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State v Balak - Summing Up [2015] FJHC 705; HAC260.2014 (30 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

CRIMINAL CASE NO.HAC 260 OF 2014

STATE

V

SHIU BALAK

Counsel: Ms D. Kumar with Ms U. Tamanikaiyaroi for the State
Mr. T. Sharma for the accused.

Dates of hearing: 28, 29 and 30September, 2015
Date of Summing Up: 30 September, 2015

SUMMING UP

1. Lady and Gentlemen assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

2. As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

3. Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case, They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.

4. You are to judge this case on the evidence you have heard in this Courtroom and on nothing else. You are not to speculate on what evidence there might have been or should have been.

5. You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.

6. On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused person beyond reasonable doubt. The burden remains on the prosecution throughout the trial and never shifts. 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.

7. The accused is charged with one count of rape and two counts of defilement.

8. Rape has different meanings in our law but for the purposes of this trial it is sexual intercourse with penetration without the victim's consent. While consent is normally an issue at trial it is not in this case. Our law says that when a child is under the age of 13 years, he or she is unable to give consent to the act of intercourse. For that reason, in order for the State to prove to you so that you are sure that the victim was raped they only have to prove:

1. that there was an act of intercourse,
2. there was at least some degree of penetration, and
3. that she was under 13 at the time.
   

9. You have before you her birth certificate which proves that in January 2014, the girl was 12 years 11 months (and it is also an admitted fact); so the only issue for you to decide in this case is whether the accused did engage in sexual intercourse with the girl or not and if so was there indeed a degree of penetration.

10. Defilement is the act of sexual intercourse with a degree of penetration of a person over 13 years old but under the age of 16.

11. The State must prove to you that there was an act of sex including penetration to some degree. Consent has nothing to do with it.There is a defence to the charge,but I won't bother you with that because the accused never relied on that defence. His defence is, as you know, that it never happened.

12. The State has to prove therefore that:

• there was sex,
• there was penetration to some degree,
• that the child was between 13 and 16 years
  

13. If you find all of these elements proved then you will find the accused guilty of each defilement charge (looking at them separately).

14. At this stage I must direct you that when an accused is facing more than one count as in this case, you must look at each count separately. Just because you think he may be guilty of one count it does not necessarily mean he is guilty of all. The evidence on each count is different, so you must judge them differently.

15. That is all I wish to say about the law but it is my duty to summarise the evidence for you. I know it has been a short case and you are well aware of what the evidence is but in all fairness to both sides I must put their evidence before you.

16. The main plank of the State's case comes of course from the evidence of the little girl who is now 14 years old.

17. To protect her identity I shall call her Ruby in this summing up. Ruby told us that she is in Class 7, but last year, in Class 6, she was living in Deep Water Road, Tailevu. She lived with her parents, two sisters and a brother. Her father was a farm worker on a dairy farm. He used to milk the cows.

18. In January 2014, the accused ("SB") called her out from home and told her to go to his van. He took her to the tank room where she saw a sack on the floor. SB told her to lie on the sack; he took his pants off, pulled her skirt up and inserted his penis into her vagina.She felt bad and was angry. He gave her $20 for cleaning the van. He left in the van and she walked home. She didn't tell anybody because she was scared.

19. In June 2014 he came again to her home and called her out to the van. He took her to the copra shed, the room where the cow's food was kept. There was a sack near the food. Again he told her to lie down and again he took his trousers off, took her panties off and penetrated her. He touched her breast and kissed her. He took her home in the van, gave her $20 and told her "I love you". Again she told nobody.

20. In July 2014, he came and asked her to go to his house to clean the windows. Ruby asked him if his wife was home and he said yes. When they got to his house the wife was not there. He told her to go to his bedroom, made her lie on the bed and penetrated her. He took quite a while and it was painful. She didn't clean any windows but when he dropped her home, he gave her $50.

21. At school, she had dropped the $50 on the path. A girl found it and took it to Master Praveen the acting Head Teacher. The Master asked her how she got it, and she said it was for cleaning SB's van. He then arranged for her to see teacher Mala and teacher Sharma, both female teachers that Ruby trusted. Ruby told them everything about the incidents and later that day when her Dad came to the school he was told about it.

