State v Chand - Summing Up [2014] FJHC 422; HAC342.2011 (12 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

Criminal Case No. HAC 342 of 2011

BETWEEN

STATE

AND

RONALD CHAND

Counsels: Ms S. Kant for the State
Mr. S. Waqainabete (L.A.C.) with Ms T. Kean for the Accused

Dates of hearing: 10 to 12 June 2014
Date of summing up: 12 June 2014

SUMMING UP

Madam and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charges.

2. Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

3. The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you have heard but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

4. In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

5. You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences: that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

6. In assessing the evidence, you are at liberty to accept the whole of a witness' evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?

7. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

8. I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately.

Onus and burden of proof

9. In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

10. How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty". The accused is charged with one count of abduction of a person the the age of 18 years with intent to have carnal knowledge.

11. Abduction is a legal term for unlawfully depriving somebody of their liberty and to prove the co you the State have to proo prove to you, so that you are sure, all of the following elements:

(1) that Kartika was unlay taken away by the accusedcused; and

(2) that she was under the age of 18 years, and

(3) that he did not have her parents' permission to take her, and

(4) the reason he took her away was to have sexual intercourse with her.

All of those elements of the offence must be proved ladies and gentleman.

12. The law says that if Ronald had at the time cause to believe and did in fact believe that Kartika was 18 years old or more, then he should be found not guilty of the charge.

13. The accused also faces two counts of rape. Rape in our law is committed when a man penetrates the vagina of a woman with his penis either partially or fully and the woman does not consent to that deed and he knows that she is not consenting.

14. There are other forms of rape but they do not concern us in this trial.

15. You must consider the case against and for the accused separately on each of the three counts. Just because you think he might have abducted Kartika does not mean automatically that has raped her.

16. In this case, there has been produced an interview under caution and an answer to charge which the Police say were conducted with the accused. The prosecution asserts that the statements contain confessions by the accused that he did take Kartika away and that he did have sex with her. The prosecution contends that those admissions are true.

17. The accused's case is that some of the admissions are untrue and in particular he says that he was forced to say that he knew she was under 18. That force was he says "mental torture" because he was made to sit naked before the interview started. It is a matter for you Ladies and Gentlemen whether you believe that or not. If you think that the answers given in the interview are true, then it is all evidence for you to accept in the normal way and to evaluate it as you think fit.

18. It is my duty to sum up the evidence to you but it has not been a long case and I am sure it is fresh in your mind. So I shall summarise the prosecution case and the defence case, leaving you to make up your minds.

19. The main thrust of the prosecution case came from the evidence of Kartika herself. She told us that she met Ronald one month before her sister's wedding and that she had invited him to the wedding and he became her friend. On 30th September he had called her and said he wanted to come and give her some money. He arrived at her work in a taxi and made her get in. He said that before he withdrew the money he wanted for them to go to a movie and she agreed. On the way to the cinema he changed his mind and said he wanted to take her to meet his mother. They went to Navua, she met the mother. She wanted to go back but he refused to take her. He said that she could leave over his dead body. If she left he would kill her family and burn their house down. She was locked into a room. The mother said that she had to listen to what her son said and she was not allowed to leave to go back. She stayed there for a few days, Ronald sleeping with her but no sexual advances. They told her to phone Nasinu Police Station to say that she was alright but she refused. On the 3rd October, Ron came back from work and when they went to bed, Ron forced her to have sex. He threatened her by saying that he would kill her family. She didn't want sex. He took her clothes off and his and penetrated her. He had sex without her consent twice that night. On the 8th October she went with the mother to Nadi to see relatives. They had to get away because the Navua Police were going to come and search the Navua house. The house at Nadi (Molomolo) was very isolated. On the 8th October Ron turned up and that night he slept in the same bed as she did. He again forced her to have sex against her will by again threatening to burn the house and harm her family. Eventually they left Nadi on the 10th and went to Nabua and she eventually got away and was collected by her family that afternoon.

20. Kartika produced her birth certificate showing that she was born on the 21st July 1995, which means that in Oct/Nov 2011 she was only 16.

21. You heard me tell Ronald what his rights are in defence. He did not have to give evidence because he does not have to prove anything. So the burden remains on the State; you must be sure after hearing their evidence that Ronald abducted K. for sex and that he raped her on the 3rd and on the 8th. If you are not sure about that then you don't even have to consider what Ronald and his mother said. But you are entitled to evaluate his evidence and give it the weight you think fit. He told us a completely different story. He said that all of the advances came from K. It was her plan to have him pick her up and take her to Navua because she was having issues with her mother. Kartika said that she wanted to be part of Ronald's family. When they got to Navua, his mother was worried about her age. She told the mother that she was 19.5 years old. The mother told her to bring her birth certificate and said that if she wanted to stay she would have to marry Ron. When Ron's dad came home from work, he said that the Police must be told what is happening but she refused. She said she would commit suicide. Ron believed she was 19.5 because she had told him this and she never lied to him. Over the next few days she avoided getting the birth certificate. On the night of the 3rd October they shared the same bed and she instigated the sexual intercourse by arousing him and taking his clothes off and straddling him. She said that they had to make a baby so that they could never be separated. On the 5th October they learned that she was not 18 and so that they could not get married. On the 8th October Kartika and her mother went to Nadi, to visit relatives of Ron. It was there on the 8th October that Ron joined them at Nadi and when in bed that night, Kartika again instigated a sexual encounter he says against his will because he was embarrassed at disturbing the family nearby. On the 10th October they all returned to Suva and Kartika went home.

22. Both mothers of Kartika and Ron gave evidence and you will evaluate their evidence and give it the weight you think fit.

23. Well Ladies and Gentleman, that is a potted summary of the main evidence in this case and it is for you to decide where the truth lies. If you think that it was Ron's idea to take Kartika away for the purposes of sex and that he knew that she was under 18 and he didn't have the permission of her parents then you will find him guilty of the first charge. You may have trouble with the "for the purposes of sex" element because there is no evidence that that was the reason he took her. To find that, you would have to deduce that his sudden appearance to take her on the 30th September was for that purpose and no other. It is a matter for you.

24. In deliberating on the two rape counts, you will have to decide if Kartika is telling the truth and find so that you are sure that the prosecution has proved to you that he did rape her on the 3rd and on the 8th.

25. It is now time for you to retire and consider your opinions. It would be best if you could all be agreed on your opinions but that is not strictly necessary. When you are ready, you will let my clerk know and I will reconvene the Court. You will be asked individually for your opinions on each of the three counts.

26. Before you retire, I will ask counsel if they wish me to add or explain anything I have said to you in this summing up.

27. Counsel?

P. K. Madigan.
Judge

At Suva
12 June, 2014