State v Kumar [2011] FJHC 246; HAC043.2010L (5 May 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 043 OF 2010L

STATE

vs

MAHENDRA KUMAR

Counsels : Mr. T. Ravuniwa for the State
Accused in Person

Hearings : 2nd to 5th May, 2011
Summing Up : 5th May, 2011

SUMMING UP

A. ROLE OF JUDGE AND ASSESSORS

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 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 Counsel and the accused have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State Counsel and a litigant, 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.

B. THE BURDEN AND STANDARD OF PROOF

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.

C. THE INFORMATION

7. The accused, Mahendra Kumar, was charged with "rape", contrary to sections 207(1) and 207(2) (a) of the Crimes Decree 2009. It was alleged that, between the 1st September 2010 and 31st October 2010, at Labasa in the Northern Division, he had unlawful sexual intercourse with Nitasha Poonam Singh, without her consent.

4. THE MAIN ISSUE
   

8. In this case, as judges of fact, each of you will have to answer the following question:
   

(i) Did Mahendra Kumar, between the 1st September 2010 and 31st October 2010, at Labasa in the Northern Division, rape Nitasha Poonam Singh?

E. THE OFFENCE AND ITS ELEMENTS

9. 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.

10. 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 or not the accused ejaculated.

11. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself or others, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.

12. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties conduct, at the time, and the surrounding circumstances, to decided this issue.

6. THE PROSECUTION'S CASE
   

13. The prosecution's case was simple. In September 2010, the complainant Nitasha Singh, aged 18 years old, was doing Form 7 studies at Labasa College. She resided at Kawakawavesi, Seaqaqa, with her parents. At the time, the complainant was always sickly and regularly suffered severe headaches. This made her parents extremely worried, and prompted them to look for outside assistance.

14. Through other relatives, the complainant's parents met the accused. The accused held himself out to be a "pundit" or priest from India. It was said that the accused could heal any sickness in a family, by praying for them. So convinced were the complainant's parents that they invited the accused to their house, to pray over the complainant and heal her sickness. However, the headache persisted.

15. On 23rd September, 2010, with the blessing of the complainant's parents, the complainant went with the accused and his mother to their home in Tabia, to be prayed over and healed. The complainant and her family respected the accused as a "pundit" and a religious man. However, when they arrived at the accused's home, in the middle of the cane fields and isolated from others, the accused told the complainant that he was not a "pundit" or priest.

16. The complainant was frightened. She previously trusted the accused as a pundit and priest. She felt betrayed by the accused's revealation. The complainant said, the accused and his family made her do all the housework, that is, cooking, sweeping, washing clothes and other domestic work. On 24th September 2010, the complainant, after doing the housework, went into the accused's sister's room to rest.

17. The accused came into the room and asked the complainant for sex. She refused and swore at him. The accused later threatened to kill her, and then her family. He forcefully took off the complainant's clothes, and then his clothes. He forcefully held the complainant's hands, sucked her breasts, separated her legs, and then inserted his penis into her vagina. He had sex with her for 5 minutes. Afterwards, the accused told the complainant not to tell anyone, or he will kill her. According to the complainant, he repeated the above episode on 25th, 26th, 27th September 2010 and most of the daytime, until 11th October 2010. On 11th October, 2010, her parents came and took her away from the accused's home. It was later found out that the accused was not a pundit or priest.

18. According to the prosecution, the accused unlawfully had sexually intercourse with the complainant, while she was in his custody from 24th September 2010 to 11th October 2010, on numerous occasions. She did not consent at the time, and the accused knew she was not consenting to sex, at the time. The prosecution asks you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

7. THE ACCUSED'S CASE
   

19. The accused's case was also simple. When the charge was read to him on 2nd May 2011, the first day of the trial, he pleaded not guilty to the charge. When giving sworn evidence, he denied the allegation against him. He said, he did not rape Nitasha Singh between 24th September 2010 and 11th October 2010.

20. In his evidence, the accused said, he came to Labasa town on 24th September 2010, to get some labourers to work on his farm. He said, in the afternoon, he went to Soisoi, and remained there on the evening of 24th September 2010 and the whole day and night of 25th September 2010. He said, he returned to his home on 26th September 2010, in the afternoon. He went to Labasa town and then returned again. He said, after that he went to Bua for 7 days, and returned on the Fiji day, that is, sometime after 11th October 2010.

21. From the above, the accused was saying that he was not at home, at the time the complainant alleged, the accused had unlawful sexual intercourse with her. In other words, the accused was saying that it was not possible for him to have sexual intercourse with the complainant, at the time she alleged, because he was elsewhere and not at home. The accused asks you, as assessors and judges of fact, not to accept the complainant's version of events, but to accept what he said, and find him not guilty as charged. That was the case for the defence.

