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State v K.N.P - Summing Up [2013] FJHC 111; HAC079.2012S (14 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 079 OF 2012S


STATE


vs


K. N. P


Counsels : Ms. M. Fong for the State
Accused in Person
Hearings : 11th, 12th and 13th March, 2013
Summing Up : 14th March, 2013


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State Counsel and the accused have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State Counsel and accused, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.
  3. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  1. THE INFORMATION
  1. You have a copy of the information with you, and I will now read the same to you:

"... [read from the information]...."


  1. THE MAIN ISSUE
  1. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
  1. THE OFFENCES AND THEIR ELEMENTS

9. Count No. 1 and 2 involved the offence of "indecent assault". For the accused to be found guilty of "indecent assault", the prosecution must prove beyond reasonable doubt, the following elements:


(i) the accused

(ii) unlawfully, and

(iii) indecently

(iv) assaulted

(v) the female complainant.

10. To "assault" someone is to apply unlawful force to the person of another, for example, to punch someone in the face, without any justifiable reason, is to apply unlawful force to the person of another. Likewise, to touch someone's breast and/or vagina, without that person's consent, is to apply unlawful force to the person of another. It wouldn't amount to an "assault", if a doctor examine a patient by touching a patient's breast and/or vagina, with that person's consent, in the course of conducting a medical examination. To constitute an "assault", the application of force to the person of another, must be done with no legal justification whatsoever, that is, it was done unlawfully.


11. The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent; for example, a father touching her daughter's breast and/or vagina, without her consent. It is therefore essential for the prosecution to prove beyond reasonable doubt that the assault, was not only unlawful, it was also indecent.


12. Count No. 3 to 7 involved the offence of "rape". For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:


(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;


(ii) without the complainant's consent; and


(iii) he knew the complainant was not consenting to sex, at the time.


13. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.


14. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all. A child under the age of 13 years, is, as a matter of law, incapable of giving consent, and this applies to the offence of "rape" and "indecent assault". The complainant was born on 7th May, 1996. She turned 13 on 7th May, 2009. As a matter of law, she was incapable of giving her consent on any indecent assault and/or rape charge prior to 7th May 2009, because she was still a child, at the time. On element no. 2 of the rape charge, as described in paragraph 12(ii) hereof, once a complainant is found to be under 13 years, her non-consent is presumed in law.


15. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties conduct, at the time, and the surrounding circumstances, to decided this issue. On element no. 3 of the rape charge, as described in paragraph 12(iii) hereof, for a child complainant who is under 13 years old, an accused person is presumed to know that the child is incapable of giving her consent, as a matter of law.


  1. THE PROSECUTION'S CASE

16. The prosecution's case were as follows. The female complainant was born on 7th May 1996. She was brought up by her father and mother. She is now aged 16 years. Her father is 38 years old, while her mother is 36 years old. She has a younger sister who is aged 12 years, and a brother aged 4 years old. According to her mother, the complainant is sick with bone cancer and is constantly on medication. Her health appeared to be deteriorating further. The family had lived in their grandmother's house in Valelevu for the last 16 years.


17. The accused is the father of the female complainant. According to the prosecution, the accused was always strict with his daughter – the complainant. At times, this strictness descended into physical "discipline" by the complainant been beaten by the accused. The complainant was the accused's eldest daughter. According to the prosecution, the accused began to indecently assault her in 2004. She was 8 years old, at the time, and was in class 3. According to the prosecution, the accused came into the complainant's bedroom, stroke her face, rubbed her chest, and inserted his finger into her vagina. After that he stood up, threatened her not to tell anyone, or he will get a beating from him.


18. According to the prosecution, the accused repeated the above behavior twice a week from 2004 to 2008. He would come into his daughter's room, fondle her breast, buttocks and vagina. He would then threaten her not to tell anyone, or he will beat her up. According to the prosecution, the complainant was disgusted with the above, and was often afraid to raise the alarm, because of her father's threats.


19. In 2008, while the complainant was aged 12 years old, and in class 7, the indecent assaults turned into rape. According to the prosecution, when the family were out at a function, the accused came into her daughter's bedroom. He put a pillow on her mouth, removed her clothes and panty, and forcefully inserted his erected penis into her vagina. After having sex with her, he warned her not to tell anyone, or he will beat her up. The complainant said, she tried to fight her father off, but he was too powerful for her. According to the prosecution, the accused repeatedly did the above to the complainant, twice a week, after the first incident. This behavior continued from 2008 to November 2011. She was too afraid to raise the alarm because her father's continued threats. According to the prosecution, in November 2011, it was found that the complainant was suffering from bone cancer. Medical tests and treatment was done on her. In February, 2012, it was found the complainant was four months pregnant.


20. After much encouragement from the doctors and her mother, the complainant revealed the abuses her father had done on her. The police were advised. An investigation was carried out. The accused was caution interviewed by police. He was later charged with two indecent assaults and five rape charges. Given the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.


  1. THE ACCUSED'S CASE

21. On 11th March, 2013, the first day of the trial, the accused pleaded not guilty to all the counts, when the information was put to him. In other words, he denied the allegations against him. When a prima facie case was found against him, requiring him to be put to his defence, he choose to remain silent and called no witness.


22. As a matter of law, I must direct you that nothing negative whatsoever should be imputed to the accused, when he choose to remain silent, and call no witness. That was, in fact, his right. The burden to prove the accused's guilt beyond reasonable doubt, remained with the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything, at all. He is entitled to remain silent, fold his arms, as he did here, and require the prosecution to prove the charges, against him, beyond reasonable doubt. That was his right.


23. However, when the accused was caution interviewed by police, from 2nd to 3rd March, 2012, he admitted the offences. Again, when he was formally charged by police on 3rd March, 2012, he admitted the offences to police. As assessors and judges of fact, you will have to carefully read and understand the accused's caution interview statements and charge statements, so that you can understand his position, especially when he choose to remain silent, in this case. However, we will discuss these matters further when we analyse the evidence later.


24. Suffice to say at this stage that, the accused pleaded not guilty to the charges when the information was put to him, on the first day of the trial. He disputes the allegations, and he is therefore, asking you, as assessors and judges of fact, to find him not guilty as charged, on all the counts. That was the case for the accused.


  1. ANALYSIS OF THE EVIDENCE

25. The State's case against the accused is grounded on three particular type of evidence, that is;


(i) the complainant's evidence;


(ii) the complainant's medical report; and


(iii) the accused's alleged confession in his police caution interview statements (Prosecution Exhibit No. 2) and charge statements (Prosecution Exhibit No. 3).


We will discuss these evidence below.


(i) The Complainant's Evidence:


26. The State's case against the accused basically stands or falls, on whether or not you, as assessors and judges of fact, accept the complainant's evidence. Her evidence was received in the courtroom via skype video link from her home. This was permitted by the court because of her medical condition. Your acceptance of her evidence will largely depend on your assessment of whether or not she was a credible witness. She said, she was indecently assaulted by her father in the year 2004 and 2008. She said, her father used to come into her bedroom, touched her face, then rubbed her chest and felt her vagina. At times, he inserted his finger into her vagina and attempted to penetrate her vagina, with his erect penis. They often argued. The father then used to threaten her not to tell anyone, or he will beat her up. The complainant said, she was frighten and never told anyone about the above.


27. The complainant said, her father indecently assaulted her in the above manner twice a week, from 2004 to 2008. Count No. 1 and Count No. 2 are representative counts. Count No. 1 involved the period between 1st January and 31st December 2004, whereas Count No. 2 involved the period from 1st January to 31st December 2008. You are to consider each count separately. A representative count means a multiple of alleged incidents of indecent assaults could have happened within a mentioned period, but proof of one is enough to ground a conviction against the accused. You must therefore consider each count carefully and separately.


28. In Counts No. 3 to 7, the accused faced 5 counts of rape. All are representative counts. What I said above about representative counts, also applied to Counts No. 3 to 7. You must consider each count carefully and separately. The complainant said, in 2008, she was 12 years old and in Class 7. She said, on one occasion, her family was out at a function. She said, her father came into her bedroom and forcefully had sexual intercourse with her, without her consent. She said, this was her first vaginal sexual intercourse. She said, her father knew she was not consenting at the time. He threatened to beat her up if she told anyone (Count No. 3).


29. The complainant said, after the above incident, the accused had vaginal sex with her about twice a week from 2004 to November 2011. She said, she did not consent, and her father knew, at the time that, she was not consenting to sex with him. [Counts No. 4, 5, 6 and 7]. The complainant said, she was disgusted with her father, but never raised the alarm because she was afraid of his threats to beat her up.


30. In November, 2011, the complainant said, she underwent various medical checks to assess her health. It was discovered she had bone cancer. In or about January or February 2012, she underwent further medical test. The doctors found she was four months pregnant. She later told her mum and doctors that her father was her child's father. The matter was then referred to the police. In answer to the complainant's evidence, her father – the accused – choose to remain silent. He called no witness. Whether or not to accept the complainant's evidence, is entirely a matter for you.


(ii) The Complainant's Medical Report [Prosecution Exhibit No. 1]:


31. In paragraph 30 above, we discussed the medical tests and examination that the complainant underwent. On 29th February, 2012, Doctor Kelerayani Namudu (PW3) medically examined the complainant. She submitted her written medical report as Prosecution Exhibit No. 1. In D(10) of the report, the doctor recorded the complainant's complaint, that is, she had been repeatedly abused by her father sexually since the age of 12 years old. In D(12) of the report, the doctor found that the complainant was pregnant (20 weeks). She was also found to have cancer of the bone. You must read and carefully understand this report. The value of this medical report to you, as assessors and judges of fact, is that, it tends to support and strengthen the veracity of the complainant's evidence. However, what you make of it, is entirely a matter for you.


(iii) The Accused's Alleged Confession:


32. Acting Assistant Superintendent of Police Shanti Lal (PW5) caution interviewed the accused, at Valelevu Police Station, between the 2nd and 3rd March, 2012. The interview was done in English, and PW5 recorded the same in his own hand writing. PW5 gave the accused the standard caution, his right to counsel, and other rights. He asked a total of 87 questions, and the accused gave 87 answers. According to PW5, he did not assault, threaten or made promises to the accused before, during and after the caution interview. During the interview, the accused confessed to the allegations in the seven counts. PW1 submitted the accused's caution interview statements, as Prosecution Exhibit No. 2


33. On the 3rd March, 2012, DC 1841 Sashi Kumar (PW6) formally charged the accused at Valelevu Police Station. While being charged, the accused consented to the following statement, "...I confess to my crimes and I am saying sorry to my family, especially my wife and children and also to my mum and dad and all my in-laws, my relatives and friends and my church members and that I have accepted my wrong doing..." PW6 submitted the charge statement as Prosecution Exhibit No. 3.


34. In considering the accused's alleged confession, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.


35. In this case, PW5 said, he did not assault, threaten or made promises to the accused before, during and after the interview. He appeared to be saying that the accused gave his caution interview statements voluntarily. As to PW6, the police charging officer, the accused said in court, he did not wish to challenge PW6 because he was nice to him. He appeared to be saying that he gave his statements voluntarily, in his charge statements. If you accept the accused's above confessions, they have the effect of solidifying the complainant's evidence. In other words, if you accept the accused's above confessions, they will further support and strengthen the veracity of the complainant's evidence. It is a matter entirely for you to decide, as assessors and judges of fact.


I. SUMMARY


36. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.


37. Your possible opinions are as follows:


(i) Count No. 1 : Indecent Assault: Guilty or Not Guilty


(ii) Count No. 2 : Indecent Assault: Guilty or Not Guilty


(iii) Count No. 3 : Rape : Guilty or Not Guilty


(iv) Count No. 4 : Rape : Guilty or Not Guilty


(v) Count No. 5 : Rape : Guilty or Not Guilty


(vi) Count No. 6 : Rape : Guilty or Not Guilty


(vii) Count No. 7 : Rape : Guilty or Not Guilty


38. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.


Salesi Temo
JUDGE


Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : In Person

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