State v Chandra - Summing Up [2014] FJHC 540; HAC008.2013 (24 July 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 008 of 2013

STATE

v.

DINESH CHANDRA

Counsel: Ms K. Semisi for the State
Mr. G. O'Driscoll for the Accused

Dates of trial: 21, 22 and 23 July 2014
Date of Summing Up: 24 July 2014

SUMMING UP

Ladies and Gentleman assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

2. As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

3. Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.

4. You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.

5. On the issue of proof, I must direct you as a matter of law that the onus or burden of true lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until is proved guilty.

6. The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

7. Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else. Whatever you have read or heard about this case in the media or elsewhere you must totally disregard. Your duty is to apply the law to the evidence you have heard.

8. The accused faces one count of sexual assault and two counts of rape. You will realize that the sexual assault comes from what Karishma said happened on the 10th February and the two rape counts refer to the two alleged rapes on the 5th March and the 13th March 2010.

9. Sexual assault is committed if a person unlawfully and indecently assaults another. For this crime the State has to prove that it was this accused, and he assaulted Karishma in a sexual way.

10. So if you believe Karishma in that the accused did pull up her bra and suck her breasts, then that is enough to prove that the accused is guilty. Remember his defence is that it did not happen at all.

11. In our law and for the purposes of this trial penetration of a vagina with a penis, without consent is rape. All that needs to be proved in law by the prosecution in this case therefore is that

• this accused
• had sexual intercourse with Karishma;
• It was without her consent.
  

You will need to find all three of these elements proved for each of the two counts of rape.

12. Lack of consent can come from Karishma not wanting to be penetrated by the accused but also our law says that if the act is forced on her by the exercise of authority over her, then that is also a lack of consent.

13. I must direct you Ladies and Gentleman to look at each of these three charges separately. Just because you might think he is guilty of the sexual assault, it does not mean necessarily that he is guilty of the rapes and in addition if you might think he is guilty of one of the rapes it does not mean that he is guilty of anything else. Just take each count in turn and examine the evidence relating to that one particular count

14. The evidence that the prosecution seeks to rely on in this case comes from the direct evidence of the Karishma, the young lady who has told us that the accused assaulted her and had forced sex with her on two occasions. You will take into account her evidence and you will also take note of the cross-examination of her. However things put to a witness and denied are not evidence

15. Finally you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, or mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.

16. You will recall that Karishma was a confident and composed witness. She told us that in February/March 2010, she was only 16 and she was a Form 5 student at Ahmadhiya College. On the 10th February, the accused, who was her Chemistry teacher, asked her to stay behind after school and help him to sort out some past exam papers. She said that after about one and a half hours, she was putting papers in the staff room when she felt someone standing behind her. He seized her by the shoulders and pushed her to a table. She said she was shocked. He lifted up her dress, pulled up her bra and started sucking her breasts. He tried to put his hand into her pants until she said "Sir, I am having my menses" and he stopped. She adjusted her clothing and as she was leaving he told her that if she told anybody about it he would harm her or kill her. She didn't tell anybody about it because of this threat. She was very scared.

17. On the 5th March, she stayed back after school to complete her English and Chemistry notes. She stayed back until 4.30pm or even after 4.30 pm. After about 40 to 60 minutes, the accused came in and chatted with her. No-one else was around. Intending to leave she got the key from the office and locked up. She saw the accused's office door half open. She went in to tell him that she had locked up and that she was going home. He invited her to come in. She did and stood near the door. The accused got up from his desk, came to her, held her shoulders and pushed her onto the rug. He took off her pants, took off his pants and then raped her. Again he said that if she yells or shouts or even tells anyone anything, he would hurt her or kill her. She was very scared. She didn't tell anybody about it. She walked home, had a shower and saw blood on her pants. She then realized that she had lost her virginity.

18. On the 15th March – it was a Saturday – there was an extra class for Chemistry. It was from 9am to 1pm and there were about 8 or 9 students. They had to have a consent form signed by their parents. The accused said that he would cancel the class and he told Karishma to collect all of the consent forms. She collected the forms and took them to his office. He told her to come in. Again he got up from his desk and pushed her down onto the rug. He took off her pants, took off his pants and raped her. Again he said that if she told anyone, he would kill her. On ejaculation, he cleaned himself and her, dressed and left the office. She didn't tell anybody what happened and she did not consent to this sexual activity.

