State v Naicker - Summing Up [2015] FJHC 531; HAC279.2013 (9 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 279 of 2013

STATE

V

KISHORE NAICKER

Counsel: Mr. Paka A. for State
Mr. Savou J. for Accused

Hearing: 6th, 7th, 8th July 2015
Summing Up: 9th July 2015

SUMMING UP

Ladies and Gentleman Assessors,

[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 accused and the prosecution made submissions to you about the facts of this case. It is their right as the counsel. Their submissions are not evidence. You heard the evidence of all witnesses adduced in court. 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 opinions 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 proven 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] The accused is charged with one count of Rape and with one count of Assault Causing Actual Bodily Harm. 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 other as well.

[10] You may remember when the information was read to the accused before you on the first day of this trial, the accused pleaded not guilty to count No. 1 and pleaded guilty to count No. 2. However the accused did not admit the summary of facts and therefore the court decided to proceed with the trial on both counts as if the accused pleaded not guilty to count No.2 as well. The fact that the accused initially pleaded guilty to count No. 2 should not be taken against him in any manner when you consider the evidence and you must consider as he pleaded not guilty to count No. 2 as well. He should be presumed not guilty until he is proven guilty on both counts. It is for the prosecution to prove the charges against him beyond reasonable doubt.

[11] I will now explain to you the elements of rape.

Section 207(2) of the Crimes Decree 2009 defines the offence of rape. A person rapes another person if-

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

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

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

[12] According to the particulars of the offence given in count No.1, the accused penetrated the vagina of the complainant Reena Kumar with his fingers without her consent. Therefore to find the accused guilty of count No 1, the prosecution must prove beyond reasonable doubt that:

1. the accused
2. Penetrated his fingers into her (Reena Kumar's) vagina
3. Without her consent
4. He knew or believed that she was not consenting or did not care if she was not consenting.
   

[13] Where the consent is obtained through fear or by threat, then it 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 insert his fingers into her vagina anyway.

[14] On count No 2, the accused is charged with the offence of Assault Causing Actual Bodily harm. To find the accused guilty of this offence prosecution has to prove the following elements beyond reasonable doubt.

1. The accused committed an assault
2. That assault caused the complainant actual bodily harm.
   

[15] Assault is an act by which a person intentionally or recklessly causes another to apprehend unlawful violence. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the victim. Where the hostile intent is not present, there will be no assault, unless, of course, it is proved that the accused was reckless as to whether the victim would apprehend immediate and unlawful violence.

[16] 'Bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim.

[17] In this case the alleged victim Reena said in evidence that the accused punched her, kicked her and bit her thigh. She also said that the accused struck her with the knife. The accused in his evidence admitted that he punched her on the forehead and slapped her as he was angry but denied kicking her and striking her with the knife. Accused also said that on the following day he saw a swelling on the complainant's forehead where he punched her. If you find that the accused punched her the way the victim and the accused testified, then the prosecution has proved the elements of the offence of Assault Causing Actual bodily Harm as charged in count No. 2.

Evidence

[18] Prosecution called the complainant Reena Raj Kumari to give evidence first. She said that on 21/07/2013 she went to church with her 4 kids. She had come home by 8pm. When she and her kids were getting ready to sleep, accused who is her husband had asked her that he wanted to sleep with her. One son had been sleeping with the accused and other 3 kids with her. She had said 'no' and that her leg was paining. He had kept on asking. Children had been awake, she said. Then he had come to her bed directly and forced her to sleep with her. When she said 'no' he had taken her undergarment off after lifting the skirt. When she pushed him, he had punched her forehead. He had told her that she was sleeping with another man and that's why she refused to sleep with him. Then he had forcefully inserted his finger into her vagina. She had shouted as it was painful, she said. She said she did not consent for him to do that. He then had pulled her down the bed and started punching and kicking her. He also bit her thigh, she said. Kids had been crying asking him not to punch their mother. Then the accused had pulled her from her hair, taken her in front, had brought a knife from the kitchen and had hit her with it from the flat side, she said. He made sure that it did not cut her body, she said. She had begged not to kill her. When she was shouting a neighbour boy called 'Seci' had come and asked the accused "What you doing". Accused had told him in English to 'shut up' and 'this is a family matter'. Then her stepmother also had come. Then accused threw the knife away and had told "today I will hang her", she said. She had gone to police the same day by 9.30pm. She was sent back home by the police as the kids were alone, she said. Next day she had gone to Raiwaqa Health Centre. She had gone to the Women Crisis Centre and with them to the CWM Hospital.

