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State v Lal - Summing Up [2016] FJHC 301; HAC170.2015S (22 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 170 OF 2015S


STATE


V


KAMLESH LAL


Counsels : Mr. Y. Prasad and Ms. S. Serukai for State
Ms. M. Tarai for Accused
Hearings : 20 and 21 April, 2016
Summing Up : 22 April, 2016


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. 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 your own opinions. You are the judge of fact.
  2. 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.
  3. 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.
  1. THE BURDEN AND STANDARD OF PROOF
  1. 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.
  2. 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.
  3. 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 victim. 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.
  1. THE INFORMATION
  1. You have a copy of the information with you, and I will now read the same to you. Please, disregard count no. 3, as he had been acquitted of the same.

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


  1. THE MAIN ISSUES
  1. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
  1. THE OFFENCES AND THEIR ELEMENTS
  1. Count No. 1 involved the offence of "rape". For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:
  2. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.
  3. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, 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.
  4. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.
  5. Count No. 2 involved the offence of "assault with intent to commit rape". For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:
  6. To "assault" someone is to apply unlawful force to the person of another, without any legal justification. For example, to punch someone, or to hit that person with a stick, without any lawful justification, is to "assault" that person. This is the physical element of the offence.
  7. When "assaulting the person", there must be a corresponding intention to rape the person. In other words, the purpose of the assault, was a desire to subdue the person to enable him to rape her. This is the fault element of the offence. You will have to look at the parties' actions at the time, including the surrounding circumstances, to decide this issue.
  8. Remember, there are two counts in the information. You will have to consider each count separately and come to a separate considered decision on each of them, in the light of the total evidence presented.
  1. THE PROSECUTION'S CASE
  1. The prosecution's case were as follows. The female complainant (PW1) was 32 years old on 17 April 2015. The accused (DW1) was 36 years old, at the time. PW1 and DW1 previously lived in a de facto relationship and had two children as a result. On 17 April 2015, PW1 and DW1 were living separately, and appeared to have different partners. DW1 was living with his new partner, DW2.
  2. According to the prosecution, on 17 April 2015 (Friday) at about 10.40 am, the complainant went shopping in Nausori Town. She was walking along Hemron Plaza and came near Dunstan Street. A black taxi stopped near her. Two guys came out of the taxi, forcefully grabbed her and threw her into the taxi. The taxi then drove away. She tried to free herself in the taxi, but to no avail. According to the prosecution, the accused (DW1) was driving the taxi, while the other two guys forcefully held PW1. The accused dropped the two guys at a nearby junction, and drove PW1 home.
  3. According to the prosecution, the complainant's legs and hands were tied, while she was in the taxi. When they arrived at the accused's home, the accused carried her into the house, and threw her on a settee in the sitting room. He later closed all the doors. Then he began to punch her repeatedly in the stomach. According to the prosecution, the accused then dragged PW1 into the bedroom. He untied her hands and legs.
  4. According to the prosecution, the accused began to suck PW1's nipples and thereafter had sex with her for about 30 minutes. She tried to free herself by struggling against him, but to no avail. He repeatedly punched and slapped her while they were having sex. According to the prosecution, the complainant did not consent to sex with the accused at the time, and he well knew she was not consenting to sex with him, at the time.
  5. When visiting the doctor later at Nausori Health Centre, the matter was reported to police. An investigation was carried out. The accused was interviewed by police. He was taken to the Nausori Magistrate Court on 21 April 2015, charged with raping and assaulting the complainant. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on count no. 1 and 2. That was the case for the prosecution.
  1. THE ACCUSED'S CASE
  1. On 20 April 2016, the first day of the trial, the information was put to the accused, in the presence of his counsel. 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 acquitted of the third count. On count no. 1 and 2, a prima facie case was found against him, wherein he was called upon to make his defence. He choose to give sworn evidence and called one witness. That was his right.
  2. The defence case was very simple. On oath, he denied raping the complainant, at the material time. He also denied assaulting the complainant, with intent to rape her, at the material time. He said, the complainant came to his house on 17 April 2015, weeping and complaining to him that her boyfriend assaulted her. He said, he later took her to Nausori Police Station and later a doctor, at Nausori Health Centre. He said, he never raped her or assaulted her with intent to rape her.
  3. Because of the above, the defence is asking you, as assessors and judges of fact, to find the accused not guilty as charged and acquit him accordingly. That was the case for the defence.
  1. ANALYSIS OF THE EVIDENCE

(i) The Agreed Facts:


  1. The parties had submitted an "Agreed Facts". A copy is with you. You must consider it carefully. There are 3 paragraphs of "Agreed Facts". These facts 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.

(ii) The State's Case Against the Accused:


  1. The State's case against the Accused was based solely on the sworn evidence of the complainant (PW1). If you accept the complainant's evidence and version of events, and you find her to be a credible witness, then you will have to find the accused guilty as charged on both counts no. 1 and 2.
  2. On both counts, the complainant said, she was forcefully taken from Nausori Town on 17 April 2015 after 10.40 am. This was a Friday. She said she was forcefully thrown into a taxi driven by the accused. The accused, according to PW1, was instructing two men to do the above. They tied her hands and ankles. They blind-folded her. They forcefully confined her in a taxi, while they drove to the accused's house. She struggled to free herself but to no avail. The three were slapping her face on the way.
  3. According to PW1, the two men were dropped off at a junction. The accused drove PW1 to his home, and carried her to his sitting room and threw her on a settee. He then closed all the doors. He then began to assault her by punching her in the stomach, ribs and chest. PW1 said she struggled to free herself, but to no avail. The accused later dragged PW1 by her hair to the bedroom. He threw her on the bed. He untied her hands and legs. The accused then began to suck her nipples. The accused took off her clothes and inserted his penis into her vagina. She said, he had his penis in her vagina for about 30 minutes. PW1, while having sex with the accused, was struggling to free herself, but the accused kept hitting her and slapping her.
  4. According to PW1, while they were having sex, the accused repeatedly told her he will rape and kill her. PW1 said, she did not consent to sex with the accused, and the accused well knew she was not consenting to sex with him, at the time, because she continually struggled to free herself, but to no avail. PW1 said, he stopped for a while, got a cane knife, and then hit her back repeatedly with the same. Then he inserted his penis again into her vagina, and had sex with her. She was crying throughout. PW1 said he only stopped when she squeezed his testicles so hard that he stopped and cried.
  5. The above were the complainant's sworn evidence. As a matter of law, the complainant's sworn evidence does not need to be corroborated by independent evidence to confirm its veracity. If you accept the complainant's sworn evidence as credible, after looking at all the evidence, you are entitled to accept the same and find the accused guilty as charged on counts no. 1 and 2. It is a matter entirely for you.

(iii) Doctor Salome Daunivalu's (PW2) Evidence:


  1. So soon after the alleged rape and assault, the accused took the complainant for a medical examination at Nausori Health Centre on 17 April 2015. She was medically examined by Doctor Salome Daunivalu (PW2). Doctor Salome recorded the result of her medical examination in a report, which she tendered in evidence as Prosecution Exhibit No. 1. In Section D(12) of the report, she recorded the details of the injuries she saw on the complainant during the examination. She said, the complainant had swelling on her left jaw, there were two bruises on her back, there was old bleeding in the right ear, tender on right side of her head, there were abrasions on her calf and knee, and there were injuries to her vagina as noted in the report. Please, carefully read and consider the report.
  2. The significance of this report was that it revealed the physical and mental status of the complainant after been with the accused. The accused, in his sworn evidence, appear to say that the above injuries were caused by PW1's boyfriend. However, the complainant said, the above injuries were caused by the accused when he raped and assaulted her, at the material time. Which version to accept is a matter entirely for you.

(iv) The Accused's (DW1) Evidence:


  1. The accused's position on the case was very simple. On oath, he denied raping and assaulting PW1 with intent to rape, at the material time. If you accept the accused's sworn denials, then you will have to find him not guilty as charged. It is a matter entirely for you.

(v) Roselyn O'Connor's (DW2) Evidence:


  1. DW2 was the accused's girlfriend on 17 April 2015. She said, she came home with the accused on 17 April 2015 to have lunch between 12 pm and 1 pm. She said, she did not see anything unusual at the accused's home. She said, while she and the accused were at home, the complainant (PW1) arrived complaining about her boyfriend. She said, PW1 appeared to say that, her boyfriend assaulted her. She said, the accused saw to PW1 while she returned to work. How you treat DW2's evidence is entirely a matter for you.

(vi) Considering All the Evidence:


  1. You will have to consider all the evidence together. Look at them together, compare them and analyse them together. All the evidence were provided by two prosecution's witnesses and two defence's witnesses. You have watched them and heard them give evidence in the courtroom. You have observed their demeanour in the courtroom. Who do you think was the credible witness? Who do you think was forthright as a witness? Who do you think appear to be evasive to you? Who do you think, from your point of view, was telling the truth? If you think the prosecution's witnesses were credible, and you accept their evidence, then you will have to find the accused guilty as charged on counts no. 1 and 2. If otherwise, then you will have to find the accused not guilty as charged on counts no. 1 and 2. It is a matter entirely for you.
  1. SUMMARY
  1. 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.
  2. Your possible opinions are as follows:

(i) Count No. 1 : Rape : Guilty or Not Guilty


(ii) Count No. 2 : Assault with


Intent to commit : Guilty or Not Guilty

Rape


  1. 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 the same.

Salesi Temo
JUDGE


Solicitor for State : Office of the Director of Public Prosecution, Nausori.
Solicitor for Accused : Legal Aid Commission, Nausori.

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