IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO.: HAC 28 OF 2019

BETWEEN		:	STATE

AND			:	ALIKI RITALAU PRASAD

Counsel		:	Ms A. Vavadakua for the State
				Mr P. Gade and Ms S. Devi for the Accused
					
Dates of Hearing	:	24 - 25 June 2020
Date of Summing Up	:	25 June 2020

SUMMING UP

[1] 	Madam Assessors and Gentleman Assessor, it is now my duty to sum up the case to 	you. We have differing roles in this trial. I have to give you directions on the law and 	you must accept those directions. You are to decide the facts applying those directions 	and to 	give me your opinions as to the Accused's guilt or innocence.

[2] 	In going through the evidence I may express an opinion. If you do not agree with that 	opinion, you are free to ignore it and to form another view of that piece of evidence. I 	may omit some evidence which you think significant. Nonetheless you may give that 	evidence such weight as you consider appropriate. You are free to form your own 	opinions.

[3] 	At the end of this summing up, and after you have given your individual opinions, the 	final decision on the facts rests with me. I am not bound to conform to your opinions. 	However in arriving at my judgment I shall place much reliance upon your opinions.

[4] 	The burden of proof rests throughout the trial upon the prosecution. In our system of 	justice there is a presumption of innocence in favour of an Accused. The prosecution 	brings the charge against the Accused. Therefore it is for the prosecution to prove the 	charge against the Accused. Each element of the charge must be proved, but not every 	fact of the story. This burden never changes, never shifts to the Accused.

[5] 	The prosecution must prove its case beyond reasonable doubt. That means that before 	you express an opinion that the Accused is guilty of the charge you must be satisfied 	so that you are sure of his guilt beyond reasonable doubt. If you consider him 	innocent of the charge you must give your opinion that he is not guilty. If you 	entertain a reasonable doubt of guilt, you must also give your opinion that the 	Accused is not guilty of the charge.

[6] 	The Accused has not given evidence in this case. That is his right. He is entitled to 	remain silent and to require the prosecution to make you sure of his guilt. You must 	not assume he is guilty because he has not given evidence. 

[7] 	You must decide this case upon the evidence presented to you. If a witness was not 	called 	you must not speculate the reasons why the witness was not called. You must 	only consider evidence which were led in the trial. It will be your task to discover 	which 	witnesses have given honest and accurate evidence and which may not.

[8]	In this case the complainant gave evidence behind a screen. The 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 	which the witness give. The fact that the evidence had been so given must not in any 	way be considered by you as prejudicial to the Accused.

[9] 	After I have completed this summing up, you will be asked to retire to your retiring 	room to deliberate amongst yourselves so as to arrive at your opinions. Upon your 	return to court, when you are ready, each one of you will be required to state his or 	her individual 	opinions orally on the charge against the Accused, which opinions will 	be recorded. Your opinions need not be unanimous. You will not be asked for reasons 	for your opinions.
[10] 	However it will be helpful to you beforehand in arriving at sound and rational 	opinions if you ask yourselves why you have come to those opinions.

[11] 	Those opinions must be based solely upon the evidence. Evidence consists of sworn 	testimony of the witnesses, what each witness has told the court in the witness box. 

[12] 	Neither speculation nor theories of one's own constitute evidence. Media coverage, 	idle talk, or gossip, are similarly not evidence. Put out of your mind when considering 	your opinions, anything you may have read in the newspapers about this case. 	Focus solely on the evidence which you have seen, heard, or examined in this court.

[13] 	This summing up is not evidence either, nor are counsel's opening or closing 	addresses. Naturally we hope all of these are of assistance to you, but they do not 	constitute evidence.

[14] 	If a witness is asked a question in cross-examination and agrees with what counsel is 	suggesting, the witness's answer is evidence. If he or she rejects the suggestion, 	neither the question nor the answer can become evidence for the proposition put.

[15] 	In arriving at your opinions, use the common sense you bring to bear in your daily 	lives, at home and at work. Observe and assess the witnesses' evidence and 	demeanour together with all of the evidence in the case. You can accept part of a 	witness's testimony 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 be 	wide of the mark about another.

[16] 	If you have formed a moral opinion on the conduct alleged in this case, put that to one 	side. Consistent with your oath, you should put away both prejudice and sympathy. 	Approach your assessment of the evidence dispassionately. Bring a cool detachment 	to your task of examining whether the case against the Accused has been proved 	before you, proved with evidence led by the prosecution.

