State v P [2005] FJHC 380; HAC0016S.2005S (6 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Case HAC0016.2005S

THE STATE

V

P

Fiji High Court, Suva
6 December 2005
Gates J

SUMMING UP

Mr A. Ravindra Singh with Ms Tuiteci for the State
Mr Raman Singh for the Accused

All 3 Assessors present

[1] Ladies and Gentleman Assessors, it is now my duty to sum up the case to you. You may have heard before some of the directions that I am about to give you. But it is important that you bear them in mind afresh when you come to consider your opinions in this case. 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 give a decision on the facts applying those directions of law 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 shall not refer to all of the evidence, and as a result I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You must feel 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 weigh carefully and place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charge against the Accused. Therefore on the charge it is for the State to prove its case 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. The Accused does not have to prove anything.

[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. The test is not, ‘doubt’, or ‘slightest doubt’. The test is ‘reasonable doubt’. If you consider the Accused 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. Only if you are satisfied beyond reasonable doubt that the Accused is guilty, is it your duty to return opinions that he is guilty.

[6] 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.

[7] 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.

[8] 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, as well as the exhibits tendered in court, such as the caution interview statements. In addition, you will consider the evidence that went in by consent of both parties, set out in the agreed facts. Following correct procedure the State and the defence have agreed certain issues or facts. These are therefore not in dispute in this trial. All of this was done with the consent of defence counsel. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed. In this case the litigation issue, the issue or element you have to decide, is whether the complainant consented to sexual intercourse.

[9] Neither speculation, personal knowledge, 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 or seen or heard on radio and TV about this case. Focus solely on the evidence which you have seen, heard, or examined for yourself in this court. Bring an open mind to the evidence and to the arguments urged on you in counsel’s addresses. You are to approach your task with neutrality, without bias, and with true impartiality in accordance with your oath.

[10] 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.

[11] You must decide this case upon the evidence presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which may not have.

[12] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence in support of that suggestion.

[13] 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.

[14] If you have formed a moral opinion on the conduct alleged in this case, put that to one side also. This is not a court of morals but a court of law. 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 on the charge alleged in the information.

[15] As earlier mentioned, counsel for the State and counsel for the Accused have signed a document headed “Agreed Facts”. This procedure is provided for in our Criminal Procedure Code and it is a way in which time is saved whereby issues or facts need not be proved unnecessarily before you. You will have copies of it. I shall return to the document shortly.

[16] The Accused is charged with one count of rape, contrary to section 149 of our Penal Code. What do the prosecution have to prove?

[17] First it must be proved that on 1^st February 2001 the Accused had unlawful carnal knowledge of a woman or girl. Unlawful carnal knowledge here refers to where a male person has sexual intercourse by penetrating the female complainant’s vagina with his penis, and it is unlawful in the sense that there was no lawful excuse for such conduct. Carnal knowledge is complete once there is penetration, however slight. It is not necessary that the sexual act be completed such as by the emission of seed, only penetration need be proved.

[18] You will have no difficulty in concluding that penetration did occur here. The Agreed Facts at paragraph 14 admit this element of the offence. It is agreed by both sides that the Accused had sexual intercourse with the complainant on 1^st February 2001.

[19] You may remember the complainant gave evidence that she was a virgin before this incident. She said the Accused pushed his penis in forcefully, then later when she could not take it, he had rubbed it on top of her vagina. She bled. She gave evidence of penetration having occurred, and you will remember the Accused also gave such evidence. It is necessary that vaginal penetration be proved, and both parties testified as witnesses that it had occurred. The dispute remains as to whether it was done forcefully, that is without consent.

[20] You need to be satisfied that the perpetrator of this act was the Accused. Again this is an agreed fact. Identity is therefore not in issue.

