4. He was the investigating officer in this case.
    
30. In the cross examination witness said that he could not record a statement from Senimili. Only one witnessing officer had signed the interview notes. He could not locate Senimili during his investigation.
    
31. State counsel marking exhibits 01-04 closed the case for the prosecution. Copies of all the exhibits are given to you.
    
32. Defence was called and explained the rights of the accused. After understanding his rights the accused elected to give evidence from the witness box.
    
33. During the Hibiscus season the accused was helping his cousin who ran a boutique at the Hibiscus venue. One day after work they had decided to drink kava. He was sent to town to buy kava. In town he met the victim and her cousin Senimili. He then talked to Senimili and asked whether he can have sex with her. As she said yes he went to drop kava and came back to the place where he met the couple earlier. When he came back after buying kava Senimili had told him that the victim is ready to have sex with him. Thereafter all went towards a ground. Near the ground they entered into a partly completed house. He entered the house with the victim. Both started to kiss each other. In the process the victim removed his T-shirt. As Senimili was watching them, the victim said that she was not comfortable at that time. He went out and spoke to Senimili. From that movement he decided not to have sex and left the place. Victim agreed. He denied sexual intercourse with the victim.
    
34. In the cross examination witness said that the victim was not fully naked at that time. Further the victim did not raise cries. Witness denied that he had sex with the victim. But he wanted to have sex with Senimili. In the room he only kissed the victim.
    
35. This is the end of the defence case.
    

Analysis of the Evidence

36. As assessors and judges of facts, in this case this victim E.W. gave evidence first. According to her she never consented for sex with the accused. It was Senimili who wanted to have sex with the accused. But the victim was craftily taken to the spot by Senimili. It was the first time the victim met the accused. She had never met the accused before the incident. The victim was a small girl at the time of the incident. Due to insistence the victim only agreed to kiss the accused. As she was small she always thought that she would be protected by the adults. The house where the alleged incident happened was dark at the time of the offence. Victim could not run from the house as Senimili was blocking the entrance. As a result of this incident she become pregnant and delivered a baby boy when she was studying in Class 08. The photograph which marked as P1 was taken on 09/02/2012 five months before the incident. Consider her evidence very carefully,
    
37. Medical Examination Form of the victim was tendered to this court. As per report she was pregnant at the time of examination. In the history the doctor had written that the accused had sexual intercourse with the victim. You have to consider that documentary evidence.
    
38. The caution interview of the accused is tendered to this court. No evidence led on behalf of the accused that the accused was subjected to intimidation, threat or assault during the caution interview. The accused denied the allegation in his caution interview statement.
    
39. Ladies and Gentleman Assessors, as I told you earlier, the caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. In this case the accused did not challenge his caution interview statement. Hence you have to consider the accused's caution interview statement as it becomes evidence in this case.
    
40. Ladies and Gentleman Assessors, in this case the accused elected to give evidence from the witness box. That is his right. In his evidence the accused admitted meeting the victim, taking her to a partly constructed house in the night and kissing her. He denied having sexual intercourse with the victim. He was 25 years and 11 months old at the time of the offence.
    
41. In this case the accused is charged for rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree No: 44 of 2009. Alternatively he has been charged for defilement of a girl between 13 years and 16 years of age contrary to Section 215 (1) of the Crimes Decree No: 44 of 2009. I have already explained to you about the charges and its ingredients.
    
42. Ladies and Gentleman Assessors as per Section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases.
    
43. Ladies and Gentleman Assessors, in this case state has to prove lack of consent before you can find the accused guilty of rape. If you find there was consent and that he is thereof not guilty of rape. Then you have to consider the alternative count of defilement of a girl between 13 and 16 years of age. If you think that the State has not proved rape charge, then you will be asked to return your opinions on whether he is guilty of defilement of a girl between 13 years and 16 years of age.
    
44. You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject. Use the tests mentioned above to assess the evidence of witnesses.
    
45. You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
    
46. Ladies and Gentleman Assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
    
47. Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
    
48. This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
    
49. Any re-directions
    

I thank you for your patient hearing to my summing- up.

P Kumararatnam
JUDGE

At Suva
22/10/2014