State v Kishore - Summing Up [2015] FJHC 331; HAC75.2014 (4 May 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: HAC 75 of 2014

STATE

v

SUDESH ANAND KISHORE

Counsel: Ms J Fatiaki for the State
Mr R Kumar for the Accused

Dates of Hearing: 29th April 2015 – 01st May 2015
Date of Summing Up: 04th May 2015

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as S.L.]

Lady Assessors and Gentleman Assessor,

1. It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact 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 the 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 opinions. 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.
   
2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.
   
3. The Counsel for the prosecution and defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. What you have to consider is the evidence adduced in court from the witness box. It is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. 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.
   
6. 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.
   
7. 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 about this case, outside of this courtroom.
   
8. 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 emotion.
   
9. There are two counts in the information where the accused is charged with Rape of 'SL' on different occasions. You must consider each count separately and you must not assume that because the accused is guilty on one count that he must also be guilty on the other.
   
10. You will also see that both 1st and the 2nd counts are representative counts and they cover a length of time. You heard the evidence of the complainant 'SL' that the accused had sexual intercourse with her on different occasions during a period of time. She said on plenty times. The counts 1 and 2 are representative counts. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of exact dates where the alleged offending has taken place over a period of time.
    
11. The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence are:
    
    1. The accused had carnal knowledge of the complainant,
    2. Without her consent,
    3. He knew or believed that she was not consenting or didn't care if she was not consenting.
       
12. For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt then you must find the accused not guilty.
    
13. Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.
    
14. On count No.1 the accused is charged under the Penal Code. On count No.1, as far as the element of consent is concerned, in this case the victim is a child, not an adult. It is an agreed fact that the victim was 9 years old then. Now she is 13 years old. You saw her giving evidence in court. With regard to the element of consent, as a 9 year old child you must decide whether she had the capacity to give consent to sexual intercourse. You decide whether 'SL' had sufficient understanding and knowledge to decide whether to consent or resist at the age of 9 years. If you decide that she did not have the capacity to consent as mentioned above, element of absence of consent need not be proved by the prosecution. However if you decide that she had the capacity to consent, then you decide whether the element of absence of consent is proved in evidence beyond reasonable doubt.
    
15. Where the consent is obtained through fear or by threat, then that is not consent. However it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to have sexual intercourse anyway.
    
16. In this case the alleged victim 'SL' said in evidence that she shouted when the accused did it and then he used to put his hand on her mouth. She also said that she did not like it. You may also consider that the alleged victim 'SL' as a 9 year old child was under the care of Bimla Wati and the accused. In agreed fact No. 5 parties agreed that after the accused's brother Navin Kumar passed away both Bimla and 'SL' lived with the accused.
    
17. Therefore on count No. 1 it is a matter for you to decide whether she consented or not.
    
18. On count No. 2, the accused is charged under the Crimes Decree 2009. The Crimes Decree came into force in February 2010. Under the Crimes Decree a child under the age of 13 years is incapable of giving consent to sexual intercourse.
    
19. In this case, the victim 'SL' was 9 years of age at the time of the alleged crime was committed. Therefore as far as count No. 2 is concerned she was incapable of giving consent to sexual intercourse and the prosecution need not prove that she did not consent. Therefore the elements that prosecution in this case has to prove beyond reasonable doubt in count No. 2 are that the accused had sexual intercourse with the alleged victim 'SL' and that she was under 13 years at the time of the offences were committed. In the agreed fact No. 2 parties have agreed that the complainant 'SL' was 9 years old then.
    

The Evidence

20. Prosecution called witness Sundar Kaur first to give evidence. 'SL' is her daughter and she was born on 27/08/02. From the hospital 'SL' was taken to Bimla's place. 'SL' moved back to her in 2012 and she saw 'SL' very naughty, she said. The 2nd day after 'SL' had come to her, 'SL' had told her that she didn't like when her brothers hug her. 'SL' had told her what all happened there. She had told that the man took out his private part and put it in her private part and some milk like thing came out and he had put it on her face. Then the witness had taken her to the Women Crisis Centre and from there 'SL' was taken to Central Police Station. At that time she had been living in Samabula.
    
21. In cross-examination, she said that 'SL' was given to Bimla when she was one day old and she met 'SL' after 10 years. Recently on 23/04/15 she has given a statement to Police. She said that she did not tell the Police in that statement what 'SL' said about the man putting his private part in her private part. She said that she did not tell the Police because at the Police Station she did not talk much. She also said that the Police asked only about her. She denied that she was lying in Court and said that 'SL' told her what she said in Court.
    
22. Prosecution called the alleged victim 'SL' to give evidence next. She said that she was staying with her aunt Bimla Wati. She could not recall the year. She said that the accused whom she called uncle was also living with them.
    
23. Aunt Bimla used to work at Vilisite's Restaurant. Whenever she did not go to school she used to stay with the accused. She said that the accused did bad things to her. He used to touch her private part. She said that Bimla used to go to work 5 days a week and when the accused did the bad things nobody else was around. When she shouted, accused used to put his hand on her mouth. She said that she did not like the bad things accused did. She said that the accused used to use his boys thing in her private part. She had told aunty Bimla what the accused did. But she did not believe her, she said. She had told aunty that the accused holds her and puts the white milky thing on her face and takes her to the jungle and does bad things. She said that he did it at home too. Apart from the aunty she had told aunty's sister too. She had told her that the uncle used to put his private part into hers. It had happened more than once. Plenty times, she said. When he did these things, sometimes aunty Bimla had been at home. She identified the accused in Court whom she called uncle.
    
24. In cross-examination she said that she had been living with the accused and Bimla at some other place other than Sigatoka as well. She could not remember the year. When she was in Sigatoka, she also had been living with Bimla's sister Shanti as well.
    
25. She said sometimes when Bimla went to work she stayed at Shanti's place. She said that when the accused left Bimla and went away, Bimla left her at Shanti's place. She had stayed with Shanti and family for one year, she said. Her mother had come and taken her in 2012. She said that she did not tell the Police that the accused used to put his hand on her mouth when she shouts. She also did not tell the Police that accused used to put the milky thing on her face. She however said it happened. She said that the lady at the Police Station did not listen to her full story.
    
26. The next witness was Shanti. She could not recall her age. She said she has three sisters. She could remember only Bimla's name. She said that 'SL' was living with Bimla and the accused. Bimla and accused had no children.

She used to talk to 'SL' whenever she went to Bimla's house.

27. In cross-examination she said that Bimla and accused lived in Sabeto, Nadi as well but she couldn't recall the year. When suggested, she said may be somewhere in 2009. Whenever Bimla went to work she used to leave 'SL' with her, she said. She also said that Bimla left 'SL' with her and went away and she looked after 'SL' for 2 years. When she was asked whether 'SL' was with her in 2010 and 2011, she said "yes".
    
28. She also said that 'SL' told her once that the accused was holding her like this and she demonstrated how 'SL' showed her how accused held her. When she told Bimla about this, Bimla had told that it's a lie. Bimla denied, she said. After that she had not asked anything, she said. She also said 'SL' looked fine when she said that.
    
29. The next witness was Ashwin Chand who recorded the caution interview of the accused. He said D/C Sunil Dutt was present at the time he recorded the statement, as the witnessing officer. He has typed the caution interview statement on the computer. Accused, witnessing officer and himself had signed the statement. The caution interview statement was marked and exhibited and read over to you in Court.
    
30. He said that he gave all the constitutional rights to the accused. Accused had not complained to him on anything. He said that the accused understood the questions and answered on his own free will.
    
31. In cross-examination, he said that Officer Shameem was not present at the interview full time. As it was the Crime Office, Crime Police Officers come in and out, he said. He said he gave the accused all his rights. He also said the accused contacted his mother on his (witnesses) mobile phone. He said that by the time Anshu Priya Lal came to see the accused, he had not asked the accused whether he had raped the victim. He said the accused made the statement voluntarily.
    
32. He denied grabbing accused's neck, denied slapping the accused ears, denied Officer Shameem rubbing chilies on the accused's face and eyes, denied hitting the accused with a baton on his knee. He also denied forcing the accused to sign the documents. He denied making the accused to sign the charge statement without telling him what it was. He said that on 05/06/14 he took the accused to Nadi Magistrates Court and denied that Shameem was the driver.
    
33. The next witness was Sunil Dutt. He said that he recorded the charge statement of the accused on 04/06/14 at Sigatoka Police Station. DC Ashwin had been present. Charge was conducted in English and later translated and explained to accused in Hindi, he said. Accused was given his rights and the accused did not complain anything, he said. Accused had signed the statement of his own free will, he said. Charge statement was tendered as an Exhibit.
    
34. In cross-examination he said that when accused was being interviewed, Officer Shameem was not present. He denied that Ashwin forced the accused to sign the charge statement without telling him what it was. He said that the accused voluntarily signed. He said that in the charge statement it is not mentioned that he explained the accused in Hindi and therefore he admitted that he did not do his job properly. He also denied Ashwin grabbing and choking accused's neck and denied Ashwin slapping the accused.
    
35. He denied hitting the accused with a baton on his right knee. He said that he was present right throughout the interview. He said that he verbally translated the charge statement to the accused to Hindi.
    
36. W/Dectective Constable Mereseini Naqiri gave evidence next. She was the investigating officer. She said the accused was arrested on 03/06/14 by Sgt. Clifford. She also had been present. Accused had been drinking grog outside with two others. Accused was advised of the reason for arrest and was taken to the Sigatoka Police Station. She said that the accused cooperated. At the Station he was handed over to the Station Orderly where he was searched and locked in the cell.
    
37. Next day accused was caution interviewed by D/C Ashwin in the Crime Office. D/C Sunil also had been present. She said that the Police Officers never assaulted the accused. Never forced him to sign. D/C Sunil had charged the accused. She said the accused looked relieved because he stated that he told everything that he did to the victim.
    
38. In cross-examination she said that the accused was arrested outside the FNPF Building. She said that the accused was not served with dinner on the day of arrest as it was 22.30 hrs when he was arrested. She said she cannot recall officer Shameem being present at the interview. Accused admitted the allegation, she said. She denied Ashwin grabbing accused's neck and choking him. She denied Ashwin slapping the accused. She also denied Shameem rubbing chilies on the face of the accused and Ashwin hitting him on his knee. She also denied Shameem forcing the accused to sign documents. She also denied accused signing the caution interview statement and charge statement together.
    
39. The next witness was Dr. Everlyn Tuivuga who medically examined the alleged victim 'SL'. The witness testified about her qualifications as a Medical Doctor. She has examined 'SL' on 28/05/12 at CWM Hospital Children's Outpatients Department. She said the vagina of the victim was gaping open. She also noted that there were no injuries, no bruises and no cuts. She said that she could not see the hymen. Her conclusion was that it was consistent with penetration with a blunt object.
    
40. In cross-examination, after refreshing her memory by seeking the medical report prepared by her, she said that the victim was not crying but frightened and obeyed everything that she was asked of her. When she was asked whether it was possible that the child was frightened of her, she answered negative. She said any child can be frightened of one thing or another.
    
41. She said the gaping vagina is consistent of blunt penetration. She also said that the blunt object also can be anything other than a penis. She said it's very rare that children are born without a hymen. She also answering the question by the defence said that self-inflicted activity for pleasure usually happens around 12-14 years of age when their hormone levels increase. Most common cause for gaping vagina is penetration, she said.
    

Ladies and gentleman assessors.

42. At the end of the Prosecution case, you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the Prosecution at all times. The accused chose to give sworn evidence and to subject himself to cross-examination. You must give his evidence careful consideration.
    
43. The accused in his evidence said that he was arrested on 03/06/14 at about 10.30 pm at Sigatoka FNPF site when he was finishing his last job. He said two male Fijian Officers arrested him and they did not explain why he was arrested. They have told him that there was a report. Never explained what the report was. He was not told about his rights. At the Police Station after searching him, he was put in the cell. Although he asked for dinner he was not given, he said.
    
44. On 4th June he was taken to the Crime Office. Officer Ashwin had asked him whether he knows 'SL' and Bimla. He was asked where he was in 2009, 2010 and 2011. He had told that in 2009 he was in Sabeto, Nadi and in 2010 and 2011 he was in Nadi. Little later Shameem had told him that he has a rape case and that he raped her. Shameem and Ashwin had told him that he raped her. When he denied, Ashwin strangled his neck and slapped on his ears, he said. He has said that if he does not tell the truth he would assault more. When he denied the allegation, Shameem had come from the back and rubbed chilies on his eyes and dragged down. Ashwin hit his knees with a Police baton, he said. He was not explained his rights.
    
45. He said that he gave a missed call from his mobile phone to his mother and then the mother called him, he said. Anshu Priya Lal had come and only said "Hi" and went back, he said. It has happened before he was assaulted. He said that he was not asked about 'SL' but had asked whether he raped or not.
    
46. He said in 2001 'SL' and Bimla were living with him in Olosara, Sigatoka. In 2008 he had got separated and never went back to them, he said. He said that he signed the caution interview when Ashwin said that he would be released if he signs. Because he was uneducated he did not know what was the document he signed, he said. He said that the caution interview statement was never read to him. He also said that a charge statement was never put to him. Sunil Dutt was not present he said. He denied the allegations on Counts 1 and 2 in the information.
    
47. In cross-examination he said that he was drinking kava with his two cousins at the time he was arrested. When he was questioned about what he said before that he was finishing his last job when he was arrested, he said that he was working and brothers were having kava. He said that although he was searched at the Police Station before putting him in the cell, he was hiding his mobile phone inside his underwear. He said his mobile phone was later stolen in Nadi Court house. However, again when cross-examined, he said that it was given to a friend at Nadi Court house and when he went to Court and came back, he had gone.
    
48. He said that he was not given breakfast the next morning, day after his arrest. He admitted that he spoke to his mother over the telephone. However, he said that he was not asked if he wanted to contact anyone. He said he buzzed the mother and then she called him. He denied giving his rights by the Police. He said that he did not have a mobile phone in 2011 and 2010. He also denied that he lived in the same home with 'SL'. He said that she was not staying with them and was staying at her aunt Shanti's place. He also denied that he was chased by Johnny from Bimla's house. He admitted that he had fallen out with Johnny. He said that he yelled when chilies were applied on his eyes but Ashwin pressed his mouth. He denied making up a story. He also said that when he yelled when Ashwin strangled him, Shameem pressed his mouth. He said that Ashwin and Shameem took turns to press his mouth when he yelled.
    
49. He said when he was produced before the Magistrate, he informed the translator of what Police did to him. However, he did not get any answer, he said. He did not tell the Magistrate about translator withholding what he said. He said that he is uneducated and that he does not know how to read or write. He said he wrote to the Judge about the allegation against the Police. He said he cannot remember whether he told the Judge about it in Court.
    
50. He said that he did not know that he could complain to the Magistrate or the Judge.
    

That was the evidence for defence.

Ladies and gentleman assessors,

51. You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
    
52. The written agreed facts are before you. You may accept those facts as if they have been led from witnesses from the witness box unchallenged.
    
53. You may have observed that when some witnesses gave evidence, there were some inconsistencies before the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police, can affect the credibility of the witness. Inconsistencies per say in their own evidence in court also can affect the credibility of the witness. It is for you to decide which witnesses you are going to accept as reliable and which are not.
    
