State v Singh - Summing up [2016] FJHC 486; HAC145.2012 (13 May 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 145 of 2012

BETWEEN : STATE

AND : SHANEEL SINGH

Counsel : Ms. J. Fatiaki for State
Mr. M. Fesaitu with Ms. N. Sharma for the Accused

Date of Hearing : 9th to 11th of May 2016
Date of Closing Submissions : 11th of May 2016
Date of Summing Up : 13th of May 2016

SUMMING UP

Madam Assessors and gentleman assessors

1. It is my duty to sum up the case to you. You will then retire to consider your respective opinions. 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.
2. You are to determine the facts of the case, based on the evidence that has been placed before you during the course of the hearing. 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.
3. 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.
4. You all have been chosen from the community and represent a pool of common sense, knowledge and experience of the conduct of human beings in our community. Accordingly, you are required to use your experience, common sense and knowledge of the community and the human conduct in your deliberating of facts of this case.
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 and agreed fact. 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 accused persons 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, agreed facts 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.
7. 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 your opinion will assist me in reaching my judgment.
8. 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.
9. 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.
10. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You then should 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 own evidence but also with other evidence presented in the case.
11. It is your duty as judges of facts to consider the demeanor of the witnesses, how they react to being cross examined and re-examined, where they evasive, in order to decide the credibility of the witness and the evidence. Moreover, you have to consider the knowledge of the witness on the facts that he testifying, his disinterestedness, his integrity, and his veracity in order to determine the credibility of the witness and his evidence.

Burden of Proof and Standard of Proof

12. I now draw your attention to the issue of burden and standard of proof. The accused person is presumed to be innocent until his is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused person is guilty for the offence.
13. 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.
14. 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