[17]	In the present case, both sides have agreed to the following facts, which you must 	accept 	as true:
1.1	THAT the victim, in this case is Jazmynne Gabriel Mallam, (hereinafter referred to as “the child”) was born on 29/Dec/2006.
2.3	THAT the person charged in this case is Aliki Ritalau Prasad, who is the 	stepfather of the above mentioned child.
2.3	THAT ARP, and the child’s mother, Loretta Chand, have 2 sons together 	who are younger than the child. All 3 children have been living with their 	mother, Loretta Chand, and ARP for a number of years.
2.4	THAT sometime in February 2019, ARP took the child and younger step-	brothers to the river at Cawaira for a swim. The child’s mother did not 	accompany them.

[18] 	I turn now to deal with what the prosecution must prove. The Accused is charged with	digital 	rape of a girl under the age of 13 years. There are two essential elements that 	the prosecution must prove beyond reasonable doubt. 

[19]	Firstly, the prosecution must prove that the Accused penetrated, that is, inserted his 	finger 	into the complainant’s vagina. Slightest penetration is sufficient. The element 	of penetration is in dispute and it will be your task to determine whether this element 	has been proven.  

[20]	Secondly, the prosecution must prove that when the Accused had penetrated the 	complainant’s vagina, he did so without her consent. The law is that a child under the 	age of 13 years is incapable of giving consent to any form of sexual penetration. In 	this case, it is not in dispute that the complainant was 12 years old at the time of the 	alleged incident. She was born on 29 December 2006 (agreed fact 1.1). So in this 	case, it is not 	necessary to prove lack of consent because the complainant did not 	have the capacity to give consent to digital penetration of her vagina due to her tender 	age. 

[21]	The real issue for you to consider is whether the Accused penetrated the complainant's 	vagina using his finger as alleged by the charge.  
[22]	In relating to the alleged incident the complainant told the court that the Accused took 	her and her two other younger siblings for a swim in a river. While they were at the 	river a 	couple known to them arrived and brought them some food. When the couple 	had left, the Accused pulled the complainant into deeper water to give a swimming 	lesson. While 	he was taking her into the deeper water he told her that he was going to 	touch her vagina. She was wearing tights on this day. She said the Accused 	removed her floating tube using one hand while holding her with the other hand. She 	said the Accused poked her vagina with his finger through her tights. She started 	crying and he told her not to let him go or she will drown. He told her not to complain 	to her mother when they returned home. She later told her mother about the incident 	when her mother questioned her. 

[23]	The complainant’s mother gave evidence that she came to know about the river 	incident after she returned home one day and found the Accused acting strangely. 	When the Accused left home, the mother questioned the complainant and after some 	prodding the complainant revealed about the incident in the river. 

[24]	There is a further direction that I wish to give regarding the complaint evidence. In a 	case of sexual offence, recent complaint evidence is led to show consistency on the 	part of the complainant, which may help you to decide whether or not the complainant 	has told you the truth. It is for you to decide whether the evidence of this complaint 	helps you to reach a decision, but it is important that you should understand that the 	complaint is not independent 	evidence of what happened between the complainant 	and the Accused, and it therefore cannot itself prove that the complaint is true. While 	the complaint was made by the complainant to her mother, the complaint was not 	recent or voluntary but prodded out of her by her mother. The mother has given 	evidence why the complainant was reluctant to report the alleged incident to her. She 	said  they  were  afraid  of  the  Accused. It  is  matter  for  you  to decide whether any
  	assistance can be derived from the complaint made to the mother in assessing 	whether the complainant was consistent and therefore is believable.

[25]	Let me remind you that you must disregard any evidence that came out of cross 	examination of the prosecution witnesses suggesting that the Accused may have been 	involved in other form of assaults involving the complainant. You must focus on the 	charge before you and nothing else.

[26] 	The prosecution's case wholly rests on the complainant's evidence. If you believe the 	complainant is telling you the truth that the Accused penetrated her vagina with his 	finger and if you feel sure of the Accused’s guilt, then you may express an opinion 	that the Accused is guilty. If you disbelieve the complainant or if you are not sure of 	guilt, then you must find the Accused not guilty. Remember the Accused does not 	have to prove 	anything. The prosecution must prove guilt beyond reasonable doubt. 

[27] 	Your possible opinions are either guilty or not guilty. When you are ready with your 	opinions, please advise my clerk and the court will reconvene to receive them. Please 	now retire to deliberate on your opinions.

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused