State v M. N - Summing Up [2015] FJHC 915; HAC216.2011 (20 November 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 216 OF 2011

BETWEEN :

STATE

AND :

M N

Counsel : Ms. Uce for State
Accused in Person

Date of Hearing : 18th of November 2015
Date of Summing Up : 20th of November 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The names of the victim and the accused are suppressed.
   
2. 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.
   
3. 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.
   
4. 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 advice 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.

Burden and Standard of Proof

9. 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.

10. 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.

11. 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

12. The accused is being charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree and one count of Indecent Assault contrary to Section 212 (1) of the Crimes Decree. The particulars of the offence for the first count are that;

"M N, between the 1st day of January 2011 and the 31st day of May 2011 at Nadi in the Western Division, inserted his penis into the vagina of SA, a 9 years old girl,

13. 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"

14. Section 207 (3) of the Crimes Degree states that a child under the age of 13 years is incapable of giving consent.,
    
15. Accordingly, the main elements of the offence of rape as charged are that;
    
    1. The Accused,
    2. Inserted his penis into the vagina of the victim,
    3. the victim is under the age of 13 years old,
       
16. In respect of the second count, the particulars of offence are that;
    

"M N on the 5th day of June 2011 at Nadi in the Western Division unlawfully and indecently sucked the vagina of SA a 9 years old girl.

17. Section 212 (1) of the Crimes Decree states that;

"A person commits a summary offence if he or she unlawfully and indecently assaults any other person".

18. Accordingly the prosecution is required to prove following elements beyond reasonable doubt that;

1. The accused,
2. Unlawfully and Indecently,
3. Sucked the vagina of the victim,
   

19. At this point I must emphasis you that the offences of sexual nature do not require evidence of corroboration.
    
20. 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.
    
21. According to the first count, the prosecution alleges that the accused inserted his

penis into the vagina of the victim between 1st of January 2011 and 31st day of May 2011. The victim, in her evidence stated that the accused used to come to her in every night and did things to her. She explained that the accused came to her in the night and tied up her hand and legs. He then removed her cloths and inserted into her vagina with his penis. The victim further stated that she could not run away as he hold her tightly.

22. The accused is the uncle of the victim. He used to stay at her house with her family because of his works. During that period, the victim lived with her family, another uncle of her and an aunt and their son.
    
23. In respect of the second count, the prosecution alleges that the accused unlawfully and indecently sucked the vagina of the victim on 5th of June 2011. The victim in her evidence stated that she went to her father's work place, that is Bamboo's backpackers hotel in the night of that day. She went to her father's room to sleep, while her father was still working. She felt that someone was touching her legs and was calling her name. She recognised that it was the accused. He asked her to come down on the mattress on the floor for her to sleep with him. She refused and turned on to the side of the wall. The accused then lifted her to the mattress. He then removed her undergarment and started to lick her. Suddenly, he pushed her to the floor and laid down on the mattress saying that her father was coming.
    
24. Mr. Leone, the father of the victim, stated in his evidence that he noticed that all the lights of the guest room went off. It was the room the victim went to sleep. He then walked towards the room to check. He heard that the accused was telling "sit on me". It came from the room, where the victim was sleeping. He then went into the room and switch on the light. He found the victim was lying on the floor and her legs were open. Her undergarment had removed from her. The accused was lying on the mattress. Mr. Leone asked the accused that what was happening. The accused replied that he was telling her ghost stories. He then took the victim out of the room and asked her what happened inside the room. The victim had told her father that the accused did things to her. She told Mr. Leon that the accused asked her to sit on him and he had his penis out and showing it to her.
    
25. Doctor Abdul Wahab Shah, who is the Divisional Medical Officer of Nadi Hospital gave evidence and tendered the medical report made by Dr. Lizel Lontoc. He explained the medical findings made by Dr Lontoc in the medical report.
    
26. The accused did not give evidence nor called any other witnesses for the defence.
    
27. The prosecution case is mainly founded on the evidence given by the victim, who was 10 years old at the time of this incident took place. It is your task to judge whether this child witness has told the truth, and has given a reliable account of the event. In doing that, I must caution you that children do not have the same life experience as adults. They do not have the same standard of logic and consistency, and their understanding may be limited for a number of reasons, such as their age and immaturity.
    
28. 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.
    
29. Upon consideration of all evidence, if you believe that the prosecution has proved all essential elements of the offence of rape beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that the prosecution has not proved all essential elements of the offence of rape beyond reasonable doubt, then you must find the accused not guilty.
    
30. Upon consideration of all evidence, if you believe that the prosecution has

proved all essential elements of the offence of indecent assault beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that the prosecution has not proved all essential elements of the offence of indecent assault beyond reasonable doubt, then you must find the accused not guilty.

31. 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.

32. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
20th of November 2015

Solicitors: Office of the Director of Public Prosecutions for Respondent.