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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 024 OF 2014LAB
STATE
V
MOHAMMED MOUSIN
Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused
Hearings : 26 and 27 August, 2015
Summing Up : 28 August, 2015
SUMMING UP
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.
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.
7. You have a copy of the informatith you, and I will now read the same to you:
"... [read from the information]...."
8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
(i) Did the accused on 9 July2011, at Labasa in the Northern Division, rape the complainant?
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.
13. The prosecution's case were as follows. On 9 July 2011, the complainant (PW1) was 18 years old. She was in a de facto relationship with one Nakim Fazil Mohammed, aged 25 years old, at the time. The couple were living in the house of Fazil Mohammed's father and mother. The mother's name was Hazra Bi (DW2). Also living in the house was Fazil's younger brother, Saiban Ali (DW3). According to the prosecution, the complainant was alone at home on 9 July 2011, at about 11am. According to the prosecution, DW2 and DW3 had gone to the family's sugar cane farm in Seaqaqa. PW1's husband and father-in-law were at work.
14. According to the prosecution, the accused came to PW1's in-law's house on 9 July 2011 at about 11am. The accused is related to PW1's in-laws. PW1's husband is the accused's first cousin. The accused's father is PW1's mother-in-law's elder biological brother. The accused is a frequent visitor to PW1's in-laws house. He came into the house and ask PW1 if he can watch a movie. PW1 told him no-one was at home and he should come back in the evening when everyone would be at home. However, according to the prosecution, the accused remained, and later went to the kitchen for a drink of water. PW1, at the time, was in the kitchen.
15. According to the prosecution, the accused then held PW1's wrist and dragged her to the bedroom. PW1 told the accused not to do the above. PW1 shouted and resisted but to no avail. The accused was stronger than her. In the bedroom, the accused forcefully took off PW1's clothes. He then pushed her on the bed. He took off his clothes and went on top PW1. He then inserted his penis into PW1's vagina without her consent. While having sex, PW1 was still pushing the accused away to no avail. The accused knew she was not consenting to sex at the time.
16. PW1's husband returned home in the evening. PW1 did not report the incident to him, until the next day. Nevertheless, the matter later came to the police attention. An investigation was carried out. The accused was interviewed by police on 26 July 2011 at Labasa Police Station. He appeared in Labasa Magistrates Court on 10 January 2014 charged with raping the complainant. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
17. On 26 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 charge. In other words, he denied the rape allegation 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 his aunty (DW2) and his first cousin (DW3),as his witnesses. That was his right.
18. In his evidence, he denied raping the complainant as alleged. He said, he was not at the crime scene, at the material time. He said, he was in Labasa Town with his first cousin, Saiban Ali (DW3). He said, he and DW3 left their home at 8am on 9 July 2011. They arrived at Labasa Town at about 8.30am. They did some shopping and went to various places in town. They returned home at 4pm. He said, he was not with PW1 on 9 July 2011 between 11 and 11.30am. He was in town. DW3 gave evidence and verified the above. DW2 said in evidence that she was home, at the material time. She said DW3 went with the accused to town in the morning.
19. Because of the above, the defence is asking you, as assessors and judges of fact, to find the accused not guilty as charged. That was the case for the defence.
(a) The Agreed Facts:
20. The parties submitted an "Agreed Facts", consisting of 9 paragraphs of facts. A copy of the same is with you. Please read it and understand the same. Because the parties are not disputing the same, they have submitted it as their "Agreed Facts". You may take it that the prosecution had proven those facts beyond a reasonable doubt. You may treat the "Agreed Facts" as established facts, because the parties are not disputing the same.
(b) The Complainant's (PW1) Evidence:
21. You have heard the complainant give evidence in the courtroom. Basically she said, she was at home alone on 9 July 2011, especially between 11am and 11.30am. She said, her husband and father-in-law had gone out to work for the day. She said, her mother-in-law, Hazra Bi (DW2) and brother-in-law, Saiban Ali (DW3), had left the previous day to attend to the family farm in Seaqaqa. While at home, the accused came home. He was familiar with the place because he was PW1's husband's first cousin. His father and PW1's husband's mother (DW2) are brother and sister. He normally visits her in-law's place.
22. The complainant said, the accused came and wanted to watch a movie at about 11am on 9 July 2011. She told him to come back in the evening when all the family will be in the house. However, the accused never went away and remained in the sitting room. A while later, the accused got hold of the complainant's wrist and forcefully dragged her into the bedroom. The complainant resisted by shouting and telling him to stop, but to no avail. The accused was obviously physically stronger than the complainant. In the bedroom, the accused forcefully took off the complainant's clothes, and took off his clothes.
23. He pushed the complainant onto the bed. He went ontop of her. She was naked by now. He then inserted his penis into the complainant's vagina, and had sex with her without her consent. The complainant struggled throughout, but to no avail. The accused well knew she was not consenting to sex, because she struggled against him and told him to stop. After the sex, the accused left. The complainant said, she never gave her consent to the accused to have sex with her. The state's case against the accused was based fundamentally on the complainant's evidence. If you accept her evidence, then you must find the accused guilty as charged. If you don't accept her evidence, then you must find the accused not guilty as charged. It is a matter entirely for you.
(c) The Accused's Defence on Alibi
24. In answer to the complainant's rape allegation, the accused said, he was not at the crime scene at the material time. He said, on 9 July 2011, he went to Labasa Town from Solove Road after 8am. He said, he went to town with Saiban Ali (DW3), the complainant's younger brother-in-law. He said, they stayed in town from 8.30am to 4pm. He said, he was not with the complainant on 9 July 2011 between 11am and 11.30am. He said, he did not rape the complainant as alleged. Saiban Ali (DW3) gave evidence for the defence, and confirmed the accused's evidence. You have watched the accused and Saiban Ali give evidence. Even Saiban Ali's mother (DW2), confirmed in her evidence that Saiban Ali went with the accused to Labasa town in the morning of 9 July 2011.
25. Your acceptance or otherwise of the accused's alibi defence will depend on whether or not you find the accused (DW1), PW1's mother-in-law (DW2) and PW1's younger brother-in-law (DW3) as credible witness. If you find them as credible witness, and accept the accused's alibi defence, then you must find the accused not guilty as charged. If you find their evidence not credible, then you cannot rely on the accused's alibi defence as a way out for them. It is a matter entirely for you.
26. However, bear in mind that the overall burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution from the start to the end of the trial. That burden never shifts to the accused, at any stage of the trial. Even when the accused relies on an alibi defence, it does not shift the burden of proof from the prosecution. You still have to consider the prosecution's case. In this case, even if you reject the alibi defence, you still have to critically look at the complainant's evidence, on which the State's case is based. If you reject the alibi defence, and find the complainant's evidence credible, then you will have to find the accused guilty as charged. If you reject the alibi defence and reject the complainant's evidence, then you must find the accused not guilty as charged. It is a matter entirely for you.
(d) Considering All the Evidence Together:
27. You must consider all the evidence together. There are basically two version of event, the complainant's version and the accused's version. Which version to accept and which version to reject is entirely a matter for you. You have heard, watched and observed the witnesses in the courtroom. Who was the credible witness? Who was forthright when giving his or her evidence? Who was the evasive and argumentative witness? Who do you think was telling the truth? If you accept the complainant (PW1) as a credible witness, and accept her version at events, then you must find the accused guilty as charged. If you find the complainant (PW1) not to be a credible witness, and you do not accept her version of events, then you must find the accused not guilty as charged. It is a matter entirely for you.
28. 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.
29. Your possible opinions are as follows:
(i) Rape : Accused - Guilty or Not guilty
30. 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.
SalesiTemo
JUDGE
Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa
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