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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 043/2013
BETWEEN:
THE STATE
AND:
MOHAMMED YUSUF
COUNSEL: Ms A Vavadakua for the State
Mr S Waqainabete and Ms F Bano for the Accused
Dates of Trial: 01-02/12/2014
Date of Summing Up: 03/12/2014
[Name of the victim is suppressed. She will be referred to N.B.S]
SUMMING UP
Madam and Gentlemen Assessors,
[01] It is now my duty to sum up this case to you. I will direct on matters of law which you must accept and act upon. On matters of facts however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about facts of the case or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinion. In other words you are the judges of facts. All matters of facts 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.
[02] You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.
[03] Prosecution and defence made their submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
[04] You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgment.
[05] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.
[06] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.
[07] Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called Documentary Evidence.
[08] The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. I will direct you shortly on how you should consider that evidence.
[09] The facts which agreed between the prosecution and the defence are called agreed facts. You may accept those facts as if they had been led from witnesses from witness box. Copies of agreed facts are given to you.
The following facts are agreed between the parties:
The following Document to tender by Consent:
[10] 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 have heard about this case outside of this court room.
[11] Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.
[12] Now let's look at the charge.
FIRST COUNT
Statement of Offence
RAPE: Contrary to Section 207(1) and (2) (a) of the Crimes Decree No.44 of 2009.
Particulars of Offence
MOHAMMED YUSUF on the 22nd day of January, 2013, at New Town, in the Central Division, had carnal knowledge of N.B.S without her consent.
[13] In Fiji law, the offence of Rape is committed when the vagina is penetrated either by the penis or by the finger of the accused. Hence in this case the prosecution has to prove:
i) The accused had carnal knowledge of the complainant,
ii) Without her consent,
iii) He knew or believed that she was not consenting or did not care if she was not consenting.
[14] Carnal knowledge is the penetration of vagina or anus by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
[15] As far as the element of consent is concern, in our law, a child under the age of 13 years is incapable of giving consent. In this case the victim was 35 years of age at the time of the offence and, therefore, she had the capacity under the law to consent. Therefore, the offence of rape is made out only if there was no consent from the alleged victim.
[16] According to Section 206(1) of Crimes Decree No. 44 of 2009, the term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.
[17] According to Section 206(2) without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained:
[18] I now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by the counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
[19] Now let's look at the evidence led by the prosecution in this case.
[20] The victim N.B.S giving evidence before this court said that she is currently residing in Toorak and separated from the accused. She was in a de facto relationship with the accused for 18 years. She has four children. She was working in a garment factory as the accused did not go for work. On 22nd January 2013 she went for work and came home with school stuff for her children. She raised a loan from her workmate to buy school stuff for her children. After coming home she prepared dinner and started to put covers for her children's books. As she felt very tired she went for sleep before the accused could come home. On that night he went out to drink grog. While sleeping the accused came home, had his dinner and wake her up to have sex. She denied as she was very tired at that time. But the accused insisted and dragged her from the room to the sitting room. Despite her resistance, removed her clothes forcibly and had sexual intercourse against her will. During the struggle he slapped, pressed her neck and put her down before he inserted his penis into her vagina. She did not cry for help as her children were sleeping at that time. She did not shout as she did not want to see them naked by her children. In the morning after consulting the welfare office she lodged her complaint at the Valelevu Police Station. After the complaint she was examined by a doctor. After the complaint, the accused was arrested and remanded but she bailed him out considering her children's welfare. She identified the accused in open court.
[21] In the cross examination victim admitted that a Domestic Violence Restraining Order was issued against her. It was issued because she left the house leaving the children. Explaining further the victim said that she left the house as she could not bear the sufferings. But the victim admitted that one of the bail conditions of the accused was to stay away from the house. But as per advice given by the welfare office she agreed that the accused to stay in the house only. Victim denied that her phone was ringing when the accused come home at about 10.00pm on 22nd January 2013. Victim denied that she came to the sitting room and removed the accused clothes, touched his penis, told him to lick her vagina, had sex while seated on accused lap and continued after accused came on top her body. She admitted some houses situated very close to her house. Accused pressed her legs harder and forcefully slapped on her face. According to her the doctor only checked her vagina. Victim admitted that she moved out of the house and are staying with friends. Her children are 15, 14, 10 and 07 years old at present.
[22] According to Dr. (Mrs) Elvera Ongbit, she had come to Fiji from Philippines in the year 2001. As a doctor she has over 30 years service. She had examined the victim on 24/01/2013 at Medical Services Pacific Clinic. According to the history, the victim had said that she was tired last Tuesday night, it was on 22/01/2013 night time. That is why she refused to have sex with her husband. But he insisted and had sex with her. Doctor had noted old hymeneal tear at 2 o'clock, 5 o'clock, 7 o'clock, 9 o'clock and 11 o'clock positions. According to her fresh injuries would be injuries sustained within 07 days. In her professional opinion she has not excluded both possibilities of sexual intercourse (happening or not happening). The Medical Report was marked as P1.
[23] In cross examination witness said that no fresh injuries noted in the vagina of the victim. Witness said that in a case of forceful vagina penetration she normally expect some haematomas or bruises in the vagina. In absence of such injuries witness said that there could be a possibility of not having forceful sexual intercourse. According to the witness she had not noticed any other injuries on the body of the victim.
