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State v Reddy - Summing Up [2015] FJHC 868; HAC223.2011 (6 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 223 OF 2011

STATE

V

JAGDISH CHAND REDDY

Counsel: Ms.S. Kiran for the State
Mr.J. Singh with Ms. Singh for the Accused

Dates of Trial: 3rd, 4th & 5thNovember, 2015
Date of Summing Up: 6th November, 2015

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So, if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

4. In other words you are the judges of fact. All matters of fact 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.

5. The counsel for Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Counsel. They were their arguments, which you may properly take into account when evaluating the evidence. It is a matter for you to decide which version of the facts to accept, or reject.

6. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I deliver my judgment.

7. On the matter of proof, I must direct you as a matter of law, that the Accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the Prosecution and never shifts.

8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the Accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

9. Your opinions must be solely and exclusively upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this Courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness's cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true.

10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

11. In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of Primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. The documents and other things put into evidence as exhibits may also tend directly to prove facts. Those facts are called primary facts.

12. But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from a contribution of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in speculation or in guessing.

13. As Assessors you were chosen from the community. You, individually and collectively represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

14. In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole.

15. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

16. The charges against Accused are as follows:

Statement of Offence

RAPE: Contrary to Sections 207 (1) (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JAGDISH CHAND REDDY on the 23rd of November, 2011 at Lautoka in the Western Division, penetrated vagina of SEREIMA LEWANIMAROU with HIS FINGERS, without her consent.

17. I will now deal with the elements of the offence. A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

18. The elements of the offence of Rape in this case are that:

a. the Accused, JAGDISH CHAND REDDY

b. penetrated the vagina of SEREIMA LEWANIMAROU to some extent with his fingers

c. without SEREIMA LEWANIMAROU's consent.

19. Insertion of finger fully into vagina is not necessary. Slightest penetration is sufficient to satisfy this element.

20. Consent as defined in Section 206 of the Crimes Decree, 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. A person's consent to an act is not freely and voluntarily given if it is obtained —

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

22. A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The Complainant in this case is over 13 years of age at the time of the alleged incident and therefor she had the capacity to consent.

23. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the Accused-person and connect him to the offence that he is alleged to have committed.

24. Proof can be established only through evidence. Evidence can be direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the Complainant was a witness who offered direct evidence as to what she saw, heard or felt.

25. Now I am directing you on admissibility of recent complaint evidence in a case involving offences of sexual nature. That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. Recent complaint evidence is admissible so far as it is relevant to test the consistency and credibility of the Complainant's story. Content of the complaint is not evidence. In other words, the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the Complainant.

26. The complaint need not disclose all of the ingredients of the offence but it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the sexual conduct, provided it is capable of supporting the credibility of the complainant's evidence.

27. I will now remind you of the Prosecution and Defence cases. In doing this it would not be practical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

28. First witness for the Prosecution is the Complainant Sereima Lewanimarou. On 23rd November, 2011 around 5 p.m. she is on her way to the shop to buy matches. She meets an unknown guy on the road. He shakes hands with her and says he is from Nadroga. She asks him if he has matches in his house.

29. Accused offers matches. She asks him to come to the back of her house where she used to cook to lit fire for her so she can return the matches. They start talking to each other. During the conversation he asks her if she has children. She says 'no'. He introduces himself as 'Brother Jack'a prayer worrier belonging to the New Methodist Denomination. He then asks if she wants to have children. She says 'yes'. He then say she could pray for her to have children. She agrees as she believes him.

30. They start conversation outside the house. She thinks it is better they go inside the house for prayer and she invites him inside the house. Before coming inside the house he explains the plan of the house. She asks him "how do you know my house is like this?"

