Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Hussain - Summing Up [2015] FJHC 158; HAC248.2013S (5 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 248 OF 2013S

STATE

vs

MUBARAK HUSSAIN

Counsels : Ms. A. Vavadakua for State
Accused in Person
Hearings : 2, 3 and 4 March, 2015
Summing Up : 5 March, 2015

SUMMING UP

1. 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 Counsel and the Accused have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State Counsel and the Accused, 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 they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF

4. 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.
   
5. 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.
   
6. 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.
   

100. THE INFORMATION

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

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

4. THE MAIN ISSUES

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) On count no. 1, did the accused, on 31 May 2013 at Naselai Feeder Road, Nausori, in the Central Division, remained in complainant no. 1's dwelling house as a trespasser, with intent to cause harm to complainant no. 2, his wife?
   • (ii) On count no. 2, did the accused, on 31 May 2013 at Naselai Feeder Road, Nausori, in the Central Division, rape complainant no. 2?
   • (iii) On count no. 3, did the accused, on 31 May 2013 at Naselai Feeder Road, Nausori, in the Central Division, rape complainant no. 2?
   • (iv) On count no. 4, did the accused, on 31 May 2013 at Naselai Feeder Road, Nausori, in the Central Division, sexually assault complainant no. 2?
     

5. THE OFFENCES AND THEIR ELEMENTS

9. Count no. 1 involved the offence of "burglary", contrary to section 312(3)(a) and (b) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) remained in the building

(iii) as a trespasser
(iv) with intent to cause harm
(v) to the complainant

10. The key word in the offence is the word "trespasser". A trespasser is a person who enters and remained in a building without the owner's permission. In other words, that person enters and remained in the building without any lawful authority, and thus becomes a "trespasser". He commits the offence of "burglary", when he remains in the building, as a trespasser, with the intention of causing harm to others, for example, to rape another person. So long as he forms the intention to cause harm to others as a trespasser in a building, he commits the offence of "burglary".

11. Count no. 2 and 3 are offences of rape, contrary to sections 207 (1), 2(a) and 2(b) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused penetrated the complainant's vagina;

(a) with his penis (count no. 2); or

(b) with his tongue (count no. 3);

(ii) without her consent; and

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

12. In law, the slightest penetration of the complainant's vagina by the accused's penis (count no. 2), or tongue (count no. 3), is sufficient to satisfy element (i)(a) or (i)(b), as described in paragraph 9(i) above. In the case of penile penetration, proving ejaculation is unnecessary.

13. Consent is to "agree freely and voluntarily and out of her 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.

14. It must also be established by the prosecution beyond reasonable doubt, that the accused knew the complainant was not consenting to her vagina been penetrated by his penis or tongue, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

15. Count no. 4 involved the offence of "sexual assault", contrary to section 210(1) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) unlawfully and

(iii) indecently

(iv) assaults

(v) the complainant

16. "Sexual assault", is really an aggravated form of "indecent assault". It has all the characteristic of the offence of "indecent assault". The key word in the offence is the word "assault". To "assault someone" is to apply unlawful force to the person of another, for example, to hit someone with a stick, or to punch someone in the face. In other words, the least touching of another in anger is as "assault". It is an unlawful application of force to the person of another.

17. The "assault" becomes "indecent", when it is committed in circumstances of indency. A circumstance of indecency is what right-minded people would consider "indecent", for example, kissing a woman's breast without her permission, or licking a woman's vagina without her permission. So, the prosecution must not only make you sure that the assault was unlawful, he must also make you sure it was indecent.

F. THE PROSECUTION'S CASE
18. The prosecution's case were as follows. On 31 May 2013, the female complainant (PW1) was aged 49 years old, and lived at Nausori, with her husband (PW2), who was aged 55 years old, at the time. The couple had four grown up children, aged between 30 and 19 years old. After 8.30pm on 31 May 2013, PW2 left for Nakasi. On the way, he met the accused, who asked him where he was going, and who was at his house. PW2 told the accused, he was off to Nakasi, and his wife was alone at home.

19. According to the prosecution, a person came to PW1 and PW2's house, soon after PW2 left for Nakasi. The complainant said, she was lying down on her bed in her bedroom. The bedroom light was turned off. According to the prosecution, a masked man came into the complainant's bedroom, and threatened PW1 with a cane knife. The man later tied PW1's hands and legs, with pieces of cloth and tape. Later the man blindfolded her with a piece of cloth, and taped the same to her face. A while later the man forcefully took off PW1's clothes. He began kissing her on the body, which included her breasts. Later, he licked her vagina, and inserted his tongue into her vagina. He later had sexual intercourse with her, and ejaculated into her vagina. After committing the above offences, the man fled the scene.

20. The complainant later freed herself, and called her husband for assistance. PW2 returned from Nakasi. The matter was reported to police. An investigation was carried out. The accused was taken in as a suspect. He was caution interviewed by police on 1 and 2 June 2013. He was formally charged on 2 June 2013. In his interview and charge statements, the accused admitted the offences to police. On 3 June 2013, he appeared in the Nausori Magistrate Court charged with rape and burglary. Because of the above, the prosecution is asking you, as assessors and judge of fact, to find the accused guilty as charged. That was the case for the prosecution.

7. THE ACCUSED'S CASE

21. On 2 March 2015, the first day of the trial proper, the information was put to the accused. He had previously waived his right to counsel. He pleaded not guilty to the charges. In other words, he denied the allegations against him. When a prima facie case was found against him at the end of the prosecution's case, wherein he was called upon to make his defence, he choose to give sworn evidence and called no witness, in his defence. That was his right.

22. His case was very simple. On oath he said, he never burgled the complainant's house. He said, he never raped nor sexually assaulted the complainant. He said, he was assaulted by police to admit the offences, when caution interviewed and formally charged by them. When cross-examined, he said he was not at the crime scene, at the material time. Because of the above, he asks you, as assessors and judges of fact, to find him not guilty as charged and acquit him accordingly. That was the case for the defence.

8. ANALYSIS OF THE EVIDENCE

(a) An Overview of the State's case Against the Accused:
23. The State's case against the accused was grounded on two types of evidence. First, was the direct evidence of the complainant (PW1). On the elements of the offences of "burglary" [count no. 1], "rape" [count no. 2 and 3] and "sexual assault" [count no. 4], the evidence of the complainant was not seriously contested by the defence. We will discuss PW1's evidence in detail later. However, PW1's evidence suffers from a fundamental handicap. It does not connect the alleged offences to the accused. This is where the second type of evidence comes in. The State relied on the accused's alleged confessions in his police caution interview statements [Prosecution Exhibit No. 6] and charge statements [Prosecution Exhibit No. 7], to connect him to the crimes. We will discuss these confessions in detail later.

(b) The Complainant's (PW1) Evidence:
24. The complainant (PW1) said that, on 31 May 2013, after her husband (PW2) left for Nakasi after 8.30pm, she was lying on her bed in her bedroom. There was no one else in the house. Suddenly, she saw someone go pass her bedroom door. A while later, a masked man entered her bedroom, holding a cane knife. He forcefully tied the complainant's hand behind her back. He later tied her legs. Then he blindfolded her with a piece of white cloth, and tape the same to her face. Her mouth, hands and legs were also taped by the man. So, in terms of the elements of "burglary" in count no. 1, here we have an unknown man, who had entered and remained in the complainant's house, obviously without any permission, thus automatically acquiring the status of a trespasser, and with an intention to cause harm to PW1.

