State v Kaci - Summing Up [2015] FJHC 747; HAC084.2014 (5 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 084 OF 2014

BETWEEN :

STATE

AND :

SIRELI KACI

Counsel : Mr. J. Niudamu for State
Mr. R. Kumar for the Accused

Date of Hearing : 01st of October 2015
Date of Summing Up : 5th of October 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
8. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
   
9. You have seen how the witnesses presented in the witness box when answering questions. Bear in mind that many witnesses are not used to giving evidence and may find the different environment distracting. You should take into account consideration such as, the likelihood of the witness's account, whether the evidence of a particular witness seem reliable when compared to other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, the opportunity, the witness had to see, hear, or know the things that the testified about. Another point you may consider is whether the witness said something different at an earlier time? These are only few general considerations which I assume will assist you in your deliberations. It is, as I have said, up to you to assess the evidence and decide what weight, if any, you give to a witness's evidence or to an exhibit.
   

Burden and Standard of Proof

10. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing.
    
11. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
12. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

Information

13. The accused is being charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree. The particulars of the offence are that;
    

"Sireli Kaci on the 2nd of November 2012, at Lautoka in the Western Division, had carnal knowledge of Ilisabeta Lewa without her consent"

14. Section 207 (1) and (2) (a) of the Crimes Decree states that;
    

Any person who rapes another person commits an indictable offence,

A person rapes another person if-

a) The person has carnal knowledge with or of the other person without the other person's consent"

15. Accordingly, the main elements of the offence of rape are that;
    
    1. The Accused,
    2. Inserted his penis into the vagina of the complainant,
    3. Without the consent of the complainant,
    4. The Accused knew the complainant was not consenting for him to insert his penis in that manner,
       
16. At this point I must emphasis you that the offences of sexual nature do not require evidence of corroboration.
    
17. I know kindly request you to draw your attention to the agreed facts, which are before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution.
    
18. I now draw your attention to summarise the evidence presented by the prosecution and the defence during the hearing.
    
19. The first witness of the prosecution, who is the complainant, is Ilisabeta Lewa, She stated in her evidence that the Accused was waiting for her at the Lautoka Club, when she was going home after work around 10 p.m. on the 2nd of November 2012. He was drunk and wanted to talk with her. She refused to talk with him. He then pulled her down and assaulted her. He kicked her and fractured her left hand. He then took a broken bottle of beer and threatened her with it. He then removed her cloths and has had sexual intercourse with her. It took about 15 to 20 minutes.
    
20. The Accused then put on her undergarment and took her to the road, where he got a taxi. He took the complainant in the taxi and dropped her few meters away from her home. When she went home, her brother, who was staying with her, saw the troubles she had undergone and took her to the police station. At the police station, she did not report the incident of rape but reported only that the accused assaulted her. She was referred to a medical examination. The prosecution tendered the medical report of the victim with the consent of the defence as an additional agreed fact.
    
21. On the 14th of March 2014, she reported the police that she was raped by the accused. She explained that she did not report the rape in 2012, as the accused had been assaulting her whenever they met. She was scared of his assaulting.
    
22. During the cross examination by the learned counsel of the defence, the complainant denied that the accused was talking with the security officer of the Lautoka Club, when she met him in the compound of the club on the night of 2nd of November 2012. She further denied that there was no argument erupted between her and the accused over a loan of $50 given to her by the accused. She denied that she performed oral sex on him and then consented to have sexual intercourse with him. She stated that sometimes she had sexual intercourse with the accused in the compound of Lautoka Club prior to this incident.
    
23. At the conclusion of the prosecution case, the accused was explained of his rights in his defence. The accused gave evidence on oath and called two witnesses for the defence.
    
24. The Accused in his evidence stated that he went to Lautoka club upon the request of the complainant as she wanted to work overtime on that day. He waited at the car park, where he consumed beer with the boys who were drinking there. He then went inside the compound and was talking with the security officer of the club when the complainant came to him. She was angry with him for talking to the security officer. They had an argument over this issue. They then went near the bushes inside the compound of the club and had a conversation. Then they started to kiss each other and she performed oral sex for him. She refused to have a sexual intercourse as she had not taken her bath and was dirty. However, she later consented to have sexual intercourse with the accused. They then had sexual intercourse inside the compound of the Lautoka Club.
    
25. Subsequent to the sexual intercourse, the accused had asked the complainant about the $50 that he had given to her as a loan, which led to an argument between them. The security officer, having heard the commotion between the accused and the complainant, chased them out of the compound.
    
26. The accused sated that he then dropped her at her house and went home. The complainant continuously contacted him after he was released from the prison. She has visited his house many times and quarreled with the accused.
    
27. The two witnesses of the accused person stated in their evidence that a lady visited the accused's place and fought with him. However, they stated they identified the lady as the complainant, when they saw her in the court.
    
28. In view of the evidence presented by the prosecution and the defence during the course of the hearing it appears that the main contentious issue is the consent of the victim for this alleged sexual intercourse. A person consents only if she agrees by choice, and she at the relevant time, has the freedom and capacity to make that choice. To prove that the complainant did not consent, the prosecution must make sure on all the evidence that the complainant did not give her consent by an exercise of free choice.
    
29. The prosecution and the defence presented conflicting versions of events, which took place in private between the complainant and the accused. The complainant had not reported the allegation of rape soon after this alleged incident took place on the 2nd of November 2012 and only reported the police that she was assaulted by the accused. She was then taken for medical examination. The medical report of the complainant tendered as additional agreed fact is before you. She reported the Police that she was raped by the accused on 14th of March 2014, that is nearly one year and five months after the alleged incident. She stated that she was scared of the accused as he used to assault her whenever she met him. She did not report the allegation of rape because of the fear she had for the accused.
    
30. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape or a rapist or a victim of rape. Offences of this nature can take place in any circumstance between any kind of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course the hearing. Any person who has been raped must have undergone trauma. It is impossible to predict how the victim react, either on the days following the incident or when speaking publicly about it either in court or in the police station. Those who have been victims of rape react differently. Some may display obvious signs of distress, others may not. The reason is that every person has his or her own way of coping with such incidents.
    
31. The complainant stated in her evidence that she did not report the rape when she made her first report to the Police on 2nd of November 2012. She reported it on 14th of March 2014. The defence suggests that she made this false complain when only the accused refused to stay with her in March 2014. Evidence of the recent complaint is never capable of corroborating the complainant's account, it is only relevant to the issue of consistency, or inconsistency, in the conduct of the complaint. Such matters go to the credibility and reliability of the complainant as a witness.
    
32. As judges of facts, it is for you to decide the credibility and the reliability of the evidence of the complainant. However, it would be wrong to assume that every victim of a sexual assault or rape must report it as soon as possible. As I mentioned above, the victims of such crimes react to the trauma differently. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time.
    
33. Ladies and Gentlemen, you might recall that the learned counsel for the accused cross examined the complainant about the omissions and inconsistencies of her evidence with the previously made statements to the police. It is obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not except every detail to be the same from one account to the next. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influence your judgment of the reliability of such witness.
    
34. You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
    
35. You have heard the evidence presented by the accused, where he denied this allegation. If you accepted the version of the accused person that he did not commit this offence, then the case of the prosecution fails. You must then acquit the accused from this charge.
    
36. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.
    
37. Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.
    
38. Upon consideration of all evidence, if you believe that the count of rape is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty.
    
39. Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened.
    
40. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
5th of October 2015

Solicitors : Office of the Director of Public Prosecutions
Office of the Legal Aid Commission