State v AK - Summing Up [2015] FJHC 899; HAC177.2013 (18 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 177 of 2013

STATE

V

AK

Counsel : Ms. S. Puamau with Ms. L. Bogitini for State
Mr.M. Raza for Accused
Dates of Hearing : 09th –17th November 2015
Date of Summing Up: 18th November 2015

(The names of the Accused and of the Complainant are suppressed. Accordingly, the Accused will be referred to as AK and the Complainant as MK)

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1. I will now explain to you the legal principals which you should apply in this case. You must accept those directions on law and must follow them when you analyze the facts of this case in order to provide me with your opinions.
   
2. During this exercise, I may refer to certain evidence wherever necessary while explaining the legal directions and I will also be providing you a summary of the evidence. Being the judges of fact, you and you alone should decide what weight you give to the evidence. Therefore, if I express my opinion on the facts of this case or if I appear to express my opinion on the facts, you are at liberty to either accept or disregard such opinion. Do not accept my views on the facts of this case unless you agree with them.
   
3. When I say 'evidence' that includes what the witnesses said from the witness box, the exhibits tendered by both parties and the admitted facts.
   
4. Please remember that this summing up is not evidence. That said, in this summing up, I will not be reproducing the entire evidence led in this case. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you may think fit.
   
5. The arguments, questions and comments by the counsel for the prosecution and counsel for the defence are not evidence. A suggestion made by a counsel during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening and closing addresses made by counsel for the prosecution and counsel for the defence. That is their duty as counsel. However, the arguments and comments made by counsel in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence if you wish to do so, but you are not bound to accept them.
   
6. You must not consider anything you have heard or read about this case outside this courtroom before or during the trial. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been or allow yourself to be drawn into speculation. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box, the agreed facts, agreed documents and the documents tendered in this court. You must approach the evidence with detachment and objectivity and should not be guided by emotion.
   
7. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
8. You should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and in relating those facts they remember in front of others not known to them.
   
9. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence or whether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that previous statements made out of courtare not evidence except for those parts that are put to a witness as inconsistent versions. As I have already told you, evidence is only what came out from the witness box. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
   
10. Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistent statements, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
11. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
12. You heard in this case that the complainant had made a complaint to her Mother after the incident. You should consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with.
    
13. The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that she made a prompt and a proper complaint, then and then only you may consider that her credibility is strengthened in view of that recent complaint.
    
14. The complainant in this case, MK is now 7 years old. The main task before you in this case therefore is to judge whether this child witness MK has told the truth and whether the account of the events she gave is reliable. You may have come across children of that age. You will have an idea of the way they think, talk and the way they describe things. With your life experience, you have to decide whether MK was a credible witness and whether you can rely on the evidence given by her.
    
15. The prosecution may sometimes rely upon what is called as circumstantial evidence to prove its case. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the accused which they say when taken together will lead to the sure conclusion that it was the accused who committed the crime.
    
16. When it comes to circumstantial evidence, it is important that you examine it with care as with all evidence and consider whether the evidence upon which the prosecution relies to proof its case is reliable and whether it does prove guilt of the accused, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.
    
17. Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. Then apply the relevant law as per my directions on law to those facts and inferences to form your opinion as to whether the accused is guilty or not guilty.
    
18. You are not required to decide every point which has been raised by counsel in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the said charge laid against the accused has been proved.
    
19. When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.
    
20. The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of the accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.
    
21. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence charged, as to whether the prosecution has proved that element, then you must find the accused not guilty. However, if you find that the prosecution has proved all the elements of the offence the accused is charged with beyond reasonable doubt, you should find the accused guilty.
    
22. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But your opinion as representatives of the society will assist me immensely to arrive at my decision.
    
23. Let us now look at the Information. DPP has charged the accused for the following offence;
    

FIRST COUNT
Statement of offence

Rape: Contrary to Section 207 (1) and 2(b) of the Crimes Decree 2009.

