IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 41of 2016

STATE

v

MOHAMMED RASHEED

Counsels:	Mrs. A. Vavadakua for the State
		Mr. A. Sen for the Accused

Dates of Hearing:  	23, 24 and 25 July 2018
Date of Summing Up:  26 July 2018

SUMMING UP

1.	Ladies and Sir, the time has now come for me to sum up the 	evidence in this case and to direct you on the law. When I do so, 	you must accept what I say about the law and apply it to the 	facts. 

2.	You are the Judges of the facts and whatever you say about the 	facts is paramount and I must give your opinions the greatest 	amount of weight when I come to consider the final judgment of 	the Court. If in the summing up I express an opinion on the 	facts and I do, then you can reject my opinions unless you agree 	with me and come to your own opinions. I have no right to 	usurp your view of the facts. On assessing the evidence of 	witnesses, you may accept all of what a witness says, you may 	reject all or you may reject or accept part of the evidence. 

3.	 It is for you to tell me what you believe the facts of this case are 	by applying the law as I direct you and then by telling me if in 	your opinion the accused is guilty or not guilty of rape. You 	must accept what I tell you about the law. 

4.	You will judge this case solely on the evidence that has been 	heard or seen in this Courtroom. You will not judge this case on 	anything that you have heard or seen outside of the Courtroom 	– that would not be fair to the accused. 

5.	Similarly you will not let any sympathy or prejudice play a part 	in your deliberations. You must look at the evidence 	dispassionately and with the wisdom of your experience of the 	community and the Fijian lifestyle.

6.	I make no apologies for repeating to you what I said at the 	beginning, because it is important. That is that you can only 	find the accused guilty if you have been made sure by the State 	prosecutrix that he is guilty – that is you are certain beyond 	reasonable doubt. Reasonable doubt is not any little niggling 	doubt – your doubt must be reasonable and if it is, then it is 	your duty to return an opinion of not guilty. The accused does 	not have to prove anything. The burden is on the State to make 	you sure of the guilt of the accused, no matter what they say in 	evidence. 

7.	The accused is charged with three counts of rape. 

8.	The counts are representative counts and I will now explain to 	you what that means. Alima gave evidence of three occasions 	when she said that the accused had sex with her. Those three 	acts are reflected in the three charges. However she did say that 	there were other occasions he made her have sex but she 	cannot remember the dates. So the State has made each of the 	three known dates represent at least one act of sexual 	intercourse in that period while there might well be others. You 	need only find that the acts she does remember are proved by 	the State and those three will represent other acts of intercourse 	which may have taken place

9.	In our law and for the purposes of this trial, rape is committed 	when a man penetrates fully or partially the vagina of a woman 	without her consent. However, the law also says that a woman 	or girl under the age of thirteen is not capable of giving consent. 	Therefore in this case, all that the State has to prove to you on 	each representative count is:

•	That is was indeed Mohammed Rasheed, 
•	Who penetrated the vagina of Alima.

10.	It is obvious that Alima has had sexual intercourse because she 	was found to be pregnant, but the accused says that it wasn’t 	him who had sex with her.  That is an issue, and the only issue 	for you to decide on each count which you will look at 	separately.

11.	It is now my duty to sum up the evidence for you. I know that 	you only heard it yesterday but you must be reminded of the 	important pieces to enable you to make a proper evaluation of 	it. 

12.	The Doctor told us that when he examined Alima on the 8th 	June 2015 she was in the early stages of pregnancy. He said 	that at the time she was only 12 and Alima herself confirmed 	this fact when she produced her birth certificate in Court. 

13.	Alima told us of the three incidents in which she said that the 	accused forcefully had sexual intercourse with her. The first 	was in December 2013 on the 40th day anniversary of her 	grandmother’s passing and when she was staying in her 	grandparents’ house. The accused was staying there that night 	with his wife and two children and in the night he came into the 	room where she was sleeping and forced himself on her, 	penetrating her. He threatened her not to tell anybody. 

14.	The second occasion was in December 2014 when she was 	staying at Habir’s house (her grandfather’s brother). Her parents 	had gone to town, and she was washing dishes when the 	accused came and led her to the bathroom and had intercourse 	with her on the bedroom floor. She felt frightened, but didn’t tell 	her parents because the accused had threatened her. He also 	gave her money sometimes 50c or a dollar. 

15.	The third occasion was in the first few months of 2015 when the 	accused was staying at her place. She was sleeping in her room 	with her sister and the accused came in and penetrated her. 	She said it was painful so he left. She tried to tell people but she 	just couldn’t. He threatened her and she was scared. 

16.	Apart from these three occasions, she said it happened at other 	times but she can’t remember the days or months.

17.	At some stage she felt sick and was vomiting and that is when 	at the hospital it was found that she was pregnant. It was then 	that she told her parents about it. 

18.	In cross-examination she was adamant that it was the accused 	and nobody else. You might wish to take into account the 	evidence that there were no other men present apart from her 	grandfather, her grandfather’s brother and her own brothers. 	She had known the accused for most of her life and it is for you 	to decide: could she be mistaken as to who was having sex with 	her?

19.	A Policeman came to Court and told us about the interview he 	conducted with the accused. He produced a written record of 	that interview; a copy has been given to you and he read it out 	in its entirety.

20.	I now direct you how to approach that piece of evidence. 

21.	The accused says that it is all lies or rather that the confessions 	to having sex with Alima is untrue because it never happened. 

22.	You must first decide whether the answers attributed to him are 	true or not. If you think they are not his answers then you are 	to discard the interview and not use it as evidence 

23.	Secondly if you think that he was assaulted or mistreated in 	such a way that he was saying things he might not ordinarily 	have said, then you also to discard the interview and forget 	about it.

24.	Finally if you think that the answers are true and are his 	answers and that they were given quite voluntarily by him 	without anything improper done to him to put him in fear, then 	you may rely on the confessions and give them the weight that 	you think fit. 

25.	Well, assessors that was the end of the Prosecution case and 	you heard me tell the accused what his rights are in defence. He 	was not obliged to give evidence because he does not have to 	prove anything; the burden remains on the State throughout to 	prove his guilt to you beyond reasonable doubt. 

26.	As you know the accused chose to give evidence. He told us that 	he is 35 years old and he is a cane farmer from Tabia. He said 	he has never been in trouble with the law, a fact that we can 	accept because that was not challenged by the Prosecution. I 	must direct you that a man of 35 without a criminal conviction 	is less likely to commit an offence than a man with previous 	convictions and the State therefore must prove to you so that 	you are absolutely sure of his guilt in this trial. 

27.	He told us that at some stage he had been a Muslim priest but 	he retired from that because he moved far out of town. He 	remembers the grandmother’s (his mother-in-law) 40 day rites 	after her passing but Alima never stayed the night there and he 	did not have sex with her there. 

28.	He never had sex with her at any other time.

29.	The Police came and arrested him in June 2015. It was 	Ramadan and he was fasting. He was taken to Labasa Police 	station to be interviewed and the Police told him: “you know 	why you are here – tell the truth”. The next day he told the 	Police that he did nothing to the girl so they punched him and 	told him to do 100 push-ups. 
30.	He admitted that the answers in the interview came from him 	but they are lies and untrue. He never had sex with Alima. 

31.	Well assessors, it is for you to decide whether those answers are 	true or not. You might wish to take into account the explicit 	detail given of the sexual acts. Would he go into such detail if he 	was telling lies? It is however a matter for you to decide.

32.	The accused called no witnesses.

33.	You have very little to decide in this case. First you must decide 	if Alima is telling the truth about the acts that she says the 	accused did to her. You don’t need to think about consent. Even 	if you think that Alima might have been a willing partner in this 	affair it makes no difference. It is a crime in Fiji for a man to 	have sex with a girl under 13. 

34.	If you believe the girl, then it is unnecessary for you to go on to 	consider the interview; however you may wish to use it as 	alternative evidence for the case. There is no need for there to be 	corroboration of her evidence. Her evidence is enough for you to 	make a finding of guilty or not guilty on, depending on the 	weight you put on it but looking at the interview might well 	assist you in coming to your opinions. Remember if you think 	the answers are true and they were voluntarily given by the 	accused without threat or assault or any pressure whatsoever, 	then you may rely on that interview as evidence.

35.	Remember too that it is the accused’s case that she has 	mistaken him for somebody else. That she is just blaming him 	for it because he is a convenient suspect. He had no sex with 	her. 

36.	That is all I wish to say to you Ladies and Sir; you may now 	retire and consider your opinions. Try to be in agreement on 	your findings but if you can’t be then I will hear your individual 	opinions. 

37.	Your possible opinions are guilty or not guilty on each 	representative count. 

38.	Let a member of my staff know when you are ready and I will 	reconvene the Court, but before you leave us I will ask Counsel 	if they wish me to add to or amend any direction on the law that 	I have given.

39.	Counsel?

	P.K. Madigan
      Judge

At Labasa
26 July 2018