IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 90 of 2014

STATE

v.

AVITESH RAM

Counsel:  Ms. S. Lodhia & Mr. E. Samisoni for State
Ms. L. Raisua for Accused

Dates of Hearing:  22nd, 23rd and 24th February 2016
Date of Summing Up: 25th February 2016

SUMMING UP

Lady 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 the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence counsel and State Counsel. But 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 opinion 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 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 proved 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]. 	You have a copy of the information with you. The accused is charged with one count of Indecent Assault and one count of Rape. 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]. 	Now I will explain to you the elements of the offence of indecent assault that the prosecution has to prove beyond reasonable doubt to find the accused guilty of the same.
(1) 	The accused
(2) 	Unlawfully, and
(3) 	Indecently
(4) 	Assaulted the complainant
[11]. 	The word unlawfully simply means without lawful excuse. Indecently assault means that the act must have some element of indecency and that right minded persons would consider the conduct indecent. Complainant Josephine said that the accused touched her chest, her breasts and her private part for which she did not agree. If you accept that the accused did so, you decide whether those acts were indecent as I explained to you.
[12]. 	On count No. 2, the accused is charged with Rape. 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. The particulars of the offence say that the accused penetrated the vagina of the complainant Josephine Ashwin Chand with his fingers without her consent. The elements of the offence of rape that the prosecution has to prove beyond reasonable doubt to find the accused guilty are;
	1. The accused penetrated the vagina of the complainant with his fingers.
	2. without her consent
	3. He knew or believed that she was not consenting or did not care if she was not consenting.
[13]. 	For the accused person to be found guilty of Rape, the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.
[14]. 	Also in count No.2, it is not necessary to prove that there was full penetration of the vagina with his fingers. Extent of the penetration is immaterial.
[15]. 	Where the consent is obtained through fear or by threat, then that is not consent. The defence alleged that she did shout so that her grandmother could hear. Her not shouting or not running to her grandmother next door does not necessarily mean that she consented. Different persons may act differently in desperate situations. You decide whether she consented to the sexual acts or not. However, it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to insert his finger into her vagina anyway.
The Evidence 

[16]. 	Prosecution called the alleged victim Josephine Ashwin Chand to give evidence first. She had been 16 years old in March 2013. On 15th March 2013, she had been residing with aunty Shabnam, Ashant and Avitesh. Shabnam had been her step father's wife. Avitesh and Ashant had been Shabnam's sons.
[17]. 	On 15/03/2013 between 1 – 2 am she had been sleeping in the bedroom when she heard Avitesh coming home. She said that Avitesh came drunk. He had been talking to his mother Shabnam. She had gone back to sleep. After a while she had felt somebody on top of her. When she pushed that person away she had seen his face. He had been Avitesh. When she pushed him, he had forcefully touched her private part and poked his fingers into her vagina. She said that she did not agree for him to do that. This had happened for about 20 minutes. Ashant who was 6 years old then had been there in the bedroom. Although she shouted nobody turned up to help her, she said. Shabnam had not been in the room. Once, Shabnam had come to the room and had pushed Avitesh on to her. Shabnam had also sworn at her. After swearing she had again gone out of the room.
[18]. 	She said that there was a table lamp in the bedroom and kitchen light also had been on. The light was enough to see each other and to pick things from the room, she said. She had seen him for about 20 minutes. Then she had pushed him away and had gone outside the room to the sitting room. Then Shabnam had come and pulled Avitesh out of the room. Then Shabnam and the son had gone to sleep.
[19]. 	Next morning she had gone to her grandmother's house which is in the same building separated from a partition. She had told the grandmother what Avitesh did to her. Grandmother had then told her to tell mom and report the matter to police. She had told her mother on 17th March what Avitesh did to her. Mother had been in the West and had come back. She said that there was a DVRO against the mother on a complaint made by her. Mother had got the DVRO cancelled and had reported the matter to police.
[20]. 	She said that she did not report to police as she was afraid and also as she did not know what to do. She said that she was scared as Aunty Shabnam told her that she would smack her if she told someone about this.
[21]. 	She said that she was in good terms with Aunty Shabnam before the incident. She did not know Avitesh very closely, she said. After the incident she had been residing at grandmother's place.
[22]. 	She said that she did not like what was happening to her and she was afraid at the time of the incident. Only Avitesh, Ashant and Aunty Shabnam had been there when the incident happened. She identified the accused as Avitesh. After her mother came, she had made a statement to police.
[23]. 	In cross examination she said that Girdhar Lal was the de-factor partner of her mother in 2013. Shabnam had been Girdhar Lal's legal wife.
[24]. 	In the beginning of 2013 she had been living with her mother and Girdhar. She had left her mother to Shabnam's house as her mother had assaulted her and told her to move out of the house. She had reported against her mother to police. She had called Shabnam at the police station and Shabnam had agreed to take her in. She said that now she has a child. She denied that her child's father is Girdhar.
[25]. 	Answering questions about the bedroom where the incident took place, she said that there were 2 beds in the room, one double bed and a small bed. There had been a chest drawer and a closet. She said that Shabnam's bedroom is right next to the dining room.
[26]. 	Usually dining room light is kept on in the night, she said. Bedroom door is kept open. She said that a table lamp was there in the bedroom. Ashant had been on the other bed. She said that she told that to the police.
[27]. 	She said that she could not run away from the house in the night as the grill was locked. She had shouted. The house is situated in G2 estate and she said that only one house is close to Shabnam's house.
[28]. 	She said that she was afraid to go to the police alone. She said that she took Aunty Shabnam's help when she reported to police against her mother previously. She said that she told her mother the next day but Shabnam did not hit her although she was in grandmother's house which is next door. She said that she did not come out of grandmother's house.
[29]. 	Although she was afraid, her mother had told her to stay at grandmothers since they had a DVRO. She said that Avitesh touched her breasts and poked his fingers into her vagina. She said that the incident happened around 1am. When she went to the sitting room she had seen the time was 1.20am. She said that Avitesh has a sister named Kusbhu. She denied that Kusbhu and her 2 children were in that house that night and denied that Avitesh left with the sister to Nayau Street that night.
[30]. 	The next witness for prosecution was Seshli Kumari, the mother of Josephine. She said that on 17/03/2013 she had just called her mother-in-law. Then mother-in-law had told her that Josephine wanted to talk to her. Josephine had told her that on 15th March about 1 – 2am when she was sleeping at Shabnam's house, Avitesh had come beside the room. On questioning Josephine, she had told her that Avitesh had poked his fingers into her vagina and touched her breasts. Witness had felt that Josephine was crying and frightened. She had felt bad and worried as Josephine is her only daughter. On 25/03/2013 she had come to Lautoka and had talked to Josephine again. She had met Josephine at CWM hospital. Josephine had told her that Avitesh poked his fingers into her vagina and touched her breasts and when she was trying to push him, his mother had pushed Avitesh back on top of her. Avitesh's mother is Shabnam Lata, she said. She said that Josephine was frightened and crying and did not want to talk to anybody. She had taken her to police station to report the matter. She said that she could report the matter only on 25th because there were some orders between her and Josephine in the Magistrate's Court.
[31]. 	In cross examination she said that she did not like Josephine living with Shabnam. She was not in good terms with Shabnam, she said. She said that Shabnam is the one who told her daughter to take the DVRO against her. Shabnam and Girdhar had been still legally married in 2013. She said that she knew that Shabnam and Girdhar were fighting for this house. She denied that she harassed Shabnam over the house. She said that her daughter could have stayed with her sister at Narere instead of living with Shabnam. She said that all what she can tell is what Josephine told her and that she was not present when the alleged incident happened. She denied that she with her daughter are making up these complaints.
[32]. 	The last witness for the Prosecution was Vinay Kamal Singh. He is a taxi driver. His wife is Kusbhu Lata. They have married in 2009. He had been residing with his wife and two daughters at No. 66 Nayau Street in March 2013. 
[33]. 	Avitesh is his brother-in-law. On 15/03/2013 he had gone home after 10pm after work. He said that Avitesh did not come to his house on 15/03/2013 about 1am. Only he and his family had been at home. He said that he never went to Avitesh's house to drink grog. His relationship with Avitesh had been good.
[34]. 	On 08/04/2013 his wife had received a call from her mom to come to the Raiwaqa Police Station. He had gone with his wife. Upon arrival at the police station he was informed that Avitesh was being charged for rape, he said. He was to give a statement that Avitesh was with him. That was asked by Shabnam. He had refused as he was not there.
[35]. 	In cross examination he denied that he was driving Girdhar Lal's taxi. His wife Kusbhu is Shabnam's daughter. He said that he separated from Kusbhu in December 2013. He is not divorced yet. He had been at the police station when his wife made the statement to police. He said that he had no idea as to what she said in her statement. He said that he did not know what statement his wife was going to give as they were not supposed to give a false statement when they were asked to. He said he separated from his wife in December 2013 and that he gave his statement to police in the month of December 2013 stating that his wife had given a false statement. 
[36]. 	He said that Shabnam was in good terms with him but at times there were fights. He denied driving a taxi for Girdhar in March 2013.
[37]. 	He denied that Avitesh used to tell him off because he did not provide for the sister. The problems had been when Avitesh comes home drunk, he said. He said that Avitesh did not come to his place at Nayau street in the night of 15/03/2013.
That was the evidence for the prosecution.

Lady Assessors,
[38]. 	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. He could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. He also called two witnesses on his behalf. You must give their evidence careful consideration.
[39]. 	Accused in his evidence said that on 15/03/2013 he went home at about 10.30pm. Only his mother and small brother had been there. He had complained about food. Mr. Virendra Singh had come to have grog with him. After having grog he had gone to his sister's place at No. 66 Nayau Street at about 12 midnight. 
[40]. 	Next morning he had seen Josephine with her step dad Girdhar Lal. He said that he was angry with his mother because she cannot cook food nicely. He had gone to sister's place as the mother had told him that his sister can tackle him. His brother-in-law Vinay had come and picked them. He said that nobody wants him and that he cannot go to anyone else's place.
[41]. 	He said that he heard what Josephine said in court. Nobody can enter Mom's room as it is every time locked, he said. He said that he did not touch Josephine, did not touch her breasts or poke his fingers into her vagina.
[42]. 	In cross examination he said that only his mother and brother lived with him, and Josephine was not living in their house. He said that he was having grog with Mr. Virendra Singh. He said that his mother and them were at home and that they do not drink grog.
[43]. 	When he was asked that he told the police that Josephine was sleeping inside the bedroom, he said that he has no idea. He said that Virendra comes to his house every time. He denied entering Josephine's bedroom. He denied going on top of Josephine and touching her breasts. He denied touching her private parts. He said Josephine could have shouted loudly if he did that. He denied his mother pushing him on to Josephine. He said that there was a big problem about the house. He said that he is not afraid of criminals, only god. He denied making Shabnam lie to police to save him. He denied making his sister lie. He denied making up a story.
[44]. 	The next witness for defence was Kusbhu Lata Ram who is the sister of the accused. Her husband is Vinay Kamal Singh. She had gone to her mother's house at about 6pm on 15/03/2013. Avitesh had not been at home. Avitesh had come home at about 10.30pm. Her mother had not left food for him, she said. Avitesh was angry on her mother as he was hungry, she said.
[45]. 	Then she had told Avitesh to stop fighting and to go to her house with her. She had called her husband and husband had come and picked them. At her house her husband and Avitesh had been drinking till late. She said that she did not see anyone else at her mother's place. Her mother had told her that she helped Girdhar Lal's step daughter Josephine. She said that she was angry with her mother for helping Josephine. She said that her husband Vijay was a taxi driver and was driving for one company.
[46]. 	In cross examination she said that she loves Avitesh as her brother and would do anything for him. She would not want to see Avitesh in prison. When it was suggested to her that Josephine was staying at her mother's place, she said that she was not sure and that she never entered the house. She said that she told the police in her statement that she and her husband did not go anywhere and stayed at home on 15/03/2013.
[47]. 	She also admitted that she told the police that no visitors came to her house on 15/03/2013. She also admitted that she told the police that Shabnam asked her to give a false statement to say that they were at Shabnam's place on 15/03/2013 and that Avitesh came to her house that day. She said that police and her husband told her that her statement did not tally with her husband's and they both went and made statements.
[48]. 	The last witness for defence was Sadhna Shabnam Lata, the mother of the accused. She said that on 15/03/2013 she was living with his son Ashant, Avitesh and Josephine in her house. Her husband had been staying with Josephine's mother. Josephine had been living with her for 2 weeks. Josephine had come to live with her after she had a fight with her mother Seshli. Seshli had chased Josephine away from the house and Josephine had no place to go. She had brought Josephine home.
[49]. 	Josephine had used her bedroom. Avitesh normally sleeps in the living room, she said. She said that there is one light in the bedroom which is an energy saver bulb. No other lights inside the bedroom, she said.
[50]. 	On 15/03/2013 around 10pm, her son Ashant, her daughter, Mahen Lal and Josephine had been at home. They had been talking outside the porch. Josephine had been in the bedroom. After 10pm Avitesh had come home with one Virendra Singh to drink grog. They had few bowls, she said. After that Avitesh had come inside the house looking for food. She said that the food which she cooked had finished. Avitesh had got angry with her. His sister had told him not to argue and to go to her home. After that they had left her house, she said. Avitesh had not come home that night. Kusbhu's husband had come and picked them. Next morning she had seen Avitesh by 11am. When Avitesh left in the night, Josephine was in her room, she said. Nothing else had happened that night.
[51]. 	Next morning Josephine had been at home. She did not leave her house, she said. After about 1 week she had seen something between Josephine and her husband. Police had come and taken Josephine from her house after 1 week. She said that police took Josephine because Josephine's mother had reported that her daughter is with her husband at Shabnam's house. Josephine and her husband were at the back of the partition sleeping early morning when the police came, she said. She had separated from her husband in 2010. There had been issues about the house. There had been a court case to remove her from the house, she said. Seshli and her husband had wanted to remove her from the house.
[52]. 	In cross examination she said that her husband left her for Seshli. She said that she had no bitterness because of that relationship. She said Josephine was in good terms with her and Josephine treated her as the stepmother. She said that she loves Avitesh and if he does wrong she would punish him. This allegation has brought embarrassment to the family. She denied that Avitesh was at home between 1–2 am on 15/03/2013 with her and Josephine. She denied seeing Avitesh on top of Josephine. She denied pushing Avitesh back on to Josephine. She denied that Josephine called for help. She denied asking Kusbhu and her husband Vinay to lie to police. She denied lying in Court.
That was the evidence for defence.

 Lady Assessors,

[53]. 	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.
[54]. 	 The written agreed facts are before you. Those facts are agreed by the parties, and you may accept them as if you have heard them lead in evidence from the witness box unchallenged.
[55]. 	You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. For example, witness Kushbu in her evidence in court admitted that in December 2013 she told the police that Shabnam her mother asked her to lie to police that on 15th March 2013 Avitesh came to her house. She said in court that her husband forced her to make that statement in court. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However, you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.
[56]. 	I must also give you a direction on identification. In this case the defence questioned Josephine on identification of the accused that night.
[57]. 	When an accused has been identified by a witness and when that evidence of identification is challenged by the accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.
[58]. 	In assessing the evidence on identification, you must take the following matters into account.
Whether the witness has known the accused before?
	1. In this case witness Josephine had been living in the accused's house for more than a week. It is also an agreed fact that Josephine was staying in Shabnam's house. Witness Shabnam said that Josephine was staying in her house for 2 weeks. Therefore Josephine knew that accused before.
	2. For how long did the witness have the accused under 
	Observation? And from what distance? Was it more than a fleeting glance? In this case according to the witness Josephine, accused had been in her room for about 20 minutes and also accused had been on top of her.
	3. Did the witness have any special reason to remember? 
	4. In what light was the observation made? 
	According to Josephine there had been a table lamp in the room and kitchen light was also showing. Defence witness Shabnam Lata said that they did not have any other light in the bedroom but got a tube light which had an energy saving bulb.
	5. Whether there was any obstacle to obstruct the view? 
	Josephine said that there was no obstruction and it was clear.
[59]. 	However, when you consider these questions when assessing the identification, you must also consider the reliability and the credibility of the above witnesses.
[60]. 	The complainant Josephine had told the incident to her grandmother and then to her mother the next day. It was confirmed by her mother in her evidence. That may show the complainant to be consistent and it may enhance the credibility of the complainant. However, the fact that the complaint was recent cannot be taken as corroborative evidence. You decide whether Josephine is a reliable witness or not. If you decide that she is a reliable and a credible witness, then you need not seek for corroborative evidence. Although the complainant told her mother the next day, the report to the police was made later. It was evident that there had been a Domestic Violence Restraining Order (DVRO) against Josephine's mother on a complaint made by Josephine. The evidence was that Seshli had to get the DVRO vacated to be in contact with Josephine. You decide whether the delay in reporting to the police was justified in the circumstances.
[61]. 	May I now direct you on the defence of Alibi. Defence of Alibi means, the accused takes up the position that he was not at the crime scene but elsewhere at the time the crime was committed. The accused Avitesh says that he was at his sister Kushbu's house at the time that Josephine alleges he committed the crime. Prosecution witness, Kushbu's husband Vinay said in evidence that they never went to Avitesh's place that day and that Avitesh never came to their house that night. He also said that Shabnam wanted them to make false statements to the police saying that Avitesh was in their house, which he refused. Defence called Shabnam and Kusbhu to show that Avitesh was at Kusbhu's house that night. You heard evidence of the witnesses for the prosecution and the defence on this issue. Therefore, you decide which witnesses are truthful and which are not. If you accept the version of the defence, you must find the accused not guilty. However, if you do not accept the defence version, that alone does not mean that the accused is guilty of the charge because the burden to prove the accused persons guilt beyond reasonable doubt remains with the prosecution at all times. It is for the prosecution to prove beyond reasonable doubt that the accused committed the crime and not for the accused to prove that he was elsewhere.
[62]. 	You may remember when the defence witness Shabnam Lata gave evidence she said that Josephine was having an affair with Girdhar. What you have to consider is whether the accused committed the alleged offences as charged and whether the prosecution has proved the elements of the offences charged beyond reasonable doubt, not whether the complainant had any other affairs.
[63]. 	The complainant says that the accused touched her breasts, touched her chest and poked his fingers into her vagina and that she did not agree to that. The accused says that Josephine was not in their house that day and also that he was at his sister's house at 1.00 am, the time alleged to have committed the offences. Defence witness Shabnam says that Josephine was at home in her bedroom, but that the accused left for Kusbhu's house. Kusbhu says that although she went to the accused house, she did not see Josephine there. She also says that accused went to her house that night. Witness Vinay Kamal Singh says that Avitesh did not come to their house that night and that Shabnam wanted them to lie to the police that Avitesh came to their house.
[64]. 	 Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you. You must decide which witnesses are reliable and which are not. You observed all the witnesses giving evidence in Court. You decide which witnesses were forthright and truthful, and which were not. Which witnesses were evasive or straight forward? You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanor in arriving at your opinions. 
[65]. 	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.
[66]. 	Your opinions on each count will be either guilty or not guilty. 
Lady Assessors,

[67]. 	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 person. 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
25th February 2016

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused.

Re-direction

Lady Assessors, I gave you a summary of evidence on all the witnesses. May I also tell you that when Josephine gave evidence, in cross examination she said, that "I was afraid, I told my Mom and she told me to stay there since we had a DVRO between us she won't be able to do anything. I had no other place to go and live."

Priyantha Fernando
Judge