8. ANALYSIS OF THE EVIDENCE
   

22. In this case, all the elements of the offence of "rape" discussed in paragraphs 9, 10, 11 and 12 are disputed. The parties' version of events are completely at odds with one another. On the one hand, the complainant said, the accused on 24th September 2010, forcefully took off her clothes, forcefully held her hands, forcefully kissed her and sucked her breasts, forcefully separated her legs, forcefully inserted his penis into her vagina and forcefully had sex with her for 5 minutes without her consent and well knew she was not consenting to sex, at the time. According to the complainant, the accused repeated the above on 25th, 26th, 27th September 2010 and in the daytime until 11th October 2010.

23. On the other hand, the accused denied what the complainant said above. He said, on 24th September 2010, he went to Labasa town. He then went to Soisoi on 25th September 2010. He returned home on the 26th September 2010, and then went to Labasa town, and returned home again. He said, he then went to Bua for 7 days, and returned home after Fiji day, that is, after 11th October 2010. He denied the allegations against him. In other words, he denied the elements of "rape" discussed in paragraph 9 hereof.

24. The complainant said, when the accused allegedly raped her, there was no eye witnesses around to witness the event, that is, none of the prosecution witnesses or defence witnesses saw the event. Consequently, there was no eye witnesses from either sides to confirm or deny the parties's version of events. This is not unusual in this type of cases, because the offence is often committed in the privacy of the complainant and the accused. You are therefore, as assessors and judges of fact, often left with the complainant's evidence as against that of the accused, to answer the question posed in paragraph 8 hereof, that is, whether or not the accused raped the complainant between 1st September and 31st October 2010.

25. The case for the prosecution has been outlined from paragraphs 13 to 18, and the case for the accused from paragraphs 19 to 21. The case for the prosecution stands or fall on whether or not, you, as assessors and judges of fact, accept the complainant's evidence. In other words, this case rests on your assessment of the credibility of the complainant, as opposed to that of the accused, as a witness. If you accept the evidence of the complainant as credible, and you are satisfied beyond reasonable doubt and are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the evidence of the complainant as credible, and you are not satisfied beyond reasonable doubt and are not sure of the accused's guilt, you must find him not guilty as charged.

26. You must also consider the evidence of Doctor Inosi Vatucicila Voce of Labasa Hospital. He submitted the complainant's medical report, dated 13th October 2010, as Prosecution Exhibit No. 1. After the complainant was taken from the accused's home on 11th October, 2010, she was medically examined by Doctor Eparama Amoe at Labasa Hospital, on 13th October 2010. In D(10) of the report, the complainant's history as recorded by the doctor, were as follows, "... according to patient, she has been repeatedly molested and raped for the past 3 weeks by a hindu priest..." In D(12) of the report, the doctor noted, "... normal looking external genitalia, no hymen intact ..." In D(14) of the report, the doctor noted, "... patient has been defiled..." In D(16) of the report, the doctor wrote, "... defilement confirmed..." To defile a girl is to have sexual intercourse with her.

27. The human body is a vital piece of evidence. Whether the body is dead or alive, it often speaks to us through its injuries. In this case, the complainant's hymen was broken. According to Doctor Voce, the hymen could be ruptured in many ways, three of which are masturbation, introduction of a blunt object, or through sexual intercourse. He said, by sexual intercourse, he meant a penis entering the girl's vagina. He said, it was possible in this case that the complainant's hymen was broken by the act of sexual intercourse. If this was so, it was consistent with the history related to the doctor by the complainant, in D(10) of the medical report. This medical evidence appear to confirm the complainant's version of events.

28. You have heard the evidence of all the prosecution and defence witnesses. You have observed their demeanour in the courtroom, while they were giving evidence. How did they behave in the courtroom? Were they forthright when examined-in-chief, cross-examined and re-examined? Were they evasive or argumentative when examined-in-chief, cross-examined and re-examined? How did they dress to Court? Given the above, my address to you on the law, your life experiences and common sense, you should be able to decide which witness's evidence or part of his evidence is reliable and therefore to accept, and which witness's evidence or part of his evidence is unreliable and therefore to reject, in your deliberation in this case.

1. SUMMARY
   

29. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

30. Your possible opinion on the rape charge are as follows:

(i) Rape - Guilty or Not Guilty.

31. You may now retire to deliberate on the case, and once you've reached your decision, you may inform our clerk, so that we could reconvene to receive your decisions.

Salesi Temo
Acting Judge

Solicitors for the State : Office of Director of Public Prosecutions, Labasa
Solicitors for the Accused : Accused in Person