State v Ali - Summing Up [2016] FJHC 202; HAC236.2014 (24 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 236 OF 2014S
STATE
vs
MOHAMMED RIYASAT ALI

Counsels : Ms. D. Kumar and Ms. M. Konrote for the State
Mr. N. Nand and Mr. P. Kumar for the Accused
Hearings : 22 and 23 March, 2016
Summing Up : 24 March, 2016

SUMMING UP

ROLE OF JUDGE AND ASSESSORS

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 you own opinions. You are the judges of fact.

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.

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.

THE BURDEN AND STANDARD OF PROOF

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.

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 so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.

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 victims. 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.

THE INFORMATION

You have a copy of the information with you. I will now read the same to you:

"...[read from the information]..."

THE MAIN ISSUES

In this case, as assessors and judge of fact, each of you will have to answer the following questions:

On count no. 1, did the accused, on 7 August 2014, at Nakasi in the Central Division, rape complainant no. 1?
On count no. 2, did the accused, between 29 July and 8 August 2014, at Nakasi in the Central Division, sexually assault complainant no. 1, by touching his penis?
On count no. 4, did the accused, on 7 August 2014, at Nakasi in the Central Division, rape complainant no. 2?
On count no. 5, did the accused, on 7 August 2014, at Nakasi in the Central Division, sexually assault complainant no. 2, by touching his penis?
On count no. 6, did the accused, between 29 July and 8 August 2014, at Nakasi in the Central Division, sexually assault complainant no. 3, by touching his penis?

THE OFFENCES AND THEIR ELEMENTS

There were two offences involved in this case. We will start with the more serious of the two, that is, the offence of rape. In count no. 1 and 4, the accused was charged with "rape", contrary to section 207(1) and (2)(b) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond a reasonable doubt, the following elements:

the accused penetrated the complainant's anus with his finger;
without the complainant's consent; and
the accused knew the complainant was not consenting to (i) above, at the time.

The slightest penetration of the complainant's anus by the accused's finger, is sufficient to satisfy element 9(i) above.

"Consent" is to "agree freely and voluntarily and out of his own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to himself, 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. However, in this case, we are dealing with three male complainants who were under 13 years old at the material time. In other words, they were children at the time. As a matter of law, a child cannot consent to a person inserting his finger into his anus at any time. This law was put there to protect children. So once the prosecution proves 9(i) above, it does not need to prove non-consent by the child complainant; non-consent by the child was already presumed in law.

It must also be established by the prosecution beyond reasonable doubt, that the accused knew the complainant was not consenting to 9(i) above, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue. However, for a child complainant, once an adult insert his finger into the child complainant's anus, he is presumed in law to know, at the time, that a child complainant cannot consent to 9(i) above. This again is the policy of the law to protect children.

The next offence was "sexual assault". In count nos. 2, 5 and 6, the accused was charged with "sexually assaulting" the three male complainants, contrary to section 210(1)(a) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

the accused
unlawfully and indecently
assault
the complainant

To describe the offence, we will start with the verb "assault". To "assault" someone means to apply unlawful force to the person of another, for example, to punch someone in the face, without any justification, is to apply unlawful force to the person of another. Likewise, in the context of this case, to touch a male child's penis, without any lawful justification, is to apply unlawful force on the child's person. A child also, as a matter of law, cannot consent to an adult touching his penis, unless it was for a medical purpose.

The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent, for example, a 50 year old man touching a child's penis for no adequate reasons. It is therefore essential for the prosecution to make you sure that the assault was not only unlawful, it was also indecent, that is, right-minded people would consider the assault to be indecent.

Count no. 2 and 6 are "representative counts". This meant the prosecution was charging the accused for alleged sexual assaults committed between 29 July and 8 August 2014. The prosecution was unable to identify each separate occasions of the alleged sexual assaults because the child complainants couldn't identify the exact date of the offence or couldn't recall them. If you are sure that the accused committed one sexual assault within the period identified in the counts, that would be sufficient to find the count proved. The prosecution does not need to prove all the alleged sexual assaults within that period.

There are five counts under consideration in this trial, that is, count no. 1, 2, 4, 5 and 6. You must carefully consider each count separately in the light of the total evidence given, and you must come to a separate considered decision on each count.

THE PROSECUTION'S CASE

The prosecution's case were as follows. Between 29 July and 8 August 2014, the accused was 50 years old, married with four daughters. He was a carpenter by profession. His daughters had all married. During the above period, the accused came from Ba to renovate his brother-in-law's house. His brother-in-law was Mahmood Khan (DW2). DW2's daughter was getting married, and he needed his house renovated, to prepare for the wedding.

DW2's house and compound was a hive of activities with children and relatives coming to assist and prepare for DW2's daughter's wedding. It was against this background that the three child complainants in this case, that is, PW2, PW3 and PW4 came into contact with the accused. The accused was an uncle of the three complainants.

According to the prosecution, on or about 7 August 2014, the accused forcefully touched PW2's penis. He then inserted his finger into PW2's anus. No one was around at the time. According to the prosecution, the accused touched PW2's penis on numerous occasions, that is, sometime in his tool room and sometime under DW2's house. According to the prosecution, no one was around at the time.

According to the prosecution, on or about 7 August 2014, the accused again touched PW3's penis, and also poked his anus with his finger. According to PW3, the accused called him to play with him in his room. He went to his room, and that's when the accused did the above to him. Between 29 July and 8 August 2014, according to the prosecution, the accused touched PW4's penis in his tool room. There was no-one around at the time.

The matter was reported to police. An investigation was carried out. The accused was caution interviewed by police on 10 and 11 August 2014. In the interview, he admitted count no. 2 and 6, but denied the other counts. He was charged with 2 rape counts and three sexual assaults charges. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.

THE ACCUSED'S CASE

On 22 March 2016, the information was put to the accused, in the presence of his counsels. He pleaded not guilty to all the counts. In other words, he denied the allegations against him. At the end of the prosecution's case, he was found not guilty of count no. 3 and was acquitted accordingly. On the other counts, a prima facie case was found against him, wherein he was put to his defence. He gave sworn evidence and called a witness. That was his right.

The accused's case was very simple. On oath, he denied all the allegations against him. He denied inserting his finger into PW2's anus as alleged in count no. 1. He also denied inserting his finger into PW3's anus as alleged in count no. 4. He denied sexually assaulting PW3 as alleged in count no. 5. He also denied sexually assaulting PW4 as alleged in count no. 6. He admitted he touched PW2's penis as alleged in count no. 2, but it was accidental. He said PW2 broke his carpentry tool, and he wanted to grab his hand, but accidentally grabbed his penis. He said, he only wanted to scare PW2 by saying he will cut his penis. He appeared to say he had no indecent intent when he accidentally touched PW2's penis. He said, PW2 was wearing his pants at the time.

In his evidence, the accused said the whole allegations were a fabrication against him, and the three child complainants were all mistaken. He asks you, as assessors and judges of fact, to find him not guilty as charged on all counts. That was the case for the accused.

ANALYSIS OF THE EVIDENCE

The Agreed Facts:

The parties had submitted an "Agreed Facts", and a copy of the same is with you. There are 9 paragraphs of "Agreed Facts". These are facts that are not disputed by the parties. You may take it that the prosecution had proven those facts beyond a reasonable doubt, and you may treat the same as established facts.

State's Case Against the Accused:

When analysing the total evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. The burden to prove the accused's guilt beyond a reasonable doubt stays with the prosecution from the start to the end of the trial. There is no burden on the accused to prove his innocence. He is not required to prove anything at all. If he chooses to give evidence, he is entitled to do so. If those evidence create a reasonable on the prosecution's case, and you accept the same, you are entitled to find the accused not guilty as charged on any count, and acquit him accordingly.

On your role as assessors, please take on board what I said in paragraphs 1, 2 and 3 hereof, especially on your role in the acceptance and rejection of evidence, after listening to all the witnesses.

On count no. 1 (rape), the State's case against the accused was based solely on the direct evidence of the first male complainant (PW2). He said, the accused inserted his finger into his anus during the time of a relative's wedding. He also said, the accused touched his penis on numerous occasions, sometimes in the house, and sometimes under the house (count no. 2).

On count no. 4 (rape), the State's case against the accused was based on the direct evidence of the second male complainant (PW3). PW3 said, the accused called him into his room one day to play. PW3 said, he went to the accused. The accused, according to PW3, inserted his finger into his anus, and also touched his penis (count no. 5). PW3 said, the above incidents occurred during the wedding preparation for a relative in early August 2014.

On count no. 6 (sexual assault), the State's case against the accused was based on the direct evidence of the third male complainant (PW4). PW4 said, the accused touched his penis in the tool room in the house. PW4 said, he tried to run away, but the accused got hold of his hand. PW4 said, the accused did the above 3 times a day. PW4 said, the above incidents occurred between 29 July and 8 August 2014 when they were preparing for a relative's wedding.

The Accused's Evidence: His Reply:

In his sworn evidence, the accused denied all the allegations against him, except the allegation in count no. 2. He said, he did not insert his finger into PW2's anus as alleged in count no. 1. He also said, he did not insert his finger into PW3's anus as alleged in count no. 4. He said, he also did not touch PW3's penis as alleged in count no. 5. On count no. 6, the accused said, he also did not touch PW4's penis as alleged. The accused said, all these allegations were a fabrication by Aiyaz Khan (PW1), the father of PW2. He said, the allegation against him were not true.

On count no. 2, he said, PW2 came to him while he was working on DW2's door. He said, PW2 was playing with his carpentry tools and broke his planer. He said, he turned around to grabbed his hand to stop him escaping, but mistakenly grabbed his penis. He said, he threatened to cut his penis off if he came to him again. He said, he only said this to scare him off from playing with his tools.

The Accused's Police Caution Interview Statements:

The accused was caution interviewed by DC 4232 Raj Avinesh Prasad (PW5) at Nakasi Police Station on 10 and 11 August 2014. The interview notes were tendered in evidence as Prosecution Exhibit 1(A) – hand written version, and 1(B) – the typed version. The interview was done in the English language. The accused was asked a total of 70 questions and he gave 70 answers. According to PW5, his right to counsel and other rights were given to him. He was given the standard caution and given the standard rest and meal breaks. In questions and answers 67, 68 and 69 of Prosecution Exhibit 1(B), the accused admitted he gave his police caution interview statements voluntarily and out of his own free will and they were the truth. He also signed all the pages of the interview notes [ie. Prosecution Exhibit No. 1 (A)]. PW5 said he did not assault, threaten or made false promises to the accused when he was in his custody.

In Prosecution Exhibit No. 1 (B), the accused admitted count no. 2 – see questions and answers 47 and 51; he also admitted count no. 6 – see questions and answers 42, 43 and 46. He denied count no. 1 – see question and answer 50; he denied count no. 4 – see question and answer 62; he also denied count no. 5 – see question and answer 63. In summary, when caution interviewed the accused admitted count no. 2 and 6, but denied count no. 1, 4 and 5.

When approaching the accused's caution interview statements, you must answer two questions. First, did the accused make those statements? If your answer is no, you must disregard the statements. If your answer is yes, you move onto the second questions. Were the statements the truth? To answer this question, you will have to examine the surrounding circumstances from when the accused was arrested, interviewed and taken to his first court appearance. Was he assaulted, threatened or made promises by the police when he was in their custody? If the accused was fairly treated by police you may give more weight and value to his statements. If you find the statements to be the truth, you may use the same in your deliberation. If otherwise, you may disregard it. It is a matter entirely for you.

Looking at the Total Evidence:

You must look at and carefully consider all the evidence together. You have watched all the prosecution and defence witnesses give evidence in the courtroom. You have observed their demeanour while they were giving evidence. Who do you think was the credible witness? Who do you think was forthright as a witness? Who do you think was evasive as a witness? Who do you think, from your point of view, was telling the truth? If you think the three child complainants were the credible witnesses, you must find the accused guilty as charged on all counts. If its otherwise, you must find the accused not guilty as charged on all counts. It is a matter entirely for you.

SUMMARY

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.

Your possible opinions are as follows:

Count No. 1 : Rape : Guilty or Not Guilty
Count No. 2 : Sexual Assault : Guilty or Not Guilty
Count No. 4 : Rape : Guilty or Not Guilty
Count No. 5 : Sexual Assault : Guilty or Not Guilty
Count No. 6 : Sexual Assault : Guilty or Not Guilty

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 your decisions.

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Nand's Law, Barrister and Solicitor, Suva.