54. Caution interview statement and the charge statement of the accused were submitted in evidence. The prosecution says that the accused made the confessions on which you can rely. The accused says that the admissions in the caution interview statement were not made voluntarily, he was oppressed and that he was forced to sign the confessions. He says that he never signed a charge statement. He says that he was strangled and choked, was slapped, rubbed chilly on his face and eyes, and was hit on his knee with a police baton. Prosecution says that the statements were made voluntarily. Police witnesses denied any kind of assault. They said that the rights of the accused were afforded to him. If you think that the confessions were or might have been obtained by oppression or by assault you must disregard it even if you think that it was or may have been true. If, however, you are sure that confessions were not obtained that way, and that it was true, you may take it into account when considering your opinions.
    
55. As a matter of law I must tell you that a witness can give evidence on his observations like what he heard, what he saw and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example you get experts in the medical field. In this case the medical doctor Evelyn Tuivuga attached to the CWM hospital gave evidence on the medical examination she conducted on the alleged victim 'SL'. You heard her qualifications which were unchallenged. Therefore as a medical doctor her expert opinion on the medical examination and on her medical findings is admissible in evidence.
    
56. The alleged victim 'SL' said in evidence that she told her aunt Bimla what the accused did to her. She said that Bimla did not believe her. Then she had told that to aunts' sister, she said. Witness Shanti in her evidence said that 'SL' told her that the accused was holding her. Then Shanti had told that to Bimla and asked her why Munnu is holding 'SL' like that. Bimla had denied that and said that 'SL' is lying.
    
57. If you accept the evidence of 'SL' and Shanti on this point, that shows that 'SL' had been consistent and it enhances her credibility although Shantis' evidence cannot be taken as corroborative evidence that the accused raped 'SL'. However I must also direct you that if you believe the evidence of 'SL' that the accused had intercourse with her as she testified, you need not look for corroboration of her evidence by other witnesses.
    
58. It is evident that 'SL' made the report to the police much later after she told the mother about what the accused did to her. Before she was taken by her mother back, she was in the custody of Bimla and also with Shanti. It is an agreed fact that after Bimlas' husband who is the brother of the accused passed away 'SL' and Bimla lived with the accused. So you consider the circumstances evident when you decide whether the delay in complaining to the police is justified.
    
59. The accused says that he was elsewhere during the period alleged to have committed the offences. The burden of proving the accused persons guilt and that he committed the offences alleged beyond reasonable doubt remains with the prosecution all times. It is for the prosecution to prove that he committed the crime and not the accused to prove that he was elsewhere.
    
60. The alleged victim 'SL' testified that the accused put his boy's thing in her private part. She said that it happened plenty times. She said that she was at Shanti's place for about one year from where her mother brought her back. Before being at Shanti's place she had been with Bimla and the accused. You may see agreed fact No. 5. When it was put to the witness Shanti by the defence that 'SL' was with her in 2010 and 2011, she said 'yes'. When she was asked about the times when the accused lived in Sabeto and came back to Sigatoka, she said that she cannot recall. Shanti could not recall her age. She even could not recall the names of her other two sisters, but only Bimlas'. You may therefore consider whether Shanti's evidence on the timing or the period in which 'SL' lived with her can be relied upon or not.
    
61. Prosecution says that the accused admitted committing the crimes alleged in his caution interview and the charge statement and that those were made voluntarily. Defence denying the allegations says that the accused was forced to sign the caution interview statement by assaulting him, choking him and rubbing chili on his ears and face. Further the defence says that he never signed the charge statement and that he was never charged.
    
62. Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you. You must decide which witnesses are reliable and which are not. You observed all the witnesses giving evidence in Court. You decide which witnesses were forthright and truthful, and which were not. Whether witnesses were evasive. You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanor in arriving at your opinions.
    
63. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused have been proved beyond reasonable doubt.
    
64. Your opinions on each count will be either guilty or not guilty.
    

Ladies and gentleman assessors,

65. This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
    

Priyantha Fernando
Judge

At Lautoka
04th May 2015

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