State v Tazim - Summing Up [2016] FJHC 223; HAC013.2015 (18 March 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 013 OF 2015

STATE

v.

MOHAMMED TAZIM

Counsel: Mr. L. Fotofili for State
Mr. A. Paka for Accused

Dates of Hearing: 16 and 17 March 2016
Date of Summing Up : 18 March 2016

SUMMING UP

Ladies and Gentleman Assessors,

[1] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The Counsel for the Defence and the Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

[4] You will not be asked to give reasons for your opinions, but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you, that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law that the burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system, accused person is presumed to be innocent until he is proved guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.

[7] Your decisions must be solely and 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, through print or electronic media or outside of this courtroom.

[8] Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] The accused is charged with one count of rape. The offence of rape is defined by Law. It is the unlawful carnal knowledge of a woman or girl without her consent. The elements of the offence are;

1. The accused had carnal knowledge of the complainant,
2. Without her consent,
3. He knew or believed that she was not consenting or did not care if she was not consenting.
   

[10] For the accused to be found guilty of Rape the prosecution must prove all these elements beyond reasonable doubt. If you find that any of those elements are not proved beyond reasonable doubt, then you must find the accused not guilty.

[11] Carnal Knowledge is the penetration of the vagina by the penis. It is not necessary for the prosecution to prove that there was ejaculation, or even that there was full penetration.

[12] Where the consent is obtained through fear or by threat or by exercise of authority, use of force or intimidation then that is not consent. Consent must be given freely and voluntarily and the submission without physical resistance by a person to an act of another person shall not alone constitute consent. However, it is not enough for you to be satisfied that the complainant was not consenting. You must be satisfied beyond reasonable doubt that the accused knew or believed that she was not consenting and was determined to have sexual intercourse with her anyway.

[13] The written admitted facts are before you. Those facts are admitted by the accused and agreed by both parties, and you may accept them as if you have heard them led in evidence from the witness box unchallenged. Those admissions will constitute sufficient proof of those facts.

The Evidence

[14] The complainant Rauzia Marzeena Bi gave evidence first. In 2012 she had been staying with Mohammed Tazim. She had been staying with him for 1 year. Now she is blind, she said. In 2012 she could see properly, she said.

[15] She had been in Lautoka before, and she had agreed to come to Seaqaqa when Tazim called her. She had agreed to stay together with him as husband and wife.

[16] For 1 week they had been staying happily. After one week Tazim had started assaulting her. Every time after having sex she was asked to sit on the bed in rooster position, she said.

[17] She had been living with Tazim and his parents in Seaqaqa. Parents have a separate room and Tazim and she had a separate room, she said.

[18] On 7/3/2012 around 9pm after diner when they were about to sleep, Tazim had asked her to remove all her clothes. When she said 'No' he had beaten her, he had scratched her face with his finger nails, tied her hands and legs with a rope. He had poked the bottom of her feet with an iron file.

[19] He also had hit her with a chain which is used to tie a cow on her both legs, knee area and below and the back. He had told her that he would strangle her and hang her with a rope. When she said 'No' he had assaulted her again and had tried to suffocates her neck with his hands. When she shouted, his parents had come and scolded him. She had been naked wearing a blanket when they came. Then he had hit her in front of his parents. He had hit her on her head and she had fainted.

[20] When she regained consciousness, it had been the next morning 6am. She had been on the bed. Tazim had been sleeping and she had got up and had cooked.

[21] In the morning Tazim had asked for money to repair the car. When she said that she had no money, he had hit her on her face and legs. When her mother-in-law asked her to uproot rice seeds, she had said that she cannot see properly.

[22] She had gone across the road to neighbours house and had told the neighbour lady about what happened to her. She had gone to the neighbours place to tell the neighbour to ring the police. She had told the neighbor lady that Tazim hit her, with the iron file and also hit her on her eye and that she had a blackout.

[23] She said that she had sexual intercourse with Tazim that night. She said that he forced her to have sex. Forced means he removed her clothes and told her to have sex even though she did not want to have sex, she said. She had said that she was sick. It had been after he scratched her face.

[24] When she was asked whether it was after or before she fainted, she said after. Then she said that it was in the morning next day. She then said that they had sex two times. First when they went to sleep in the evening and then in the morning when they woke up.

[25] She then said that the first incident in the evening she consented to sex. She said she consented because he did not assault her. She said that the 2nd time when they had sex in the morning she did not say 'yes' to sex because she was not feeling well. She had told him that. He then forcefully had sex, she said. He had put his penis into her vagina. She was feeling sick because the accused assaulted her, she said.

[26] The neighbor lady had taken her to the police station the same day she went to her house. The reason why she went to the police station had been because the accused assaulted her and said that he would hang her.

[27] She said she was medically examined by a lady doctor.

[28] He had met Shardhar when she went to hospital to collect her result the same day. Shardhar was introduced to her by the neighbor lady. Same day she had got married to Shardhar Ali at Shardhar Ali's brother's house. She said that she married him because she would have a place to stay if she got married. She only owned her clothes and she had no money, she said.

[29] In cross examination she agreed that she lived with accused only for 1 month and 2 weeks. She admitted saying that to police. She said that their bedroom was one step away from the Tazim's parent's bedroom. If parents were shouting there could have heard, she said.

[30] She denied asking Tazim to have sex with her. She said that she said "No". She denied removing her own clothes and said that Tazim removed her clothes. She said that when Tazim asked to have sex, she said 'yes'. Then she said that she did not agree but accused forced her. Then she said that she did not agree to have sex with him. She said that when Tazim forced then she said "yes".

[31] She said that force means assault. She said they had sex twice, one in the night and one in the morning. She said that accused assaulted her that night and she got a black eye. She said that she was able to see her injury on her eye. She said that she had injuries all over both of her legs meaning on the calf, knees, thigh area and the back.

[32] She said that she did not sleep that night and that the accused made her sleep as a rooster but the accused slept. Whole night she had been awake.

[33] In the morning the accused had dropped her to the rice field and had gone to the garage. She had gone to the neighbor's house in the afternoon around 2pm. She said that on 8/3/2012 in the morning everything was okay at Tazim's house.

[34] In re-examination she said that her mother-in-law saw the black eye and questioned Tazim. She said that she cannot see her own black eye.

[35] The next witness was Dr Katarina Ralagi who examined the complainant on 8/3/2012 at 8.25pm. You heard her qualification and experience as a medical doctor. The complainant was examined by her at Seaqaqa Health Centre.

[36] She said that there were no visible injuries on the outer walls of the vagina. No visible injuries on the inner walls of the vagina. She also said that there were no visible injuries in the other parts of the female genitalia. About ruling out forceful sexual intercourse she said that there are some reasons a patient can be without visible injuries. It will depend on the timing. Will depend on the wound whether its superficial or deep. Minor injuries may disappear with time. Minor superficial wounds will last about a week, she said. Deep wounds, scar formation would occur and would be visible, she said. Healing will depend on the person as well, she said. Place of the wound will also matter.

[37] In cross examination she said that the examination took 5 minutes. She said that as a professional, she is very vigilant on the patients and very observant of the patients.

[38] If a patient came to her with an injury on the eye she would be able to note the injury. If the patient did not have an injury on the eye she would not note. If a patient had injuries to the calf or to the knee, her duty is to note it. Whether it is a rape victim or not, if these injuries are seen on their body she would note down, she said.

[39] In this case no injuries were noted in the patient's eye. Being vigilant she had not seen a black eye and being vigilant she has not seen any bruise marks on the knee, calf or thigh. She did not see any such injuries at all, she said.

[40] No injuries were seen in the vaginal area as well. She said that in most events when there is a forceful penetration there will be lacerations within the vaginal walls. Laceration is a tear in tissues, she said. She had not found any laceration in the vaginal walls.

[41] In re-examination, she said that she examined the vagina and the female genetalia and did not examine the other parts of the body.

[42] The last witness for the prosecution was Bir Wati who was the neighbor of the accused.

[43] On 8/3/2012 around 3pm when she was sitting down she has seen the complainant coming towards her house. She had seen the complainant before, but had not spoken with her, she said.

[44] He had seen the accused's mother (complainant's mother-in-law) snatching a parcel from the complainant. When the complainant came she had taken her to the well and had poured water on her as her clothes were all wet and dirty. She had given her daughters clothes for her to wear. She looked sickly, she said.

[45] As the complainant requested to take her to the police station, she had taken her to the police station. She said that the complainant could not walk as she had told her that somebody had poked an iron file under her feet. She was shivering, she said.

[46] In cross examination she said that the complainant was upset for what mother-in-law did when her parcel was snatched. She said that she saw the complainant's eyes were swollen and also blood clots.

[47] She said that she saw marks of an iron file being poked under both her legs. She had been wearing long pants. Complainant had told her that he poked the file under her feet and that she could not walk properly.

[48] She admitted telling the police that the complainant told her that a file was used on her private part. She said that the complainant told her that Tazim poked the file into her feet and private part both. Complainant had further told her that Tazim told her to sing and dance whole night and to speak in English. When she refused he would beat her. She said that the complainant did not tell her that she was singing and dancing whole night. She had told her that when she did not do it, Tazim assaulted her.

[49] She said that she did not see this and she was not present when these things happened. When she was asked whether she knows that the complainant lied or not, she said that she was not there.

[50] That was the evidence for the prosecution.

[51] Ladies and Gentleman Assessors,

At the end of the prosecution case you heard me explained several options to the accused. He has these options because he does not have to prove anything. The burden to prove his guilt beyond reasonable doubt remains on the prosecution at all times. The accused person opted to remain silent and it is his right to do so. You must not draw any adverse inference from his choice to remain silent. He called one witness to give evidence on his behalf. You must give that evidence careful consideration.

[52] On behalf of the defence Mohammed Kazim, the father of the accused gave evidence. He said that on 7/3/2012 after dinner they went to their room to sleep. Tazim's room had been one or two steps away from his room only separated from a partition.

[53] Tazim and wife had been in their room. Whilst sleeping he did not hear anything that night, he said. If someone shouted inside the house he would be able to hear and he would have gone and seen, he said.

[54] Next morning on 8/3/2016 his wife had taken the cow to the field and had gone to uproot seeds. He had told Rausia to help the mother-in-law. He and Tazim had gone to do the bodywork of the van.

[55] In cross examination, he said the accused helps in his farm. He sends him money. His relationship with Tazim is quite close. He did not want anything bad to happen to Tazim.

[56] He denied that there was shouting on that night from Tazim and Rausia's room. He denied scolding Tazim. He said that he did not see Tazim hit Rausia. He had not seen Tazim telling Rausia to sit on the bed like a rooster. He said that Tazim brought Rausia from Suva and they stayed happily together.

[57] That was the evidence for the defence

[58] Ladies and Gentleman Assessors,

You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision.

[59] You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness. Inconsistencies per say within the evidence in court also may affect the credibility of a witness. For example, the complainant said in her evidence that after the assault that night she got a blackout and she regained consciousness only in the morning at 6 am. However in her own evidence she again said that she was up whole night and the accused slept.

[60] May I also direct you, that a witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case Dr. Katarina Ralagi who examined the complainant gave evidence on her observations and medical findings. Her expertise in the medical field was unchallenged. Therefore the opinions she gave on the relevant subject are admissible.

[61] You may remember, the complainant in her evidence said that she was assaulted by the accused. She said that her legs and hands were tied with a rope, that her face was scratched. He used a knife file to poke her feet. He hit her with a chain that is used to tie the cow. The accused is not charged for those acts. However you may take those into consideration when you decide on the element of consent. If you find that she consented, to find whether she consented voluntarily. However you must first decide whether the complainant was truthful or not. You must first decide whether she is a credible witness. If you find that she was truthful and that she is a credible witness, then you need not seek for any corroboration and you may find the accused guilty. If you find that she is not a reliable witness then you must find him not guilty.

[62] You may remember that when witness Bir Wati gave evidence she said that the complainant among other things said to her that the accused used a file on her private part. However, the complainant never said in court that the accused used a file on her private part. Therefore you can take that into consideration only to consider whether the complainant had told her that, but not to consider the truthfulness of that statement.

[63] The complainant says that the accused assaulted her and forcefully had sexual intercourse with her. She says that she was injured due to the assaults. She says that she had a black eye and also injuries to her legs. She was even hit with a chain that is used to tie a cow. The accused denied the allegation. The doctor who examined the complainant on the very next day said that no injuries were seen. The doctor said that she examined only the vaginal area but she was vigilant and observant on the patient complainant.

[64] I have told you the elements of the offence of rape you have to consider. Which version you are going to accept whether it is the prosecution version or the accused version is a matter for you. You must decide which witnesses are reliable and which are not. You may use your common sense when deciding on the facts. Assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[65] I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you, when you consider the charge against the accused have been proved beyond reasonable doubt.

[66] Your opinions on the charge will be either guilty or not guilty.

[67] Lady and Gentlemen Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

At Labasa
18 March 2016

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for Accused