State v Kumar [2012] FJHC 886; HAC191.2010 (10 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 191 of 2010

STATE

v.

CLAUDIUS PRANIL KUMAR

Hearing: 30/01/12, 31/01/12 & 08/02/12
Summing Up: 10th February 2012
Counsel: Ms. J. Cokanasiga for the State
Ms. Savou for Accused

SUMMING UP

Madam Assessors and Gentleman Assessor,

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact 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 the 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 fact. All matters of fact 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 decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The counsel for accused and the prosecution made submissions to you about the facts of this case. It is their right as the counsel 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 themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

[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 proven guilty.

[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] 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 might have heard about this case, outside of this courtroom.

[8] 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 emotion.

[9] The accused is charged with the offence of rape

[10] I will now explain to you the elements of rape.

[11] According to the particulars of offence given in the information, the accused is alleged to have had carnal knowledge of the complainant Sweta Shalvishni Raj without her consent.

[12] Carnal knowledge is the penetration of the 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.

[13] The elements that the prosecution has to prove beyond reasonable doubt are;

1. The accused had carnal knowledge of the complainant,
2. Without her consent,
3. He knew or believed that she was not consenting or didn't care if she was not consenting.
   

[14] For the accused to be found guilty of Rape, the prosecution must prove all these elements beyond reasonable doubt. In this case the prosecution alleges that the accused had carnal knowledge of the complainant Sweta Shalvishni Raj. Therefore the prosecution must prove beyond reasonable doubt, that the accused had carnal knowledge of the complainant without her consent, and that he knew or believed that she was not consenting or didn't care if she was not consenting.

[15] As far as the element of consent is concerned, in our law, a child under the age of 13 years is incapable of giving consent. In this case the victim Sweta Shalvishni was less than 13 years of age at the time of the alleged incident. Therefore the prosecution need not prove that she did not consent.

Evidence

[16] Prosecution called the alleged victim Sweta Shalvishni Raj, to give evidence first. In July 2010 she had been residing in Lokia with her mother, grandmother and her uncle. She said that the accused stayed with them for two days. When she was sleeping on the floor with the sister, the accused came to her and did naughty things, she said. Explaining what accused did, she said that he removed her clothes using his hands and he inserted his chunni into her chuchu, she said in her words. Accused had further said that he would assault her if she told this to anybody. When her younger sister who was with her started crying, the accused had stopped and gone away. Her landlord had told her mother about it and when the mother asked her, she had told the mother what the accused did. She had been examined by a doctor.

[17] In cross examination she said that when her mother went to the social welfare office her younger brother was playing outside. She said that the accused stayed with them for two days, one night. She admitted that she told the police in her statement, that she was lying on the floor on a mattress. It was suggested to her that her mother told her to make this complaint to police as her mother had a fight with the accused, which she denied.

[18] The next witness was the alleged victim Sweta's mother Sneh Lata. According to her evidence, in July 2010 she had gone to the Social Welfare office. Uraia, her landlord had told her something and she had asked about it from her daughter Sweta. Sweta had told her that Claudius had brought his thing and did it to my thing. Further she said that Sweta explained to her what accused did. She had taken the daughter to the police station and then to hospital.

[19] In cross examination the defence counsel suggested that she made the daughter to make the complaint against the accused as she had a fight with the accused about the food, which she denied. On showing her statement to the police she admitted that the statement was made on the 11th of August 2010. She also admitted in re examination that in her statement she had said that she went to the Social Welfare office three weeks ago.

[20] Caution interview statement and the charge statement of the accused were tendered in evidence by consent of the parties.

[21] The last witness for the prosecution was Dr. James Fong, the consultant gynecologist attached to the CWM hospital. His expertise as a medical doctor was not challenged by the defence and therefore his opinion is admissible. The medical report of the victim which was compiled by Dr. Temalesi McCaig was produced in evidence. According to the medical report, when the victim Sweta was examined on the 11th of August 2010, the hymen had not been intact. Penetration had occurred according to the Professional opinion of the doctor who examined her and the witness Doctor said, that he agrees with the opinion based on the medical findings and the history given. Answering the question posed by the defence counsel he said, that columns D 12 and D 14 of the medical report where medical findings and the professional opinion are stated, does not say that the hymen was not intact due to the actions of the accused.

[22] In re examination he said that the history related is very important to give the professional opinion. Further he said that it is very uncommon for a 12 year old to lose the hymen by horse riding and cycling.

[23] That was the summary of evidence for the prosecution.

[24] Madam Assessors and Gentleman Assessor, at the end of the prosecution case you heard me explain several options to the accused. He has these options because he doesn't have to prove anything. The burden of proving his guilt beyond reasonable doubt, remain on the prosecution at all times. The accused person opted to give sworn evidence and subject himself to cross examination and to call a witness on his behalf. You must give their evidence careful consideration.

[25] Accused giving evidence said, that in July 2010 he stayed with his mother for 3 days and went to Uraia's place as his father chased him away. His sister had taken him to Uraia's house. He had stayed with Uraia's family. Children of Sneh Lata had also been there. He said that he watched 6 movies there and did nothing else. He had been there for 2 days, one night. He had left on the 2nd day, Friday, as Sneh Lata had an argument with him about the food. 2nd day Sneh Lata had gone away in the morning around 10.30am and had come around 8.30pm and had the argument with him. Then he had gone back to his mother's place. In cross examination, he denied any sexual activity on Sweta while Sneh Lata was away. He said that his sister was also there.

[26] Mother of the accused, Roshni Devi gave evidence for the defence. She said that the accused after staying with her for 3 days went to Uraia's house, as he was chased away by his step father. His sister had taken him there. The next day the accused had come back at 10.30 am soon after Sneh Lata left home. He had told her, that Sneh Lata had chased him away because of an argument over food, and wanted to pack his clothes.

[27] In cross examination she confirmed that the accused came back to her, soon after Sneh Lata had left. However, when it was put to her that the accused did not come back at 10.30, but after 8.30 in the evening, she said that she made a mistake and that the accused came in the night.

[28] That was the evidence for the defence.

[29] Madam assessors and gentleman assessor,
You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence, that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box.

[30] You must use your commonsense when deciding on the facts.

Analysis

[31] The prosecution must prove beyond reasonable doubt, all the elements of rape, as I explained to you before, except the element of consent as the victim Sweta was below 13 years of age at the time of the alleged incident.

[32] You may have observed that when some witnesses gave evidence, there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police, can affect the credibility of the witness.

[33] When you evaluate the evidence, you may consider these inconsistencies and the explanations given by those witnesses, when deciding on the credibility. You may also consider the probabilities of the events testified by the witnesses.

[34] The victim Sweta Shalvishni Raj states that the accused inserted his penis into her vagina. She gave evidence as to how it happened. Taking into account the medical examination and the history related, the doctor has given his professional opinion, and the medical report is before you. Alleged victims mother also gave evidence.

[35] The accused states that he never raped the victim. He says that he stayed two days, one night at Uraia's house, he watched 6 movies but nothing else happened. He says however that Sweta's mother Sneh Lata had an argument with him over food or rice. Accused mother also gave evidence in court. The defence says that Sneh Lata made her daughter Sweta to make this complaint against the accused, because of the argument Sneh Lata had with the accused over food or rice.

[36] It is for you to decide which story you are going to believe. Whether the Prosecution story or the defence story.

[37] You will have to consider all the evidence lead before court when coming to your conclusion. You have to decide which witnesses are credible and which are not.

[38] It is a matter for you to decide on the facts and to decide whether the accused has committed the offence as charged or not, whether the prosecution has proved the charge against the accused beyond reasonable doubt.

[39] I have explained the legal principles to you. You will have to evaluate all the evidence, and apply the law as I explained to you when you consider the charge against the accused has been proved beyond reasonable doubt.

[40] Your opinions on the charge of Rape will be either guilty or not guilty.

[41] Madam assessors and Gentleman assessor,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
JUDGE

At Suva
Friday 10th February 2012