[19] In cross examination she said that she went to church on Sunday as a Pastor had come from Australia and there was a conference. She said that she did not make a statement to police on 21/07/2013. When the statement dated 21/07/2013 was shown, after identifying her signature she said that she never signed any document on Sunday but only signed on Monday, the next day. When the statement was shown to her she said that although she told the police officer that she came home by 8.00pm after church, the police officer has written it as 9.30pm.

[20] Although in her statement to police she had said that she went to church with her two sons, she said she went with all four kids. She said that the police officer was asking her plenty things at once.

[21] She denied that she went to church alone that day. She denied coming home at 9.30pm. She denied accused going to church to look for her and that the church was closed. She said the accused asked her to sleep with her twice but not the way a husband asking a wife.

[22] She denied that the children were sleeping. She denied calling the accused to sleep with her and denied that she removed her own underpants. She denied waking the elder daughter up when the accused got close to her and telling the daughter that the accused wants to sleep with her. She said that the accused inserted his finger into her vagina.

[23] The next witness was Dr. Brian Guevara who examined the complainant Reena on 23/07/2013 at CWM hospital ward. The medical examination form he prepared was submitted in evidence. In part D10 he had recorded the history given to him by the complainant. In part (D12) he has mentioned his medical findings. The injuries the complainant had in her forehead, right thigh, and left thigh he has mentioned in the report. There had been no bruising or tear in the vagina. Bruise on the right thigh could possibly be due to teeth marks he said. His evidence was not challenged by the defence by cross examination.

[24] The next witness was PC 4140 Watisoni. He said that he escorted the victim to the health centre on 21/07/2013. He had observed the complainant limping and had seen blood on her left hand. He had issued the medical examination form. It was produced in evidence as 'Defence Exhibit 1' (D1). Parts A1 – A4 were filled by him, he said. The complainant had told him that she was assaulted by her husband. That was recorded in the form D1 by him. He said that it was all what she told him. He said that when a complainant comes to make a complaint it is recorded by the police and only what the complainant says is recorded.

[25] The last witness for the prosecution was D/Cpl 561 Umesh Raj. He had been the Investigating Officer as well as the Interviewing Officer in this case.

[26] He said that he recorded the caution interview statement of the accused. It was submitted in evidence and was read over before you. Accused had opted the interview to be recorded in English language. He said that the accused understood the questions. No threats or promises were made to the accused, he said. Accused was given his rights. He said the statement was made by the accused voluntarily.

[27] In cross examination he said that as the investigating officer, all information gathered about the case were made known to him. He said the accused wished to be interviewed in English language. He said that he gave him all the rights. He said that he spoke to the accused in English language and recorded in English language. He also said that there was no witnessing officer present when the interview was conducted and that it was not necessary. He said that it would have been fair to have someone there. He said that he explained to the accused what was recorded before the accused signed. He said he did not clarify before the accused signed. In re-examination he said that the record was read to accused and the accused was aware of the contents. He said that it was not a procedural requirement for someone to be present at the interview.

That was the evidence for the prosecution.

Ladies and Gentleman assessors,
[28] 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 to prove his guilt beyond reasonable doubt remains on the prosecution all times. The accused chose to give evidence and subject himself for cross examination. So you have to give his evidence careful consideration.
[29] Accused giving evidence said that on 21/07/2013 he was at home with the 4 children. Wife Reena had gone to church. At about 9pm he had gone to the church that was little bit away from home, to see that the church was closed and lights were switched off. Then he had come home, he said. By 9.10pm Reena had come home.

[30] When Reena went to sleep, he had asked her to sleep with her. Reena had told him to come. Reena had been on the bed with the 3 younger children. Reena had removed her undergarment. He said that after that Reena changed her mind and started hitting Nilisha, saying "Nilisha wake up your dad wants to sleep with me".

[31] Then Reena had told him that she wanted their daughter to see what he is doing. He said that he told Reena that she is my daughter and that he can't sleep with Reena in front of the daughter. Then Reena had pushed him away and he fell from the bed, he said. Reena had been hitting the child again. He said that he got angry and he punched her forehead. Then Reena had started fighting with him. Then he had told her that he thinks she has another partner outside. Reena had not responded. Then he had slapped her. Reena had pulled him from the shirt, he said. Then he had got hold of a knife and was holding the knife as he was angry. Then Reena had opened the door and had gone to her stepmother's place. She then had come back, taken the money and had gone to the police station. He said he never inserted his fingers into her vagina.

[32] About recording of the caution interview, he said that he was interviewed in Hindustani language but was written in English Language. He had told the preferred language as Hindustani. He said he could see the police officer writing but could not see what he was writing. He said he signed in all pages as he was asked to sign.

[33] In cross examination he said that he signed the FNPF forms and ANZ loan forms. He said before signing they tell him what it is.

[34] He said he has the English knowledge to write his name. He said he cannot read or write Hindustani language but he opted to be interviewed in Hindustani. He said that he watches FBC news and sometimes he reads Fiji Times. Police officer Umesh had told him that it would be easy if he writes in English. He denied that he wanted the interview to be conducted in English Language.

[35] He said that he requested his wife to sleep with her and twice she refused. He said he had asked her plenty times, one month, two months before to sleep with her but she always refused. He denied that he took her undergarments off. He denied inserting his finger inside her vagina. He said that he punched Reena and slapped her, but denied kicking her. He admitted that he took the cane knife but denied striking her with that. He said that he was just holding the knife. He said that Reena had a family planning 'baby plant' on her arm and when she was trying to run outside, her arm hit the wardrobe. He said his intention was to threaten Reena with the knife. He said he was not given an opportunity to delete, alter or add anything in his caution interview statement. He said that plenty reports were made to the police before, against Reena for hitting his children. He said that he punched her on her forehead and that Reena got injured.

[36] In re-examination he said that at ANZ before he signs the loan form they explain to him how much he has to pay but Officer Umesh did not explain the contents of the caution interview before he signed.

That was the evidence for defence.

Ladies and Gentleman assessors,

[37 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.

[38] The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box unchallenged.

[39] You must use your commonsense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

Analysis

[40] The prosecution must prove beyond reasonable doubt, all the elements of 'Rape' in count 1 and all the elements of 'Assault Causing Actual Bodily Harm' in count 2 as I explained to you.

[41] You may have observed that when some witnesses gave evidence, there were some inconsistencies between the evidence before this court and the statement given to the police. For example, Reena in her evidence said that she came home by 8pm from the church. However, in her statement to the police she had said that she came home by 9.30 pm. Also she said in evidence that she went to the church with all 4 kids. However, she had told the police in her statement that she came back home from church with her two sons. 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.

[42] When evaluate the evidence, you may consider these inconsistencies and the explanations given by those witnesses, when deciding on the credibility. You may also consider the probabilities of the events testified by the witnesses.

[43] May I also direct you on evidence of recent complaint. In this case, the alleged victim Reena made her complaint to the police the same day without delay. Making the complaint without delay cannot be taken as corroborative evidence of what she testified in court. However the fact that she made the complaint without delay will show her consistency and may enhance her credibility. I must also direct you that if you believe the evidence of the complainant as truth, no corroboration of her evidence is required to find the accused guilty.

[44] You may remember, the complainant Reena said in her evidence that when her step mother came, the accused had told her step mother, 'today I will hang her.'
You may disregard that portion of evidence as the accused is not charged with that offence that he intimidated the complainant or her step mother.

[45] The prosecution says that the defendant made the confession which was produced in evidence marked as P2 on which you can rely. The accused says that the contents of the confession were not explained to him. He says that he opted to record the statement in Hindustani language but was recorded in English language. He says that he signed because the police officer asked him to sign. It is for you to determine as the judges of fact whether the alleged confession was true in whole or in part.

[46] The complainant says that the accused inserted his finger inside her vagina without her consent. She says that the accused punched her, kicked her, bit her and struck her with the knife. The accused says that he punched her and slapped her, but he denies kicking her and striking her with the knife. He says he only held the knife but did not strike with it. He denied inserting his fingers into her vagina. You heard all the evidence including of the doctor who examined the complainant and the police officer who recorded the caution interview statement of the accused. You will have to consider all the evidence led before court when coming to your conclusion. You have to decide which witnesses are credible and which are not.

[47] It is a matter for you to decide on the facts and to decide whether the accused has committed the offences as charged or not, whether the prosecution has proved the charges against the accused beyond reasonable doubt.

[48] 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 whether the charges against the accused have been proved beyond reasonable doubt.

[49] Your opinions on the charges of Rape and Assault Causing Actual Bodily Harm will be either guilty or not guilty.

Ladies and Gentleman assessors,

[50] 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

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