State v Chand - Summing Up [2014] FJHC 893; HAC043.2013LAB (4 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 043 OF 2013LAB

STATE

vs

RAHUL RITESH CHAND

Counsels : Mr. S. Vodokisolomone for State
Mr. A. Sen for Accused

Hearings : 2 and 3 December, 2014
Summing Up : 4 December, 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 17 June 2013, atVuniuto, Nasarawaqa, Bua in the Northern Division, rape the complainant?
     

E. THE OFFENCE AND ITS ELEMENTS
9. The accused is charged with the offence of rape. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;

(ii) without the complainant's consent; and

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

10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.

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.

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

F. THE PROSECUTION'S CASE
13. The prosecution's case were as follows. On 17 June 2013, the female complainant (PW1) was 23 years old. She lived with her de facto husband (PW4) in a house in Nasarawaqa, Bua. They had two children, aged 4 years and 7 months. Also in the house lived the complainant's elder sister (PW3), who is PW4's legal wife. The family also lived with PW4's mother, younger brother, PW4's other two children from PW3, and the wives' younger sister. A short distance away lived PW4's younger brother, his wife (DW2) and their son, aged 1 year 8 months. They lived in a small house, with two bedrooms, a sitting room, and a kitchen. A short distance from PW4's and DW2's houses, was the accused's house.

14. On 16 June 2013, the complainant (PW1) and her elder sister (PW3), both the defactor and legal wife of PW4, had an argument over children. To release the domestic pressure, PW4 asked his younger brother and his wife (DW2), to look after PW1 for the day. PW1 went and stayed in their house from 10am on 16 June to 8am 17 June, 2013. At 2pm on 16 June 2013, PW1 had her bath at DW2' house. DW2 gave her a skirt and a brown top to wear. She had her own underwear and bra. At about 6pm on 16 June 2013, visitors arrive at DW2's house. PW4's younger brother, Arun was there. There were others, that is, DW2 (Pinky), DW3, DW4, Atul and others. The men sat down in the sitting room, and drank grog and played cards, while the women yarned in the dining room. The accused was also present at the grog session.

15. According to the prosecution, the grog session finished at midnight. The men had their dinner, and all the visitors left for their home. PW4's younger brother and his wife (DW2), including their child, went to their bedroom to sleep. PW1 and her child slept in the other bedroom. At about 1am in the morning, according to the prosecution, the accused sneaked into the bedroom PW1 was using. He lifted up the mosquito net, and forced himself on PW1. He allegedly pressed PW1's hand together, and forcefully pressed her left chest. He then threatened to kill her if she resisted. PW1 was breathless as a result of the accused pressuring her left chest. He went ontop of her, lifted her skirt, tore the front of her panty, and inserted his erect penis into her vagina. She tried to scream, but the accused blocked her mouth with his hand. He then had forceful sex with her for about 5 minutes. According to the prosecution, PW1never gave her consent to the accused to have sex with her, and he well knew she was not consenting to sex, at the time. After the sex, the accused left for his house. PW1 left for her house at 8am the next morning.

16. PW1 reported the rape incident to her elder sister (PW3) at 6pm on 17 June 2013. PW3 reported the matter to her husband (PW4) at about 6.30pm. On 19 June 2013, PW1 and PW4 reported the matter to police. An investigation was carried out. PW4 took PW1 to a doctor at Lekutu Health Centre to be medically examined. Doctor K. S. Ali (PW2) medically examined her on 19 June 2013. The accused was caution interviewed by police on 22 June 2013. He was later charged for raping PW1. On 24 June 2013, he appeared in the Labasa Magistrates Court. 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.

G. THE ACCUSED'S CASE
17. On 2 December 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 put to his defence, he choose to give sworn evidence, and called three witnesses. That was his right.