31. Inside the house they hold hands. He asks her to close her eyes and turn her back to him for him to start praying. He starts praying. He is mumbling and starts with touching her back. He asks her to lift her skirt. She complies and lifts the skirt up to the end of the stomach. Then he asks her to take off her panty. He asks her to lie down and lift her legs up. Then he moves her panty to a side and inserts his three fingers into her vagina saying or mumbling something. She asks him why he is doing this. He says he is inserting Holy Spirit into her body. She believes him much. He does that for five minutes. She is afraid when he is doing this. She realises she should not have allowed him to touch her body. She said "I thought he will pray on my stomach". He asks her to turn her back again. Then he slaps on her buttocks as he was playing with her. She does everything she is asked in the belief in him. Then he stands up and asks her to hug each other. Then he asks her to give him a kiss. She refuses. She starts crying because she knows what he did to her was wrong.

32. They come outside the house. He says he is going to come back again on the next day to complete his prayer. She agrees.

33. After he had left she is feeling guilty of what had happened to her while her husband is away. She goes to her neighbour, Wainoke Jiu, and tells her what had happened. Wainoke belongs to New Methodist Denomination. She says what he had done is not godly.

34. She wants to tell her husband what he did. But she tells her only a part of what had happened when her husband comes home after work. She does not tell her husband that he inserted his fingers into her vagina because she fears that her husband would do something to her.

35. She wants her husband to catch him when he comes on the following day. But he is busy and asks her to give him a call if the man comes again.

36. Wainoke talks to her husband who is a pastor of the New Methodist Denomination. Complainant realises what that man did to her was not right. She tells Wainoke that he is going to come back the next morning. They plan to trap him inside the house.

37. On the following morning his husband leaves for work. Complainant sees the man coming towards her house. On his way he shakes hands with her husband. Husband leaves for work. He comes home. When he is inside the house, Complainant informs her neighbour, Wainoke. Wainoke comes and talks to him. While Wainoke is talking to him Complainant goes to the prison across the road and informs the officers. Two prison officers come and get hold of him. When he was questioned, he admits Complainant's allegation.

38. Complainant said that she could identify the person as he had a peculiarity in his right eye (crossed eye). He had remained in her house for four hours. Complainant identified the Accused as the man who had come to her house to do all these things to her.

39. In cross examination, Complainant admitted that the Accused did not apply any form of pressure, force or violence. She was not intimidated. She submitted herself voluntarily and allowed him to do whatever he wanted in the course of his prayers. But she refused to kiss him.

40. Complainant also admitted that before inserting his fingers into her vagina, Accused had informed her he is going to do. She said she did not shout or make any alarm because she knew that it was her mistake for allowing Accused inside the house to do the prayers without husband's consent and top of that he was shocked at what he did.

41. You saw Complainant being confronted by the Defence Counsel with her own statement given to Police on 24th November 2011. Series of assertions was put to her on the basis that her evidence in Court is contradictory or inconsistent with her previous statement.

42. She denied demanding money from the Accused to save him from police.

43. In re-examination, she said that she allowed him to insert his fingers into her vagina in the belief that it was part of his prayers.

44. Second witness for the Prosecution was Wainoke Jiu. She said that on the 23rd November, 2011 around 6 .00 p.m., Complainant came to her house to relate what had happened to her.

45. Complainant had told her that the man who had come to her house had prayed for her and had touched her body and private part. In Fijian Complainant had said 'vakasilima', meaning bathed. The man had told Complainant that he will come the next morning to finish his prayers. She then told Complainant that she wants to see him so that she could take him to the Police for what he had done. She told her daughter that if he comes again she has to go to prison to bring policemen.

46. She wanted to see this man because she feared for her life as she lived alone. She was curious to see him because she too belonged to the same religious denomination. She is the wife of a pastor of the same denomination.

47. On the following morning she saw the suspicious man approaching the Complainant's house. She told her daughter to bring down the police. When she entered the Complainant's house, she saw him sitting in the sitting room. She spoke to him. He introduced himself and said that he belonged to the New Methodist Denomination and that he is a prayer warrior. Then she told him that it was the first time she had seen him and what he is doing is not right and not godly. He was guilty and felt ashamed looking down quietly. Then the prison officers came and got hold of him.

48. She said he saw him for twenty five minutes. She described peculiarity in his one eye. She recognised the Accused in the doc as the man who had come to Complainant's house that day.