19. When she went back to school the following week, there were rumours circulating that she and the accused were having an affair; fueled in part by the two of them being seen together in a nearby supermarket. She was called into the Dean's office and asked for an explanation. After some hesitation she told the Dean about the three incidents on 10 Feb, 5 and 13 March.

20. The whole affair was referred to the Ministry of Education ("MOE") and 2 MOE officers came to see her on the same day. One Mrs Kumar talked to her in private and said that it would be better if she withdrew the case. She wrote a withdrawal letter and gave it to the principal. She was then kicked out of school and out of her guardian's house.

21. Again living with her mother, Karishma told us of an unexpected visit from the accused's mother who asked her to consider the accused, and his family. She called the accused in from outside and he told her to write another withdrawal letter. He told her what to write and told her to sign it. The following week she went to Suva and gave it to Mrs Kumar at MOE. In return MOE arranged for her to be enrolled at Dudley High School.

22. Karishma reported the case to the Police in 2011. Despite the withdrawal letters she felt that she was getting no support from anybody.

23. In cross-examination, it was revealed that there is an inconsistency between the complainant's Police statements and her evidence in Court. For the sexual assault on 10th February she told the Court that she had been attacked after one and a half hours, but in her statement she says "as soon as I went in".

24. With reference to the second incident on the 5th March she told us that the rape occurred at about 4.30pm and to the Police "within a few minutes"

25. It was put to the witness that she had never told the Police about the threats to harm or kill her, and it was revealed that in her first statement to the Police there is no mention of the rape alleged to have happened on the 13th March. Karishma counters this by saying that she did tell the Police about all three but they didn't write it down. She was in fact called back to make a second statement. She was contradicted in this evidence that she had told the Police by a reference in her second statement to the fact that she had not told the Police about the 13th March.

26. The second witness for the Prosecution was the Doctor who examined Karishma at the CWM hospital on the 11th November 2011. You may think that a medical exam 18 months after the event does not help us but it does reveal two matters of interest. The complainant told the doctor a history of the abuse which does not quite correlate to the events that she told us and secondly the doctor found that there was evidence of some kind of penetration of her vagina, and the complainant told the doctor that she had not had sex either before or after these incidents. It is a matter for you Ladies and Sir what you make of this evidence and what weight you might give to it.

27. After the doctor had finished her evidence the prosecution closed its case. You heard me explain to the accused what his rights in defence are and he elected to give evidence and call witnesses.

28. Now I direct you that the accused in giving evidence does not have to prove anything. The State must still prove to you so that you are sure that he committed these Crimes. Even if you don't believe a word he says it doesn't make him guilty unless the State has discharged its burden. You will take his evidence into account however and give it the weight you feel that it deserves.

29. The accused ("DC") told us of the school, his responsibilities and his relationship to the complainant which was ordinary teacher/student relationship. At the time he had a 12 year old son, schooling at MGM High School and he used to go to pick him up after school every day. That was normally at about 4pm. He did that on the 10th February and would not have been at the school at 4.30pm. He never asked Karishma to sort papers in the science laboratory. Sorting papers is a job for the Head of Department.

30. On the 5th February Inspectors from MOE came to the school and he was with them most of the day and at least until 4pm. He certainly did not put K. on the rug that afternoon.

31. On the 13th March, a Saturday there was an extra class from 9am to 1pm. There were 8 students and the lesson took place. There were no consent forms to collect – they would have been collected on the previous Friday.

32. As far as visiting K.'s house, DC said that he never went there; he never approached her and certainly never asked her to withdraw her complaint.

33. He had been interviewed by the Police at the end of 2011 but wasn't charged until the end of 2012, a year later.

34. DC called 2 witnesses in his defence. They were the two MOE staff who visited the school on the 5th March. You will recall that they said they left school at about 4pm and they left DC there. Neither would have any idea what time he would have left after him.

35. As a last matter in the case for the defence, the accused returned to the witness box and produced the school time sheets for the 5th March. They show that the time that DC signed out on the 5th March was 4.15pm.

36. Again Ladies and Sir, it is for you to put whatever weight you wish to on this evidence.

37. Well Ladies and Sir, that is all I wish to say to you about the evidence. It is now time for you to retire and consider your opinions. It would be better if you could all be agreed but that is not strictly necessary. You will be asked individually for your opinion on each count and you will not be asked to give a reason for it.

38. You may now retire. Please let a Member of my Staff know when you are ready and I will reconvene the Court.

39. Any redirections Counsel?

P.K. Madigan
Judge

At Suva
24 July 2014