State v Prasad - Summing Up [2013] FJHC 172; HAC117.2011 (8 April 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 117/2011

BETWEEN:

THE STATE

AND

RAVEN PRASAD

COUNSEL: Ms L Koto for the State
Mr S Waqainabete for the Accused

Dates of Trial: 03-04/04/2013
Date of Summing Up: 08/04/2013

[Name of the victim is suppressed. She will be referred to as SSN]

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 defence made submissions to you about the facts of this case. 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. 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.
   
10. 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.
    
11. Now let's look at the charges.
    

The First Count

Statement of Offence

RAPE: Contrary to Section 207(1)(2)(a) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Raven Prasad on the 23rd of August 2010 at Nadawa in the Southern Division had carnal knowledge of SSN without her consent.

The Second Count

Statement of Offence

RAPE: Contrary to Section 207(1)(2)(a) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Raven Prasad on the 24th of August 2010 at Nadawa in the Southern Division had carnal knowledge of SSN without her consent.

12. 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.

13. 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.
    
14. 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 13 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.
    
15. Now let's look at the evidence led by the prosecution in this case.
    
    1. The first witness was the victim, SSN. According to her she is residing at Lautoka. Before she lived at Nadera. At Nadera she was living with one of her aunty, uncle and her cousin. She has one brother and a sister. Her father's name is Mohamed Umar. In the year 2010 she lived with her step father at Nadera. His name is Raven Prasad (accused). Her brother and sister also lived with Raven Prasad. On 22/08/2010 she had gone for sleep at about 7.00pm after dinner. Her sister, brother and accused were in the house. As it was a one bedroom house she slept with her sister and her brother in one double bed. When she went to sleep accused was drinking beer under the porch. At about 12.00pm she went to the washroom and slept again. While sleeping she suddenly felt someone was on her body. When she opened her eyes saw accused was on her top. Though she agitated accused took off her clothes and put his private part into her private part for about five minutes. She felt very painful at that time. Accused threatened her with death if she divulges this to anybody. She could not wake up her brother or her sister as they were sleeping little away from her. After the incident accused went out and she put her panty and slept. On 23/08/2010 accused repeated the same on the victim. Accused took off her clothes and inserted his private part into her private part. At that time nobody was in the room. Her brother and sister were sleeping. She had informed this to accused's wife Praba Wati but she alleged that the victim wanted to have sex with the accused.
       

In the cross examination witness said that after taking off her clothes accused pulled down his trouser after opening the zip. He did this while lying on her body. According to her they were living in one room. The house has one large sitting room, two bedrooms and two kitchens. But the victim, her siblings and the accused were living in one room. She denied sleeping in the sitting room with Nileshni Kumari. She further denied that on 22/08/2010 she slept with Nileshni Kumari and her siblings in the sitting room. According to her Titilia and her husband never lived in the storage room of that house. Witness admitted that both sitting room and kitchen door can be locked from inside the house and if someone wants to go into the house doors should be opened from inside the house. Witness admitted that Praba Wati and Harry Prasad were living in a room next to sitting room. Witness said that she don't know whether the other rooms were partitioned with plywood sheets. Witness admitted that Praba Wati, Harry Prasad, Titilia Pal, Manjula, Nelishni Kumari, her siblings and the accused were living in that house. But she denied that others except her sibling were present on 22-23/08/2010. Witness denied that Praba Wati wakes up at 4.00am every day. She further denied that the accused on 22/08/2010 went out for a grog session with his cousin and returned home at 11.00pm, slept until in the morning and went out to do grass cutting. According to her the accused was at home on 23/08/2010 and he did not go for grass cutting. She admits that her real father asked from Nirmala Wati whether she could come to Lautoka where she lives now. She denied that this is a made up story by Nirmala Wati. Victim denied that she told Praba Wati on 10/09/2010 that accused did not rape her. She had come to take her clothes on that day. She admits that the accused sleeps in the porch of the house. Witness reiterated that she was raped by her step father on both days and she informed the incident to Praba Wati. Victim said that doors were closed on 22-23/08/2010 and nobody entered the house including the accused. Finally she said that she tells the truth in this court.

In the re-examination witness said that she never asked sex from the accused. On both days accused had sex with her forcibly after closing her mouth. She reiterated that only her sister and brother were present in the house on 22-23/08/2010.

2. Jitendra Prasad was called next by the prosecution. He works as a Fitter and lives at No: 05, Mandir Street, Nadera. He lives with his mother Nirmala Wati and his de facto wife Rita Rokotuisuva. On 16/09/2010 while he was at home playing cards her mother informed him that the accused was having sex with the victim. When his mother asked the victim about her body change victim had told her that the accused had sex with her. As the victim is his brother's daughter he called the police and informed the incident.

He was not cross examined by the defence.

3. Nirmala Wati gave evidence next. She lives with her son in Nadera. On 13/09/2010 at about 3.00pm she had gone to her sister's house at Nadawa. Her sister's name is Praba Wati. As the door was opened she went into the house and saw the victim coming from the bathroom. At that time victim was only wearing a towel. She had noticed some marks (love bites) on her chest. Victim then gone into the room for dressing. While witness was seated on the sofa accused came and knocked the door and requested the towel from the victim. When victim opened the door accused went into the room and slept on the bed while victim was wearing her trouser. On 14/09/2010 she had gone to victim's house and inquired her as to what was going on. Victim started the story but could not narrate fully as her sister and brother came home. According to victim while her mother was living accused had poked a pencil on her private part and also touched. Thereafter witness had gone to Jerul Nisha's house and victim came there and told that accused had raped her two to three times. When she asked from Praba Wati she had told that she does not know anything. Thereafter she had informed this to her son Jitendra Prasad
   

In the cross examination witness said that she had a connection with the accused for about 11 months. Witness denied that she was jealous when accused left her and went to live with her sister Praba Wati. She denied that this is not a made up story due to jealousy.

She was not re examined.

After calling three witnesses Prosecution closed their case.

16. Defence was called and explained the rights of the accused. Accused elected to give evidence from witness box and called witnesses.
    
    1. According to accused at present he is living with his younger daughter in Nauva. He is a grass cutter. On 22/08/2010 he was at Nadawa. At Nadawa he was with Harry Prasad, Praba Wati, Majula, Dev Ravi Prasad, Victim, Sweety, Nileshni and Titilia. After having a friendly chat with them accused left the house at about 6.30pm and went to his brother–in-law Uday Narayan's house to have yaqona. He was there until 11.30pm and came home and slept in the porch of the house which was belonging to Harry Prasad and Praba Wati. On the following day he got up early had wash and went for work at about 5.30am and returned home at about 5.00pm. After talking to his children, Dev Ravind Prasad, Sweety, Victim, and Manjula left home at about 7.00pm. He had gone to Uday Narayan's house consumed grog, watched a movie and came home at about 12.00pm. After chasing out a dog he slept and woke up in the morning at about 5.30am and left for work at about 6.00am. On both days nobody saw him going for work as he was sleeping outside the house. Doors were locked inside and he could only see Praba Wati engaged in cooking in the morning. Accused said that Nirmala Wati was his de facto wife between the period of 1989-1995. When Nirmala Wati re-united with her husband he tattooed her name on his hand. Accused denied that he raped the victim between 22-23/08/2010. He further said that even he can't think of it. According to him victim had lied in the court.
       

In the cross examination accused said that it was his duty to look after the victim and her two siblings as they are children of his de facto wife. Accused admitted that he had de facto relationship with Nirmala Wati, Praba Wati and Vitim's mother. Accused admitted that except him all others were slept inside the house. He also admitted that Praba Wati was responsible of closing the doors from inside the house. He admitted that his beddings were kept in the porch. He denied raping the victim on 22nd and 23rd August, 2010.

He was not re examined.

2. Titilia Pal was called next for the defence. She is having a relationship with Nilesh Prasad the son of Praba Wati. On 22/08/2010 all had their dinner at 8.00pm and went for sleep. At about 10.00pm Harry Prasad and Nilesh Prasad came home. Before all went for sleep Praba Wati checked the doors and windows. At that time the witness, Praba Wati Harry Prasad, Manjula, Neleshni, Dev, Sweety, Victim and Nilesh were inside the house. First room was occupied by Praba Wati, Harry Prasad and Manjula. Second room was occupied by the witness and Nilesh Prasad. Children were sleeping in the sitting room. Only room number one was partitioned. Second room was separated with a sari. Accused was sleeping in the porch. According to witness doors were locked inside of the house. On 22/08/2010 Praba Wati checked the doors before sleep. According to her no strange sound heard on that night. Nobody entered the house after they went for sleep on 22/08/2010. According to the witness the same practice was adopted on the 23/08/2010 as well. Nobody entered the house after they went for sleep on 23/08/2010. All beddings of the accused were kept in the porch. On 10/09/2010 at about 12.00pm Nirmala Wati came with the victim to take her cloths. When victim came to kitchen to drink water Praba Wati had asked the victim as to whether accused raped her. Victim denied and said that she said so on the instigation of Nirmala Wati.
   