Particulars of offence

AK between the 12th day of May and the 13th day of May 2012, at Narere in the Central Division, rapedMKa4 year old female, by penetrating the vagina of the said MK with his finger.

ALTERNATIVE COUNT
Statement of offence

Sexual Assault: Contrary to Section 210(1)(a) of the Crimes Decree2009.

Particulars of offence

AK between the 12th day of May and the 13th day of May 2012, at Narere in the Central Division, unlawfully and indecently assaulted MK.

24. To prove the above charge of Rape under section 207(2)(b) of the Crimes Decree the prosecution must prove the following elements beyond reasonable doubt;
    
    1. the accused
       
    2. penetrated the vagina of MK to any extent with his finger
       
    100. MK is below the age of 13 years
         
25. In this case, the Accused does not dispute his identity and it is an admitted fact that MK was 4 years old at the time of the alleged incident. Therefore you should consider that the elements (a) and (c) above are proven beyond reasonable doubt.
    
26. The issue you should decide in this case is whether or not the Accused penetrated the vagina of MK with his finger. A slightest penetration is sufficient to satisfy this element.
    
27. However, you should also consider whether the Accused had the intention to penetrate MK's vagina. A person has intention when he means to engage in the conduct in question. Intention is something which can only be inferred. You have to be therefore satisfied beyond reasonable doubt that AK penetrated MK's vagina and he meant to penetrate MK's vagina, if you are to find AK guilty of the first count.
    
28. If you are satisfied beyond reasonable doubt that the prosecution has proved the element based on penetration as explained above, then you must find the accused guilty of Rape. If you have a reasonable doubt with regard to that element, then you should find the accused not guilty of Rape.
    
29. However, if you are not satisfied that there was penetration as explained above, then and then only you should consider the alternative count of Sexual Assault.
    
30. The elements of the offence of Sexual Assault are;
    
    1. the accused
       
    2. unlawfully and indecently
       
    100. assaulted MK
         
31. Again, there is no dispute over the identity of the accused.
    
32. The word "unlawfully" simply means without lawful excuse.
    
33. An act is indecent, if it has some element of indecency and a right-minded person would consider such conduct indecent.
    
34. Assault is the use of unlawful force. Accordingly, a touch constitutes an assault if it is done without a lawful excuse.
    
35. You should also ask yourself, firstly, whether you consider the force which was used could have been sexual because of its nature; and if the answer is yes, whether, in view of the circumstances and/or the purpose in relation to the force used, that using of force is in fact sexual.
    
36. If you are satisfied that the prosecution has proved all the above elements beyond reasonable doubt, then you must find the accused guilty of the alternative count. However, if you have a reasonable doubt in respect of any element, you should find the accused not guilty.
    

Case for the Prosecution

37. First prosecution witness was the complainant MK. She said her father is AK. In 2012 her father and mother were not living together and some days she used to stay with her father. In 2012, on one night she was staying with her father and while she was sleeping, she felt something and woke up and then she saw her father putting ice in her private part. She pointed to the genital area of the big teddy bear she was holding when she was asked to show where the private part is. She said AK used 2 fingers to put the ice. She saw blood on the ice and that blood was from her private part. She said she was feeling the pain.
    
38. During cross-examination she admitted that three statements were obtained from her by the Police. It was pointed out to her that in her statement dated 17/05/2012, she had told the Police that "I never saw the blood". She said that statement is not correct and she does not know how that appeared in the Police statement. She was asked about one Pranish whom she identified as her cousin. It was suggested to her that this Pranish poked a pen in her "toto" (private part) and she denied that. Then again it was pointed out to her that on 17/05/12 when her statement was recorded, she was asked whether she told a Police Officer that Pranish poked her private part with a pen and she had answered "Yes. He just poked it because we were playing". She denied saying this to the Police. She said her mother and father quarreled at times. She said, when she was staying with her mother, the mother used to bathe her and when she was with her father she bathed alone.
    