15. The Accused is being charged with one count of Abduction of a Person under 18 years of age with Intent to have Carnal Knowledge, contrary to Section 211 (1) of the Crimes Decree and one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree. The particulars of the offence are before you. Hence, I do not wish to reproduce them.
16. The prosecution alleges that the accused took the victim out of the possession and against the will of her guardian, to have sexual intercourse with her. She was an unmarried and 17 years old at that time.
17. Accordingly the main elements of the offence of Abduction of a person under 18 years of age with intent to have carnal knowledge are;
    1. The Accused,
    2. Takes or caused to be taken the victim out of the possession and against the will of her guardian,
    3. The accused had an intention to take the victim out of the possession and against the will of her guardian,
    4. The victim was unmarried and below the age of 18 years,
    5. Taking away with the intention to have sexual intercourse with the victim.
18. "Taking" need not be by force. It could either actual or constructive. It is immaterial whether the girl consents or not. In a 'Constructive taking' it is not necessary to take the victim out of the possession of her guardian physically. It is sufficient that the accused, by some act, by some words or by some conduct, cause the victim to leave her guardian. Evidence of "substantial interference with the possessory relationship of guardian and the victim” is sufficient to constitute the element of “taking”.
19. It is a sufficient defence for the accused if he shows that he had reasonable cause to believe and did in fact he believed that the victim was above the age of 18 year. In this regards, you must be mindful that the accused is not required to prove this defence beyond reasonable doubt. It is sufficient for him to saw in evidence that he had such belief.
20. In respect of the second count, the prosecution alleges that the accused inserted his penis into the vagina of the victim without her consent in a room at Kennedy Motel on 21st of October 2012.
21. Accordingly the main elements of the offence of rape as charge in the information are that;
    1. The Accused,
    2. Penetrated into the vagina of the victim with his penis,
    3. The victim did not consent to the accused to penetrate into her vagina with his penis,
    4. The Accused knew the complainant was not consenting for him to insert his penis in that manner.
22. Prior to taking your attention to the main elements of the offence of Rape, I kindly request you to draw your attention to the agreed fact, which are before you. They are that facts that the prosecution and defence have agreed without dispute. Hence, you are allowed to consider them as proven fact by the prosecution beyond reasonable doubt.
23. It is an agreed fact that the accused and the victim were together inside a room of the Kennedy Motel in the early morning of 21st of October 2012. The prosecution and the defence have further agreed that the accused and the victim had sexual intercourse, where the accused inserted his penis into the vagina of the victim. The accused in his evidence did not dispute that he was with the victim during the evening of 20th of October and early morning of 21st of October 2012. Hence the identity of the accused and the act of sexual intercourse between the accused and victim are not disputed in this hearing. The main disputed element of this offence of rape is the consent of the victim. The prosecution alleges that the victim did not give her consent to the accused to insert his penis into her vagina. The accused claim otherwise.
24. Let me now draw your attention to the issue of consent. It is your duty to decide whether the prosecution has proven that the victim did not give her consent to the accused to insert his penis into her vagina. Consent is a state of mind which can take many forms from willing enthusiasm to reluctant agreement. In respect of the offence of rape, the victim consents only, if she had the freedom and capacity to voluntarily make a choice and express that choice freely. A submission without physical resistance by the victim to an act of another person shall not alone constitute consent.
25. If you are satisfied, that the accused had inserted his penis into the vagina of the victim and she had not given her consent, you are then required to consider the last element of the offence, that is whether the accused honestly believed that the victim was freely consenting for this alleged sexual intercourse. I must advice you that belief in consent is not the same thing as a hope or expectation that the victim was consenting. You must consider whether the accused knew either that the victim was not in a condition or a position to make a choice freely and voluntarily, or the victim had made no choice to agree to sexual intercourse. If you conclude that the accused believed that the victim was consenting, you must then consider whether such belief of the accused was reasonable under the circumstances that was prevailed at the time of the alleged incident took place.
26. You must bear in mind that offences of sexual nature do not need the evidence of collaboration. It means that if you are satisfied with the evidence given by the victim and accepts it as reliable and truthful, you are not required to look for any other evidence to support the account given by the victim.
27. One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape or a rapist or a victim of rape.
28. Offences of this nature can take place in any circumstance between any kind of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course the hearing. Any person who has been raped must have undergone trauma. It is impossible to predict how the victim reacts. The victim’s reaction to the alleged incident and subsequent behaviors could depend on various factors, such as the victim’s relationship with the perpetrator, the position held by the perpetrator in her life and her social surroundings, nature of her character, circumstances of the offending environment, etc.
29. It is your duty as judges of facts to assess the evidence given by the victim, in order to determine whether the accused penetrated into the vagina of the victim with his penis and she had not consented for this alleged sexual intercourse. In doing that, you must be mindful that not to bring in to the assessment of the evidence any preconceived views as to how a victim of rape in a trial such as this should react to the experience that the victim had gone through. Every person has his or her own way of coping with such incident. Some may display obvious signs of distress and others may not. Demeanor of the victim in the court while giving evidence is not necessarily a clue to the truth of the victim’s account.
30. Let me now remind you the evidence presented by the prosecution and the defence during the course of the hearing.
31. The first witness of the prosecution is Tuliana Rasiga. She is the cousin of the victim. She stated in her evidence that she was schooling at Jasper Williams High School in 2012. She was in form 4 in 2012. She recalls that on 20th of October 2012, she went to her work place in the morning. Upon reaching the work place, she met her cousin, Tagilala. She then came back to the town. They came to Nadi bus stand, where she met one Sam, a bus driver. He told her that Shaneel wanted to talk to Tagilala. She relayed the message to Tagilala. Tagilala then went and met Shaneel inside a bus. Shaneel had asked her whether she can come for a house party in the evening. Tagilala agreed for it. They both went to the party in the evening with Shaneel.
32. According to Tuliana, they went to the party in a seven seater van. On their way, they bought carton of beer. They went to Lavusa to drink. They went to a house. One Vivek joined with them at the house. She can’t remember what happened at Lavusa as she only remembers that they just sat and drink. When she woke up, she found herself at her home in Votualevu.
33. During her cross examination, Tuliana stated that they met her sister Unaisi in the town. She further stated that Shaneel asked them to go for a house party and they did not ask him to buy drinks for them.
34. The second witness of the prosecution is Tagilala Vakaloloma. She stated that she was staying with her uncle at Votualevu in 2012. She recalls on 20th of October 2012, she left her uncle’s home to go to work with her cousin Tuliana. She was working as a beauty therapist at Port Denarau. She actually did not go to work on that day. She changed her uniform in to a civilian dress at the Post Denarau and went to Nadi town with her cousin Tuliana. They were roaming around the Nadi bus stand. They waited until the nigh fall to meet Shaneel. She was introduced to Shaneel by her cousin Tuliana on the same day around 11 a.m. at the bus stand. They were waiting for Shaneel because he told them they were going to drink. He has told it to Tuliana on 16th of October 2012. Shaneel told them to wait for him as he go to the bus base and count the money. He return in the evening in a van. Tagilala and Tuliana left with him in the van to “Steps” night club. Shaneel bought a carton of beer. Then they went to Lavusa. They went to a house of Shaneel’s friend. His name is Vivek. They then started to drink. She told Shaneel that they want to go back at 11.p.m. He then told them to switch off their mobile phones. Before that they had switched off their phones as her uncle was calling on her mobile phone. She did not answer to the call from her uncle because she couldn’t tell him that they were in Levusa. She stated that uncle would not give his consent for them to go and drink. Her phone was with Tuliana and battery of the phone was also very low at that time.
35. After a while, Shaneel’s friend brought a cup from kitchen with beer and asked Tuliana to drink it. Once she drank it, her attitude got changed. She wanted to go to toilet and asked Tagilala to come with her. Shaneel told her not to go and Vivek could take her. Then they went to the toilet. At that time Shaneel got a call from Sam and told him that Tagilala and Tuliana’s family was looking for them. Tagilala and Shaneel went to the toilet and knocked the door as it was closed. They called but door was still closed. Then Shaneel told her that they must go. He told Tagilala to leave Tuliana as time was running out. Tagilala then left the house with Shaneel.
36. They waited for transport at the roadside. They went to the bushes and then came back. Shaneel made a phone call at the roadside. After a while a van belong to Classic Bus Company came and picked them. There were two other passengers in the van. After dropping the two passengers, the van dropped them at Kennedy Motel. Tagilala stated that she went to Kennedy Motel with Shaneel because she did not want to go home. It was Shaneel’s idea to go to the Motel. Shaneel went and booked a room. They then went to the room. Shaneel went into the toilet. He then came back and switched off the light. She went straight and lay down on the bed. Shaneel then came and started to kiss her. She struggled to get away from him. Shaneel then started to pull her pants down. She pulled it up. He did it twice and she pulled it back. The third time he pulled it down and laid on top of her. He then inserted his penis into her vagina. Tagiala did not do anything. Went it went down, she just laid there. She stated that she did not want to do anything because she had followed him into the motel. She stated that she did not give him permission to touch her.
37. After the sexual intercourse, they slept there. In the morning Shaneel asked her to go to his place. He then left the motel while she was still there. Tagilala then went to outside and got a phone from a worker at the motel and called her uncle. Her uncle came and did not say anything. He straight away took her to the police. She explained that she pulled her pants up when he was trying to pull it down, because she knew that the next step was sexual intercourse.
38. During her cross examination, Tagilala stated that the 20th of October 2012 was the first time that she met Shaneel. She came to know of him on 16th of October, but did not meet him on that day. It was Shaneel who asked them to go and have drink. Neither she nor Tuliana asked him to buy drinks. Shaneel then told them wait until he finished his work. They just roamed around the town until then. She stated that she did not keep on calling him. However, when she called him he was at home and getting ready to come.. When he came they went to Lavusa. Tagilala stated that she did not inform her uncle that she was going to Vivek’s house with Shaneel to drink. She can’t recall whether Shaneel bought beer from the nightclub or a nearby liquor shop.
39. She can’t recall whether Sam told Shaneel that police was also coming with her family to look for them. She left the house with Shaneel knowing that her family was looking for her. While she was walking from the house with Shaneel, they saw a vehicle was approaching. They hid in the nearby bush. She saw the vehicle was going to Vivek’s house. They were kissing each other’s inside the bushes. When they came back to the road, Shaneel called a van. She stated in her evidence that Shaneel told the driver to drop her at her house at Votualevu. She did not want to drop off at her house. Tagilala stated that Shaneel neither force her to get into the van nor travel in the van with him. He then asked her to go to a motel, which she agreed. She has not informed her uncle that she was going to a motel with Shaneel. Whilst traveling in the vehicle they were kissing each other. Tagilala stated that she willingly got down from the vehicle and went into the motel room.
40. According to her evidence Shaneel did not try to remove her top. He tried twice to remove her pants, which she pulled it back. The third time, when he pulled it down, she let it go. She stated that Shaneel forcefully tried to remove the pants. She stated that neither she pushed him away when he came on top of her nor screamed for help. She stated that when Shaneel entered his penis into her vagina, she liked it. After sexual intercourse Shaneel went to the toilet and she did not leave the room at that time. They slept together till morning. In the morning Shaneel left the motel leaving her $10 for her fare.
41. She stated that she did not tell Shaneel her age at any time either during their first meeting in the morning of 20th of October or in the early morning of 21st of October in the room of them Motel. According to the evidence of Tagilala, she has told him that she was working for a massage parlor at Denarau.
42. During the re-examination, Tagilala stated that she went to the motel because she did not want to go to home. She did not call her uncle because she was scared. She did not scream for help because she was the one who decided to go to the motel.
43. The third witness of the prosecution is Kitione Saladogo. He is the uncle of Tagilala. He stated that Tagilala was staying with them at Votualevu in 2012. At that time she was not married and was looking for an employment. Tagilala is his niece. Kitione stated that he was the head of the household. He said his responsibility towards Tagilala was to speak to her, when she was staying with. He stated that he forgotten that he took Tagilala to the police station in 2012. He stated in his evidence that he was calling Tagilala’s mobile phone on the 20th of October 2012, but it was diverted. He then called one Watisoni to accompany him to go and look for her. He found Tagilala and Tuliana with some other people in a house at Lavusa. They were not wearing cloth when he found them. He brought Tuliana home. Tagilala called him day after that. She called him and inform him that she was at Kennedy Motel. He went and picked her. He beat her up and took her to Votualevu.
44. During the cross examination, Kitione stated that he did not find Tagilala at Lavusa.
45. The last witness of the prosecution is Cpl 4202 Timoci Tarurunaqiwa. He is the officer who conducted the caution interview of the accused person on the 21st of October 2012. He explained in his evidence the manner he recorded the caution interview of the accused person. He stated that the accused voluntarily gave his answers in the caution interview. He was not assaulted or threatened by the police during the cause of the recording of his caution interview.
46. At the conclusion of the prosecution case, the accused person was explained about his rights in defence. The accused person opted to give evidence on oaths. However, he advised the court that he does not wish to call any other witnesses for his defence.
47. The accused in his evidence stated that what he said in his caution interview is the true account of the event that took place between him and Tagilala on that day. He stated that when he had sexual intercourse with her, she also participated with him. She also kissed him. She did not tell him to stop it or don’t do it. The Accused stated that if she told such, he would have stopped it. He stated that he thought that she agreed to have sexual intercourse with him as she came with him to the motel and was kissing him in the van when they were approaching the motel. He stated that he thought it was okay as she did not say anything. The accused further stated that she did not struggled while he was kissing her body on the bed. The accused stated that Tagilala was huge and not looking as of 17 years old. She told him that she was working at Denarau.
48. During the cross examination, the accused stated that he asked the two girls to go to “Steps” night club, but they refused and said they have families there. So he bought beer from the nearby liquor shop and took them to Lavusa.
49. Accused stated that he was afraid and wanted to leave the house when he was informed by Sam that the parents of the girl was looking for them with the police. He stated that he did not know that their parents were looking for them until Sam informed him. He stated that he did not tell Tagilala that it’s too late. He said that he was in a hurry to leave as he was afraid of police.
50. The accused further stated that when he asked Tagilala to drop her at her house, she refused to go. He then asked her that can he book a hotel. She agreed for it. He stated that when he was answering to the question during the caution interview, some police officer tortured him. When he went to drop her at her place, he then only found that she did not want to go to home. He has a house in Nadi and family. His wife and child were not at his home on that day. He said that he could have gone his home, but he was bit drunk on that night.
51. According to the evidence given by the accused they were kissing each other in the room. They had been kissing each other from the bush and then in the van. He said because of that he thought that she liked him and she like kissing him and was enjoying it. He said that she did not struggle when he was kissing her on the bed. She pulled her pants up when he tried to pull it down. He though that she was shy for it. She did not say anything to stop him. She didn’t say anything when he was having sexual intercourse. She participated with him and enjoyed it.
52. I have summarised the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and reminded yourselves of all of them. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.

