IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 297 of 2017

STATE

Vs.

KALAM AZAAD KHAN

Counsel:			Ms. S. Sharma for the State
				Mr. A. Chand with Mr. K. Cheng for Accused
Date of Hearing:		06th to 08th August 2018	
Date of Summing Up:	10th August 2018

SUMMING UP

	1.	The hearing of this case has now reached to its conclusion.  It is my duty to sum up the case to you. As I explained you before the commencement of the hearing, we have different functions.  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.

2.	Your function is 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. 

3.	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 any comment I make regarding the facts of this case, unless it coincides with your own independent opinion.

4.	You must reach your opinion on evidence, and nothing but on the evidence itself.  Evidence is what the witnesses said from the witness box and the documents tendered as exhibits. 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. Therefore, the opening address of the prosecution is not evidence. 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.

5.	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 advise 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 make my judgment. 

6.	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

7.	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. 

8.	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 person to prove his innocence, as his innocence is presumed by law.

9.	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 person. 

Information and elements of the offence

10.	The accused is charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act and one count o Assault Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Act. The particulars of the offence are before you. Please take your attention to it, as I do not wish to reproduce it in my summing up.
 
11.	The main elements of this offence of Rape as charged are that:

	(i)       The Accused, 
	(ii)      Penetrated into the vagina of the complainant with his penis, 
	(iii)     The complainant did not consent to the accused to penetrate into her vagina 
	         with his penis,
	(iv)     The Accused knew or believed or reckless that the complainant was not 
           consenting for him to insert his penis in that manner. 
Assault Causing Actual Bodily Harm

12.	Let me now take your attention to the main elements of the offence of Assault Causing Actual Bodily Harm. 

i)	The Accused, 
ii)	Assaulted the victim, 
iii)	Caused bodily harm 

13.	Assault is an act by which a person intentionally or recklessly causes another to apprehend unlawful violence.
 
Agreed Facts

14.	I now request you to draw your attention to the agreed facts, which are before you. They are the facts that the prosecution and defence have agreed without dispute.  Hence, you are allowed to consider them as proven fact by the prosecution beyond reasonable doubt.  According to the agreed facts, the accused had not disputed that he had a sexual intercourse with the complainant on the 23rd of September 2017 at his house. Accordingly, the main dispute in respect of the offence of Rape is whether the complainant had given her consent to the accused to have sexual intercourse with her. 

Separate Consideration

15.	The accused is charged with one count of Rape and one count of Assault Causing Actual Bodily Harm.  It is your duty to consider each of these two counts separately.  If you find the accused is guilty for one count that does not automatically make him guilty for the remaining count for which he is charged with.  Likewise, if you find the accused is not guilty for one count, that does not automatically make him not guilty for the remaining count. 

Consent

16.	Let me now draw your attention to the issue of consent. It is your duty to decide whether the prosecution has proven beyond reasonable doubt that the complainant did not give her consent to the accused to insert his penis into her vagina.

17.	Consent is a state of mind which can take many forms from willing enthusiasm to reluctant agreement. In respect of the offence of rape, the complainant consents only, if she had the freedom and capacity to voluntarily make a choice and express that choice freely. A consent obtained through fear, by threat, by exercise of authority, by use of force or by intimidation could not be considered as a consent given freely and voluntarily. A submission without physical resistance by the complainant to an act of another person shall not alone constitute consent.

18.	The complainant must have the freedom to make the choice. It means that she must not being pressured or forced to make that choice. Moreover, the complainant must have a mental and physical capacity to make that choice freely. The consent can be withdrawn at any time. The consent is an ongoing state of mind and is not irrevocable once given. The consent for sexual intercourse must be comfortable to the person who made such choice.  It should not be an optional choice. The consent of a person for sexual intercourse should not be assumed. 

19.	If you are satisfied, that the accused had inserted his penis into the vagina of the complainant and she had not given her consent, you are then required to consider the last element of the offence, that is whether the accused honestly believed or knew or reckless that the complainant was freely consenting for this alleged sexual intercourse. I must advice you that belief in consent is not the same thing as a hope or expectation that the complainant was consenting. You must consider whether the accused knew either that the complainant was not in a condition or a position to make a choice freely and voluntarily, or the complainant had made no choice to agree to sexual intercourse. If you conclude that the accused believed or knew that the complainant was consenting, you must then consider whether such belief of the accused was reasonable under the circumstances that was prevailed at the time of the alleged incident took place.

Corroboration

20.	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.

21.	One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim 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. 

22.	Offences of this nature can take place in any circumstance between any kinds of persons, who act in a variety of ways. You heard that the accused was the de facto partner of the complainant.  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. 

23.	You must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not. Demeanours of the victim in the court while giving evidence is not necessarily a clue to the truth of the victim’s account.

Evidence of the Prosecution

24.	Let me now remind you briefly the summary of the evidence presented by the prosecution and the defence during the course of the hearing.  This is a fairly short hearing and lasted only for three days. Therefore, I trust that you can properly and correctly recall all of the evidence adduced during the hearing.

25.	The complainant in her evidence explained that she was at the house of the accused in the morning of the 23rd of September 2017. After having their breakfast, she was sitting beside the door, playing with her mobile phone. The accused was lying on the mattress. The accused then came behind her and slowly grabbed her. He wanted to have sexual intercourse with her. The complainant had told the accused that she was not in a mood of having sexual intercourse. The accused then pulled her dress and started to fondle with her breasts.  She was still sitting at that time. In a while she laid down on the mattress and the accused continued to fondle with her breasts. During the cross examination, the complainant said that while fondling with her breasts, the accused caressed and kissed her. 

26.	Moreover, the complainant in her evidence said that she had to surrender herself to the accused as she was frightened. The accused had assaulted her on previous occasions, when she refused to have sexual intercourse with him in 2016. For that incident, the accused had been charged and prosecuted. The complainant explained that she was frightened and had no option, but to surrender herself.
 
27.	The accused then inserted into her vagina with his penis. While he was having sexual intercourse with her, the complainant had told the accused that she was not in a mood of having sexual intercourse. When she told that, the accused had stopped and pulled his penis out from her vagina.
 
28.	You may recall that the complainant denied the proposition put to her by the learned counsel for the accused, during the cross examination, that she had performed oral sex for the accused before he inserted his penis into her vagina. The complainant said that she did not show any signs of disagreement for the sexual intercourse until he inserted his penis into her vagina. 

29.	According to the evidence of the complainant, the accused was angry after she told him that she was not in a mood to have sexual intercourse and punched on the left side of her face. It was a very hard punch. She had started to cry. Once the accused saw that the face of the complainant was swollen, he had gone to the neighbour’s house to get ice. 

30.	The complainant was in pain and requested the accused to take her to the hospital. But he did not take her as she requested.  He had told her to stay inside the house. She had to stay in the house till 3 p.m. She had begged him that she wanted to go outside as she was in pain. Finally, the accused had given her $10 and let her go. She had gone to the police and reported the matter. 

31.	During the cross examination, the complainant said that she was medically examined by a doctor. She had told the doctor about what happened to her. However, she could not recall what exactly she told the doctor. 

32.	The complainant had gone to meet the accused while he was in remand custody. She had taken fruits to him when she visited him at the remand center. She was forced by the employer of the accused to do and give him some food at the remand center. Furthermore, the complainant had met the accused after he was granted bail. 

33.	You may recall that the complainant was cross examined by the learned counsel for the defence regarding the arguments that she had with the accused over his other relationships with other women. The complainant said that one woman named Shashi had interfered with their relationship. This Shashi had an argument with the complainant in the court house on the day, where the accused was produced in the court. 

34.	You heard the evidence of the Doctor Manisha Lata, where she explained about the medical examination that she had done for the complainant on the 23rd of September 2017. The complainant had explained about the incident, which the Doctor Lata had recorded under D (10) of the medical report. The medical report is tendered by the prosecution as an exhibit of the prosecution. 

Evidence of the Defence

35.	At the conclusion of the prosecution’s case, the accused was explained about his rights in defence. The accused opted to give evidence and also called two witnesses for his defence. 

36.	The accused in his evidence denies this allegation. According to his evidence, the complainant consented to have sexual intercourse with him, when he approached her from behind while she was sitting beside the door. The accused had asked her to have sexual intercourse. The complainant had replied, saying that let her to delete the messages in her mobile phone. He held her and then both of them laid on the mattress. While he fondled her breasts, she had performed oral sex for him. He then inserted his penis into her vagina. While they were having sexual intercourse, the complainant had told him that she lost her feelings and could he wait for a while. Then they can do it again.  He had then stopped and pulled out his penis. They were lying on the mattress after that. 

