State v Gounder [2011] FJHC 451; HAC094.2010 (18 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 094 OF 2010

STATE

vs

GANESH GOUNDER

Mr. S. Qica for the State
Mr. H.A. Shah (L.A.C) for Accused

SUMMING UP

[1] Ladies and Gentleman assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions in this trial have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in Counsels' closing speeches you heard yesterday afternoon but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are at liberty to accept the whole of witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness 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 reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately.

Onus and burden of proof

[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

[10] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

[11] In law, the offence of rape is committed when a man has sexual intercourse with the victim and in doing so, he knew or believed that she was not consenting or he didn't care if she was not consenting. The definition of sexual intercourse is penetration of the vagina with some or all of the penis.

[12] The accused is charged with one count of rape. The crime of rape is committed when any person has sexual intercourse with another without the other's consent. In law then there are four elements that you must find proved before you can find the accused guilty of this crime. These are:

(i) That it was this accused;

(ii) He had sex with Emma;

(iii) That there was his penis penetration of Emma;

(iv) She did not consent and he knew that she was not consenting.

[13] I do not think you will have any trouble in coming to your findings on the first three elements; it is agreed that it was Ganesh in the hotel room with Emma and that there was the full sexual act; the only issue in dispute is whether sex was with Emma's knowledge and consent.

[14] The issue of consent is the central issue to which nearly all of the evidence has been directed. Emma says she went to Lautoka to meet Ganesh for lunch, that he forced her into the room at the Diamond Hotel, covered her mouth with a pillow and raped her.

[15] Ganesh on the other hand says that she was texting him beforehand and sex was by mutual agreement after one if not two discussions on the day in question. You must look at all of the evidence and decide where the truth lies. You will examine the evidence of the victim Emma, and of course you will examine the evidence of Ganesh himself. It has been a very short trial and I don't propose to go over the evidence. It will still be fresh in your mind but remember that Emma said she had no idea that there was going to be any sex on the day whereas Ganesh says that it was a matter discussed and they came to a mutual agreement to have sex.

[16] Ganesh also made an interview under caution in which he denied any force or coercion in having sex with Emma. With the interview, if you think he did say what is in there, you can rely on it as evidence in the normal way, giving it such weight as you think fit. You will realize that his answers in the interview are consistent with his evidence: in both he says that agreement was reached and that there was no force.

[17] Ganesh gave evidence to the Court but he didn't have to. His giving evidence does not take away the burden on the State to prove to you, so that you are sure, that Ganesh raped Emma on that day.

[18] If you find the accused not guilty of rape, then you will go on to make a finding on the alternative charge of defilement.

In our law, having sex with a girl under the age of sixteen, even with consent, is a crime called "defilement". It is a defence to the charge if the male had reasonable cause to believe and did in fact believe that the person was 16 years or older. So in our case if you think that Ganesh really thought that Emma was 20 to 21 as he says, then he is not guilty of defilement.

[19] So when the clerk takes your verdict after you have deliberated, he will ask you for your opinion on the rape charge and you individually will say guilty or not guilty. If you find him not guilty of the rape you will be asked for your opinion on defilement, guilty or not guilty.

[20] You may now retire, Ladies and Gentleman and when you are ready with your opinions, you will advice one of my clerks and I will reconvene the Court.

P.K. Madigan
Judge

At Lautoka
18 August 2011