State v Kamal - Summing Up [2014] FJHC 8; HAC220.2011 (24 January 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 220 OF 2011

STATE

-v-

PRAVEEN KAMAL

Counsels : Mr. Timoci Qalinauci for the State
Mr. Roneel Kumar for the accused

Date of Trial : 21 January 2014 to 23 January 2014
Date of Summing Up : 24 January 2014

(Name of the victim is suppressed. She is referred to as AK)

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me – as the Judge who presided over this trial – to sum up the case to you on law and evidence. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.
   
2. I will direct you on matters of law which you must accept and act upon.
   
3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
   
4. In other words you are the Judges of fact. All matters of fact 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.
   
5. The defence counsel and the counsel for the prosecution made submissions to you about the facts of this case. That is their duty as the Prosecution Counsel and the defence counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.
   
7. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the prosecution and never shifts.
   
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.
   
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 might have heard or read about this case, outside of this courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.
   
10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
11. 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.
    
12. In accessing the evidence, you are at liberty to accept the whole of the witness's evidence or 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/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.
    
13. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is – as you could hear from evidence –this case involved an alleged incident of abduction and rape. An incident of rape would certainly shock the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offences with which the accused-person is charged, in a short while.
    
14. In this case the prosecution and the defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of Court time.
    
15. The agreed facts of this case are:
    

1. It is agreed that Praveen Kamal aged 46 years, Panel Beater of Yaladro in Tavua is the Defendant in this case.

2. It is agreed that AK aged 16 years, Student of Malele, Tavua is the complainant in this case.

3. It is agreed that the complainant was medically examined by Dr. Ashna on the 6th of May 2010, Medical Officer of Tavua Hospital.

16. The information against accused is as follows:
    

Count 1

Statement of Offence

ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211 (1) of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL, on the 5th day of May 2010 at Tavua in the Western Division, with intent that AK, an unmarried girl of 16 years old, should be unlawfully and carnally known by him, took the said AK out of the possession and against the will of her father, Ajay Kumar.

Count 2

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL, on the 5th day of May 2010 at Tavua in the Western Division, had carnal knowledge of AK without her consent.

Count 3

Statement of Offence

ABDUCTION WITH INTENT TO CONFINE PERSON: Contrary to Section 281 of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL and another on the 5th day of May 2010 at Tavua in the Western Division, abducted AK, with intent to cause the said AK to be secretly and wrongfully confined.

Count 4

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 286 of the Crimes Decree, 2009.

Particulars of Offence

PRAVEEN KAMAL between the 5th day of May 2010 and the 6th day of May 2010, at Tavua in the Western Division, wrongfully confined AK.

17. I will now deal with the elements of the offences.
    
18. The offence of Abduction of person under 18 years of age with intent to have carnal knowledge is defined in Section 211 of the Crimes Decree, 2009.
    
19. Accordingly the elements of the offence are:
    
    • (i) The accused,
    • (ii) Taken away a person from one place to another against that person's consent,
    • (iii) With intent to have carnal knowledge,
    • (iv) The age of that person is below 18 years.
      
20. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this Court. Section 207 (2) states as follows:
    

A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extend with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extend with the person's penis without the other person's consent.

21. Carnal knowledge is to have sexual intercourse with penetration by the penis of a man to the vagina of a woman to any extent. So, that is rape under Section 207 (2) (a) of the Crimes Decree.
    
22. So, the elements of the offence of Rape in this case are that the accused penetrated the vagina of victim to some extent with penis which means that the insertion of penis fully into vagina is not necessary.
    
23. Other parts of the offence are irrelevant to the facts of this case.
    
24. Consent as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A woman under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The girl in this case was 16 years of age and therefore the prosecution should prove that the victim did not consent to sexual intercourse.
    
25. The offence of Abduction with intent to confine person is defined in Section 281 of the Crimes Decree, 2009. The elements of the offence are:
    
    • (i) The accused,
    • (ii) Taken away a person from one place to another against that person's consent,
    • (iii) With intent to confine that person.
      
26. The offence of Wrongful confinement is defined in Section 286 of the Crimes Decree, 2009. Accordingly the elements of the offence are:
    
    • (i) The accused,
    • (ii) Restrained, restricted, held against the will,
    • (iii) The complainant.
      

"Confine" means to keep a person in a small or closed space. It is wrong in law to keep a person in a closed space, without lawful authority, or without legal justification.

27. Apart from the elements of the offence, the identity of the person who alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-person and connect him to the offence that he alleged to have been committed.
    
28. Evidence that the accused has been identified by a witness as doing something must, when disputed by the accused, be approached with special caution because experience has demonstrated, even honest witnesses have given identification which has been proved to be unreliable. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is involved, that the warning be given.
    
29. In assessing the identification evidence, you must take following matters into account:
    
    • (i) Whether the witness has known the accused earlier?
    • (ii) For how long did the witness have the accused under observation and from what distance?
    • (iii) Did the witness have any special reason to remember?
    • (iv) In what light was the observation made?
    • (v) Whether there was any obstacle to obstruct the view?
      
30. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the victim was witness who offered direct evidence, if you believe her as to what she saw, heard and felt.
    
31. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, Medical Report is an example if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the victim.
    
32. Expert evidence is also important to borne in mind. Usually, witnesses are not allowed to express opinions. They are allowed to give evidence on what they have seen, heard or felt by physical senses only, as described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions express on a particular fact to aid Court and you to decide the issues/s before Court on the basis of their learning, skill and experience.
    
33. The doctor in this case, for example, came before Court as an expert witness. The doctor, unlike any other witness, gives evidence and tells us her conclusion or opinion based on examination of the victim. That evidence is not accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if her reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence in the case.
    
34. In assessing evidence of witnesses you need to consider a series of tests. They are for examples:
    

Test of means of opportunity: That is whether the witness had opportunity to see, hear or feel what he/she is talking of in his/her evidence. Or whether the witness is talking of something out of pace mechanically created just out of a case against the other party.

Probability and Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given 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 first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking of, whether he/she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion.

Consistency: That is whether a witness telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere. If so, what the witness has told Court contradicts with his/her earlier version.

You must consider whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some other for example by a police officer in recording the statement where the witness is alleged to have given that version.

You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility.

You must also consider the issue of omission to mention something that was adverted to in evidence on a previous occasion on the same lines. You must consider whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave, you may even consider that to be a contradiction so as to affect the credibility or weight of the evidence or both.

In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that, you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer, insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses.

Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.

35. You need to consider all those matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to assess the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.
    
36. I will now deal with the summary of evidence in this case.
    
37. Prosecution called the Victim AK as the first witness. She was 16 years old at the time of the incident. She said that she was sleeping in her house in Malele, Tauva. She had heard someone knocking her room door. Thinking that it was her brother she had opened the door. Then a person had covered her mouth by one hand and dragged her to nearby sugarcane field. There her clothes were removed and she was raped. That person had inserted his penis into her vagina. She could not see his face as it was dark. She did not recognize the person at that time.
    
38. After that she was asked to wear her clothes. Then she was dragged towards a creek where a van was parked. She was put into the van. Bobby her neighbor was in the driving seat. She was taken to the house of the person who raped her. She was put into a dark room and locked. Following day in the morning, the accused who is known to her as Para came and opened the door of the room. He told her that he is going to Bobby's house and locked the door.
    
39. Later Bobby had come and taken her to jungle. Bobby had come few hours later and took her to accused's place and then to her house in the van. She had gone to the Police and for a medical examination with her parents.
    
40. Under cross examination she stated that she had red marks on the hand after the incident and pain on her back. She further stated that the person was covering her mouth with one hand even at the time she was getting dressed. She said that she saw the face of the accused when he switched on the mobile phone. She admitted that she is coming out with that for the first time in Court. She also said she could not remember the details of the house where she was kept. When she was at a jungle for about 7 hours she had not called for help as Bobby had threatened to kill her. Although she had told Police that "He told me not to answer the mobile" there was no mobile phone with her.
    
41. In re-examination she stated that she did not tell Police about the light of mobile phone as accused told her not to tell that.
    
42. You watched her giving evidence in Court. What was her demeanour like? How she react to being cross examined and re-examined? Was she evasive? How she conduct herself generally in Court?
    
43. You have to consider her evidence with other evidence presented by the prosecution in this case. The doctor said that there were no injuries observed at the time of her examination. The victim's father said that the son was at home during the night in question. These are inconsistent with her version. Further she had made an inconsistent statement to the doctor that she received a call from the accused and went to meet him on the road.
    
44. Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation.
    
45. If you accept the evidence of AK or part of her evidence beyond reasonable doubt then you have to decide whether that evidence is sufficient to establish all elements of the charges. You have to decide whether there was proper identification of the accused at the time of commission of each offence.
    
46. Doctor was called as the next witness for the prosecution. She is a doctor with 6 years experience. She had examined the victim at Tavua hospital on 8.5.2010. She had observed that the hymen was not intact. There was some whitish substance in her vagina. There were no injuries on the body. Medically there were no indications of rape. She tendered the Medical report marked P1. Under cross examination she stated even if there was recent sexual intercourse with consent there would be symptoms in a 16 year old girl and there was none in this case.
    
47. The doctor is an independent witness. If you believe her evidence there is contradiction in the short history given by the victim to her with the evidence victim gave in Court. Further there is no medical evidence suggestive of recent, forceful sexual intercourse.
    
48. The next witness for the prosecution was victim's father. He is a father of four children. When he got up on 6.5.2010, his wife had informed him that victim was missing. He had searched with the neighbors and made a call to the Police. He had seen the daughter again around 4.30-5.30 p.m. When he asked her where she was he was stopped by Bobby. Later victim had told him that she was at Para's (accused) house. He identified the accused in Court.
    
49. Under cross examination, he said that at the time he went to bed on 5.5.2010 around 9.30-10.00 p.m. all the family members were at home including his son.
    
50. You saw him giving evidence in Court. He had given prompt answers to questions put to him by the defence counsel. It is up to you to decide whether you could accept his evidence beyond reasonable doubt. If you accept his evidence it corroborates the evidence of the victim regarding recent complaint. However, this evidence is inconsistent with the victim on the fact that her brother was away at the time victim went to sleep.
    
51. After the prosecutions' case was closed, you heard me explaining the accused his rights in defence.
    
52. The Accused elected to give evidence. His position was that on 5.5.2010 he went with Bobby to Bobby's father's house and did some mechanical and paint work of a van parked there from 9.30 a.m. to 6.00 p.m. Then he had 'Grog' and dinner with them and Bobby dropped him at his residence between 9-10 p.m. He had a shower and went to bed.
    
53. The following day too he had gone to the same place for work. He was there till Police came and arrested him around 11.00 a.m. He was told by Police that Ajay's daughter was missing. He was taken to the Police station and questioned. In the afternoon the missing girl came to the Police station.
    
54. Under cross examination he said that he knows the victim as 'Guddie'. He admitted getting a miss call from the victim on 6.5.2010 early morning and later talking to her. He denied the charges against him.
    
55. You watched the accused giving evidence in Court. What was his demeanour like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? There are no contradictions or omissions in his evidence. In other words his evidence is consistent. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his version still the prosecution should prove it's case beyond reasonable doubt.
    
56. Ashwin Prasad was called as a next witness for the defence. He is also known as Bobby. He corroborated the version of the accused. After accused was taken to Police he had gone to victim's place and helped the victim's parents in search for the victim. Around 5.30 p.m. he had seen the victim coming out from the jungle. He had taken the victim to her house. After Police came he had gone home.
    
57. The following day he was arrested by Police. He was told to tell the truth and become a Police witness. After his statement was recorded he was left to go. Under cross examination he admitted that he knew the accused for about 8 -10 years and they are good friends.
    
58. If you believe the evidence of this witness it corroborates the version given by the accused.
59. I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
60. You will generally find that an accused gives an innocent explanation and one of the three situations then arises:
    
    • (i) You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offences.
      
    • (ii) Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your minds and so again your opinion must be Not Guilty.
      
    • (iii) The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offences. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offences then the proper opinion would be Guilty.
      
61. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all that evidence and from your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.
    
62. Please remember, there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty in a rape case. The case can stand or fall on the testimony of the victim depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the victim's evidence if you think that it is safe to look for such supporting evidence. Corroboration is, therefore, to have some independent evidence to support the victim's story of rape.
    
63. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and 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.
    
64. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt of each charge you must find him guilty for that charge. 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 for that charge. You have to consider evidence against each charge separately. The fact that the accused is Guilty or Not Guilty of one charge does not necessarily mean that he is Guilty or Not Guilty of the other charges as well.
    
65. Your possible opinions are as follows:
    
    • (i) First charge of Abduction of Person under 18 years of Age with intent to have carnal knowledge Accused Guilty or Not Guilty
    • (ii) Second charge of Rape Accused Guilty or Not Guilty
    • (iii) Third charge of Abduction with intent to confine person

Accused Guilty or Not Guilty

(iv) Fourth charge of Wrongful Confinement Accused Guilty or Not Guilty

66. You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
    
67. Any re-directions?
    

Sudharshana De Silva
JUDGE

At Lautoka
24th January 2014

Solicitors : Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused