State v Naidu - summing up [2005] FJHC 557; HAC0024.2005L (4 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0024 OF 2005L

THE STATE

v

BIMLESH NAIDU
s/o Kaliappa Naidu

Mr. K. Tunidau for the State
Mr. H.A. Shah withdrawing after commencement of the trial
Accused in Person

SUMMING UP

Ladies and Gentleman Assessors,

We have now arrived at the stage of the trial, where I am required to sum up to you.

During the course of this summing up, I shall give you directions on the law and you are bound to accept those directions regardless of what counsel or the accused may have told you the law to be. On matters of fact, you are free to make up your own minds and reach your own conclusions. You have heard Counsel for the State and the accused. Each put to you their view of the evidence and how it should be assessed. In so doing, they were doing that they are entitled to do.

However you are not bound by what they might have said if you do not agree with it and similarly if I appear to be expressing any view of the facts you must reject such view unless you yourselves are of the same opinion. If I omit to mention evidence which you think is important, you must take it into account, just as if I stress evidence which you think is unimportant, you must disregard the fact that I stressed it.

In arriving at your conclusions, you must have regard only to the evidence you heard in this court in this case. You must discount anything you may have heard from friends or relatives or read in the newspapers and ignore any advice or suggestions made to you. You must also put aside any feelings of horror or revulsion or sympathy either for the victim or the accused. You must base your opinions on your own objective analysis of the evidence.

In assessing the evidence, you are at liberty to accept the whole of a witnesses evidence or accept part of it and reject another part or reject the whole. In deciding on the credibility of any witness, you are to take into account not only what you heard but what you saw. You should take into account the manner in which he or she gave evidence. Was he or she evasive, how did he or she stand up to cross-examination? You are to ask yourselves was the witness honest and was the witness reliable.

Of course in any trial, there are bound to be some inconsistencies in the evidence of a witness and inconsistency with others. You are to ask yourselves did the inconsistency relate to peripheral matters or did the inconsistency go to the core of the witnesses evidence and was it of sufficient significance to affect his or her credibility.

At the end of the prosecution case, you heard me explain several options to the accused. He could have remained silent. He could have made an unsworn statement or he could have made a sworn statement. These options were given to him because there is no obligation on him to give evidence. The prosecution has the burden of proving guilt at all times. The accused gave sworn evidence and you must give his evidence careful consideration.

You, the assessors are chosen from the community and you represent a pool of common sense and experience of human affairs. You do not leave that common sense and experience behind when you enter the courtroom. You are expected to and indeed required to, use that common sense and experience in your deliberations. In deciding upon any proposition put to you, you are to ask yourselves whether it accords with your common sense or is it an affront to your common sense and experience.

At the conclusion of this summing up, I shall adjourn the Court so that you may retire and deliberate. You are free at that time to discuss the case amongst yourselves but with no one else. However you must form your own individual opinions. When you are ready, the Court will reassemble. You will then be asked to state your individual opinions in Court. You will not be asked for the reasons for your opinions. Your opinions need not be unanimous, but it is desirable that they are.

The accused stands charged with the offences of rape and wrongful confinement. Under the law an accused person is presumed to be innocent until proven guilty. He does not have to prove his innocence and indeed he does not have to prove anything. It is the duty of the prosecution to prove the guilt of the accused. The prosecution must prove each and every ingredient of the offences.

Not only must the prosecution proved the accused’s guilt, it must prove it beyond a reasonable doubt. This perhaps is the most important direction of law that I can give to you. This means that you must be so satisfied as to be sure of the accused’s guilt before you express the opinion that he is guilty. If after considering all the evidence in this case, you are left with a reasonable doubt as to the guilt of the accused, then you must advise me that the accused is not guilty.

The particulars of the offences which are contained in the Information which you have before you are that VIMLESH NAIDU s/o Kaliappa Naidu, on the 28^th day of July 2005, at Lautoka, in the Western Division had unlawful carnal knowledge of BARBARA PELIZZARI without her consent and further that VIMLESH NAIDU s/o Kaliappa Naidu on the 28^th day of July 2005, at Lautoka in the Western Division knowingly and wrongfully confined BARBARA PELIZZARI.

You have heard the evidence and I don’t propose to recite it to you but I do propose to briefly refer to it.

With respect to the two offences before you, there were two witnesses called on behalf of the State. The first was the alleged victim, Barbara Pelizzari. You will no doubt recall her evidence as to her meeting with the accused in Lautoka on the 28^th July 2005, Thursday last week. She having arrived in the country from Australia on the 21^st July 2005. She met the accused in the street. He was friendly. He spoke to her and the conversation took place about her desire to find a restaurant to have lunch. He took her to a restaurant, a restaurant near the mosque. She says he sat in front of her in the restaurant and she says that he asked her what she was doing for the night and she said she had a friend at the hotel.

She says that he suggested going to a pub and that she told him to bring along some friends. She agreed to go to the pub because there would be other people. He was to pick her up from the Sea Breeze Hotel where she was staying at 7.00pm. He arrived, she wasn’t ready and he came back at 7.30pm. He came back in his taxi. They then travelled to another venue where a van was obtained by the accused or organized by the accused and ultimately obtained. She described the van as being dark grey and having writing on the window and flowers inside. That she said she wanted to go to a pub or to a restaurant to get some food as she was hungry. He went and stopped and got takeaway and some beer but he then drove a long way to Saweni Beach and this was where he was to meet his friends.

She gave evidence of him stopping the van near the beach, there being other vehicles there and on the left was a van with Fijian people in it and on her right was a car but she couldn’t see the people. She gave evidence that she felt uncomfortable, it was isolated but she tried to stay calm. She says that she asked to go back to the hotel and he said to wait 15 minutes as his friends were coming by boat. She said she would ask the Fijian boys and he warned her against doing that, telling her that they were dangerous people. She says that whilst there at the beach, she drank some beer from a glass and the accused was also drinking beer.

At about 9.30pm, he drove from the beach, she thought heading back towards Lautoka. He then turned right into a field and stopped the car. She says she was feeling scared, she was crying and begging him to bring her back to town. She says the vehicle stopped and turned around and he then locked the doors. He stopped the engine and turned the lights off. She says he then touched her legs, that she pushed him away. She was sitting in the left front passengers seat. He was trying to come over to her and she was moving away from him, that he said he had a knife and he didn’t show it to her. He said he had a knife in the pocket of the driver’s door. She says she was terrified. That she was trying to push him away and that she was saying he was to punch her. She got the door opened, she unlocked her door and he grabbed her and pushed her to the ground. That he was then punching her with the glass and his fists. That he was on top of her. That as a result of this, she says she suffered bruising of her left eye, left shoulder and the right shoulder, the right side of the head and the right upper lip and you recall she showed to you, the assessors, the bruises that she said she suffered as a result of that altercation.

She says that he said words to the effect, don’t move or I will hit you. That she was on the ground. She was very scared. She says that she was afraid. That she tried to defend herself, that he was on top of her, she tried to push him, that she had a bag with a chain, that she put the chain around his neck and tried to choke him but the chain broke and she then said he became more angry and she then realized that she couldn’t escape. At that point, she asked him to use a condom. She acknowledged that she produced and gave to him the condom. She then got up and he took her to the back of the van and asked her to suck his penis which she said she did thinking that she could hurt him in doing so. She says that she bit his penis but this was not enough and that it made him angry and he pushed her onto the ground. He was on top of her again and that he opened her legs. That at the time she was wearing a skirt and panties and he pushed her panties aside. That she was trying to protect herself with a hand but could not. That he forcefully inserted his penis into her vagina and that she said to you that she did not consent.

She says that after that the accused asked her for money that he had to go to hospital for the injury to his penis. She says that there were some blood on her skirt. She gave to him the money of about $100.00. That he took her back to the Sea Breeze Hotel. The next day, she had a booking to go to Beachcomber Island, that she went and took up that booking, she said to make up her mind as to what to do. When she returned on a Sunday, 31^st July 2005, she immediately reported the matter to the Markets Police Post. As a result of which, she was interviewed and she was medically examined at the Lautoka Hospital.

In cross-examination by the accused, she said that she was asked, did she put the condom on him to which she said no. She was asked as to her kissing him and she said she never kissed him.

