State v Ali - Summing Up [2012] FJHC 1119; HAC235.2011 (14 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 235/2011

BETWEEN:

THE STATE

Vs

MOHAMMED IMTIAZ ALI

COUNSEL: Ms. Madanavosa for the State
Accused in Person

Dates of Trial: 08-10/05/2012
Date of Summing Up: 14/05/2012

Name of the victim is suppressed. She will be referred to as RN

SUMMING UP

Ladies and Gentleman of Assessors,

1. It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about facts of the case or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of facts. All matters of facts are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
2. You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.
   
3. Prosecution and accused, appearing in person, made submissions to you about the facts of this case. Accused submitted his submission in writing. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgement.
   
5. On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.
   
6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.
   
7. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called Documentary evidence.
   
8. In assessing evidence of witnesses you need to consider certain tests. Examples:
   
   • Consistency: That is whether a witness saying the story on the same lines without variations and contradictions.
     
   • Probability: That is whether the witness was talking about in his/her evidence is probable in the circumstances of the case.
     
   • Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the available opportunity about the incident.
     
   • Spontaneity: That is whether a witness has behaved in a natural or rational way in the circumstances that he/she talking about.
     
9. The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him.
   
10. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you have heard about this case outside of this court room.
    
11. Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.
    
12. Now let's look at the charges (amended).
    

The First Count:(Representative Count)

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code, Cap.17.

Particulars of Offence

Mohammed Imtiaz Ali between the 29th day of December 2009 to the 31st day of January 2010 at Suva in the Central Division, had unlawful carnal knowledge of RN, without her consent.

Alternative Count:( Representative Count)

Statement of Offence

DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE: Contrary to section 156(1) of the Penal Code. Cap.17.

Particulars of Offence

Mohammed Imtiaz Ali between the 29th day of December 2009 to the 31st day January 2010 at Suva, in the Central Division, had unlawful carnal knowledge of RN a girl being above the age of thirteen years and under the age of sixteen years.

13. In order to prove the offence of Rape the prosecution has to prove following elements beyond reasonable doubt.
    

1. The accused had carnal knowledge of the complainant,

2. Without her consent,

3. He knew or believed that that she was not consenting or didn't care if she was not consenting.

14. Carnal knowledge is the penetration of vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
    
15. As far as the element of consent is concern, in our law, a child is under the age of 13 years is incapable of giving consent. In this case victim was over 15 years of age at the time of the offence and, therefore, she had the capacity under the law to consent. Therefore, the offence of rape is made out only if there was no consent from the alleged victim.
    
16. In order to prove the offence of Defilement of a girl between 13 and 16 years of age the prosecution has to prove following elements beyond reasonable doubt.
    

1. The accused

2. Unlawfully

3. Had sexual intercourse

4. with the female complainant

5. Who was or above 13 years and under 16 years.

17. "Sexual intercourse" above means the act of the accused's penis penetration the complainant's vagina, and in law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute sexual intercourse. Also, the complainant's consent to sexual intercourse is no defence to the offence.
    
18. Now let's look at the evidence led by the prosecution in this case.
    
    1. The first witness was the victim, RN. According to her she is residing at Caubati since her birth. Her date of birth is 10/03/1994. At present she is living with her mother, brother and her son. Between years 2009-2010 her step father and the accused also stayed in her house. On the 29/12/2009 night she was in the house alone as her mother did not return from work. When she was sleeping in the bed room accused come on her forcibly removed her pant and panty and had sexual intercourse against her will. She could not shout as he closed her mouth with his hand. She felt hard and painful when accused inserted his penis in to her vagina. Also felt something watery in her vagina. Also noticed blood on the bed sheet. After this act, accused threatened her with death if she divulges this to her mother.
       

Next in the month of January, 2010 one day her mother had gone to the town leaving her in the house. Accused and her brother had gone for work in the morning. While she was at home at about 1.00pm accused returned from work and started touching her body and her breasts. As it was uncomfortable she had gone in to the room. Accused followed her removed her pant and the panty had sexual intercourse forcibly on the floor of the room. It was painful and hurting to the victim. The accused had removed his under wear in front of her. After having sexual intercourse threatened the victim that he would kill her mother and brother if divulges this information to her mother.

Towards end of January 2010, one day her mother had gone for her sister's wedding leaving her alone in the house. Her brother had gone for work on that day but not returned from work. Accused was in the house and she had her dinner. When she went to bed she had seen accused drinking grog outside of the house. While she was sleeping suddenly she had felt some body was on her top. She had smelt of grog and accused started to remove her clothes and had sexual intercourse forcibly. She could not escape from him as he was very heavy on her. After the incident she had found her bed sheet was full of blood. When she told him that she would divulge this incident accused had slapped her several times. On 12/04/2010 she had gone to the doctor at about 13.00hours and doctor confirmed she was six weeks pregnant. Thereafter she had gone to Valelevu police Station and lodged her complaint. She had gone to the hospital with her mother. She had told this incident to one Nazia before telling her mother. On 23/10/2010 she had given birth to a baby boy. She identified the accused in the court.

In the cross examination witness said that she is not lying in the court. She denied that she told Sanchana Devi about her pregnancy.

2. Naziman Nisha mother of the victim gave evidence next. According to her victim is her daughter and marked the birth certificate of the victim as exhibit-01. On 11/04/2010 while she was in the kitchen her neighbour Nazia had come with the victim and told her that the victim was pregnant. Victim had told that accused, son of her elder sister was responsible for her pregnancy and narrated entire incidents to her mother. She then taken the victim to CWM hospital for examination and given her consent for the examination. She identified her signature in the medical report which was marked as exhibit-02(a) by the prosecution. She identified the accused in the court.
   

Though right of cross examination explained, accused did not cross exam the witness.

3. Alvin Kumar the officer who recorded the caution interview of the accused gave evidence next. According to him he completed 06 years in police service. On 20/07/2010 he has recorded the caution interview of the accused at the Crime Branch interviewing room in Valelevu Police Station. Mohamed Faiyaz one of the cousins of the accused present at that time. He identified the signature of the accused. Interview was recorded in English language as per the request of the accused. He had explained all rights of the accused. He was not threatened or assaulted while recording his interview. Accused refrained from consulting a lawyer. Caution interview was recorded in question and answer form. During the interview accused was calm and voluntarily answered the questions put to him. Interview was commence at 8.55 am and concluded at 10.45am. After reading the hand written original caution interview statement, it was marked as Exhibit No-03. He identified the accused in open court.
   

Witness was not cross examined by the accused.

4. D/C 2916 Allan Nair was called next by the prosecution. He has 14 years experience in the police. On 20/07/2011 he was attached to Valelevu Police Station. As per the instructions he had charged the accused at Valelevu Police Station. The charge was taken in the Crime Branch of Valelevu Police Station. Before or after the charge accused was not subjected for threat, promises or assault. Accused had placed his signature to the charge voluntarily. The charge statement was marked as exhibit-04. He identified the accused in the court.
   

He was not cross examined by the accused.

5. D/C 2561 Vinod Chand gave evidence next. He is the arresting officer in this case. As per the instructions of detective sergeant Lemeki he arrested the accused on 20/07/2011 of the charge of alleged rape. He was arrested at Namadi Heights, Tamavua. Accused had come there as per the request of the police officer. He identified the accused in the court.
   

He was not cross examined by the accused.

6. Prosecution and defence agreed to mark the Medical Certificate without calling the doctor. Accordingly the report was marked as exhibit-02. Dr. Moape Bavou of CWM Hospital had examined the victim on 12/04/2010 after obtaining consent from the mother of the victim. In the history column doctor had written that sexual intercourse with the cousin three times last year and early this year. Professional opinion of the doctor is that victim had sexual intercourse and her hymen is not intact. Pregnancy was certified via a scan.

State counsel marking exhibits 01-04 closed the case for the prosecution.

Copies of all the exhibits are given to you.

19. Accused elected to remain silent and called witnesses.
    
    1. Accused had called Alfaz Mohamed first to give evidence. According to him he is the brother in law of the accused. When he got married to his sister accused was residing at victim's house. He had seen the victim (RN) feeding food to the accused on the day of his Valeema ceremony. (Home coming)

In the cross examination witness said that accused is his brother in law and he asked him to come to court to give evidence on behalf him. He denied that he discussed the case with the accused before coming to court. He further said that he came to court to tell the truth. He reiterated what he told in the examination in chief.

2. Next Rehamat Ali gave evidence on behalf of the accused. He was the former boss of the accused. He gave evidence by looking at a piece of paper. According to him he had seen accused, victim (RN) and victim's mother were shopping at R.B. Patel shopping centre. Next he had seen accused and the victim (RN) shopping at Shop & Save by holding their hands. He was invited for victim's birthday party held at victim's house. He had seen victim working at second hand shop and accused meeting her there.
   

In the cross examination witness said that he cannot exactly recall the dates that he saw the victim with accused.

3. Pradeep Kumar in his evidence said that he knew the accused when he was ten years old. On day of Diwali in the year of 2008, accused's aunt and her daughter had come to his house and accompanied the accused with them. When he called his mobile phone his aunt picked up the phone and told him that accused was going to marry his daughter.
   

