State v Prasad - Summing Up [2014] FJHC 848; HAC106.2013S (19 November 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 106 OF 2013S

STATE

vs

RITESH PRASAD

Counsels : Ms. V. Prasad for State
Mr. K. Singh for Accused
Hearings : 17 and 18 November, 2014
Summing Up : 19 November, 2014

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same to you:

"... [read from the information]...."

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   
   • (i) Did the accused, on 14 November 2012, at Nausori in the Central Division, rape the complainant?
     

5. THE OFFENCE AND IT'S ELEMENTS

9. Previously under the repealed Penal Code, the offence was classified as "indecent assault". Under the Crimes Decree 2009, it is classified as "rape". For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused penetrated the complainant's vagina with his finger;

(ii) without her consent; and

(iii) he knew the complainant was not consenting to (i) above, at the time.

10. In law, the slightest penetration of the complainant's vagina by the accused's finger, is sufficient to satisfy element no. (i), as described in paragraph 9(i) above.

11. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all. For a girl under 13 years old, she is incapable, as a matter of law, to give consent to a person penetrating her vagina, with a finger.

12. It must also be established by the prosecution beyond reasonable doubt, that the accused knew the complainant was not consenting to her vagina been penetrated by his finger, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.

13. Remember, we are dealing here with a child complainant, who was aged 10 years at the time of the alleged offence. Because she was under 13 years old at the time, as a matter of law, she is not capable of giving her consent to someone to penetrate her vagina with his finger. The prosecution need only prove element No. 1 in paragraph 9(i) hereof, to prove their case against the accused. Element No. 2 and 3, as described in paragraphs 9(ii) and 9(iii) hereof, are presumed in law to exist, because a child under 13 years is incapable of giving her consent, and an accused is often presumed to know that an under 13 year old child cannot consent to penetration of her vagina, by his finger. Those are legal presumptions in law.

14. Furthermore, in this case, Element No. 1 of rape, as described in paragraph 9(i) hereof, is hotly disputed by the parties. The prosecution said, there was penetration of the child's vagina by the accused's finger, at the material time. The defence argued, there was no penetration at all. If there was no penetration, then the charge of rape, cannot stand. However, this does not mean that you cannot find the accused guilty of other sexual offences, less serious than rape, and for which he was not formally charged with. For example, if you find that the accused nevertherless, touched the complainant's vagina, at the material time, he could, alternatively, be found guilty of the lesser offence of "sexual assault", although he was not formally charged with the same.

15. "Sexual Assault" is an aggravated form of "indecent assault". The least touching of another in anger is "assault". It is the unlawful application of force to the person of another. The "assault" becomes "indecent", when right-minded people of the community regarded it as "indecent". Obviously, a 24 year old man touching a 10 year old child's vagina, and fiddling the same with his finger, would be considered "indecent". If you find there was no penetration of the complainant's vagina by the accused's finger, but nevertheless, accepted her story that the accused touched the same, you could find the accused guilty of "sexually assaulting" the complainant, although he was not formally charged with the same.

6. THE PROSECUTION'S CASE

16. The prosecution's case were as follows. On 14 November 2012, the accused (DW1) was 24 years old, single with no children. He resided with his father (DW3) at Navuso, Nausori. The female complainant (PW1) was aged 10 years old, at the time. She resided with her parents, and a little sister (PW2), at Navuso, Nausori. In fact, the accused's father (DW3) and the complainant's father are related. They all lived together in the same compound, at Navuso Nausori, although in different units.

17. On 14 November 2012, the complainant's parents went to work. The complainant (PW1) and her little sister (PW2), stayed at home, and were looked after by their grandmother (DW2) on the day. The accused was also at home that day, with his father, who was unemployed. During lunch, PW1, PW2 and DW1 all went to DW2 to have lunch. After lunch PW1 and PW2 were sent back to their home. Their grandmother (DW2) took an afternoon nap. The accused also slept after lunch.

18. According to the prosecution, the accused later woke up and followed the complainant to her house. Beside the toilet, the accused grabbed the complainant, and took her into the toilet. He closed her mouth with one hand, and with the other, he poked the complainant's vagina. His finger allegedly went in by 2cm. According to the prosecution, the accused also licked the complainant's lips. He threatened her not to tell anyone about the incident, or he would smack her. According to the prosecution, she shouted when her mouth was free, and the accused fled.

19. The matter was later reported to the police. An investigation was carried out. The accused was caution interviewed by police on 3 December 2012. He was formally charged with raping the complainant and appeared in the Nausori Magistrate Court on 5 December 2012. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

7. THE ACCUSED'S CASE

20. On 17 November, 2014, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the rape allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was called upon to make his defence, he choose to give sworn evidence, and called his aunty (DW2) and his father (DW3), as his witnesses. That was his right.

21. In his evidence, the accused denied the complainant's allegations against him. He said, he never penetrated her vagina with his finger, at any time whatsoever. He said, the complainant was telling lies. In his police caution interview statements, which were tendered as Prosecution Exhibit No. 2(a) – hand written version, and 2(b) – typed version, he also denied the allegation against him. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

8. ANALYSIS OF THE EVIDENCE

(a) The Agreed Facts:
22. The parties have submitted an Agreed Facts. A copy is with you. There are fourteen paragraphs of the Agreed Facts. Because the parties are not disputing those facts, you may take it that the prosecution had proven those facts beyond a reasonable doubt.

23. Paragraph 6 of the Agreed Facts is particularly important, when it comes to an alleged rape of a child under 13 years old. As we have discussed in paragraph 13, an under 13 years old child is presumed in law to be incapable of giving her consent to a male putting his finger into her vagina. Likewise, when a male puts his finger into an under 13 year old child's vagina, he is presumed in law to know that the child is not consenting to the same, at the time.

24. On the alternative charge of "sexual assault", an under 13 year old girl is also incapable in law to give her consent to such assault.

(b) Complainant's Evidence vs Accused's Evidence:
25. You have heard the evidence of the complainant and the accused. On the rape allegation, the parties' version of events were different. The complainant said, the accused, at the material time, forced her into the toilet, closed her mouth with a hand, and penetrated her vagina with his finger, to 2cm. She said, her vagina was painful, and the accused warned her not to tell anyone of the incident, or he will smack her.

26. The accused, on the other hand, denied penetrating the complainant's vagina with his finger. He said, he never did the same at the material time, and that the complainant was lying. When caution interviewed by police on 3 December 2012, he denied the allegation against him.

(c) Vanshita Mala's (PW2) Evidence:
27. PW2 said, she went to check on her sister, the complainant (PW1), at the material time. She said, she went to the crime scene (ie. the toilet) at the material time. She said, she was standing outside the toilet, and peeping into it through a gap in the door. She said, she saw the accused licking PW1's lips, and poking her vagina. She said, she later ran to her grandmother (DW2), and told her the above.

(d) Dhan Kuar (DW2):
28. DW2 was PW1 and PW2's grandmother. She was also the accused's aunty. She is the accused's father's sister. She said, after giving her grandchildren (PW1 and PW2) lunch on 14 November 2012, she sent them to their home, and had an afternoon nap. She said, she was later awoken by PW2, who told her PW1 and the accused were in the toilet.

(e) The accused's Police Caution Interview Statements, tendered as Prosecution Exhibit
2(a) – hand written version, and 2(b) – typed version:
29. When caution interviewed by police on 3 December 2012, at Nausori Police Station, the accused denied penetrating the complainant's vagina with his finger, on 14 November 2012 [see Questions and Answers 22 to 26].

(f) The Complainant's Medical Report, tendered as Prosecution Exhibit No. 1:
30. You have heard the evidence of Doctor Dennis Buenafe (PW4). He medically examined the complainant (PW1) on 3 December 2012 – 19 days after the alleged incident on 14 November 2012. He submitted PW1's medical report as Prosecution Exhibit No. 1. You must carefully read and understand this report, because the first element of rape in this case, involved the question of whether or not the accused's finger penetrated the complainant's vagina, at the material time. The question is really a medical question, hence the importance of the medical report.

31. PW4 recorded the complainant's medical history in D(10) of the report as follows, "...According to the child, it happened on 14th November 2012, around 12pm, inside the house, in the toilet a known assailant, uncle Ritesh Prasad forcefully entered inside kissing her on her mouth, putting his finger inside her vagina, tried pressing her mouth so she could not shout and (kissed) licking her in her perineal area. It last approximately 1 – 2 minutes until her grandmother called her..." In D(12) of his report, the doctor noted the following, "...other physical examination, essentially normal. Vaginal examination – hymen and membrane visualized crescent shape, no tears, no bleeding, no abrasion. Rectal examination – nice and clean, no tear..." In D(14) of the report, the doctor said, "...No physical or perineal injury noted but that does not rule out the possibility of child/sexual abuse..." PW4 repeated the above in his summary and conclusion in D(16) of the report.

32. In his evidence, the doctor said, "...A hymen is a membrane, which can be easily injured by an object, finger or penis or blunt objects. This patient was 10 years old, at the time of the examination. According to the history, the alleged incident occurred on 14.11.12. The medical examination occurred on 3.12.12, that is, 19 days after the alleged incident.

If the penetration is mild or an abrasion, it can heal within 7 to 10 days. If there was mild or an abrasion on her hymen, it would not be detected. After 10 days, I am not sure whether or not there was penetration, simply because the injuries would have healed, if there was mild or an abrasion on the hymen.

A hymen is a very delicate membrane. If there is repeated penetration of the vagina, the hymen would not be visualized, that is, it is perforated, that is, it is no longer there. On 3.12.12, I saw that complainant's hymen was intact, that is, no tear, no bleeding and no abrasion. But this does not rule out the possibility of child/sexual abuse. If there is penetration or blunt object trauma - the hymen could be torn.

If there is repeated penile or finger penetration, the hymen could disappear. A 2cm finger penetration on a 10 year old female child could tear her hymen and that would immediately cause the hymen to bleed. There was no evidence of 2cm finger penetration on PW1's hymen..."

(g) Considering All the Evidence Together:
33. You will have to consider all the evidence together. There were no dispute between the parties that the complainant (PW1), her sister (PW2), their grandmother and the accused's aunty (DW2) and the accused (DW1), were in the family compound, at the material time. The complainant (PW1) and the accused differed on what happened in the toilet, at the material time. You have seen and heard all the witnesses. Who do you think was telling you the truth? Who do you think was the credible witness or witnesses? Whose version of events appear credible to you? Whose version of events will you accept? The answers to the above questions are matters entirely for you.

I. SUMMARY
34. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it 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. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. 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 as charged.

35. Furthermore, if you find the accused not guilty as charged because the issue of penetration had not been proven beyond reasonable doubt by the prosecution, you are entitled to find the accused guilty on the lesser alternative offence of "sexual assault", if you accept the complainant's evidence that the accused touched her vagina, although he was not formally charged with the same. However, if you do not accept the complainant's evidence on the above alternative charge, then you must find the accused not guilty as charged on that offence.

36. Your possible opinions are as follows:

(i) Rape [Count No. 1] : Accused : Guilty or Not Guilty

(ii) Alternative Charge of

"Sexual Assault" : Accused : Guilty or Not Guilty

37. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : K. S. Lawyers, Barristers & Solicitors, Suva.