37.	While they were on the mattress, the accused had started to play with his mobile phone. While he was playing with his mobile phone, the complainant had suddenly touched his body under his arm. He had reacted to this sudden touch by spreading his arms. While he reflected his arms outwards, the hand has hit on her face, near the eye. The accused had told her that he did not mean to hurt her. He had gone to neighbour’s place and brought some ice.  He kept the ice on her face and assisted her. While the complainant was lying, he had made their lunch.  However, she had not eaten her lunch, saying that she was not feeling well. He then had his lunch. After that, both of them had some sleep on the mattress. When she woke up, she had asked the accused for money for her taxi fare. He had given her $10 for the taxi fare. 

38.	When she was going, she had told the accused that what she wanted to happen has happened and this time she will send him to jail though she was not able to send him to jail last time. 

39.	You have heard the evidence of landlord and his son. They gave evidence regarding the incident that they witnessed on the 23rd of September 2017. 

40.	This is the summary of the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence. 

Analysis

41.	The prosecution and the defence presented conflicting versions of events, which took place in private between the complainant and the accused. The complainant claims that the accused had sexual intercourse with her without her consent. The accused claims that it started as a consensual intercourse and he stopped it when the complainant told him that she lost the feeling of having sexual intercourse. The complainant claims that the accused got angry when she told him that she has no feeling to have sexual intercourse and punched on the left side of her face. The accused denies the claim of punching and said that it was a mistake as his hand hit on her face accidentally, when he spread his arms. Both the prosecution and the defence did not dispute having sexual intercourse on the 23rd of September 2017.  

42.	The issue of the existence of consent for an alleged sexual intercourse that took place in private between two persons is always involving with believing of the version of a person against another’s. Hence, in order to determine whether the complainant gave the consent, it is important to consider how the complainant and the accused behave before and after the alleged sexual intercourse. 

43.	As I mentioned above, there is no stereotype of circumstances for a rape, a rapist, or a victim of rape. A mere fact that a woman is in de facto relationship with a man does not automatically constitute that she has given her consent to have sexual intercourse with the man at any time. You are required to consider all the circumstances of this incident. Having considered all the circumstances as a whole, if it leads to an indisputable and inescapable conclusion that she had not given her consent to have sexual intercourse with the accused, you can then conclude that the complainant has not given her consent to the accused to insert his penis into her vagina. 

44.	In respect of the offence of Assault Causing Actual Bodily Harm, it is your duty to consider the evidence presented by the parties and to determine whether the accused had actually punched the complainant on the left side of her face or not. The accused claims that it was a mistake and unintentional act that caused the injuries to the left side of her face. 

45.	In order to determine these issues of facts, 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. 

46.	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.

47.	It is your duty as judges of facts to consider the demeanour 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. Moreover, you have to consider the knowledge of the witness on the facts that he or she is testifying, his or her disinterestedness, his or her integrity, and his or her veracity in order to determine the credibility of the witness and his evidence. 

Inconsistency and omissions

48.	The learned counsel for the defence proposed you to consider the inconsistent nature of the evidence given by the complainant in court with the history that she had given to the Doctor in her medical report.  The complainant in her evidence said that the accused punched on the left side of her face. It was a hard single punch. However, it has been recorded in the medical report that she was punched on multiple occasions. 

49.	I will now explain you the purpose of considering the inconsistent nature of the evidence given by a witness in court with the previously made statement. You are allowed to take into consideration about such inconsistencies when you consider credibility and reliability of the evidence given by the witness.  However, the previously made statements are not evidence of the truth of its contents. The evidence is what a witness testified in the court. 

50.	It is obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.

51.	If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.

Evidence of the Defence
 
52.	I now take your attention to the evidence adduced by the defence. The accused elected to give evidence on oath and called two other witnesses for his defence. The accused is not obliged to give evidence. He does not have to prove his innocence. 

53.	However, the accused decided to give evidence. Therefore, you have to take into consideration the evidence adduced by the accused and two witnesses of the defence when you determine the issues of fact of this case. 

54.	Accordingly, it is for you to decide whether you believe the evidence given by the defence. If you consider that the account given by the accused is or may be true, then you must find the accused not guilty for these two offences. 

55.	If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then find the accused not guilty for these two offences as charged.  

56.	Even if you reject the version of the defence, that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.
 
Final Directions

57.	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.
 
58.	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 not guilty for the said count of Rape.  

59.	Likewise, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Assault Causing Actual Bodily Harm as charged, you can find the accused guilty for the said offence. 

60.	If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Assault Causing Actual Bodily Harm as charged, you must find the accused not guilty for the said offence. 

61.	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.

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

R.D.R.T. Rajasinghe
Judge

At Suva
10th August 2018

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