[21] Next, and this is the trial issue, have the prosecution proved to you beyond reasonable doubt that this act was committed without the complainant’s consent? Without consent also includes a situation where consent is obtained for the act committed, the penetration, by force or by means of threats or intimidation of any kind, or by fear of bodily harm. The complainant said she lay on the bed at the Accused’s command and that he threatened to kill her. He held a knife at her neck. That is why she submitted to being penetrated by him. If you accept that account, that could be sufficient evidence of non-consent, if you are satisfied beyond reasonable doubt of it, that rape had been committed on the complainant.

[22] The complainant began her evidence saying she had gone to work in the morning of 1^st February 2001, but soon returned home since she was not feeling well. She said she arrived home and went straight to sleep, awakening at 1 pm. She went to the back door of her parents ground floor flat and picked clothes from the line. Her landlord lived upstairs and his front door and terrace were on the same side as the back door for her ground floor flat.

[23] The Accused called her from the terrace. She did not answer. He then swore at her. She swore back. She took the clothes and went back inside to her bedroom. When she went to close the back door she saw the Accused already inside her flat near her bedroom door.

[24] She asked him what he was doing inside her house and he said “keep quiet” and kicked the door closed. She started to shout and told him to go away. He picked up a knife by the sink. It was the threat of the knife she said, several times during the course of her evidence, that made her submit to him and to keep quiet whilst in his company inside her flat. He put the knife to her neck. One of his hands was on her chin and one held the knife.

[25] She was pushed into the bedroom. He said “If you shout out, I will kill you”. She fell down backwards. He then left the knife on the table in the corridor outside. She tried to run away, but she was pushed by the Accused onto the bed. He punched her on her hands, legs, shoulder and knees and slapped her on her face 5 or 6 times. She was placed in the middle of the bed. She shouted, and he put a pillow on her face. She struggled and the pillow got torn. He looked fierce, she said.

[26] He tried to take off her clothes and her panty got torn at the side. He took off his clothes. She shouted again when he pulled her legs on the bed. Then he raped her. This was her first experience she said, the first time she had had sex. She was not able to have his penis inside her. He forced her and it hurt. She bled. It all lasted 10-15 minutes. It was very difficult for her and gave her a good deal of pain. He succeeded by putting his penis in by pushing very hard. He had been getting angry with her because she could not admit his penis.

[27] Then there was a knock at the door. Immediately the Accused got up and dressed. He freed her to get dressed as well. She could not do so straight away because she felt so bad, and was in a lot of pain. She got dressed slowly. The Accused picked up the knife again, and held her hand. He put the pillow to her face. She was told to sit down and to be quiet.

[28] She said she knew it was her brother at the door. Later looking out from another room the Accused confirmed it was the brother. She said he threatened to kill her if she called her brother. She was very frightened. She was made to sit at the table outside the bedroom. He waited until her brother left. He checked at 4.30 pm and saw the brother had gone, and then went away. She waited for her mother to return.

[29] At 6.30 pm she took a shower. At 9 pm her mother came and she reported the matter to her. Her elder brother came home 10 minutes before that. Her mother went upstairs to speak to the landlord. The Accused called her and was in the front room. She did not respond. He said “why did you not say it was with your consent?” She replied he had forced her. She stayed in her room, later her father came home and was told. She cried and he was angry. She was only 17 years old at the time.

[30] The matter was reported to the police the next day. Her statement was taken and she went for a medical examination.

[31] The Accused was interviewed by the police at Nasinu Police Station the day after the incident. On first being confronted with this rape allegation he said “The first thing is that I did not rape. Whatever I did we both agreed to do it. I did not enter the house by force.”

[32] He said he had known the complainant about 5 or 6 months. Laughingly she had invited him into the house that day. She said no-one was at home and that they would all come later. He said he had sex with her. He said he did not know whose knife it was when shown a knife. He said it was a lie that he had threatened her. He said a bedsheet shown to him belonged to the complainant’s family and identified it because of the blood stain on it, from the sex they had had on it. He was shown a torn pillow case but said he could not remember how it got torn, nor one of the complainant’s pyjamas. He said he had taken 3 pyjamas off her together, meaning all at once. He could not account for why she had reported the matter to police and ended by stating “We will get married.”

