IN THE HIGHCOURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC107/2011

BETWEEN:

THE STATE

AND:

ABDUL RASHEED

Counsel : Mr. S. Nath with Ms T. Leweni for the State
Mr. T. Sharma for the accused

Dates of hearing : 6, 7 and 8 February 2013
Date of summing up : 8 February 2013

SUMMING UP

[1] 	Ladies and gentleman 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 remind you 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 where the truth lies in this case. If I express any particular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact. 

[3]	Counsel have addressed you on the facts but once again you need not adopt their views of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. You can accept some of what a witness says and reject the rest. You can accept 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 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 evidence there might have been or should have been. You judge the case solely on what you have heard and seen here.

[5]	The court room is no place for sympathy or prejudice. This has been a very short and straightforward case but you must give it your full attention without emotion as I am sure you will. 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 you are sure however that Abdul Rasheed raped Artika, then you will find him guilty.

[8]	The accused is facing two separate counts of rape. Count one and count two are specimen counts. The prosecution allege that Abdul Rasheed also committed many other offences of the same kind between 2005 and 2011. Instead of overloading the information with counts charging many offences, they have selected two incidents, one at the beginning of the period and one at the end. They are entitled to do this. To convict the accused you must be sure that he committed the particular offences in the information, that is on the 9th February 2005 and lastly on the 20th March 2011. Just because you think he is guilty of one of the offences does not make him guilty of both. You must look at each count separately. 

[9]	The accused is charged with two counts of rape. 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 other's consent. 

[10]	The State must prove to you in this case the following elements: 

(i)	that it was Abdul Rasheed (this accused), who

(ii)	penetrated the vagina of Artika with his penis,

(iii)	when he did so, Artika was not consenting and he knew that she was not consenting or that he was reckless in having intercourse with her without knowing whether she was consenting or not.

[11]	Now every element in this crime is in dispute because the accused is saying that he has been falsely accused of these crimes. He says that he never had sexual intercourse with Artika let alone raped her. 

[12]	Because he says that he did not rape her the issue of consent is not relevant. However, the Prosecution says consent is highly relevant. Our law says that apart from being unwilling, consent is not freely given if it is obtained by threat or by false and fraudulent representations about the nature and purpose of the act. 

[13]	The prosecution says that Artika didn't consent but she was made to submit by force and by intimidation of evil spirits which she thought were present in the room. So if you believe Artika and you think she was raped in February 2005 and again on March 20th 2011, you will find the accused guilty, but if you think that she wasn't raped in that it did happen but she was consenting, then you will find him not guilty of the two offences. 

[14]	That then Ladies and Gentleman is a summary of the legal points that I wish to address in this summing up and it is now my duty to remind you of the facts that have been aired before you in this short trial.

[15]	We heard first from the complainant Artika. She told us of her mother's ailments with a sore leg and a sore back and how the family was introduced to the accused by another man. The accused came and healed her mother's leg after one week but her back was still paining. He claimed to have extraordinary powers of healing. He had taken money from the family, purportedly to buy Tanoa, tabua and Masi, but they never saw these goods. If they saw them he said they would go blind. In 2005, the accused came to the house and said that he could tell someone had done witchcraft to Artika by putting something in her food at school with the result that her body had worms in it. He checked with the father of the family if he wanted Artika to be cured. Father said yes and so the accused told the father and mother to take the 7 year old son away to Suva Point and to light 14 cigarettes one by one. The first time this happened was on February 9, 2005. 

[16]	He appeared to be possessed by a spirit, Artika said, and the spirit told her to go close to him. He took her clothes off pushed her on the floor and raped her. He continued to do that week by week from 2005 until 2011. He would hit her on the legs or throw things on her legs. He told her that if she told anyone he would kill her mother. Artika believed him because she said the spirit was very strong. The spirit would come back every week and he would rape her every week. She never did consent. 

[17]	The last time there was any sexual contact was on the 20th March 2011. On that night he again told the parents to go to Suva Point to light 15 cigarettes, one by one. They went and he grabbed her and pushed her on the floor. He broke a glass and threw it at her and then raped her for about 10 minutes. This time she told her mother about it. The whole matter was reported to the Police. 

[18]	The second prosecution witness was Artika's mother. She told us about first meeting the accused and of the tricks he used to fool the family into trusting him. She told us how she, her husband and the young son would go to Suva Point to light the cigarettes, leaving the accused and Artika alone in the house. If they didn't go their daughter would die. The daughter would look scared when they came back and would always complain about how much money they were giving the accused. Finally in 2011 in March, Artika told her everything, which led to a report to Valelevu Police. The mother estimates that they had given the accused $150,000 altogether.

[19]	Dr. Fong came to Court and he explained another doctor's medical report to us. Artika had been taken to a doctor by the Police where she related the whole history of this sorry affair. A bruise was noted to be on her thigh and her hymen was not intact which the doctor said showed as history of prior sexual activity. You have seen the medical report and you will note that the history related to the medical officer was by and large the same story she told us. 

[20]	That was the end of the Prosecution case. Counsel for the accused told the Court that he had explained to his client his rights in defence and the accused chose to give evidence under oath from the witness box. Now as I mentioned to you Ladies and Gentleman, the accused did not have to give evidence for the simple reason that he does not have to prove anything to you. That burden is on the State throughout the trial. His giving evidence does not relieve the State of that burden. However now that he has given evidence it is for you to consider and to give whatever weight you think fit. 

[21]	The accused told us that he was Artika's father's great friend and would often hire his taxi. He would watch movies and drink grog at his house. He knew that Artika's mother had trouble with her leg because she couldn't walk properly but he didn't have any healing powers and certainly did nothing to fix her leg or back. He is a Muslim and doesn't believe in witchcraft or healing. He had paid a lot of money to buy things for the canteen business that the father was running from his house. He had cheques from 2005 which he said were proof of payment to a supplier for small goods being bought for the business. Those cheques were not produced but even if they were, without any other evidence, they certainly do not prove that the accused was making payments on behalf of Artika's father. As counsel for the Prosecution pointed out, if the money was for the canteen, payments of $10,000 with two weeks would have been excessive for products for a small family canteen. 

[22]	Well Ladies and Gentleman, that was the case for the defence and the end of the evidence in the trial. Remember that you don't have to believe the accused. If you don't believe his evidence you still have to find that the State has proved to you, so that you are sure, that the accused committed these rapes.

[23]	That is all I want to say to you in summing up. You may now retire and consider your opinions. When you are ready, you will let one of my staff know and I will reconvene the Court. You will be asked individually for your opinion on each count. It would be far better if you can all be agreed on your verdicts but that is not strictly necessary if you can't agree. 

[24]	Just before you retire I am going to ask Counsel if there is anything they wish me to say in addition to what I have already said. Redirections?

Paul K. Madigan
JUDGE

At Suva
8 February 2013