State v Prasad - Summing Up [2011] FJHC 621; HAC101.2011 (19 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 101 OF 2011

BETWEEN:

THE STATE

AND:

VINAY PRASAD

Counsel: Ms. J. Cokanasiga for the State
Mr. S. Kumar for the Accused

Date of Summing Up: 19th September 2011

SUMMING UP

1. Madam and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Counsel for the Accused person. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel and Counsel for the Accused person made their submissions. That is their duty. The prosecutor to submit how he proved the case and Defence Counsel to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused person is guilty or not guilty to offences he is charged.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give him the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. 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.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court are the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
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/she evasive? How did he/she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. The Accused above named is charged with 2 Counts of Rape punishable under section 207 (2) (a) (c) and 207 (2) (a) (b) of the Crimes Decree.

11. The Prosecution should prove the main ingredients of the offence of Rape.

(a) The Accused

(b) had carnal knowledge

(c) without consent.

(d) He knew or believed that she was not consenting or didn't care that she

was consenting or not.

(e) The victim.

12. The Prosecution must prove all these elements beyond reasonable doubt. While considering the evidence before this Court if you find there is a reasonable doubt that in any one of the element then you must find the Accused not guilty.

13. In this case the Accused is Vinay Prasad. The virtual complainant is Ranjana Pritika Nand.

14. Under the Crimes Decree section 206 (5) sodomy also comes within the ambit of Rape. If I explain in simpler term penetrating vagina, anus and mouth are included and treated as Rape, if it fulfills the other requirements.

15. The most important element to be proved in this case is consent. Consent is defined in section 206 of the Crimes Decree.

In this Part —

(1) The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained —

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature

or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

16. The Accused and the virtual complainant were married on 15/08/2010 few days after they were started to living together at the Accused person's place of residence at Naselai. Both the Accused and the virtual complainant were agreed that they were having marital relationship including sexual intercourse.

17. The alleged incident had happened on 17th February 2011. Both parties agree they had sex on the said night. The virtual complainant says it happened without her consent but the Accused says he had sex with consent.

18. Considering the elements of the offence all the elements are not contested but the consent. The Prosecution should prove that this incident happened without her consent.

19. To consider whether the virtual complainant consented or not we have to analyze all the evidence before us.

20. Prosecution called 3 witnesses. The virtual complainant Ranjana Pritika Nand, Dr. Errellyn Tungeneboe and the Police Officer D/C 3312 Vilivo Ratumaisala. The Accused Vinay Prasad gave evidence and called his father Vijay Hari Prasad to give evidence on his behalf.

21. Virtual complainant Ranjana Pritika Nand was the 1st witness called by the Prosecution. She said she is 28 years old, and was married to the Accused Vinay Prasad. They got married in August 2010 and living together since then.

On the 17/02/2011 there were some quarrel between the husband and wife because of her mother-in-law. The Accused who was a taxi driver had come home after consuming alcohol at about 7.45 and asked her to prepare some sausages. He had consumed beer with his mother. She had prepared the sausages and sat with them to watch a movie on the television. Then the Accused had accused her for an extra marital affair. At that time she had received a call from her mother. The Accused had yelled at her on this issue.

The virtual complainant got up from there and went into her room and closed the room. From the room she claims she heard the Accused and his mother were talking about her and the Accused had swearing at her for not having dinner. Further she says the Accused and his mother had their dinner. Thereafter he had come and knocked the door and got it opened by her.

The Accused had told her that he is going to use her that night and that's going to be her last night. When the virtual complainant had refused the Accused forcefully removed her clothes.

She said the Accused forcefully tried to put his penis into her mouth. She had refused. Then the Accused had sexual intercourse on her anus. You may recall she said that when they got married she had anal sex with her husband.

On the following day she had got up, had her bath, took two pairs of clothes and left the house. She had gone to her employer sought permission and went to the Police Station of Nausori and lodged a complaint. The complaint was marked by the Defence as A1 and it is before you to consider.

She claims that Accused had told her he is going to use and drag her out of the house. Thereafter he is going to bring another woman.

She claims the Accused had pinched her breasts and bit her over the cloth.

She was subjected to cross examination. You heard and saw her how she gave evidence.

She said this is her second marriage and she was married and divorced earlier. She says she can't remember the husband's name. The marriage was broken because her husband wants to have sex with her just after delivering an 8 month premature baby.

The defence suggested that she initiated the sexual activities and the Accused had sex thereafter. But the witness said she didn't initiate and she didn't consent to have anal sex.

The Counsel for the Accused suggested to the witness that she wants to create trouble to her husband who is the Accused in this case, that is why she made the complaint. The virtual complainant says that she had enough then only she decided to complain to the police.

All other surrounding matters are to test the credibility of the witness. You may have observed the deamenour of this witness. You may assess and decide whether this witness is telling the truth or lies to this Court.

22. Prosecution called Dr. Errellyn Tungunaboe as the 2nd witness. She is a MBBS qualified medical practitioner attached to Obstetrics and Gynecology unit of CWM Hospital. She is presently following her post graduation study in the same field.

On the 18/02/2011 she had examined the Prosecutrix Ranjana Pritika Nand and prepared a report which is marked as P1 in this Court.

This witness told Court that the Prosecutrix Ranjana had told her that her partner forcefully had anal sex without her consent. She had told this confidently and consistently. The doctor didn't find any disturbance in the anal area of the victim. She had found anatomically intact.

The doctor had observed 2 injuries in the nature of bruises over the late4ral aspect of right shoulder and arm. She is of the view those would have caused due to a physical force or trauma. She cannot say it was a love bite.

She is unable to say whether there was anal intercourse or not. She further said that if there is an act of anal sexual intercourse the person may or may not get injuries and it is a different from person to person.

23. The last witness called by the Prosecution was Detective Corporal Vilivo Ratumaisala. He interviewed the Accused Vinay Prasad on 20/02/2011. The record of interview is marked as P2. It should be noted that the statement was not challenged and it was admitted by both parties so you may take the statement into consideration before you come to your own conclusion.

24. When the defence called the Accused opted to give evidence. I should remind you as I told you at the beginning of this trial and the summing up it is the duty of the Prosecution to prove their case beyond reasonable doubt. The Accused need not prove his innocence. If he opts to give evidence it should be treated as an evidence of an ordinary witness.

25. The Accused Vijay Prasad gave evidence and subjected himself to cross examination. He said he was married to this prosecutrix, before that he was married for a short period and divorced due to some family problem.

26. Both the Accused and the prosecutrix were married on 15/08/2010 and lived together till 17/02/2011. The Accused claims they didn't have any disputes between them.

On the 17th he had came back from work and it was a usual evening for them. He had consumed beer, watched a movie on the television, had dinner and returned to bed. According to him the prosecutrix had started to fondle and it ended up in sex. He said it was an ordinary sexual intercourse in other words vaginal sex and not anal sex. He categorically denied that he forced her to suck his penis and anal sex. Further you would have noticed he said he is "lotu lotu" meaning religious. He will never involve in anal sex with the complainant at any time.

27. After the sexual encounter both washed themselves and lied on the bed. At the time she had received a call on her mobile. It was 11.15pm (night). The Accused claims that was from a man. That triggered the fight between them.

28. The Accused said the following morning was very normal, in fact he had gone and met the complainant at her work place and advised her to take her breakfast and offered to take her for lunch at 12 noon.

29. Accused claims he was arrested at about 10.30am at the taxi base. He has no complaint against the Police Officer.

30. The Accused told Court that he never had oral or anal sex. He only had vaginal sex. In fact he said that all occasion it was the prosecutrix who had sex with him including this occasion. Subsequently he said it was 50/50 decision. Both decide.

31. The Accused called his father Vijay Hari Prasad to give evidence. He said on the evening of 17/02/2011 he was at home. He, his wife the accused and the prosecutrix were at home and had dinner together. He said he didn't go for prayers on that day. He goes only on Tuesday.

32. You would have noticed that the Prosecutrix said that the Accused attempted to force his penis into the mouth of her. She refused. According to her there is no penetration on her mouth. But in her statement to the Police which was marked by the Defence Counsel as A1 she had stated that she was forced by the Accused to suck his penis. In the statement he had said something different. I want you to consider the statement made by the Accused which is marked as P2. The Accused gave evidence in Court. He said that he never had anal sex with her.

33. You may note the prosecutrix differ from her version to the police and this Court. If you consider her evidence is truthful then the evidence before the Court is only an attempt to penetrate into the mouth. So you have to consider whether the Accused attempt to rape or not.

34. As we discussed earlier the law says if the consent was obtained through fear or by threat, then the consent is not a valid consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the Accused knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

35. I have already summarized the evidence of the prosecution and the defence witnesses. You also took notes of the proceedings. You can consider the evidence and compare with one another and come to your own conclusion.

36. Please consider all evidence and use your experience in life and common sense and decide, whether the incident of Rape happened by force without consent or other way.

37. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of the accused person's guilt and you are sure of it. You must find the accused person guilty as charged. If you are not satisfied beyond reasonable doubt of the accused person's guilt and you are not sure of it. You must find the accused person not guilty as charged.

38. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

39. Let me ask both State Counsel and the Defence Counsel whether they have anything to be addressed to you?

Ms. J Cokanasiga: No.

Mr. S Kumar: No.

40. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are happy with the summing up.

41. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Sunil Kumar Esq for Accused