[33] In the charge statement the Accused had said: “First of all I did not rape her. Her father and mother knew that I was in love and willing to get married with (the complainant). We had sex with consent. Now I am still interested with (the complainant).”

[34] The Accused gave sworn evidence also. He said the complainant and he were in love. There had been talk of marriage. He had started it. There was discussion and no obstacles. He was about to have his lunch on 1^st February 2001 when he saw the complainant outside. They talked. He asked if anyone was at home or not. He made his intentions plain and was invited in . She said be careful no-one sees you. They started kissing. Then they went to the bedroom. He said he repeated part of his initial banter which was “Are you going to give or not?” and that she replied “yes”.

[35] They took off their clothes. He said she complained of pain. He knew she was a virgin. Blood came out. They therefore relaxed. Then the brother arrived. They were both naked in bed. Both got dressed. He found out from another bedroom window that it was her brother outside. She said to be quiet. They sat down in the passage and were quiet, though he also said they did move around and talked.

[36] When the brother had gone, the Accused said they started kissing again. He took her to the bed. He asked her if they could do it again and she said no because she was really in pain. After that, at about 5 pm, he came out.

[37] The first question you have to ask is whether you accept that she did not consent. For if you find that she consented that is the end of the matter and your opinions should be not guilty. Before you go to other evidence, consider the evidence first of the eyewitnesses that is of the complainant and of the Accused. Has the complainant proved to you beyond reasonable doubt that she did not consent? Do you believe her and accept her evidence of how the sex occurred?

[38] If you accept that the complainant was not consenting you must ask yourself did the Accused know that she was not consenting, and if not, was that a reasonably held belief, or was the Accused reckless in going on knowing that she might not be consenting? If you accept the complainant’s account of the force used, the use of the knife, the pillow, the threats, and the assault, then you will no doubt conclude the Accused knew that she was not consenting. She was merely submitting because of those threats to kill and the use of the knife.

[39] If you do not accept the complainant’s account of the use of force or have reasonable doubts about it, go to where the complainant had told the Accused the penetration was painful, and consider the Accused’s conduct and intentions. You may arrive at a view that he desisted immediately, in which case he would not have intended to go on without her consent. That would not amount to rape. If you find he persisted above her protests, consider whether he reasonably believed she was not consenting or whether he was reckless in proceeding not caring whether she consented or not. In both the last instances, his intentions would be sufficient in law for a conviction for rape.

[40] Before coming back to collateral issues which may or may not assist you in deciding where the truth lies, always bearing in mind it is for the prosecution to prove its case to you beyond reasonable doubt, I will now give you directions on three other matters.

[41] The first is what we call the evidence of recent complaint and its effect on the overall case. The recent complaint here was what the complainant told to the mother upon the mother’s return to the house around 9 pm. Such evidence as the mother had to give goes to support the consistency of the complainant. The mother cannot tell you if her daughter was indeed raped. She was not there. All she can do is say her daughter complained of rape upon her return. This could be considered evidence of the consistency of conduct on the part of the complainant, or evidence that fits in with her evidence given in court.

[42] The second direction concerns confirmatory evidence. Is there any evidence that comes from an independent source, that is independent of the complainant, that confirms the complainant’s account of the Accused’s use of force?

[43] The complainant said she shouted out on two occasions. No prosecution witness was called who can confirm this. The defence witness Intiaz Ali said he was at home 10 metres from the Accused’s house after 10 am since work had to be stopped because of rain. He said the complainant was talking to the Accused and that it was a good tempered conversation. Nothing was said about any swearing. He said in cross-examination that it was the girl who called the Accused. He did not say he heard any shouts. You will have to decide whether you believe this witness. If you do, then there is no confirmatory evidence in favour of the complainant from this witness, of the shouting out or of any aggressive swearing prior to the Accused entering the complainant’s flat. Instead there is some support for the Accused.

[44] The medical evidence consisted of Dr James Fong’s testimony whereby he produced another doctor’s report of an examination upon the complainant the next day, and of Dr Fong’s comment on that evidence. The complainant had told the first doctor of her history of being raped. The report records there were no bruises seen. The thighs were both tender without swelling. There were fresh tears on the hymen and in that area there was bruising and it was tender. The tendered report did not express any diagnostic conclusions in a form which you could safely rely on.

[45] Dr Fong conceded that even with consent there could be lacerations in the genitalia. Injuries could be caused by intercourse if there were tension. If the patient was a virgin there would be tension. So the medical evidence could not assist you greatly on the issue as to whether this virgin complainant had consented or not. There was no confirmatory evidence from the medical evidence implicating the Accused on the question of force.

[46] The complainant herself took a shower at 6.30 pm on 1^st February when it might have been wiser to have had a medical examination straightaway. But it is unlikely she would have known of the importance of an early examination and prior to the washing away of any blood or other substances. Nothing is likely to turn on this fact.

[47] Mr Raman Singh said in his closing address that the complainant may have been shattered by this first experience. She was emotionally upset. She was worried by the mother and so had said the incident had happened by force. Her own evidence was that afterwards she had sat on the floor, on the tiles. She had not said anything to her brother, though this may have been for cultural reasons that she could not speak to her brother about it. Her mother saw her sitting behind the settee on the tiles. She spoke to the complainant who started to cry. She said her daughter looked very frightened, her face went down. She was shaking, shivering and scared. She cried for a long time and the mother hugged her. Because this evidence is not from another source independent of the complainant you cannot treat it as confirmatory of the complainant’s account. It is however evidence of consistency in her conduct if you accept it and consider that it followed from an act of rape upon her.

[48] The complainant’s brother came knocking at the flat door and windows. He did not hear any sound from inside. He waited, he says, for 1½ hours. He then left. He was unable to provide any evidence which might confirm the complainant’s account on the issue of non-consent. The complainant of course said she could not speak out or say anything because she was so afraid of the knife which the Accused still held.

[49] The complainant said the impediment to their marriage came from the Accused’s parents not hers. This would tend to rule out any cause for resentment from the Accused’s side towards the complainant or her parents. There was no reason therefore to start swearing at her that day.

[50] The complainant was cross-examined about her statement to the police, the further statement of 27^th March 2001. The complainant agreed she signed the statement which had been recorded by PC Chetty. It is an exhibit which you can study. She said half of it was not correct. She agreed she had not complained about the officers to the police complaints unit. She was asked specifically about what she had said in a previous proceeding about this matter. She was shown an extract from the record where she had agreed that she and the Accused had come to court to get married. She is recorded as having said and she agreed correctly, that she had said “Yes, I do not know the date.” Then she told you that she had lied to the Magistrate.

[51] This all goes to the question of the credibility of the complainant. The defence say you cannot rely on a person who tells lies in court, and is inconsistent. Of course you need to consider carefully whether on the main issue in the case namely, whether or not she was forced to have sexual intercourse, she was telling you the truth. Deliberate lies on material matters may make you conclude the witness cannot be relied on and her word believed. But it is a matter for you to decide.

[52] There were many collateral issues later on which I will not repeat such as the night spent at the Kava Shop or at Dodi’s place, whether she agreed to get married to the Accused and why. She has explained to you why she did all of these things. You will have to see whether this helps you in deciding who is telling the truth about events on 1^st February 2001, bearing in mind it is not for the Accused to prove his innocence but for the prosecution to prove its charge.

[53] You might ask yourselves what was going on in the flat after the brother departed, a period of some 3 hours. If the Accused had not completed the sexual act earlier, why did he not force himself again upon the complainant to gain his satisfaction? Has this time been accounted for by the complainant satisfactorily? These are matters for you to ponder.

Please now retire and consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused : Messrs Kohli & Singh, Suva