25. The complainant said, the man demanded money and gold first. Later, he proceeded to forcefully take off her clothes. Then he began to kiss her neck, breasts and body. He went down on her and licked her vagina. He then inserted his tongue into her vagina. He later had sexual intercourse with her and ejaculated in her. The complainant said, she gave the man no permission to do the above acts to her. He also knew, she was not consenting to the above sexual acts to her, because he had to blindfold her and taped her hands and mouths, when doing the above. So, in terms of the elements of "rape" [count no. 2 and 3] and "sexual assault" [count no. 4], on the basis of the complainant's evidence, the elements of the above offences appeared satisfied. In fact, the whole of the complainant's evidence on the elements of "burglary" [count no. 1], "rape" [count no. 2 and 3] and "sexual assault" [count no. 4], was not contested by the defence. The crux of the defence case were as follows: "Yes the crimes may have been committed, but I did not do the same". However, on whether or not to accept the complainant's evidence on the above matter, is a matter entirely for you. If you find her to be a credible witness, you are entitled to accept her evidence. If you find her not to be a credible witness, you are entitled to reject her evidence.

(c) The Accused's Alleged Confessions: Police Caution Interview Statements [Prosecution Exhibit No. 6] and Charge Statement [Prosecution Exhibit No. 7]:
26. A day after the alleged offences against the complainant, the accused was caution interviewed by DC 3737 Vishant (PW4) on 1 June 2013, at Nausori Police Station. The interview started at 3.40pm and concluded at 7.35pm. Then it continued on 2 June 2013, starting at 9.40am and it concluded at 3.50pm. The accused was given his right to counsel and the standard caution. He was given the standard meal and rest breaks. He was asked a total of 123 questions and he gave 123 answers. From Questions and Answers 35 to 52 and 94 to 102, the accused admitted "burglary" [count no. 1]. From Questions and Answers 53 to 60, 102, 103, 109 to 112, 113, 116 and 118, the accused admitted "rape" [count no. 2 and 3]. The accused's police caution interview statements were tendered as Prosecution Exhibit No. 6. On 2 June 2013, at Nausori Police Station, DC 3201 Avinesh (PW5) formally charged accused with burglary and rape. In the charge statement, the accused admitted burgling the complainant's house and raping her at the material time.

27. The above confessions, if accepted by you as assessors and judges of fact, connects the accused to the crimes committed against PW1 and PW2 (that is, counts no. 1 to 4). However, before you consider the above alleged confessions, I must direct you, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable doubt that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily and that they are true, as judges of fact, you are entitled to rely on them for or against the accused. The acceptance or otherwise of his alleged confessions is entirely a matter for you.

28. The voluntariness of the above alleged confessions were hotly disputed by the parties. You have heard the evidence of the accused. He said, the caution interview and charging officers (PW4 and PW5) assaulted him, and forced him to sign the interview notes and the charge statements. He also alleged that the police officers put chillies on his private parts. He said, he was so scared that he signed his interview and charge statements to avoid any further troubles. He admitted in cross-examination that, he was caution interviewed on 1 and 2 June 2013, and was formally charged on 2 June 2013. He admitted he first appeared in the Nausori Magistrate Court on 3 June 2013. He admitted he never complain to the Magistrate of any improper police behaviour. He also did not ask the Magistrate for any medical examination for any injuries allegedly made by police.

29. The caution interview and charging police officers said they did not assault, threaten or made promises to the accused, when he was in their custody. They said, the accused was in good health and answered all the questions voluntarily and out of his own free will. His questions and answers 120, 121 and 122 of Prosecution Exhibit No. 6, the accused said he gave his caution interview statements voluntarily. He signed all the pages of his interview notes. He repeated the above in his charge statement. If you find the police witnesses as credible witnesses, and accept their evidence that the accused gave his caution interview and charge statement voluntarily and you accept it as the truth, you may find the accused guilty as charged. If you find them not to credible witnesses, and reject their evidence that the accused voluntarily gave his caution and charge statements, and you find the same are not true, you may find the accused not guilty as charged. It is a matter entirely for you.

I. SUMMARY
30. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

31. Your possible opinions are as follows:

(i) Count No. 1 : Burglary : Accused : Guilty or Not Guilty

(ii) Count No. 2 : Rape : Accused : Guilty or Not Guilty

(iii) Count No. 3 : Rape : Accused : Guilty or Not Guilty

(iv) Count No. 4 : Sexual Assault : Accused : Guilty or Not Guilty

32. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : In Person