22. Ruby said that SB worked with her Dad and used to come to their house. She identified him in Court.

23. She went for a medical examination at the Korovou hospital on the 24th August.

24. Her father told us of his relationship with SB and how they used to visit each other in their respective homes. At SB's request he used to send his daughter Ruby to wash the van because SB used to be sick. He would take her to the farm to wash the vehicle. SB said he would give her some money. This arrangement went on over a few months. He stopped Ruby from going with him when he heardrumours that he was a bad man.

25. One day he went to the school to take Ruby her lunch. Master Praveen intercepted him and told him everything that had happened to his daughter. At a meeting with Master Praveen and teachers Mala and Sharma the whole story was told. Ruby pointed to her genitals and said "he did it". He said he was a strict father and didn't send her with SB again.

26. Ruby's brother said that he was at home one day in July when SB came and called Ruby out to come to his house to clean the windows. It was about 10 am. He called out from the road. Ruby had asked "Is Aunty home" and he had replied yes.

27. Master Praveen told us the story of what had happened at school. A $50 note had been found and given to him . He made enquiries and it was revealed that it was Ruby's and it had been given to her by SB. She told him initially that it was for washing his vehicle. His suspicions were aroused and he asked his lady teachers Mala and Sharma to speak to Ruby. They appeared to have a good relationship. Ruby told the two ladies everything and they told Master Praveen everything.

28. On the 14th July the father came to the school and Master told him what had happened. Father was angry and it was reported to the Korovou Police. The report was that SB had had sex with her on three different occasions.

29. Master said that on the day that the report was made, SB stopped him in the street and asked him to "save him".

30. The last witness for the prosecution was the Doctor who had examined Ruby in August 2013. She said that the child had reported to her that she had been sexually abused three times by a man but she didn't say when. She had examined the girl's genitalia and had found no evidence of sexual abuse. The hymen was intact. She said that in the case of a pre-pubescent girl (which Ruby was) an intact hymen is indicative of nothing because if it had been broken or stretched more than 72 hours before it would have healed. From her examination she was not able to say conclusively if there had been or had not been forceful penetration of the girl.

31. Lady and Gentlemen, that evidence brought us to the end of the prosecution case. You heard me explain to the accused his rights in defence and his counsel told me that he had given him the relevant advice. In defence an accused person has a choice. He can remain silent and say that the State has not proved the case against him to the required standard. He can give evidence from the witness box. In either event he can call witnesses if he wishes.

32. The reason for that is that, unlike the State, an accused does not have to prove anything. Whatever he or his witnesses might say is evidence that may or may not create a reasonable doubt in your mind about the strength of the State's case.

33. The accused elected to give evidence in the case. That is all evidence for you to consider.

34. SB told us in essence that he used to work on the farm every morning washing the cows from 4am to about 8.30am.

35. He denied having any sexual contact with Ruby in January 2014. In any event there was not enough room in the tank room to move around.

36. In June 2014 he did not have sex with Ruby and anyway there was no room in the copra room for them to do that. It was full of the cows' food.

37. He also denied having sex with Ruby in July 2014at his house. She had never come to his house ever.

38. He did have a vehicle but it was never taken on the road. It was not running properly and it had been parked for three years waiting to be fixed.

39. He had never asked Ruby to clean any vehicle and he had never asked her to clean windows. He had never given her money.

40. He had never asked Master to "save him" on the street.

41. He had never called Ruby from the road and in any event they wouldn't hear him.

42. Well that was all of the evidence Madame and Gentlemen. Remember that if you think what the accused has told you is true or may be true then you will find him not guilty. If you don't believe a word he says it doesn't necessarily make him guilty. The State still have to prove to you, so that you are sure, that he committed these crimes.

43. It is now time for you to retire. Your possible verdicts on each count is guilty or not guilty. All you have to find is whether SB had penetrative sex with Ruby on these occasions. She says there was penetrative sex. He says there wasn't any sex at all.

44. You are to tell me Lady and Gentlemen if the State has proved their case to the required standard.

45. You may now leave to deliberate but I will first ask Counsel if there are any matters they wish me to add or amend in this Summing Up.

P.K. Madigan
Judge

At Suva
30 September 2015