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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 176 OF 2008S
STATE
V
RICHARD RONIL KUMAR
s/o RICHARD SURUJ KUMAR
Counsels: Ms. S. Hamza and Mr. K. Waqavonovono for the State Mr. T. Terere for the Accused
Hearing: 19th, 20th, 21st, 22nd, 26th and 28th April, 2010
Summing Up: 5th May, 2010
SUMMING UP
1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
7. The accused, Richard Ronil Kumar, was charged with six counts. On count No.1, he was charged with "rape", contrary to sections 149 and 150 of the Penal code, chapter 17, and an alternative count of "incest by males", contrary to section 178(1) of the Penal Code. On counts No.2, 3, 4, 5 and 6, the accused was charged with "incest by males", contrary to section 178(1) of the Penal Code.
8. On count No.1, it was alleged that, the accused, on 25th June 2007, at Navua in the Central Division, had unlawful sexual intercourse with Priya Agnes Kumar, without her consent. Alternatively, it was alleged that, the accused, on the same day, had unlawful sexual intercourse with his sister, Priya Agnes Kumar. On count No. 2, it was alleged that, the accused had unlawful sexual intercourse with his sister, Priya Agnes Kumar, between 2nd and 6th July 2007. On count No.3, it was alleged that, the accused had unlawful sexual intercourse with his sister, Priya Agnes Kumar, between 9th and 13th July 2007. On count No.4, it was alleged that the accused, had unlawful sexual intercourse with his sister, Priya Agnes Kumar, between 16th and 20th July 2007. On count No.5, it was alleged that, the accused had unlawful sexual intercourse, with his sister Priya Agnes Kumar, between 23rd and 27th July 2007. On the last count, ie. count No.6, it was alleged that, the accused had unlawful sexual intercourse, with his sister Priya Agnes Kumar, on 30th July 2007.
D. THE MAIN ISSUE
9. The following questions arises for determination:
(i) Did the accused, on 25th June 2007, at Navua in the Central Division, rape Priya Agnes Kumar? Alternatively, did the accused, on the same date, had unlawful sexual intercourse with his sister, Priya Agnes Kumar?
(ii) Did the accused, between the 2nd and 6th July 2007, had unlawful sexual intercourse, with his sister, Priya Agnes Kumar?
(iii) Did the accused, between 9th and 13th July 2007, had unlawful sexual intercourse, with his sister, Priya Agnes Kumar?
(iv) Did the accused, between 16th and 20th July 2007, had unlawful sexual intercourse, with his sister Priya Agnes Kumar?
(v) Did the accused, between 23rd and 27th July 2007, had unlawful sexual intercourse, with his sister, Priya Agnes Kumar?
(vi) Did the accused, on 30th July 2007, had unlawful sexual intercourse, with his sister, Priya Agnes Kumar?
E. THE OFFENCES AND THEIR ELEMENTS
10. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant’s vagina;
(ii) without the complainant’s consent; and
(iii) he knew the complainant was not consenting to sex, at the time.
In law, the slightest penetration of the complainant’s vagina by the accused’s penis, is sufficient to constitute "sexual intercourse", and it’s irrelevant whether the accused ejaculated or not.
11. For the accused to be found guilty of "incest by males", the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant’s vagina; and
(ii) at the time, the accused knew the complainant was his sister.
In this type of cases, the question of whether or not the complainant consented, is immaterial.
F. THE PROSECUTION’S CASE
12. The prosecution’s case was simple. They said, on 25th June 2007, the accused and his sister, Priya Agnes Kumar, were alone at home, in Navua. Their home consisted of a two-bedroom house. Their younger brother, Claudius and mother, were out at work. Their father passed away in 2000. The accused was approximately 18 years 5 months at the time, while the complainant, Priya Agnes Kumar, was 14 years 10 months. According to the prosecution, Priya was washing clothes and dishes. Richard came and hit her. He closed her mouth and carried her to a bedroom. He then forcefully laid her on a bed, and penetrated her vagina with his penis. He had sex with Priya for a while. Priya did not consent to sex. Richard then threatened Priya with death if she told anyone about what they did.
13. According to the prosecution, Richard repeated the above episode throughout the month of July 2007. They said, Richard often forced himself onto Priya, when Claudius and their mother were out at work. This often happened from Monday to Friday, on every week of July 2007. Richard often waited until Claudius and their mother were out. Then he would hit and threaten Priya. Then he would forcefully insert his penis into her vagina. Then he would threaten her with death, if she told anyone.
14. According to the prosecution, Richard well knew that Priya was her sister. On 30th July 2007, Claudius caught the two having sex at 11am, when he returned home early for lunch. Claudius was disgusted, and later reported the matter to police. An investigation was carried out. Richard was caution interviewed by police. He was later charged for the offences. According to the prosecution, Richard raped his sister, Priya, on 25th June 2007, and later committed incest with her, during the month of July 2007. That was the case for the prosecution.
G. THE ACCUSED’S CASE
15. The accused’s case was simple. He gave evidence on oath. He denied all the allegations against him. As far as the accused was concerned, his sister, Priya Agnes Kumar, was lying about the allegations she leveled at him. He stated, he didn’t have sexual intercourse with Priya Agnes Kumar on 25th June 2007, nor during the month of July 2007. He said, Priya knows that she’s lying. The accused called his mother as his only witness. She said, she didn’t believe the present allegations against her son, the accused. That was the case for the defence.
H. ANALYSIS OF THE EVIDENCE
Agreed Facts
16. The prosecution and defence have agreed to the following facts:
(1) It is agreed that the complainant, Priya Agnes Kumar is the daughter of Richard Suruj Kumar and Roshni Devi.
(2) It is agreed that Priya Agnes Kumar was born on 30th August 1992. There is no dispute between the State and the Defence about the authenticity, content and admissibility of her birth certificate.
(3) It is agreed that Priya Agnes Kumar was 14 years of age at the time of the alleged offences.
(4) It is agreed that the accused, Richard Ronil Kumar is the son of Richard Suruj Kumar and Roshni Devi.
(5) It is agreed that Richard Ronil Kumar was born on 9th January 1989. There is no dispute between the State and the Defence about the authenticity, content and admissibility of his birth certificate.
(6) It is agreed that Richard Ronil Kumar was 18 years of age at the time of the alleged offences.
(7) It is agreed that Richard Ronil Kumar is the eldest brother of Priya Agnes Kumar.
(8) It is agreed that Claudius Pranil Kumar is the second eldest brother of Priya Agnes Kumar.
(9) It is agreed that Roselyn Lata is the half sister of Priya Agnes Kumar.
(10) It is agreed that Priya Agnes Kumar’s father, Richard Suruj Kumar died in 2000.
(11) It is agreed that at the time of the alleged offences, Priya Agnes Kumar resided at Nakoba, Galoa with Roshni Devi (her mother), Richard Ronil Kumar (the accused who is also her eldest brother) and Claudius Pranil Kumar (her second eldest brother).
(12) It is agreed that Priya Agnes Kumar was medically examined by Dr. Kusitiro Tiko on 8th August 2007. Her medical report is part of the disclosures prepared by the State.
(13) It is agreed that Richard Ronil Kumar was caution interviewed by DC 561 Umesh Raj on 8th August 2007. His caution interview is part of the disclosures prepared by the State. D/Sgt. 1361 Pradeep Kumar witnessed Richard Ronil Kumar being caution interviewed by DC 561 Umesh Raj.
(14) It is agreed that the sketch plans of the alleged crime scene were prepared by D/Sgt. 1361 Pradeep Kumar on 9th September 2007. These sketch plans are part of the disclosures prepared by the State.
(15) It is agreed that Richard Ronil Kumar was charged by WDC 2764 Litia on 14th May 2008. His charge is part of the disclosures prepared by the State.
As a result of the above, and as a matter of law, as assessors and judges of fact, you can take it that the prosecution has proven the above facts beyond reasonable doubt. This enables us to concentrate more on the issues that are really disputed by the parties. As was apparent when we considered the parties’ cases, on the allegations, the parties’ version of events were completely different.
Complainant’s version of events
17. As far as the allegations were concerned, the complainant said, "...on 25.6.07, Richard was threatening me. While I was washing clothes and doing dishes – only myself and Richard at home. Claudius was at work in the village. Richard was hitting me. Richard closed my mouth and took me inside the house. Then he raped me. He had sex with me. He inserted his penis into my vagina. He did this inside a bedroom, on a bed. He told me, if I tell anyone, he will kill me. His penis was in my vagina for a while. I was feeling bad ie. how can a brother do this to me. I did not allow him or give my consent to Richard to have sex with me. I did nothing after that. I didn’t tell anyone. He threatens me not to tell anyone. He accompanies me everywhere..."
18. She continued, "...From June 25, to whole month of July, ie. the weekdays only. The 1st week of July 2007, Richard used to hit me, threatened me and accompany me everywhere. Richard put his penis into my vagina everyday of the 1st week of July 2007. He does that when no-one is at home. I was feeling bad when Richard had sex with me. Mum and Claudius were always at work. Only myself and Richard were at home..."
19. The complainant continued, "...Richard inserted his penis into my vagina from Monday to Friday. I really feel bad. This was on 2nd week of July ie. 9th to 13th July. On the 3rd week of July, Richard had sex with me. I was feeling really bad. How can a brother do this to a sister? On the last week of July ie. 23rd to 27th July 2007, Richard had sex with me ie. he inserted his penis into my vagina. He did this everyday. Nobody was at home, except myself and Richard. I felt bad..."
20. The complainant then said, "...On 30th July 2007, Richard threatened and hit me. He then had sex with me and raped me. He forced me to have sex with him. He was hitting and threatening me. He inserted his penis into my vagina. No-one was at home at the time. I felt bad. 30th July was the last day Richard had sex with me. After that he was not threatening me or hitting me. Claudius saw everything and heard me crying, on 30th July 2007. When matter was reported to police, I was taken to Navua Police Station and Officer Litiana took my statements. Only myself and Litiana were present in that room. The officer was asking me questions and I was telling her everything. I was taken for medical examination..."
The accused’s version of events
21. The accused said, "...I heard what Priya said in her evidence. Priya was lying in court. In 2007, my mother told me my elder sister had chased my younger sister from Suva to Navua, because she was seeing a boy. My aunties forced my sister to report to police, these allegations. My brother, Claudius, reported me to police. I was stopping Claudius from drinking yaqona and smoking. He kept on smoking and drinking yaqona at his work place. His employer was not good. He was an ex-prisoner. My brother later said to my aunties, he was lying. That’s all..."
22. When cross-examined, the accused said, "...Priya lied in court. She was seeing someone else. I am not lying in court. My sister is lying in court. I was very strict with my sister and brothers. [DW1 is very evasive and argumentative]. Priya had a grudge against her elder sister. I didn’t have sex with Priya on 25.6.07, nor between 2nd and 6th July 2007, nor between 9th and 13th July 2007, nor between 16th and 20th July 2007, nor on 30th July 2007..."
23. When re-examined, the accused said, "...Priya knows she was lying in court when she was crying. She wasn’t scared of me. What I told prosecution during cross-examination are true. I don’t know the meaning of sexual intercourse. The answers I gave the police is not true. I am telling the truth..."
Claudius Kumar’s evidence
24. Claudius is the accused’s younger brother, and Priya’s second elder brother. In his evidence, he said, "...I recall 30.7.07, my brother and sister were sleeping together. They were doing sex. It was 11.30am. It was a Monday. I went home to have my lunch. I saw them doing it in the bedroom, from the porch window. Priya was lying down and Richard was on top of her. I saw them for 5 minutes. I clearly saw it was Richard and Priya. I went back to my work place. I relayed the whole story to my cousin, Sujid Lal. I then carried on my work. In the evening I went home. My brother smacked me all through my body. He just smacked me with a whip..."
25. When cross-examined, Claudius said, "...I first reported matter to Police. Priya didn’t report it to police, because Richard threatened her he will kill her. I didn’t report it to police because I was drinking and smoking. I saw Richard on top of Priya for 5 minutes, then I left. There are 5 windows in our house. They had curtains. I went home for lunch. I didn’t knock. I just peep through the window and then return to work. I heard some sounds, I remove the curtain and I saw them. She was screaming. There were no neighbours close by. I am telling the truth. I am not making up the story because I was assaulted by Richard. I wanted to get rid of my brother because I don’t want to listen to him..."
26. When re-examined, Claudius said, "...I didn’t’ make up the story about Richard and Priya. I saw them having sex. I reported it to police because I couldn’t bear what Richard was doing to Priya..."
The accused’s Police caution interview statement
27. The accused was caution interviewed by police on 8th August 2007. He was asked 88 questions over a period of 3 days. He was given the customary meal and rest breaks during the time. In answer to Questions 85, 86 and 87, the accused said he gave his answers voluntarily and out of his own free will, and that his answers were the truth. Yet, when examining the accused’s answers to the questions, he appeared to give three different types of answers. He appeared to admit that, at times, he had sexual intercourse with Priya. See for example, Questions 5, 13, 42, 43, 56, 57, 58, 60, 61, 75, 79 and 80, and their answers. Second, at times, he appeared to admit that, he merely rubbed his erected penis, on Priya’s vagina, while she had her panty on. See for example, Questions 42, 62, 64 and 77, and their answers. Third, at times, he denied the allegations against him. See for example, Questions 44, 45, 49, 63 and 65, and their answers. The sum total of the accused’s answers to the allegations posed to him during his police caution interview, is a matter for you to consider, as assessors and judges of fact. Out of the three different version of events he answered the allegations with, which version do you consider reliable? This is a matter for you, as assessors and judges of fact.
Priya Agnes Kumar’s Medical Report
28. Priya Kumar’s medical report, dated 8th August 2007, was tendered as Prosecution Exhibit No.4. The history related to the doctor by Priya were as follows, "...claimed that she was raped by her older brother at their home on the 31st of July at midday..." The doctor noted the following findings, "...no bruises or redness. Torn hymen..." In the doctor’s opinion, the "torn hymen" was the result of a "sexual assault".
Considering all the evidences together, that is, the complainant’s, the accused’s and Claudius Kumar’s sworn statements, the accused’s police caution interview statements and the complainant’s medical report
29. This case is really about the complaint of a 14 years old girl, named Priya Agnes Kumar. You have heard evidence in court, and obviously, you have observed her demeanour while she was giving her evidence. Priya has indeed made very serious allegations against the accused, her elder brother, who was 18 years old, at the time. The accused has also given his evidence. On oath, he denied all the allegations made against him. He said, his younger sister Priya, was lying in court. Priya’s version of events were completely at odds with that of his brother, the accused. Remember, it is for the prosecution to prove the accused’s guilt beyond reasonable doubt, and that burden stays with the prosecution throughout the trial. The accused is not required to prove his innocence. The prosecution has called Priya’s elder brother Claudius Kumar, also the acccused’s younger brother, to give evidence. He said, he saw the accused having sex with Priya on 30th July 2007, at about 11.30am, when he came home early for lunch. He said, he was disgusted, and later reported the matter to the police. The accused called his mother as his witness. She said, she didn’t believe the allegations leveled at her son, the accused. In his police caution interviews, the accused gave three different type of answers. At times, he admitted he had sexual intercourse with his sister, Priya Agnes Kumar. At times, he also denied having sex with his sister, Priya Agnes Kumar. He also admitted that, at times, he rubbed his erected penis on Priya’s vagina, while she had her underpants on. Priya’s medical report, dated 8th August 2007, said she had torn her hymen as a result of sexual assault. As assessors and judges of fact, you have to consider all the above evidence together.
30. You have heard the evidence of all the prosecution and defence witnesses. You have heard them give evidence, being cross-examined and re-examined. You have heard and seen the way they answered questions – were they forthright? Where they evasive or argumentative? How were they dressed to court? What was their demeanour like in court? How did they conduct themselves in court? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witness’s evidence, or part of a witness’s evidence is reliable and therefore to accept, and which is unreliable and therefore to reject, in your deliberation.
I. SUMMARY
31. In summary, if you accept the complainant’s version of events, and you are satisfied beyond reasonable doubt of that version, and you are sure of the accused’s guilt, you must find him guilty as charged on all counts. If you do not accept the complainant’s version of events, and you are not satisfied beyond reasonable doubt of that version, and you are not sure of the accused’s guilt, you must find him not guilty as charged on all counts.
32. Your possible verdict are as follows:
(i) Count No.1 - Guilty or Not Guilty
Alternative Court - Guilty or Not Guilty
(ii) Count No. 2 - Guilty or Not Guilty
(iii) Count No. 3 - Guilty or Not Guilty
(iv) Count No. 4 - Guilty or Not Guilty
(v) Count No. 5 - Guilty or Not Guilty
(vi) Count No. 6 - Guilty or Not Guilty
33. You may retire to deliberate. Once you have reached your decisions, please advise our clerks, so that we can reconvene, to receive them.
Salesi Temo
ACTING JUDGE
AT Suva
5th May 2010
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