39. Next witness was the complainant's mother Ms. Begum. She said she was once married to the accused for about 7 years and they were separated on 19th June 2010. They had a split custody arrangement made by Court in respect of MK in 2012, where she would drop MK at 8.00am on Saturdays at Nasinu Police Station to hand over MK to the accused and she would pick her back at 6.00pm on Sundays from the same Police Station.
    
40. She said on 13/05/2012, she went to pick the complainant from the Nasinu Police Station at 6.00pm. The Accused did not tell her anything about any injury sustained by MK. But later on when she tried to carry MK on her side to take her home, MK said not to do that because her private part is paining. When the witness asked what happened MK had said that 'papa had put ice there because it was bleeding'. She said she reported the matter to the Nasinu Police Station. She said she had trained her children including MK, to use toilet paper.
    
41. In cross-examination she admitted that she was not married to the Accused contrary to what she stated in her evidence in chief. The reason she gave was that she could not think properly. She said she was married to one Naushad Ali when she was living with the accused. It was highlighted that she had given 3 statements to the Police with regard to the incident; one on 15/05/2012 and two statements on 31/07/2012. The two statements recorded on 31/07/2012 indicated that they were recorded at the same time. She admitted that she had given two different versions to the Police with regard to the time of the incident. On 15/05/2012 she had said that the incident took place during the last week of April 2012 between 28th and 29th and she reported the matter to the Police at that time. But on 31/07/2012 she had said the only time her daughter complained about the incident was on 13/05/2012 and she complained to the Police on the same date. She said she was present when the MK's statements were recorded.
    
42. In re-examination she said, during the 7 years she was living together with the accused, they had problems at times.
    
43. The next witness was WDC Vula Ruacolati. She was the investigating officer of the case. She said based on the report received on 14/05/2012, she arranged MK to be medically examined at the CWM Hospital. She also recorded the statement of Ms. Begum on 15/5/2012.In cross-examination, she confirmed that on 15/05/2012 Shamshud Begum said that the incident happened between 28/04/2012 and 29/04/2012.
    
44. Next witness was Vulaono Cibavakaloloma who was a Police Officer in 2012. She said she formally charged the accused as per the instructions she received. In cross-examination she said she charged the accused on 11/12/2012 based on instructions received. In re-examination she said one ASP Shanti Lal gave her the instructions to charge.
    
45. Adimate Naqelekalou took the stand next. She had left the Police Force in 2014. She had interviewed the accused under caution on the instructions received by the crime officer. She also recorded a statement from MK on 17/05/2012. She said MK's mother was there when recording the statement and she, the witness spoke to MK in Hindi and MK answered in Hindi. However, the statement was recorded in English as the witness could not write in Hindi.
    
46. In cross-examination she was questioned about her questioning MKabout one Pranish who is a cousin of MK, poking MK's private part with a pen. She said MK's answer to that question was "yes, he just poked it because we were playing".
    
47. In re-examination she was asked whether the complainant told her about the time this Pranish poked the private part. She said MK told her that it was during the last weekend MK spent with the Accused.
    
48. WPC Maraia gave evidence next. She said she recorded statements from witness including the complainant and also from the accused. She said when she recorded the statement of MK on 31/07/2012, MK's mother was present and the statement was recorded with the assistance of the mother as the translator. She first said she recorded only one statement from the mother of the complainant Ms. Begum on 31/07/2012, but subsequently she admitted that she had recorded two statements on 31/07/2012 when she was shown the two statements.
    
49. In cross-examination she said that she recorded the statement of the accused on the instructions of a senior officer. She said that the complainant in her statement dated 31/07/2012 said that "I never saw the blood". She also said that the complainant told her "that he only told me that to stop the bleeding and I really don't know what he meant and why he put ice on my "toto" private part".
    
50. The last witness for the Prosecution was Dr. Evelyn Tuivaga. She said that her area of specialization is Paediatrics. Over the past 4 years, she had attended to an average of 48 similar cases. She qualified as a medical practitioner in 2004 and in 2009, obtained a post graduate diploma in child health. She said she examined MK on 14/05/12 and tendered the Medical Report as PE1. She said she observed abrasions on the sides of the vaginal opening. She said "from the beginning of the labia majora right up to the opening of the vagina is called the vulva. From the opening downward is the vagina". She also found redness of the labia majora and minora and dry whitish discharge on the labia majora.
    
51. She said the abrasions observed and the redness of labia majora and minora could have been caused by rubbing a blunt object over the area. The blunt object could be a finger or any similar object, she said.
    
52. In cross-examination she said that she was a Paediatrician Registrar when she examined MK. She said she is not a Gynaecologist. Mother of the complainant was not present during the examination. She said she recorded at D10 of the Medical Report that "Dad put ice and bleeding stopped" based on what the child said through the interpreter. She said she did not take photographs as a camera was not available, but taking photographs is not necessary for a proper examination. She said scratching can cause abrasions, excessive wiping of vagina with dry toilet paper can cause abrasions. She said that the blunt object as stated in D14 of the Report can be anything. She also admitted that on 14/05/12 in her statement to the police, she said that it is difficult to state whether there was penetration or not.
    
53. That was the case for the prosecution.
    

Case for the Defence

54. The accused has the right to remain silent. After the prosecution case, he had the right to give evidence on oath or to call witnesses. He has those 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 him to cross examination. He also called one witness.
    
55. Accused gave evidence first. He denied the allegation made by MK. He said he find it very difficult to get the custody of MK. He identified the slide at his house which is shown in the photograph tendered as DE1. He identified the bicycles shown in DE 2, DE 3 and DE 4 as bicycles he bought for MK. He said that the swing shown in exhibit DE 5 is also at his home and MK used to climb on the side poles of that swing with her legs crossed and then slide. He said he did not have a fridge in his house in April/May 2012 and a fridge was bought only in January 2015. He also said that there was an occasion where he witnessed MK falling from a bicycle.
    
56. In cross-examination when he was asked whether he and MK were sharing the same bed during the weekends MK stayed with him, he said MK slept in a baby cot in the same room as she liked that cot. He admitted that he did not tell the Police that MK fell from a bicycle. He denied that he inserted ice into MK's vagina. It was suggested to him that when he inserted ice into MK's vagina, the end and sides of his fingers touched and rubbed against MK's vagina and he said that his daughter is lying.
    
57. The defence called one Doctor Neil Sharma next. He said he commenced his practice in 1977. He said he is a Gynaecologist. He said a Gynaecologist is better suited to look into the genitalia. He said he had perused PE1 and it is incomplete and inconclusive. He said there are other possibilities that could cause abrasions and the medical report tendered as PE1 does not give due consideration to such other possibilities. According to him a traumatic fall, sitting on an ill-fitting bicycle or sliding from a swing pole can cause abrasions. He said the redness of labia majora and minora can also be caused due to a local infection. In cross examination, he admitted that he never examined MK.
    
58. That was the case for the defence.
    

Analysis

59. In this case, the issue you need to decide is whether or not AK penetrated MK's vagina with his finger around 12th and 13th May 2012.
    
60. The prosecution says that AK inserted ice in MK's private part using two fingers and those fingers could have touched MK's vagina. They say that they rely on circumstantial evidence to prove penetration.
    
61. The accused totally denies the allegation. He says that he did not put ice in MK's vagina and he did not penetrate her vagina with his finger.
    