In the cross examination witness said that she can recall 22-23/08/2010. According to her nobody cried or struggled in the house on 22/08/2010 in the night. She described the size and made of the porch. Witness said she would go for sleep after Praba Wati check and close the doors. According to her Manjula was 18 years old and she sleeps inside the room.

In the re examination witness again descried the porch of the house.

3. Finally defence called Praba Wati to give evidence. According to her on 22/08/2010 she was in the house with Titilia, victim, Sweety, Dev Prasad, Nelishni Kumari, Raveen Prasad and Manjula. The house was belonging to her and Harry Prasad. The house has two rooms and one sitting room. In the first room Titilia and Nilesh Kumar sleep in the night. The second room was occupied by Harry Prasad, Praba Wati and Manjula. Children sleep in the sitting room. Accused sleeps in the porch. After Harry Prasad and Nilesh came home witness closed the door and thoroughly checked the doors and windows. No cries or struggle heard on that night. Once the doors were closed nobody can come into the house. Witness usually wake up 4-5 time in the night. On 23/08/2010 same routine was taken place. After closing the doors and windows witness went for sleep. On that day she went for sleep at about 1.00am. She got up two to three times in that night. Accused slept in the porch as usual. No complaint received from the victim. On the 10th of September 2010 at 12.00pm she was at home with other family members. Victim came home along with Nirmala Wati. Victim took her clothes and went to wash room. At that time witness asked whether accused had raped her. Victim had told her that Nirmala Wati had taught her to say this to ensure accused goes to jail and she goes to her real father.

In the cross examined witness admitted that she lived with the accused for about 14 years and separated. Witness admitted that she wakes up 4-5 times in the night and keep a watch on the children. She does this as she is the eldest in the family. She locks the house till morning and even takes the children to the wash room in the night. As the house is small accused sleeps in the porch. Witness denied that she gives favourable evidence on behalf of accused due to her post relationship she had with him. Witness is not related to victim. Witness reiterates that she heard nothing on 22-23/08/2010 and denied that all family except victim and her siblings visited her daughter who resides in Navua. Witness said that she don't have any obligation toward the victim. Finally she admitted that she is not in good terms with her sister Nirmala Wati. According to her she still has the close relationship with the accused.

She was not subjected to re examination.

After calling accused and 02 witnesses defence closed their case.

Analysis of the Evidence

17. As assessors and judges of facts, in this case this victim (SSN) gave evidence first. According to her she had been raped twice by the accused between 22-23/08/2010. On both days except her sister and brother nobody was in the house. Victim was 16 years of age now. The incident had occurred in the year 2010. She was 13 years old at that time. She went to Lautoka on the request of her real father. The incidents had taken place after 12.00pm on both days. Though she informed the incident to Praba Wati she had not taken any meaningful action other than locking the doors and windows in the night and keep vigil on her children.
    
18. As assessors and judges of facts, you heard the evidence of Jitendra Prasad who informed the police about this incident.
    
19. You heard the evidence of Nirmala Wati one time partner of the accused. This incident came to light after her enquiry from the victim. You have to consider her evidence very carefully.
    
20. Ladies and gentleman of assessors, in this case accused elected to give evidence from witness box. That is his right. In his evidence he denied the charges. According to him he never slept inside the house. His beddings were kept permanently outside the house. He is the only person who slept outside the house. On both days he came home at about 12.00pm. (22-23/08/2010) Though Nirmala Wati reunited with her husband he tattooed her name on one of his hand. Accused admitted that he had relationship with Nirmala wati, Praba Wati and victim's mother who passed away.
    
21. Ladies and gentlemen of assessors, defence witnesses Titilia and Praba Wati almost gave same evidence before this court. According to them on both days all were in the house. Nothing happened. Praba Wati takes good care about her children. Nobody can't enter the house after it locked from inside. She was fully responsible for locking doors and windows in the night. Praba Wati gets up 3-4 three times in the night to ensure children's safety. She never allows children go alone even to washroom in the night. At all the relevant time accused was the only person sleeps outside the house. According to Praba Wati this is a cooked up story by her sister Nirmala Wati. You have to consider these evidence with great caution.
    
22. In this case the accused is charged for rape contrary to sections 207(1)(2)(a) 0f the Crimes Decree No:44 of 2009. I have already explained to you about the charges and its ingredients. In the charges the date of incident mentioned as 23-24/08/2010. The reason is that the victim stated that the incidents happened after 12.00pm on 22-23/08/2010.
    
23. 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.
    
24. 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.
    
25. 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.
    
26. Ladies and gentleman of assessors, as per section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases.
    
27. 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.
    
28. 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.
    
29. 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.
    
30. Any re-direction?
    

P Kumararatnam
JUDGE

At Suva
08/04/2013