He was not cross examined by the state counsel.

4. Sanjana Devi gave evidence next on behalf of the accused. According to her she knew the accused when she rented the house of Pradeep.She had seen accused and her husband drinking grog together. On Diwali day she had seen accused, victim (RN) and victim's mother were having a chat sitting on a boat at Pradeep's house. At that time she had seen victim (RN) was holding hand in hand with the accused. One other day she had cooked for the victim (RN) and the accused. On that occasion she had seen victim (RN) feeding food to the accused. She further said that whenever accused and victim (RN) visit Pradeep they used to drop her house as well.

She was not cross examined by the state.

5. Rakesh Chand gave evidence next. He had seen a girl called (RN) feeding cake to the accused at a birthday party. He knew the girl by name of (RN)

He was not cross examined by the state.

6. Avinesh Sushil Prasad gave evidence finally. According to him he knew the accused when he got married and stayed at Caubati. On a Diwali day (RN), her mother and brother came to his house took the accused to their place. One day he dropped (RN) and the accused to R.B. Patel and picked up them again and dropped at Caubati. He had seen (RN) and accused walking holding their hands.

After calling 06 witnesses accused closed his case.

Analysis of the Evidence

20. As assessors and judges of facts, in this case this victim (RN) gave evidence first. According to her she had been raped thrice by the accused. But she had not inform this to her mother or anybody else. She only informed the incident to her neighbour once she became pregnant. She had not gone to the police first. She had gone to CWM Hospital first and then gone to the police. The victim (RN) was 15 years and 09 months old at the time of first incident. She had number of opportunities to tell this to her mother or any other person. She said that she was threatened with death and her family. As assessors and judges of facts you have to consider her evidence with great caution. Except the first date of incident victim (RN) could not remember other two dates. The inability of the victim (RN) to remember the dates is not crucial to the proving of the charge against the accused.
    
21. As assessors and judges of facts, you heard the evidence of mother of the victim (RN). She corroborated her daughter's evidence and tendered victim's birth certificate to prove the age.
    
22. You heard the evidence of policemen from Valelevu Police Station who arrested the accused, caution interviewed and charged. No evidence led on behalf of the accused that accused was subjected to intimidation, threat or assault during the arrest, caution interview and charging. Accused had met the police officer as per their request before his arrest.
    
23. Ladies and gentleman of assessors, as I told you earlier, the caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. In this case accused did not challenge his caution interview statement. Hence you have to consider accused's caution interview statement as it becomes evidence in this case.
    
24. Medical certificate of the victim (RN) has been tendered to this court to prove the fact that victim (RN) was subjected to sexual intercourse. You have to consider that documentary evidence.
    
25. Ladies and gentleman of assessors, in this case accused elected to remain silent. That is his right. He has nothing to prove to you. But he called witnesses. I ask you to approach their evidence very carefully as some of their evidence is irrelevant to this case. Alfaz Mohamed and Sanchana Devi gave evidence in order prove that the accused and the victim (RN) were lovers. They had seen the behaviour of the couple during relevant period. You have to consider their evidence before you reach your conclusion. You have to discard the evidence of defence witnesses Rehamat Ali, Pradeep Kumar,Rakesh Chand and Avinesh Sushil Prasad as those are not relevant to this case.
    
26. In this case accused takes up the position that he had sexual intercourse with consent of the victim (RN). He had taken up the same position in his caution interview statement as well. To prove his case he called witnesses.
    
27. In this case the accused is charged for rape contrary to sections 149 and 150 of the Penal Code, Cap 17. Alternatively he has been charged for defilement of a girl between 13 years and 16 years of age contrary to section 156(1) of the Penal Code, Cap 17. I have already explained to you about the charges and its ingredients.
    
28. Ladies and gentleman of assessors, in this case state has to prove lack of consent before you can find the accused guilty of rape. If you find there was consent and that he is thereof not guilty of rape. Then you have to consider the alternative count of defilement of a girl between 13 and 16 years of age. If you think that the State has not proved rape charge, then you will be asked to return your opinions on whether he is guilty of defilement of a girl between 13 years and 16 years of age.
    
29. You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject. Use the tests mentioned above to assess the evidence of witnesses.
    
30. You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
    
31. You can also consider whether the evidence is consistence and corroborative of each other or whether they fall apart. That is, whether the evidence of witnesses supports each other fully in material parts or whether they go on opposite directions.
    
32. Ladies and gentleman of assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
    
33. Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
    
34. This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
    

P.Kumararatnam
JUDGE

At Suva
14/05/2012