[24] In the re-examination witness said she examined whole body of the victim before preparing the medical report. She had examined number of rape victims and always seen laceration in the vagina. Finally witness said it is possible and not possible expecting injuries in the vagina of woman who is married and given birth to children.
[25] Finally prosecution called DC/3538 Parnesh who had recorded the caution interview of the accused. He read out the caution interview statement of the accused and marked the same as P2.
[26] That is the end of the prosecution case. Defence was called and explained the rights of the accused. After understanding his rights he elected to give evidence from the witness box.
[27] The accused currently works as a mechanic in his brother's garage. He is in a de facto relationship with victim for the past 18 years. They have four children. At present the children are living under his custody but he doesn't know where the victim stays. On 22/01/2013 he had returned home at about 10.00pm after a grog session. While having a shower he heard his wife's mobile phone ringing several times. When he asked about the call the victim said that was not his problem. The phone rang several times while he was having his dinner. But the victim went to the bathroom. He then came to the sitting room and sat on the settee. Victim too came and both had a talk to iron out their differences. While talking victim started to remove his clothes and started to kiss him. She then took off her nighty and touched his body including his penis. Then she told him to suck her breast and lick her vagina. Then she came on to his lap and had sex with him. Thereafter she went to sleep. This happened for about 20-25 minutes. Accused said that he is working full time and looking after his children. The victim had run away from the house with a boy after taking everything and disconnecting electricity and water.
[28] In the cross examination accused said that he married the victim according to Islamic custom and he is in a married relationship with the victim for the last 18 years. On 22/01/2013 they only had an argument. Though she had money but did not tell him the source of income. Accused reiterated that he never forced the victim for sexual intercourse on 22/01/2013 but had consensual sexual intercourse. Accused said though the victim did not share much with him they had a close relationship. He used to take her to movies and picnic. But things changed suddenly. The victim had bought a laptop and started using it frequently. She started texting everybody. Further the phone calls to victim's phone even disturbed everybody's sleep in the night.
[29] In the re-examination witness said that he obtained Domestic Violence Restraining Order against his wife as she left the children and went away from the house. Further victim used to come home after drinking liquor in the night and beats the children up. Further she goes to nightclubs and brings her boyfriend to the house. As she neglected the children he had gone to social welfare and according to their advice he obtained a DVRO against the victim.
[30] That is the end of defence case.
Analysis of the Evidence
[31] Madam and Gentlemen Assessors, in this case the victim took up the position that the accused had forcible sexual intercourse
on 22/01/2013. On the following day she had reported the matter to the police and underwent a medical examination. In the history
to the doctor she did not say that the accused had sex with her forcibly. Though she said that she bailed out the accused to look
after the children but she abandoned them and went away from the house. As per the bail condition the accused was not allowed to
reside in the house. But victim went to social welfare and got the bail condition amended subsequently. After the amendment the accused
had consultation with social welfare and obtained a Domestic Violence Restraining Order against her as she left the house leaving
everybody. At present she is living elsewhere. As Assessors and Judges of facts you have to consider her evidence very carefully
specially her previous and subsequent conduct after the complaint against her husband.
[32] Madam and Gentlemen Assessors, the doctor gave evidence and submitted the Medical Report of the victim. Victim did not say that she was forced to have sex by the accused. No fresh hymeneal injuries noted by the doctor. According to the doctor nature of the incident always lead to fresh injuries in the vagina of the victim. Even though the victim is married and has children the doctor would have seen injuries in her vagina if the intercourse is forcible. But no fresh injuries was seen in victim's vagina. Consider this evidence during your deliberations.
[33] Madam and Gentlemen Assessors, in this case the accused person opted to give evidence from witness. That is his right. But he has nothing to prove to you.
[34] Accused in his evidence denied the charge. According to him the intercourse was consensual but not complete. The victim had sexual intercourse while seated on his lap. Though the victim said that she done everything for the welfare of the children but she left them after the return of the accused from the remand. At present she is living elsewhere alone. According to the accused this is a sudden change of her life. She never behaved like this of their 18 years of married life. Madam and Gentlemen Assessors please consider this evidence very carefully.
[35] Madam and Gentlemen Assessors, as I told you earlier, the caution interview statement of the accused person is in evidence. He admits that he had sexual intercourse with consent of his wife but he denied raping her.
[36] 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 items of evidence and you should remind yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.
[37] Madam and Gentleman of Assessors, in this case state has to prove lack of consent before you can find the accused guilty of rape. If you find there was consent and that he is thereof not guilty of rape.
[38] In this case the accused is charged for Rape Contrary to Section 207(1) and (2) (a) of the Crimes Decree No: 44 of 2009. I have already explained to you about the charge and its ingredients.
[39] Madam and Gentlemen Assessors, you have heard all the prosecution and defence witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of their evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject.
[40] You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
[41] Madam and Gentlemen Assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
[42] Madam and Gentleman of Assessors as per Section 129 of the Criminal Procedure Decree 2009 no corroboration shall be required in sexual offence cases.
[43] Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
[44] This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
[45] Any re-directions
I thank you for your patient hearing to my summing- up.
P Kumararatnam
JUDGE
At Suva
03/12/ 2014
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