Analyses

53. In respect of the first and second count, the prosecution presented evidence of victim, uncle of the victim, her cousin and tendered the copy of the caution interview of the accused person as an exhibit. If you believe and satisfy the truthfulness and the correctness of statement of the accused person in the caution interview, you are then allowed to take into account the contents of the caution interview. You can then consider contents of the caution interview with the other evidence presented by the prosecution. You are allowed to consider the contradictions, contraventions not only within the caution interview, but also with the evidence of other witnesses in order to form your opinion.
54. The victim stated in her evidence that she did not inform her uncle because he will not allow her to go and drink. Kitione, the uncle in his evidence stated that the victim is his niece and was staying with him in 2012. He was the head of the household. The accused person in his evidence stated that he came to know that the family of the victim was looking for her when Sam called and informed him. He stated that he wanted to leave the house, not because he was scared of what he did, but he was scared of getting caught by the Police. He then left with the victim and took her to her house. The victim also in her evidence stated that the accused took her home, but it was her who refused to go back. The accused them proposed her to go to the motel. The accused in his evidence stated that he had no intention to have sexual intercourse with her until he started kissing her on the bed in the room.
55. The accused stated that he never asked her age. However, he thought that she was either 19 year or 20 years old. She was big, unlike her present appearance. She has told him that she was working at Denarau. The victim in her evidence told that she told the accused that she was working at a massage parlor at Denarau.
56. In respect of the count of rape, the victim stated that they had ben kissing each other at the bush and then in the van while they were traveling. However, she stated that though she went to the motel room with the accused, she did not permit him to touch her. She said she struggled when he started to kiss her on the bed. But neither she pushed him away nor scream for help. She said that she let her pants go down when the accused pulled it third time. She lied on the bed while he inserted his penis. According to her evidence that she did not shout or pushed him away because she was the one who followed him into the room. During her cross examination she stated that she liked it when he inserted his penis into her vagina.
57. The accused in his evidence stated that he thought the victim liked him as she was kissing him and enjoying since the bush to the hotel. He said that she did not say anything or did anything to inform him that she does not want to have sexual intercourse with him, apart from pulling her pant back. He thought that she was pulling her pants back because she was shy.
58. Ladies and Gentleman, it is your duty now to consider whether the evidence presented by the prosecution is reliable and truthful. If you accept them as reliable and truthful, then you can consider whether you accept then as proven facts. Likewise, you must consider whether the evidence presented by the accused could be accepted as reliable and truthful.
59. You heard the evidence presented by the accused, where he denied this allegation. If you accepted the version of the accused person as reliable and truthful, then the case of the prosecution fails. You must then acquit the accused from this charge.
60. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the both counts or any of the two counts, you must then acquit the accused from both counts or the counts you that you found the existence of a reasonable doubt.
61. Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed these offences as charged in the information.
62. Upon consideration of all evidence, if you believe that the count of Abduction of a Person under 18 years of Age with intent to have carnal knowledge is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty.
63. Upon consideration of all evidence, if you believe that the count of rape is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty.
64. 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.
65. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe

Judge

At Lautoka

13th of May 2016

Solicitors : Office of the Director of Public Prosecutions

Office of Legal Aid Commission