IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 029 OF 2014LAB

STATE

V

HIND MUNISHWAR LAL

Counsels : Mr. L. Fotofili for State 
Ms. L. Raisua for Accused

Hearings : 24 and 25 August, 2015
Summing Up : 26 August, 2015

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 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.

B.	THE BURDEN AND STANDARD OF PROOF 
C.	
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. 

D.	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]…."

E.	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 18 February 2014, at Labasa in the Northern Division, rape the complainant?
(ii)	On count no. 2, did the accused, on 24 February 2014, at Labasa in the Northern Division, rape the complainant?
(iii)	On count no. 3, did the accused, on 4 March 2014, at Labasa in the Northern Division, rape the complainant?
(iv)	On count no. 4, did the accused, on 5 March 2014, at Labasa in the Northern Division, rape the complainant?
    
F.	THE OFFENCE AND IT'S ELEMENTS

9.	The accused was charged with "rape", contrary to Section 207 (1) and (2) (a) of the Crimes Decree 2009. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;
(ii)	without the complainant's consent; and
(iii)	he knew the complainant was not consenting to sex, at the time.

10.	In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

11.	Consent is to "agree freely and voluntarily and out of her own free will", and she must have the necessary mental capacity to give her consent. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over her, 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.

12. 	It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

F.	THE PROSECUTION'S CASE

13.	The prosecution's case were as follows. On 18 February 2014, the female complainant (PW1) was 18 years old. The accused (DW1) was 25 years old. The accused had been studying for a Diploma in Applied Computering for the last five years at the Fiji National University and it was not clear whether or not he had succeeded in the same.. The complainant had just started out at Fiji National University as a foundation student. She was studying to be a teacher. On 18 February 2014, at about 11.30am, PW1 and DW1 met at the Labasa bus Station. They got into a conversation. According to the prosecution, the accused promised PW1 that he will give her some FNU papers and text books. PW1 was a private student.

14.	Later the two went to have lunch at a nearby restaurant. After lunch, the two walked to the accused's flat at Nasekula Road to get the FNU papers and text books. They arrived at the flat and went inside. DW1 told PW1 to sit on the bed while he went to the washroom. DW1 then forced himself on PW1. PW1 wanted to escape, but DW1 locked the door. DW1 then forcefully took off PW1's clothes. PW1 wanted to yell, but DW1 blocked her mouth with his hand. He then penetrated PW1's vagina with his penis, and had sex with her for 5 minutes. According to the prosecution, PW1 did not consent to sex, and DW1 knew she was not consenting to sex at the time.

15.	DW1 then threatened PW1 that if she didn't allow him to take her naked photos, he will not allow her to go home. DW1 then took naked photos of PW1 via his mobile phone. Later DW1 took PW1 to a taxi to return home. Before getting into the taxi, according to the prosecution, the accused warned the complainant that if she didn't come to him for sex in the future, he would put her naked photos in Facebook for everyone to see. The complainant was put under pressure and didn't know what to do.

16.	On three separate occasions (i.e. 24 February, 4 and 5 march 2014), the accused called the complainant via his mobile phone. On each occasion, the accused threated the complainant to come to him, or else he will put her naked photos on Facebook. Fearful of the same, the complainant came to the accused. On each occasion, the accused took the complainant to his flat and had sexual intercourse with her, that is, his penis penetrated her vagina on each occasion. According to the prosecution, on each occasion, the complainant did not consent to sex with the accused, and he well knew she was not consenting to sex, on each occasion.

17.	Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.

G.		THE ACCUSED'S CASE

18.	On 24 August 2015, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charges. In other words, he denied the four rape 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 a defence, he choose to give sworn evidence, and called no witness. That was his right.

19.	In his sworn evidence, he agreed that he had sex with the complainant on 18 and 24 February, and the 4th and 5th March 2014. He admitted he inserted his penis into the complainant's vagina on those dates. He also said that on the above dates, the complainant consented to having sex with him. He knew she was consenting to sex with him during the above times, because he saw her smiling at him and she was holding his back tightly. He appeared to say that the complainant was enjoying sex with him, during those times. According to him, he did not see the complainant making any complaint to him.

20.	Because of the above, the defence is asking you, as assessors and judges of fact, to find him not guilty as charged, on all counts. That was the case for the accused.

H.		ANALYSIS OF THE EVIDENCE

21.	In terms of the first element of the offence of "rape", as discussed in paragraphs 9 (i) and 10 hereof, that is, that the accused's penis penetrated the complainant's vagina, at the material times, the parties agreed that the accused's penis penetrated the complainant's vagina on 18 February 2014 (count no. 1), 24 February 2014 (count no. 2), 4 March 2014 (count no. 3) and 5 March 2014 (count no. 4).So, the parties agreed that the first element of "rape" was satisfied on all counts. You may therefore take it that the prosecution had proven beyond reasonable doubt the first element of rape on all four counts, because the parties do not dispute the same.

22.	On the second element of "rape" as discussed in paragraphs 9 (ii) and 11 hereof, the parties had different version of events on this issue. In other words, the parties disagreed on the issue of whether or not the complainant consented to the accused penetrating her vagina with his penis on 18 February 2014 (count no. 1), 24 February 2014 (count no. 2), 4 March 2014 (count no. 3) and 5 March 2014 (count no. 4). You have heard the complainant and accused's version of events on this issue.

23.	The complainant said, the accused enticed her to come to his flat on the pretext that he was going to give her some Fiji National University papers and text books on 18 February 2014. Once in his flat he forced himself on her without her permission. She wanted to flee from the flat, but the accused locked the door. He then forcefully forced her on the mattress, took off her clothings, parted her legs and inserted his penis into her vagina without her consent She wanted to shout, but the accused blocked her mouth. The accused was physically stronger than the complainant. The complainant said, she tried to push the accused away, but to no avail.

24.	According to the complainant, after sex, he warned her that he will not allow her to go home, unless she permitted him to take naked photos of her. The accused then took pictures of her naked via his mobile phone camera. Later the accused took her to a taxi to return her home. According to the complainant, the accused threatened her that if she did not return to have sex with him in the future, he would unload her naked photos in facebook for all the world to see. The complainant did not know what to do, and was helpless. If the accused carried out his threat, her privacy would be fore-ever violated.

25.	On 24 February 2014 (count no. 2), 4 March 2014 (count no. 3) and 5 March 2014 (count no. 4), 	the accused called the complainant via his mobile phone. Because of the threat of exposure through Facebook, the complainant came to the accused. On each occasion, as previously discussed, the accused penetrated her vagina with his penis. According to the complainant, on each occasion, she did not give her consent. The accused knew very well she was not consenting to sex with him, because he had to threaten to expose her naked photos in Facebook, to force her to come to him. He appeared to know that without the threat to expose her naked photos in Facebook, she would not come to him.

26.	So, in terms of element no. 2 of "rape" as discussed in paragraphs 9 (ii) and 11 hereof, according to the complainant, she did not consent to sex with the accused on 18 February 2014, 24 February 2014, 4 March and 5 March 2014. In terms of element no. 3 of "rape" as discussed in paragraphs 9 (iii) and 12 hereof, according to the complainant, the accused knew she was not consenting to sex with him, at the material time, because he had to resort to threats of exposing her naked photos in Facebook, to force her to come to him. 

27.	As far as the accused was concerned, the complainant consented to him penetrating her vagina 	with his penis, at the material times, because she was smiling at him and holding his back tightly, when they were having sexual intercourse. He said, at no time did she complain to him or raised the alarm while they were having sex. He said, she did not even complain to the police. He said, she even sucked his penis to show that she liked what they were doing, that is, having sexual intercourse. According to the accused, her behavior to him during these times did not give rise to any inference that she was not consenting to sex with him. He said, she consented to sex with him, and he well knew she was consenting to sex with him, when they were having sexual intercourse.

28.	The two main witnesses in this trial were the complainant (PW1) and the accused (Dw1). You have watched them give evidence in the courtroom. You have examined their demeanour when they were answering questions asked by counsels. Who do you think was the credible witness of the two? Who was the forthright witness? Which of the two was the evasive witness? Who do you think, from your point of view, was telling the truth? If you think that the complainant (PW1) was the more credible witness, then you must find the accused guilty as charged on all counts. If you think otherwise, then you must find the accused not guilty as charged on all counts. It is a matter entirely for you.

I.		SUMMARY

29.	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.

30.	Your possible opinions are as follows:

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

31.	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, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa