IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 342 of 2016

STATE

v.

AP

Counsel:		Mr. M. Vosawale with Ms. S. Sharma for State
			Mr J. Reddy for Accused
Hearing:		25th, 26th September 2017	
Summing Up: 	27th September 2017

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SUMMING UP
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1.	The name of the complainant and the accused are suppressed. 

2.	The hearing of this case has now reached to its conclusion.  It is my duty to sum up the case to you. You will then retire to consider your respective opinions. 

3.	Our functions are different.  It is my task to ensure that the trial is conducted according to law.  As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
  
4.	You are to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion. 

5.	I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the judges of the facts. 

6.	You must reach your opinion on evidence, and nothing but on the evidence itself.  Evidence is what the witnesses said from the witness box. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purposes of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you.  The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.

7.	If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion.  You are required to give merely your opinion but not the reasons for your opinion.  Your opinion need not be unanimous. I must advice you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment. 

8.	Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you.  You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.

Burden and Standard of Proof
9.	I now draw your attention to the issue of burden and standard of proof.  The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence. 

10.	The burden of proof of the charge against the accused is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty.  In other words there is no burden on the accused to prove his innocence, as his innocence is presumed by law.

11.	The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt.  If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt.  If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused.

Information
12.	The Accused is charged with one count of Rape contrary to Section 207 (1),  (2) (b) and  (3) of the Crimes Act and one alternative count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act.  The particulars of the offence are before you. Hence, I do not wish to reproduce them in my summing up. 

13.	The Prosecution alleges that the accused pulled the complainant into his room while she was coming out from the toilet and forcefully removed her undergarments. He then inserted his fingers into the vagina of the complainant. 

Elements of the Offence 
14.	Section 207 (1) and (2) (b) and (3) of the Crimes Act states that: 

A person rapes another person if —
b)	the person penetrates the vulva, vagina or anus of the other person to 	any extent with a thing or a part of the person’s body that is not a 	penis without the other person’s consent; or
c)	……..
iv)	 for this section, a child under the age of 13 years is incapable of 	giving consent.

15.	Accordingly the main elements of this offence of Rape are that:

i)	The Accused,
ii)	Penetrate the vagina of the complainant with his fingers.

16.	The complainant was nine years old at the time of this offence took place.  The defence has not disputed the age of the complainant.  Hence, she is incapable of giving consent to any form of penetration into her vagina as defined under Section 207 of the Crimes Act. 

17.	I now take your attention to the agreed facts.  They are the facts that the Prosecution and the Defence agreed to without any dispute.  Hence, you are allowed to consider the agreed facts as proven facts beyond reasonable doubt by the Prosecution. 

18.	Let me allow to explain you the element of penetration.  Evidence of slightest penetration of the fingers of the accused into the vagina of the complainant is sufficient to prove the element of penetration. Hence, it is not necessarily required to adduce the evidence of full penetration. 

19.	Every offence constitutes two main components. The first is the physical element. The second is the fault element. The physical element encompasses conduct, result of a conduct or a circumstance in which conduct or result of conduct occurs.  Such conduct becomes a physical element of an offence, if it is performed or carried out voluntarily. If such conduct took place due to a spasm, convulsion or other unwilling bodily movement, it does not constitute a physical element of an offence. 

20.	Accordingly, the act of penetration with the fingers is the physical element of the offence of rape as charged. This conduct of penetration with fingers must be performed or carried out voluntarily in order to consider such conduct as a physical element of the offence of rape. As judges of facts, it is your duty to determine whether the accused penetrated his fingers into the vagina of the complainant voluntarily or due to a spasm, convulsion or other unwilling bodily movement. 

Alternative Offence 
21.	If you find that the accused is not guilty for the offence of Rape, you are then allowed to consider the alternative count of Sexual Assault as charged in the information.  The main elements of the offence of Sexual Assault are that:

i)	The accused, 
ii)	Unlawfully and Indecently, 
iii)	Assault the complainant. 

22.	The word “unlawfully” simply means without lawful excuse.  An act is an indecent act if right-minded persons would consider the act as indecent.  It is your duty as Assessors to consider and decide whether the act of touching the vagina of the complainant by the accused with his fingers is an indecent act amounting to sexual assault. 

Evidence of Corroboration 
23.	You must bear in mind that offences of sexual nature do not need the evidence of corroboration.  It means that if you are satisfied with the evidence given by the complainant and accepts it as reliable and truthful; you are not required to look for any other evidence to support the account given by the complainant.

24.	One or more of you may have assumptions as to what constitutes rape, what kind of person may be the complainant of rape, what kind of person may be the rapist or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape, a rapist or a victim of rape. 

25.	Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. As I said above, it is your duty to determine the legal culpability of the alleged act committed by the accused according to law and not the moral or emotional culpability. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course of the hearing. 

26.	Let me now remind you the evidence presented by the prosecution during the course of the hearing. 

Evidence of Prosecution 
27.	The first witness of the prosecution is the uncle of the complainant. He said that the complainant used to call him as her daddy.  Accordingly I will refer him as the father of the complainant.  He could recall that one of his nieces came and told that Ashwin had attempted to rape the complainant, while he was stacking timber in the evening of 3rd of September 2016.  He has not believed it initially.  He further said that the accused was a good man.  His cousin sister then came and related him the same story.  He then went home in order to check it by himself, where he was told the story in detail by his cousin sister and brother-in-law. They have told him the story which they have heard from Sulu.  He then went to look for Ashwin, but could not find him.  He then went to Police. 

28.	The father of the complainant had asked the complainant about this incident. She has told him that Ashwin has pulled her into the bedroom and then removed her undergarment. Ashwin had then inserted his hand into her private part.  He had locked the door once he pulled the complainant into the room, preventing her from escaping. The complainant had told him that she felt pain when the accused inserted his hand into her vagina.
29.	You may recall that, during the cross examination he said that he actually came to know about this incident with more details after he made the statement to the police.  He said that he told the police that the accused inserted his fingers into the vagina of the complainant. However, giving evidence in court he said the accused insert his hand into her vagina. He further said that putting fingers into her vagina is the correct version.  He also said that he used the word “hand” in his evidence presuming that the accused might have used two or few of his fingers in order to insert into the vagina of the complainant. 

30.	The complainant in her evidence said that she went to the downstairs to wash her body after using the toilet. While she was washing her body, her aunty asked her to go and wake up the accused, who was sleeping in his room. She collected waters into her hands and went into the room. The door was opened.  She then poured the water on the accused and tapped on his shoulder, asking him to wake up. The accused then lifted her using both of his hands. While he was lifting her, his fingers went into her vagina. She did not feel any pain.  The complainant said that the fingers of the accused went into her vagina accidentally while he was playing with her. He lifted and threw her on the bed. He then covered her with a blanket and slowly punched on her shoulders. She also punched him back as they played. Then Sulu came and she got up and ran to the upstairs. She then went into her room. Sulu then came and asked her what happened. One of her aunties also came and asked her what happened inside the room of the accused. They forced her to say that the accused inserted his fingers into her vagina. The complainant said that the accused did not mean or purposefully inserted his fingers into her vagina.  It happened accidentally when he lifted her from his hands. 

31.	The Doctor who conducted the medical examination in his evidence said that he did not find any significant injuries or conditions in the complainant. The Doctor could not make a conclusion about this allegation based on his findings. 

Rights of the Accused in Defence 
32.	At the conclusion of the prosecution’s case, the accused was explained about his rights in defence.  The accused opted not to give evidence. 
33.	The accused does not have to give evidence. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing.  It does nothing to establish his guilt. 

Analysis and Directions 
34.	According to the evidence given by the complainant, the accused accidentally and unintentionally penetrated his fingers into her vagina when he lifted her up. He put one hand touching her private parts and lifted her from other hand. The complainant said that he did not mean or intent to put his fingers into her vagina as it happened accidentally. The father of the complainant said that the complainant told him that the accused pulled her undergarment down and penetrated his hand into her vagina. However, you may recall that the complainant in her evidence did not say that she told her father about this incident. 

35.	In order to determine whether the prosecution has proven beyond reasonable doubt that the accused penetrated the vagina of the complainant with his fingers, you have to consider the credibility of the witnesses, and the reliability of their evidence.  It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified. You can accept part of a witness’s evidence and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing. 

36.	In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is testifying in the evidence. You then should consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case.  Apart from that, you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.

37.	It is your duty as judges of facts to consider the demeanours of the witnesses, how they react to being cross examined and re-examined, were they evasive, in order to decide the credibility of the witness and the evidence.

Presentation of the Evidence by the Complainant
38.	You have seen that the complainant gave evidence behind a screen.  Giving of evidence in this way is perfectly normal in cases like this.  It is designed to enable the witness to feel more at ease when giving evidence.  It is not intended to prejudge the evidence given by the complainant. The fact that the evidence has been given in this manner must not in any way be considered by you as prejudicial to the accused. 

Evidence of the Child Complainant 
39.	The most important part of your task is to judge whether the child witness has told the truth, and has given a reliable account of the events that she was describing. Some of you will have children and grandchildren who are of a similar age to the complainant. If so, I think you will recognize the sense of the advice I am going to offer you about your judgment of the evidence of the child complainant, but remember that I am speaking only about an approach to consider the evidence.  Still the evaluation of the evidence is your responsibility. You do not have to accept my advice and if you do not agree with it, you should reject it. 

40.	Children do not have the same life experience as adults. They do not have the same standards of logic and consistency. Their understanding may be severely limited for a number of reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realize that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it, and about using words they think are naughty, and therefore find it difficult to speak. 

41.	Remember how you normally talk to children of this age. You should bear those difficulties in mind when you consider the answers given by the child complainant.  All decisions about the evidence are for you to make. 

Evidence of Recent Complaint 
42.	You have heard the evidence of the father of the complainant where he said that the complainant told him about this incident. The father of the complainant in his evidence explained what he heard from the complainant. According to him the accused had pulled the complainant into his room and locked the door. He then removed her undergarments and then inserted his hand into her vagina.

43.	This form of evidence is known as evidence of recent complaint. It is not an evidence as to what actually happened between the complainant and the accused. The father of the complainant was not present and witnessed what happened between the complainant and the accused.  

44.	You are entitled to consider the evidence of recent complaint in order to decide whether or not the complainant has told the truth. In doing that you can take into consideration whether the account given by the complainant is consistence with the evidence given by her father. The complainant in her evidence did not say that she told her father about this incident. The father of the complainant in his evidence said that he heard most of the details of this incident from his niece, cousin sister and brother-in-law. You have to disregard the evidence given by the father of the complainant explaining what he heard from his niece, cousin sister and the brother-in-law as they amount to hearsay evidence.
 
45.	 It is for you to decide whether the evidence of recent complain helps you to reach a decision, but it is important that you must understand that the evidence of recent complaint is not independent evidence of what happened between the accused and the complainant. It therefore cannot of itself prove that the complaint is true. 

Final Directions 
46.	Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged, you can find the accused guilty for the said offence of Rape. 

47.	If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged, you must find the accused is not guilty for the said count of Rape.  

48.	If you found him not guilty for the offence of Rape a, you are then allowed to consider the alternative count of Sexual Assault. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Sexual Assault, you can find him guilty of the alternative count of Sexual Assault.  

49.	If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Sexual Assault, you must find the accused is not guilty for the said count of Sexual Assault.

50.	Madam and Gentleman assessors, I now conclude my summing up.  It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion.  When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.

51.	Learned counsel of the prosecution and the accused, do you have any redirections to the assessors? 

R.D.R.T. Rajasinghe
Judge

At Suva
27th September 2017

Solicitors
Office of the Director of Public Prosecutions for the State
Jiten Reddy Lawyers for Accused