18. In his evidence, he said, the men did not finish drinking grog at DW2's house until 2am on 17 June 2013. He said, they then had their dinner. He said, at 2.30am all the men and their families left to go to their own houses. He said DW2 (Pinky) and her husband, went to their bedroom to sleep. He said, PW1 called him to the bedroom she was in. He said, PW1 came to him, they kissed and she put her hand on his penis. He said, they later had consensual sexual intercourse. He said, PW1 took off his clothes, and took off her own clothes. He said, he ejaculated in her vagina. He said, he laid with her after that. He said, they later had sex again. He said, he knew she was consenting to sex, at the time. He denied PW1's version of events. When he was caution interviewed by police on 22 June 2013, and confronted with PW1's rape allegation, he told the police, he didn't know anything. In any event, he said, because of his consensual sex with PW1, at the material time, he asks you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
(a) Introduction:
19. First, we will consider the accused's caution interview statements he gave the police on 22 June 2013. Then we will examine each of the elements of rape as discussed in paragraphs 9, 10, 11 and 12, and how the evidence presented by the parties, fulfill the three essential elements of rape, as discussed in paragraph 9 (i), 9 (ii) and 9 (iii) hereof.

(b) The Accused's Police Caution Interview Statement, Prosecution Exhibit No. 5 (a) – Hindi version; and 5 (b) English version:
20. On 22 June 2013 – 5 days after the alleged rape – the accused was caution interviewed by police, at the crime office, at Labasa Police Station. He was formally cautioned, given his right to counsel and given the standard meal and rest breaks. He was asked a total of 74 questions, and he gave 74 answers. In Question and Answer 73, he said he was not forced by police to give his statements. In Question 7, PW1's rape allegation was put to the accused. In Question and Answer 8, he denied knowing PW1. From Questions 45 to 53, the accused was confronted with the rape allegation. He answered as follows, "... I don't know anything..." In court, when the accused was confronted with the allegation, he said, he had sexual intercourse with PW1 at the material time. He said, it was consensual. So, we have here a person who told the police "he knew nothing about the allegation", but in court, he said, he knew about the allegation – two different versions to the police and the judicial authorities. What the above says about his character, is entirely a matter for you.

(c) First Element of Rape – The Accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina [paragraph 9 (i) hereof:
21. It was the prosecution's case that, the accused, at about 1am on 17 June 2013, forced himself on the complainant, by pressing her hands to her body, lifting her skirt, tearing her underpants, and forcefully inserting his erected penis into her vagina, and had sex with her for about 5 minutes. The accused in his evidence, did not dispute inserting his penis into the complainant's vagina on 17 June 2013, but he said it was after 2.30am on the day, not at 1am. Although the parties differ as to the exact time the accused's penis penetrated the complainant's vagina, in terms of fulfilling the first element of rape as described in paragraph 9 (i) hereof, the parties agree that the accused's penis penetrated the complainant's vagina, on 17 June 2013. Whether it was at 1am or after 2.30am, is, as far as element no. 1 of rape is concerned, irrelevant, that is, the first ingredient of rape had been proved by the prosecution beyond a reasonable doubt. The fact that the two may have had a second round of sexual intercourse is also irrelevant, as far as fulfilling the first requirement of the offence of rape. In my view, it was obvious that, given the parties' evidence, the prosecution had proven the first element of rape, beyond a reasonable doubt. However, it is a matter entirely for you.

(d) Second Element of Rape. That the Complainant did not consent to the accused penetrating her vagina at the material time (paragraph 9 (ii) hereof):
22. It was the prosecution's case that, at the time the accused penetrated the complainant's vagina on 17 June 2013, she did not give him her consent. In dealing with this issue, please taken on board my directions in paragraphs 9 and 11 hereof. As we have discussed before, the complainant must give her consent freely and voluntarily and out of her own free will to the accused to penetrate her vagina with his penis, on 17 June 2013. The consent must not be obtained by force, threat, intimidation or fear of bodily harm. If her consent was induced by fear, it was no consent at all.

23. On this issue, the parties' versions differed. The complainant said, she did not give her consent. She said, the accused came in early morning on 17 June 2013, lifted her mosquito net without her permission, demanded sex from her, threatened to kill her if she resisted, forcefully crossed her hands on her chest, pressured the same and her left chest, jumped ontop of her, lifted her skirt, tore her underpants, and forcefully thrust his erected penis into her vagina, and pushed the same in and out for about 5 minutes. She said, when he pressed her left chest, she had difficulty breathing.

24. The accused's version was different from the complainant. He said, the complainant called him to the bedroom. He said, she kissed him. He said,she put her hand into his trousers and held his penis. He said, the same became erected. He said, she took off her clothes, and took off his clothes. He said, she laid on the bed, held his penis and thrust the same into her vagina, with her legs spread apart. He said, they had two rounds of sex that morning, and according to him, she liked it.

25. On whose version of events you will accept will depend on your assessment of their credibility as witnesses. You will have to look at the totality of the evidence to find out who is the more credible of the two witnesses. The prosecution provided two witnesses of recent complainant. On 17 June 2013, at about 6pm, the complainant told her elder sister (PW3) that theaccused raped her that morning. At about 6.30pm on the same day, PW3 told her husband (PW4) that the accused raped the complainant that morning. Both PW3 and PW4 gave evidence on what the complainant said that morning to PW3. These evidence are often termed "evidence of recent complaint". They are evidence not of the matters complained of, but evidence of the consistency of the complainant's conduct with the evidence she gave at the trial. If she really consented to sex, as the accused said, why complained to her sister (PW3) at 6pm on 17 June 2013. If she consented to sex with the accused at the material time, why lie to her sister (PW3) at 6pm on the day?

26. Furthermore, the complainant's de facto's husband said he took PW1 for a medical examination on 19 June 2013 – 2 days after the alleged rape. Doctor K. S. Ali (PW2) said, she medically examined PW1 on19 June 2013, at Lekutu Health Centre. She submitted her medical report as Prosecution Exhibit No. 7. You must read and understand this report as it is very important on the issue of consent. In D (10) of the report, the doctor recorded that PW1 complained to her that she was raped by a man on 17 June 2013. She medically examined PW1. In D (12) (b) of the report, she recorded, "one bruise above left breast". In D(14) of her report, she recorded, "acute injury caused by blunt or pressure force". In D (16) of the report, the doctor concluded as follows, "Young lady, with history of being raped on Sunday night. Examination revealed acute injury (bruise) which will heal shortly". In her evidence, the doctor said, "the bruise to the top left breast was the acute injury referred to in D (14). It is caused by assault, gripping force or pushing force on the muscle tissue. Once applied, it is visible for 5 to 12 days. The colour of the bruise – it can be maroon in colouri.e reddish, it can be purplish or blueish in colour". These bruises appear to confirm the complainant's version that the accused was pressing her hard on the chest while having sex on her. If there was consensual sex, why the need to press her left chest to such an extent that the mark was visible two days after the alleged incident?

27. You have watched how the complainant and the accused gave evidence in the courtroom. You have watched their demeanour while giving evidence. Who of the two witnesses was the more forthright to you? Who of the two was the more evasive? Who do you think, from your point of view, was telling the truth? Given your life experience, and my directives, you should be able to decide who was telling the truth on the issue of consent.

(e) Third Element of Rape – The Accused knew that the Complainant was not consenting to sex at the time [paragraph 9 (iii) hereof]
28. It is the prosecution's case, that the accused well knew the complainant was not consenting to sex, at the time he was having sexual intercourse with her on 17 June 2013. On this issue please taken on board my directions in paragraphs 9 (iii) and 12 hereof. The discussion under this issue follows from the discussion we had under the issue of the complainant giving her consent to the accused, at the time they were having sex on 17 June 2013. The prosecution's case was that the accused forced himself on the complainant at the material time. Having done so, he well knew the complainant was not consenting to sex, at the material time. On the other hand, the accused said, the complainant was consenting to sex at the material time, and he well knew of that fact. Which version to accept is entirely a matter for you, after considering all the evidence.

I. SUMMARY
29. 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.

30. Your possible opinions are as follow:

(i) Rape : Guilty or Not Guilty

30. 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.

SalesiTemo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa.
Solicitor for the Accused : Maqbool& Company, Solicitor, Labasa.