Evidence was then given by the police officer, Detective Constable 2567 Hanif who conducted the caution interview with the accused. The record of interview was admitted into evidence as Exhibit 1 and you will have it with you when you deliberate. You should consider the document and you should consider all of the documents, not just those parts to which I might refer but when you consider it, you may that there inconsistencies between what is contained in that document and the oral evidence that has been placed before the court. Importantly, you will see in that document, the admission by the accused that he had sex with the alleged victim. You will also see in that document the accused’s suggestion that sex was consensual, that it was sexual intercourse with her consent. That she removed all her clothing whereas she says, she didn’t remove any of her clothing and her panties were in fact pushed aside at the time that his penis was forced into her vagina.

You will also see in the record of interview an acknowledgment by the accused that he punched Ms Pellizzari by a description that he did it in the circumstances surrounding her demand for $500.00. You will see a denial of the allegation that she bit his penis and as I have said you should read the document in its entirety and not merely focus on matters that I might have highlighted.

Evidence was also given on behalf of the prosecution by Dr. Lucy Luo, the medical officer at the Lautoka Hospital who examined Ms. Pellizzari on the 31^st July at about 2.00pm. She was described as being a gynaecologist based at the Lautoka Hospital and she described the bruises consistent with the description that Ms. Pellizzari has given earlier. In cross-examination, the accused asked her, was there any injury below the stomach to which the doctor replied no.

As I said the accused elected to give sworn evidence and you have heard his evidence only a short while ago. You have heard his evidence that might be summarized as an act consensual sex. Ms. Pellizzari went with him to Saweni Beach and that sexual intercourse took place between two consenting adults. That she subsequently asked him for money and that then an altercation ensued and he punched her, giving to her the injuries that she described and the doctor described. He said that she had the opportunity to get out of the van at the Shell Service Station earlier in the night had she wished to. He says that she painted the picture of having overspent on her holiday being broke and being in need of money and making a demand for money within 2 days or else she would report to the police or make allegations to the police.

It is for you to assess the totality of the evidence and for you to assess what of that evidence you accept and what you reject and as I said earlier, you can reject part of the witness evidence and accept another part or you can reject the whole of them, that is entirely a matter for you to determine the credibility of the evidence that has been placed before you.

You heard the prosecution earlier detail to you that there were various elements to the offence that the prosecution had to prove the charge of rape. The elements of that charge are: that the person has unlawful carnal knowledge of a woman without her consent or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind or by bodily fear, harm or by means of false representations. Here, there is an admission that sexual intercourse took place. So the first essential element, that is, the carnal knowledge that is admitted. It is the remaining elements and that is, the consent or lack of consent that must be proved by the State as the section says or implies, it is not consent if that consent is obtained by force or by threat or intimidation of any kind or by fear of bodily harm or false representations.

The elements of the second count, that is the wrongful confinement, are that the accused restrained, restricted, held against her will of Barbara Pellizzari and relevantly here, held against her will in the van and again it is for you to look to the evidence and see if that element has been satisfied.

If you are of the opinion that the prosecution has failed to prove any of the necessary elements beyond reasonable doubt or if you are unsure of any of them then you must find the accused not guilty. The State Counsel pointed out to you the prior need for there to be in matters such as this, some evidence to corroborate the alleged victim’s version of what occurred. He also correctly pointed out to you at since November 2004, the Fiji Court of Appeal has made it patently clear that the law in this country now conforms to the law in most other Commonwealth countries and that is, that it is no longer necessary for there to be corroboration in a general sense of the complainant’s version of events but only where there is some particular aspect of the complainant’s evidence that may give rise to a question as to its reliability and if there is such an aspect then that is a matter that I should give an appropriate direction with respect to corroboration. There is in my view nothing in the evidence that is before you that requires me in this matter to give you such a direction. You are therefore obliged to ignore any apparent lack of corroboration of the version of the events given by the alleged victim.

In essence you are required to consider what of the evidence and which of the witnesses you accept and what you reject. In arriving at your opinion, you are to have regard to all of the evidence and not merely those matters that I might have referred to or I might have highlighted. You should look at the exhibit, the record of interview, you should think back to the demeanour of the witnesses and what they said and how they said it and when they said it.

Ladies and Gentleman, that is all I wish to say to you. You may retire now to consider your opinions. If there is any clarification that you need, please send the message via the clerks. During your deliberations, take as such time as you need. When you are ready with your opinions, I will receive them individually from you in open court and remember you will not be asked for the reasons for your opinion. Your opinions do not have to unanimous but it would be good if they were.

JOHN CONNORS
JUDGE

At Lautoka
4 August 2005