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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Crim. Case No: HAC 121 of 2015
STATE
v.
MOHAMMED SHARUK SHAMIM
Counsel: Mr. R. Kumar for State
Mr. M. Yunus for Accused
Date of Hearing: 29th February 2016, 1st and 2nd March 2016
Summing Up: 3rd March 2016
SUMMING UP
[Name of the victim is suppressed. The victim will be referred to as [A.A.]
Lady and gentlemen Assessors,
[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so, it is a matter for you whether you accept what I say, or form your own opinions. 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.
[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.
[3] The counsel for prosecution and defence made submissions to you about the facts of this case. It is their right as the counsel. Their submissions are not evidence. You heard the evidence of all witnesses adduced in court. It is a matter for you to decide which version of the facts to accept, or reject.
[4] You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
[5] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system, accused person is presumed to be innocent until he is proven guilty.
[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.
[7] Your decisions 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 about this case, outside of this courtroom.
[8] Your duty is to find the facts based on the evidence, apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
[9] The accused is charged with two counts of Rape and one count of Indecently Annoying Any Person. You must consider the evidence on each count separately and must not assume that if the accused is guilty of one count that he must be guilty of the other as well.
[10] Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent or if the person penetrates the vulva or vagina of the woman or girl to any extent with a thing that is not a penis without her consent, or if the person penetrates the mouth of the woman or girl to any extent with his penis without the girl's consent.
[11] The law says that a child under 13 years of age is incapable of giving consent for the sexual acts. It is an agreed fact that the complainant 'A.A.' was born on the 15th of May 2004. She had been below 13 years of age at the time of the alleged offences were committed. Therefore it is immaterial whether 'A.A.' consented to the sexual acts or not.
[12] According to the particulars of the offence given in Count No. 1, the accused penetrated the mouth of the complainant 'A.A.' with his penis. Therefore to find the accused guilty of Count No. 1, the prosecution must prove beyond reasonable doubt that:
It is not necessary to prove that there was full penetration. Slight penetration is sufficient to prove the element of penetration.
[13] According to the particulars of the offence given in Count No. 2, the accused had carnal knowledge of 'A.A.'. Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration. Therefore to find the accused guilty of Rape in Count No. 2, the prosecution has to prove the following elements beyond reasonable doubt.
[14] In Count No. 3, the accused is charged with the offence of Indecently Annoying Any Person. This offence is defined in law. A person commits an offence if he, intending to insult modesty of any person exhibits any object intending that object shall be seen by the other person.
[15] The particulars of the offence in Count No. 3 say that the accused with intent to insult the modesty of 'A.A' exposed his naked penis to her, intending that his penis can be seen by her. Therefore, to find the accused guilty for Count No. 3, prosecution has to prove the following elements beyond reasonable doubt.
[16] The complainant in her evidence said that the accused told her to put her penis in her mouth. Then she had put it in her mouth. You may first decide whether the complainant was truthful. Then you decide whether the accused exposed his penis intending that his penis can be seen by the complainant and that whether it was with the intention to insult her dignity and respect as a girl child.
Evidence
[17] Prosecution called the complainant 'A.A.' to give evidence first. In 2014 she had been in class 5. She had been living in Nausori with some people not related to them as they did not have a place to stay. There had been an aunty and 4 uncles. She called the uncles as 'Mama'. She knew one 'Mama' by name as Sharuk. She identified the accused as Sharuk.
[18] She said that something happened between September and November 2014 and that she felt shy to tell. She said that Sharuk asked her to put his private part in her mouth. She called Sharuk's private part as 'susu'. Then he had put it in her mouth. She said that he kept it in her mouth for about half a minute. Her brother had been playing outside. Aunty had gone to West. She said that she did not know whether Sharuk did anything else to her. She said that she had forgotten what happened thereafter as she was going to school and she was concentrating on her studies. She said that she told her mother when her father left for Japan. She cannot recall the dates her father went to Japan, she said. She said that it took long to tell her mother because her mother left her with her father and that she was staying with a stepmother. Stepmother had been looking after her. She had told her, and stepmother had told her father who was in Japan. She said she was having fever and stomach ache after the incident with Sharuk. Her 'susu' was paining, after the incident, she said.
[19] She said that 2 incidents happened but she could not recall what happened in the 2nd incident. 2nd incident had happened in the bedroom. Sharuk had been in the bedroom. She said that she did not know what Sharuk was doing in the bedroom. She said 2 incidents happened and Sharuk put his penis inside her mouth in the 1st incident. 2nd incident she had forgotten, she said. She said that she felt pain in the stomach and 'susu' after the 2nd incident. She had told her mother about both the incidents. She also had told the police about both the incidents.
[20] After refreshing her memory by reading her statement to police, she testified in court about the 2nd incident. 2nd incident had taken place in the room. Accused had put his private part into her private part. She had shouted as it was painful. Then the accused had put on his trousers and had gone outside. She also stood up and wore her trousers, she said. Then she had gone to have a bath because there was blood on her body and the trousers, she said. She pointed to her private part to show where blood was. Although her private part was paining she had not told the aunty as she was scared. She said that she did not know as to why she was scared.
[21] In cross examination she denied that she was staying with Sharuk and family only in January and February 2014. She said that she doesn't know whether her father got married in February 2014 as she was not staying with them. She said that in November she was staying with her father's sister. She said that first she was staying with her father's friend who is a police officer and then shifted to Sharuk's place and then to father's sister's place. From there she had gone to the stepmother. She also said that their house was burned down and that it was why they did not have a place to stay.
[22] She denied that she was living with her stepmother in September to November 2014. She said she was staying in Sharuk's place in that period. She said that her stepmother was present when her statement was taken by police. Stepmother had been telling the police what she told her. 'A.A.' said that she herself told the police about the incident.
[23] She said that her father is a good man and that they love each other. She had not told the incident to her father but to the stepmother. She cannot remember for how long she was staying at Sharuk's place. She had not told the incident to Sharuk's mother. She denied leaving Sharuk's place after the 1st incident. She said that both incidents did happen. She had not told Sharuk's mother as she was scared within herself. She said that she told about the 2nd incident after refreshing her memory from the police statement as she had forgotten. She denied that her father told her to give Sharuk's name. She said that she did not know whether her father was not in good terms with Sharuk and that she did not know that Sharuk did not like her father coming to his place.
[24] She said that both incidents did happen. She said that as her father was in Japan she told her stepmother. When her stepmother called her father in Japan, he had told them to wait for him to come to Fiji and that they will report. She had not told her class teacher in school about the incident as the teacher was a male.
[25] She had not told the incident to her best friend in class. She said that she would have told her if she was an elderly girl. She said that she cannot tell this to her younger brother. Sharuk had a sister overseas. She did not know whether she returned to Fiji in February 2014. When she was asked that she was not with Sharuk and family in September, October, November 2014, she answered 'no'.
[26] In re-examination she said that when the incident happened she was at Sharuk's place.
[27] The next witness was Shafina Hussein who is 'A.A.'s stepmother. She is married to Naushad Ali who is the father of 'A.A.', in a Muslim way, she said. She could not remember when she married him, but said that she thinks it was about 2 years.
[28] In 2015 she had been living in Nakasi with all the kids. In February 2015 the complainant' A.A.' had told her about the incident with one Sharuk. She said that she did not now Sharuk and that she saw him for the 1st time in court. 'A.A.' had told her that when she was living in Sharuk's place, Sharuk used to bribe her with candies to come to his room. She also had told her that he had asked her to take her clothes off. He had also put his pants down and had told her to sit on him. After that he had also told her to put it in her mouth. She said that she thinks that he had kept on doing it and had put sperm inside 'A.A.'. She had been bleeding and then he had told her to take her clothes and bed sheet and to throw them in the rubbish.
[29] She said that 'A.A.' was complaining about stomach pain and that her urine was burning. Then she had asked 'A.A.' whether something had happened. Then 'A.A.' had come out with this as to what happened between her and Sharuk. She then had called Naushad who was in Japan and had told him. Naushad had told her to wait till he comes to Fiji. As soon as he came, the following week they had reported the matter to police.
[30] In cross examination she said that she knew Naushad from 2014 but was not sure as to whether it was from February or March. She had made her statement on 12/03/2016.
[31] In her statement she had said what 'A.A.' told her. In that she had said; "...she told me that while she's in Manoca with aunty Nisha (father's friend) one Sharuk also staying with them showed her his sausage (penis). Sharuk told him to suck it and he penetrated his sausage (penis) on her two times in different occasions." When she was asked about the difference between what she said in evidence and what she had told the police, she said that she doesn't think that there is a contradiction and that she thinks it is the same but written differently.
[32] She denied that Naushad was not in good terms with Sharuk. She said that she did not know anything about Sharuk having a quarrel with Naushad at sister's house in Manoca. She said that she was staying with Naushad for 2 years by now. She said that she is not sure whether it goes back to 2014 February. Naushad's children also had been with her. She said that about 2 years would be about January or February 2014. From that time all the kids had been together.
[33] Answering a question by court she said that she thinks that in September, October and November, 'A.A.' was at Naushad's sister's place but she is not sure. 'A.A.' had told her the incident after she had been about 1 month with her. It was about after 3 months thereafter they had reported to police.
[34] Answering further questions by defence, she said that 'A.A.' was with her in whole 2014, but she was not so sure.
[35] In re-examination she said that she was not sure the exact dates that she was with Naushad. She said that she was at Naulu Road, Nakasi for about 1 year from now. She had stayed in different places. They were also in Sasawira before.
[36] The next witness was Naushad Ali who is the father of 'A.A.'. He had been residing at his sister's place in Manoca, Nausori in 2014. 'A.A' had been living in Manoca. During the period of September to November 2014, 'A.A' was staying at Nisha's place, he said. Nisha had been his friend. They became friends when Nisha was renting her sister's house, he said. At Nisha's house, her sons Shamir, Sharuk, Tazlim and her daughter Shabana had been living.
[37] When Naushad's wife went away leaving him, he had kept 'A.A' at his sister's place. Since there was not enough space there, he had asked Nisha to keep 'A.A' with her because he had to go to Japan for work. He had returned to Fiji on 02/03/2015.
[38] In February 2015 he had received a call from his wife. Wife had told him that something had happened to 'A.A.'. She had told him that 'A.A.' told her that Sharuk gave some sweets to her. Then Sharuk had put his penis in 'A.A.'s mouth and had called her to bed. On hearing that, he had told his wife to wait till he comes to Fiji to report to police. He had told his wife to wait because she was the de-facto wife and he is the legal father of the child, and also that she did not know Sharuk and family. When he returned to Fiji, he had reported the matter to Nausori police.
[39] In cross examination he said that whatever he said in court about what 'A.A.' has said was told to him by his wife and not by 'A.A.'. He said that Nisha is his friend and that he did not know whether Sharuk didn't like his friendship with Nisha. He said that he never had any fight with Sharuk regarding this. He denied having a quarrel with Sharuk at his sister's place.
[40] When it was suggested to him that Sharuk and family left his sister's place because Sharuk didn't like his friendship with his mother, he said that he did not know. He denied threatening Sharuk that he somehow or the other would send him to prison. He denied framing Sharuk.
[41] When he left 'A.A.' at Nisha's place, Nisha's daughter Shabana had been overseas. The day Shabana returned to the country, he had picked 'A.A.' to his de-facto wife. From that time onwards 'A.A.' had been living with his de-facto wife and at no time she returned to Sharuk's place after that, he said.
[42] The last witness for the prosecution was Dr. Kelerayani Namudu. You heard her qualifications and experience as a Medical doctor which was unchallenged. She had examined 'A.A.' on 13/03/2015. Her specific medical findings were that she did not find any physical marks or injuries on 'A.A', specifically on examination of her genitalia, she said. Her conclusions on findings of no physical sign of any injury did not mean any such assault did not occur, she said. She had come to that conclusion on her professional experience due to the time lapse between the incident and the time of examination of the child.
[43] In cross examination she said that her medical findings were normal female genitalia, no vaginal tear, no bruises or swelling at perineum. She explained that to you in layman's terms. She said that she did not specifically state the condition of the hymen. She said that therefore she cannot answer whether the hymen was intact. She said that in such cases it is prudent to talk about the hymen, but she did not mention that in her report.
That was the evidence for the prosecution.
Lady and gentlemen assessors,
[44] At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution at all times. The accused opted to remain silent and to call a witness on his behalf. You must not draw any adverse inference from his choice to remain silent and must give careful consideration to the evidence of the defence witness.
[45] Defence called Shabana Naz Nisha who is the sister of the accused to give evidence. She had been in Australia from 17/12/2013 to 26/02/2014. When she returned from Australia on 26/02/2014, her 3 brothers and the mother had been home at Manoca. She said that from the day she came back, that is from 26/02/2014 up to now, 'A.A.' was not staying with them. After she came back from Australia on 26/02/2014, she had never gone back to Australia again. She had brought her passport to Court.
[46] In cross examination she said that she doesn't know whether anything had happened to 'A.A.' in her absence. She said that she cares for her brother Sharuk and that she doesn't want anything bad to happen to him. When 'A.A.' was at her place, she had not been living there.
[47] In re-examination she confirmed that she returned to Fiji on 26/02/2014.
Lady and gentlemen assessors,
[48] You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
[49] The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box unchallenged.
[50] You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.
[51] You may also take into account the complainant's age, when you consider her evidence. If you find her evidence is truthful, it is not required for you to seek for corroboration.
[52] It is evident that the complainant did not immediately tell anyone about the incidents that she mentioned. She had not told Sharuk's mother. She said that she was scared within herself. She said that she did not tell the class teacher as he was a male. She said that she cannot tell her brother. She had not told her father. However, she said that she told her step mother later. Her step mother confirmed that 'A.A' told her. It is for you to decide whether her not telling others was justified. Whether her delay in telling her step mother is justified? When deciding that, you may also consider the complainant's age and the social background. Children do not have the same life experience as adults. Their understanding may be severely limited for number of reasons such as their age and maturity. They may be embarrassed and feel guilty about what happened to them. You may consider those factors when evaluating her evidence. If you find that the complainant was truthful and credible then you need not seek for corroboration of her evidence.
[53] You may remember when Shafina Hussain the stepmother of 'A.A' gave evidence, defence counsel in cross examination suggested that there was an inconsistency between what she said in court and what she said in the statement to the police. That was with regard to what 'A.A' told her about what Sharuk did to her. She said that there is no inconsistency and that it was the same thing written in a different way. You heard her evidence. You decide whether there is an inconsistency. If you find that there is an inconsistency, what you have to take into consideration is what the witness said in court and not what she said in the statement to police. However, you may consider whether that inconsistency affects the credibility of the witness.
[54] The complainant says that the accused told her to put his penis into her mouth. She said that she put it in her mouth. She also said that the accused put his private part into her private part, it was painful and also that there was blood in her private part and her trousers. She says that those incidents happened during the period in September, October and November 2014. Defence says that the complainant's father Naushad had framed this story against the accused as he had a quarrel with Sharuk over Naushad's relationship with his mother Nisha. Naushad says that he had no such quarrel with Sharuk and that he was in Japan when he was informed of this by his wife. Defence suggested to Naushad that he took the child away from Nisha's house the day Nisha's daughter came back to Fiji from overseas. Naushad agreed with that suggestion and also that 'A.A' was not taken back to Nisha's place thereafter. Nisha's daughter said in evidence that she came from Australia on 26th February 2014 and that from that day 'A.A' was not living there. She also said that she was not in Fiji when 'A.A' was staying at her mother's place and that she would not know if anything had been done to 'A.A'. On the above evidence, defence suggests that no crime was committed on "A.A.' by the accused during the period between September and November as charged as 'A.A.' was not at Sharuk's house during that period. However, the evidence shows that there is no dispute that 'A.A' had been living in Nisha's house at some point in time.
[55] After taking all the evidence into account you decide whether the accused did those acts on the complainant and whether the complainant was only inaccurate about the dates. If you find that the complainant was not credible and that the accused has not committed those acts, then you must find the accused not guilty. If you find that the accused has committed those acts, then you go on to decide whether those acts were committed on the complainant during the period that is mentioned in the information. If you decide that those acts were committed during that period, then you may find the accused guilty. Now what happens if you decide that the accused committed the crimes as alleged and that the prosecution has proved the elements of the offence or offences beyond reasonable doubt, but that the crimes were committed on a different period other than the period mentioned in the information? Then you have to consider whether the accused was prejudiced in his defence by the fact that a different time period was given in the information. If you find that any prejudice was caused to the accused in his defence by the fact that different time period on which the offence was committed was given in the information, then you must find the accused not guilty. However, if you decide that there was no prejudice caused to the accused in his defence by that difference of the time period, then you may find the accused guilty. You must consider each count separately.
[56] I have explained the legal principles to you. You will have to evaluate all the evidence, and apply the law as I explained to you when you consider whether the charges against the accused have been proved beyond reasonable doubt.
[57] Your opinions on the charges of Rape in Counts No. 1 and 2, and Indecently Annoying Any Person in Count No. 3 will be either guilty or not guilty
Lady and gentlemen assessors,
[58] This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
Priyantha Fernando
Judge
At Suva
3rd March 2016
Solicitors
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused
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