62. Was MK a truthful witness and can you rely on her evidence? The defence says that there are inconsistencies in her evidence. In her evidence MK said, on that particular night in question, she saw blood on the ice. According to the Police Witness Maria, MK had stated in her statement dated 31/07/2012 that "I never saw blood". When MK gave evidence, she denied that one Pranish poked a pen in her private part. However, witness Adimate Naqelekalou who was a Police Officer in 2012 and who recorded MK's statement on 17/05/2012 said that when MK was asked about Pranish poking her private part with a pen, MK had answered "Yes, he just poked it because we were playing".
    
63. Ms. Begum in her statement to the Police on 15/05/2012 had said that the alleged incident took place during the last week of April 2012 between 28th and 29th. But in her statement on 31/07/2012 she had said the only time her daughter complained about the incident was on 13/05/2012 and she complained to the Police on the same date.
    
64. Considering my legal directions on dealing with inconsistent evidence, would you consider MK and Ms. Begum as generally unreliable or would you disregard only a part of their evidence which you would consider unreliable?
    
65. It is clear that in this case there is no direct evidence with regard to penetration. As the prosecution is relying on circumstantial evidence to prove penetration, it would be relevant to consider the circumstances presented by the prosecution in this regard. You should first consider whether the relevant evidence is credible and reliable and if so, you should then consider, when taken together whether those circumstances will lead to the only conclusion that it was the accused who committed the crime. The circumstances were;
    
    1. In 2012, on one night MK was staying with her father and while she was sleeping, she felt something and woke up and then she saw her father putting ice in her private part. She said AK used 2 fingers to put the ice.
       
    2. MK said she saw blood on the ice and that blood was from her private part. She said she was feeling the pain.
       
    100. When MK's mother Ms. Begum tried to carry her on 13/05/2012, MK complained of a pain in her private part. When asked why, MK had said that Papa had put ice there because it was bleeding.
         
    4. Dr. Evelyn examines MK on 14/05/2012 and observes bilateral abrasions on the sides of the vaginal opening and also finds redness of labia majora and labia minora. Dr. Evelyn was of the view that the abrasion and the redness could be caused by a blunt object.
       
66. Therefore, you have to ask yourselves, whether the above circumstances and any other circumstances which you may decide to consider, are sufficient to prove beyond reasonable doubt that;
    
    1. Firstly, there was penetration of MK's vagina around 12th and 13th May 2012;
       
    2. Secondly, if you are satisfied that there was penetration, then, whether the only irresistible inference that could be drawn from the evidence is that it was the accused AK and not anyone else who penetrated MK's vagina; and
       
    100. Thirdly, whether the accused AK meant to penetrate MK's vagina
         
67. In the event you find the accused not guilty for the first count, you are then required to consider the alternative count of Sexual Assault as I have already explained to you.
    
68. In considering the alternative count, you may wish to consider the following;
    
    1. Do you believe MK's evidence that the accused did put ice in her private part? If so, did the prosecution satisfy you that this act was done without a lawful excuse?
       
    2. Any act done directly in relation to a sexual organ could be sexual. Then, considering the fact that AK was the biological father of MK who was 4 years old at the time of the incident; the fact that he put ice in MK's private part at night; the fact that it came out in evidence that MK had told that Papa had put ice there because it was bleeding, would you consider that this act is in fact sexual?
       
69. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused's evidence must be considered along with all the other evidence and you may attach such weight to it as you think appropriate.
    
70. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.
    
71. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise:
    
    • (i) You may believe him and, if you believe him, then your opinion must be that the accused is 'not guilty'.
      
    • (ii) Without necessarily believing him you may think, 'well that might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be 'not guilty'.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of the offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proven the case beyond reasonable doubt. If you are sure that the prosecution has proven all the elements, then your proper opinion would be that the accused is 'guilty' of that particular offence charged.
      
72. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
73. Your possible opinions would be;

Rape: Guilty or Not Guilty

If you find the Accused Not Guilty for Rape;
Sexual Assault: Guilty or Not Guilty

74. Any re-directions?
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : M. Raza& Associates, Barrister and Solicitor, Suva.