49. Under cross examination she said he saw only one prison officer coming inside the house and beating the Accused. She admitted that she had the opportunity to report the matter to Police on 23rd but she did not do so because she wanted him to come again and then report to Police.

That Ladies and Gentlemen was the case for the Prosecution.

50. When the Prosecution had closed its case, you heard me explain to the Accused his rights in defence. He could remain silent and say that the Prosecution had not proved the case beyond reasonable doubt; he could give evidence and be subjected to cross examination and call witnesses on his behalf. I explained his rights because I am required by law to do so. Not because he had to prove anything in this case.

51. The Accused elected to remain silent and not to give evidence or call witnesses on his behalf. That is his right. You must not draw any negative inference and think that he did not exercise his rights because he is guilty.

Analysis

52. The Prosecution based its case substantially on the evidence of the Complainant. If you are satisfied that the evidence Complainant gave in Court is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion.

53. Please remember, there is no rule in Fiji for you to look for corroboration of Complainant's story to bring home an opinion of guilt in a rape case. The case can stand or fall on the testimony of Complainant, depending on how you are going to look at her evidence.

54. You may, however, consider whether there are items of evidence to support the Complainant's evidence if you think that it is safe to look for such supporting evidence. Corroboration in that sense is, therefore, only to have some independent evidence to support or to test the consistency and credibility of the victim's story of rape. You can consider in this regard the evidence of Wainoke.

55. Considering all the evidence led in the trial, if you are satisfied that Complainant had told truth and her evidence is believable, then you have to consider whether the Prosecution has discharged its burden and proved each element of the charge beyond reasonable doubt.

56. There is no issue in this case with regard to the identity of the Accused. Defence Counsel cross-examined the Prosecution witnesses on the basis that the person who had come to the Complainant's house on the day of the alleged incident is the Accused. Accused had visited the Complainant's house on two occasions and had spent considerable time with her. There was reasonable foundation for the Prosecution witnesses to identify him in the doc. Both Prosecution witnesses identified the Accused.

57. Evaluation of credibility of witnesses is entirely a matter for you as judges of fact. In order to assist you, I will pick some salient items of evidence which you will analyse to test the credibility of a witness. However, you are free to use your common sense and come to your own finding.

58. You have to consider how probable or improbable is the evidence given by Complainant. That is whether what the witness was talking about in her evidence is probable or improbable in the circumstances of the case.

59. Complainant said that she allowed the Accused to touch her body and even allowed him to insert his fingers into her private part in the belief that those acts formed part of his prayer aimed at giving a baby to her. It was the first time she had met the Accused. She had totally believed his words as a woman in need of children. Apply your common sense as members of the community in Fiji to consider if her conduct is believable in the circumstances of this case and form your own opinion.

60. Both Prosecution witnesses had the opportunity to report the matter to Police on 23rdof November 2011. Complainant also had the opportunity to point out the Accused to her husband on 24thas he was just leaving for work. But they chose not to do so. Wainoke said that she wanted him to come the next morning so that police could catch him. They had talked about the scheme to trap him. Accused had indeed been caught as planned. You consider whether their conduct is probable.

61. And consider this scenario as well. Complainant had not told the complete story to her husband on 23rd. She said that she was scared of her husband and knew that allowing the Accused inside her house in absence of her husband is wrong.

62. Soon after the incident, Complainant had gone to her neighbour, Wainoke, to relate what had happened to her. Wainoke gave evidence in Court and confirmed that she received the related information from the Complainant. In light of general direction I have given on recent complaint evidence, you consider what weight you should attach to Complainant's evidence.

63. You have to consider if there is a reason or motive for the Complainant to make up a story against the Accused. Defence Counsel was cross examining Prosecution witnesses on the basis that Complainant's attempt to extort $ 10,000/- from the Accused had prompted her to make this allegation. Complainant denied having made such a demand. Waynoka had not seen such a demand being made. It is up to you to decide whether such a motive is made out.

64. Ladies and Gentleman, in your exercise to test her credibility, you have to consider how consistent Complainant was in her evidence. That is whether she was telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere.

65. Placing before the Complainant the previous statement to Police, Defence Counsel highlighted number of so called contradictions and omissions to prove that she has not been consistent. I am not going to deal with each and every item he highlighted during course of the trial since the Defence Counsel, in his closing remarks, has already refreshed your memory on almost every one of them.

66. Bear in mind, statements made to police are not evidence at all. They can only be used to show that the witness has stated something else to Police and his or her statement is not consistent with evidence given in Court. I will give general direction as to how you should use previous statements to evaluate consistency and credibility of a witness. You consider whether what the Complainant has told Court contradicts with her earlier version and those contradictions had discredited the Prosecution case.

67. You must consider whether such contradictions are material and significant so as to affect the credibility or whether they are only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another, for example, by a police officer in recording the statement where the witness is alleged to have given that version.

68. You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanour, the way he/she faced the questions etc. in deciding on a witness's credibility.

69. You must also consider the issue of omission to mention something that was adverted to in evidence on the same lines. You must consider whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave, you may even consider that to be a contradiction so as to affect the credibility or weight of the evidence or both.

70. In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that, you must bear in mind that the evidence comes from human beings. They cannot have photographic or video graphic memory. All inherent weaknesses that you and I suffer insofar as our memory is concerned witness also can be subjected to same inherent weaknesses.

71. Under cross examination, the Complainant admitted that the Accused confessed to prison officers after he was beaten up by them. I direct as a matter of law that since the confession has not been tested for its voluntariness, fairness and constitutionality by a court of law, it is inadmissible in evidence. You must totally disregard it.

72. You watched Prosecution witnesses giving evidence in Court. What was their demeanour like? How did they react to being cross examined and re-examined? Were they evasive? How they conducted themself generally in Court? It is up to you to decide whether you could accept their version.

73. If you are satisfied that the version of the Prosecution is credible and believable, then you have to be satisfied whether each element of the offence of rape has been proved beyond reasonable doubt.

74. If you believe the witnesses of the Prosecution, only issue remains to be decided is whether the Accused penetrated Complainant's vagina without her consent.

75. I will repeat the element dealing with consent again as it is extremely important you apply the facts of this case to the definition of the offence.

76. As defined in Section 206 of the Crimes Decree, 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.

77. A person's consent to an act is not freely and voluntarily given if it is obtained —

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

78. There is no evidence in this case that the consent was obtained by force or by threat or intimidation or by fear of bodily harm or, by exercise of authority or by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

79. Complainant clearly said, under cross examination, that she was never subjected to any of those conditions when she allowed the Accused to penetrate her. The only issue to be decided now is whether the consent was obtained by the accused making false and fraudulent representations about the nature or purpose of the act.

80. The Accused had allegedly told the Complainant that he is a Brother and prayer warrior of New Methodist Denomination and he can pray for her to have a baby. She had believed him and had accepted what he said and had allowed him to pray for her. In the course of prayer, he inserted his three fingers into her vagina. Complainant described sequence of event that took place in her evidence which I have summed up to you. You have to consider carefully whether the Accused had made a false and fraudulent representation by word or by conduct as to the nature or purpose of the act he is going to perform on her body. Had she given her consent to the Accused to pray for her with the full knowledge that his prayer would include inserting his fingers into her vagina? Was the Complainant misled or deceived by words or by conduct of the accused and gave her consent?

81. Bring the common sense into the Court room and apply it to factual scenario unfolded in the course of trial before making your decision.

82. Remember, the burden to prove that the consent was obtained by false and fraudulent representations about the nature or purpose of the act rests on the Prosecution. Accused is under no obligation to prove that he did not make false or fraudulent representations to obtain her consent.

83. If you accept the Prosecution version of events, and you are satisfied that the Prosecution has proved the case beyond reasonable doubt, so that you are sure of Accused's guilt of the charge you must find him guilty. 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.

84. You may now retire to deliberate on the case, and once you have formed your opinions, you may inform our clerks, so that we could reconvene, to receive the same.

85. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
6th of November, 2015

Solicitors: Office of the Director of Public Prosecution for the State
Samusamuvodre & Sharma Law