State v Chand - Summing Up [2015] FJHC 621; HAC038.2014LAB (21 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 038 OF 2014LAB

STATE

V

RITESH VIKASH CHAND

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 19 and 20 August, 2015
Summing Up : 21 August, 2015

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 they 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
     




"... [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 April 2014, at Labasa in the Northern Division, rape the complainant?



5. THE OFFENCE AND IT'S ELEMENTS
   

9. The accused was charged with "rape", contrary to Section 207 (1) and (2) (a) of the Crimes Decree 2009. 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", and she must have the necessary mental capacity to give her consent. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over her, 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.



6. THE PROSECUTION'S CASE
   

13. The prosecution's case was as follows. On 17 April, 2014, the female complainant was 14 years old. She resided at Linepoint, Vatia. She was mentally slow. The accused, on the other hand, was 20 years old and was not mentally slow. On 17 April, 2014, the complainant (PW2) was playing with her friends. While playing with her friends, she met the accused. She identified the accused in court, as the person she met on that day.




14. According to the prosecution, the accused gave her his mobile phone. Then he took her to a nearby vacant house. At the vacant house, the accused allegedly took off all the complainant's clothes, while she was playing games in the mobile phone. According to the prosecution, the accused later inserted his penis into the complainant's vagina. She did not like the same, nor consented to it. It appeared, according to the prosecution, that the accused knew she was not consenting to sex, at the time, because she was mentally slow.




15. The matter was later reported to police. An investigation was carried out. The accused was caution interviewed by police on 21 and 22 April 2014. He appeared in the Labasa Magistrate Court on 23 April 2014, charged with raping the complainant. 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
   

16. On 19 August 2015, 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 no witness, in his defence. That was his right.




17. In his evidence, the accused admitted he met the complainant on 17 April 2014 in a vacant house. He said he had seen the complainant before in the golf ground at Linepoint. He said, he recalled been interviewed by police in 2014. However, he said he did not insert his penis into the complainant's vagina at anytime whatsoever. He said, he did not know that the complainant was mentally slow.




18. 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
   

19. The two main witnesses in this case were the complainant (PW2) and the accused (DW1). On the rape complaint, the two witnesses' evidence, appear at first, to be inconsistent with each other. When examined in chief by the prosecution, the complainant said, she and the accused were in a vacant house on 17 April 2014. She said, the accused gave her his mobile phone, and she was playing the games in the same, when they were in the vacant house. She said, the accused took off all her clothes. He later inserted his penis into her vagina. She said, she did not like the same, nor consented to it. As she was mentally slow, the accused knew she was not consenting to sex, at the time.




20. The accused, on the other hand, while giving evidence, denied penetrating the complainant's vagina with his penis. He said, he did not do the above. He said, he recalled being cautioned interviewed by police.




21. On the caution interview, DC 3540 Sanjeet Lal (PW4) said, he cautioned interviewed the accused, at Labasa Police Station on 21 and 22 April 2014. The caution interview statements by the accused was tendered by PW4 as Prosecution Exhibit No. 3. PW4 asked the accused 102 questions, and 102 answers were allegedly given. PW4 said, the accused was given his right to counsel, his rest and meal breaks and was given the standard caution. During the interview, the accused admitted meeting the complainant, at the material time. He admitted the two talked and went into a vacant house. He admitted he kissed the complainant, and gave her neck some "love bites". He admitted, while kissing the complainant, he had an erection and wanted to have sex with her. However, he denied inserting his penis into the complainant's vagina, at the time. You may use the accused police caution interview statements in your deliberation if you think he gave the same voluntarily and they were the truth. It is entirely a matter for you whether or not you use any of the statements the accused made in his caution interview.




22. Doctor Richard Tavo (PW3) medically examined the complainant on 20 April 2014, that is, 3 days after the alleged rape. He prepared a report, and submitted the same as Prosecution Exhibit No. 2. In D (10) of the report, the doctor recorded the patients' history. She told the doctor that she met an "indian man" on 17 April 2014, and that the "indian man" inserted his penis into her vagina, at the time, in a vacant house. She said she refused to have sex with the indian man, but he assaulted her. The doctor found the complainant's hymen broken and bruises were found on her vaginal orifices. The doctor said in D (16) of the report that the above injuries showed forceful sexual intercourse, and such was consistent with the patient's history.




23. However, when the complainant was cross-examined by defence counsel, in the afternoon of 19 August 2015, she said, the accused did not penetrate her vagina with his penis, at the material time. When re-examined by the prosecutor, she repeated what she said above. In other words, what she said above was inconsistent with what she said in court, when examined-in-chief by the prosecution. You have watched the complainant give evidence in the courtroom. You saw that she appeared mentally slow. If you accept what she said when cross-examined by the defence, and when re-examined by the prosecution, that is, that the accused's penis did not penetrate her vagina, at the material time, then you will have to find the accused not guilty as charged. Yet the dilemma for you was that when examined-in-chief by the prosecution, she said the accused's penis penetrated her vagina at the material time, and that she did not consent to the same.




24. The prosecution argued that she was tired at the end of the day, and that may be a reason why she said what she said when cross-examined and re-examined. You have heard the whole of her evidence, and watched her in the courtroom. Whether or not you accept what she said when she was examine-in-chief by the prosecution, or what she said when cross-examined by the defence and re-examined by the prosecution, is a matter entirely for you. The State's case against the accused stands or fall on what you decide above.




25. You have heard the accused's evidence. On the rape complaint, he denied ever inserting his penis into the complainant's vagina, at the material time. He admitted he went into the vacant house with the complainant at the material time. He admitted in his police caution interview statements that he kissed the complainant in the vacant house and thereafter got a penile erection. He admitted in the statement that he wanted to have sex with the complainant at the time. However, he said, he did not insert his penis into her vagina, at the material time. You must also consider the doctor's evidence. He examined the complainant on 20 April 2014, three days after the alleged rape. He said, the complainant's hymen was broken and there were bruises near her vaginal orifices. He said, that was evidence of forced sexual intercourse. You will have to consider all the evidence, before you reach a conclusion on whether or not the accused was guilty as charged. What you decide on the facts is a matter entirely for you.



1. SUMMARY
   

26. 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.




27. Your possible opinions are as follow:




(i) Rape : Guilty or Not Guilty.




28. 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, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa