State v Khaiyum - Summing Up [2012] FJHC 1265; Criminal Case 160.2010 (7 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 160 of 2010

BETWEEN:

STATE

AND:

ABDUL KHAIYUM
Accused

COUNSEL: Ms. I. Whippy with Ms V. Prasad for the State
: Mr. H.M. Rabuku for the Accused

SUMMING UP

[1] Madam and gentlemen assessors,

The time has come now for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them.

[2] I remindthou that I am the Judge of the Law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can decide wthe truth lies in this case. If I express any particular viar view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

ounsel have adve addressed you on the facts but once again you not adopt their views oews of the facts unless you agree with them. You will take into account all of the evidence both oraldocumy. You can acceptccept some of what a witness says and reject the rest. You can accept all all of what he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] You must judge udge this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what nce there might have been or should have been. You judge thge the case solely on what you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. Perhaps you have strong feelings about men having sex with men but you must not let that cloud your view of the evidence.

You must judge this case solely on the evidence produced in this Court and nothing else

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused raped Shameem then you will find him guilty.

[8] The accused is charged with one count of sexual assault and one count of rape. Sexual assault is committed when a person unlawfully assaults another indecently without the consent of the person being assaulted. The State says that in forcefully masturbating the victim Shameem Hussein on an unknown date in August 2010, without his consent the accused has sexually assaulted him.

[9] Rape is committed when a person unlawfully penetrates the vagina, the anus or the mouth of another with his penis or an object without that others consent. the State must prove to you in this case that there has been penetration of the anus in the act of rape. They say in their charge that on an unknown date in August 2010 the accused has used his penis to penetrate the anus of Shameem Hussein without his consent.

[10] As you know there are two counts on the information. You must look at each of these counts separately. Just because you might find him guilty on one count does not necessarily mean that he is guilty of the other and vice versa for not guilty.

[11] To prove their case to you the State has called two witnesses for the prosecution. We heard first from the victim Shameem Hussein who told us that on a date he can't remember but it must have been August 2010 because it was about the time of Ramazan, he was sleeping alone at home because his wife had gone to hospital. His uncle, and he identified the accused, came to the house sometime between 9pm and 10pm, and asked if he could sleep there and leave in the morning. Shameem agreed and went back to sleep. The accused lay down next to him. The accused subsequently took Shameem's clothes off forcefully and taking lotion put some on his and on Shameem's penis. He then masturbated Shameem to the point of ejaculation. Thereafter he rubbed their penises together. After he had done that for about 10 to 15 minutes and saying; "I am your uncle and this is a man's game", he put his penis inside Shameem's anus three times. After that he then left the house. Shameem says that sometime later he went to see the Doctor at Valelevu Health Centre, accompanied by the Police and he identified the Medical report showing the findings of his examination. He told his big brother Abdul about the events and Abdul told him to report the matter to the Police. He was adamant that he did not agree either to the masturbation or to the anal rape.

[12] In cross examination, Shameem after discussing his family relationships denied that he bore a grudge against the accused or that he even hated him and denied that he was always fighting with his relatives. He denied making up the story.

[13] The second witness for the Prosecution was the Doctor who examined Shameem 4 days after the alleged assaults. He produced his medical report which you have seen.

[14] You will remember that the Doctor said that he was told that the patient had been sexually assaulted but that he could not identify any abrasions or injuries to the penis or to the anus. He went on to say that if there had been an assault, that the absence of marks of injury could be explained by three factors: 1) that lubricant was used 2) the report was of assault four days earlier or 3) the victim being disabled meant that the anal muscles were not strong therefore not revealing normal signs of injury. He told Mr. Rabuku in cross-examination that despite the patient's report of a painful anus on seeing no signs of injury, he did not see the need to carry out any further tests to determine the cause of pain.

[15] Well Madam and Gentlemen, that was the end of the short prosecution case. You heard me explain to the accused what his rights are in defence and he was given the option of remaining silent, giving evidence under oath and whatever he chose to do, to call witnesses.

[16] The accused elected to give evidence and to call witnesses. The fact that he gave evidence does relieve the burden on the State to prove to you beyond reasonable doubt that he is guilty of these two crimes. The accused does not have to prove anything. However the evidence that he gave to the Court is for you to give whatever weight you wish.

[17] He told us that in July 2010 he was busy in constructing the family house in Daniva Road, Valelevu. He remembers that on the 31st July 2010 he went with his wife, his brother and his wife and their daughter to Shameem's house at 11.30 to repair Shameem's toilet. He left at 2pm and went to his house in Khalsa Road to stay the night with his wife before going back to Valelevu on the Sunday. He said that he and his wife went again to the Khalsa Road house on the 7th August to spend the night and after that he never went back again because he was too busy with the construction until the 14th August when he was arrested. He told us that Shameem's stepfather is his elder brother and he lives in Australia. Shameem is not on good terms with him. Sometimes Shameem swears at his brother and even at his mother. For a while he was living in the house at Valelevu but he had to be kicked out for bad behavior- he used to swear and go around naked. He even said that he wanted to marry the accused's 19 year old daughter. Shameem went to Australia for a while but came back and it was learned that all was not well between the accused and the family living in Australia. The accused said that he was promised $50 for fixing the toilet by Shameem, but he still has not been paid. He denies ever assaulting or raping Shameem.

[18] In cross-examination the accused agreed that some of his evidence was inconsistent with what he told the Police in his statement to them. He said that Shameem's house was only 4 houses away from his.

[19] The second witness for the defence was the accused's mother Mrs Famida Bibi. She remembers that at the end of July 2010, Abdul Khaiyum was building the house and he never went anywhere. At the weekend he would go to his wife's house, stay the night and come back on Sunday. In cross-examination she said she would know if he left the house to go anywhere but she finally admitted that he could have gone somewhere while she was sleeping. She agreed that she would do anything to protect her children. Well, it is for you to make what you want of that evidence.

[20] The accused's wife, Ramiza Khartoon gave evidence. She is separated from the accused. She remembers that on the 31st July 2010 she went with the accused, the accused's brother and his wife and daughter to Khalsa road. It was at 1pm and they fixed the toilet pan. They left after an hour and she and the accused sent the night in Khalsa Road before they each went home on Sunday morning. She and the accused went back for a night the following weekend, that is on August 7th. She said that their Khalsa Road house was just a little in front of Shameem's house.

[21] She also agreed in cross-examination that she had told the Police a different story - she told the Police on the 15th August that she had never seen the accused in the past week, but only had spoken to him on the telephone.

[22] The 4th defence witness was the accused's brother Abdul Jabak. In July 2010 he was working on the reconstruction of the house in Valelevu with the accused. He remembers that on the 31st July Shameem had called and asked for help in fixing his toilet. So he went with his wife and daughter, the accused and his wife. He says that Shameem's wife was there when they arrived. A day or so later Shameem's wife was admitted to hospital and Shameem asked Jabak if he could stay at his house. When he went there, Shameem told Jabak that the accused had raped him. Jabak told him he could do what he wanted to do about it and he said he didn't really believe it because he often lied. A point of law arises here Madam and Gentlemen. The fact that Jabak admits that Shameem told him about the rape is what we call in law evidence of recent complaint. It is not independent evidence that the rape actually happened but it is evidence for you to consider which might assist you to decide whether Shameem is telling the truth or not. The prosecution say that it shows consistency between his complaint and the reporting of it; the defence say that it is yet more proof of his lies. It is a matter for you to consider.

[23] Jabak goes on to say that when Shameem was staying at their mother's house he argued, swore at everyone, even at the mother. He admitted that he had never told the Police this in his statement. He denied that he was changing his story in his evidence to us.

[24] The final defence witness was Mohammed Imran Khan who used to live in Khalsa Road and who knows both Shameem and the accused, because he lived nearby. He says that he knows that Shameem and the accused are on good terms, but sometimes Shameem gets angry, swears and throws things. Apart from that his evidence was rather confusing and you might think that he didn't help us at all.

[25] Well. Madame and Gentlemen; that is all the evidence for you to consider. Remember that the State has to prove to you so that you are sure that Abdul Khaiyum assaulted and raped Shameem. If you believe Shameem then all the element of the crimes are proved and you will find Abdul Khaiyum guilty. If you don't believe him or if you are not sure, you will find Abdul Khaiyum not guilty.

[26] You may retire now to consider your opinions. When you return, you will be each asked in turn for you opinion on each count. It would be good if you can be all agreed but you don't have to be. Please let one of the Court staff know when you are ready and I will reconvene the Court.

[27] Any redirections Counsel?

P. K. MADIGAN
JUDGE

At Suva
7 August, 2012.