State v Prasad - Summing Up [2016] FJHC 714; HAC77.2016 (4 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 077 of 2016

STATE

v.

1. NAVINDRA PRASAD
2. SHAILENDRA SINGH
3. RAVIND PRASAD
4. AVINESH KUMAR

Counsel: Ms. S. Serukai for State
1^st Accused – In Person
Ms. N. Mishra for 2^nd Accused
Ms. S. Prakash for 3^rd Accused
Ms. N. Mishra for 4^th Accused
Dates of Hearing: 1st, 2^nd and 3^rd August 2016

Date of Summing Up: 4^th August 2016

SUMMING UP

[Name of the victim is suppressed. The victim will be referred to as [‘A.D’]
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 Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State counsel and Defence Counsel. Their submissions are not evidence. It is a matter for you to decide which version of the facts in evidence to accept or reject.

[4] You will not be asked to give reasons for your opinions, but merely your opinions 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, 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 written admitted facts are before you. Those facts are agreed by the parties, and you may accept them as if you have heard them led in evidence from the witness box unchallenged and that they have been proved beyond reasonable doubt.

[10] You have a copy of the information with you. There are four counts in the information. In first, second, third and fourth counts, the 1^st, 2^nd, 3^rd and 4^th accused persons are charged with rape of the complainant ‘A.D.’ respectively. You must consider the evidence on each count separately and must not assume that if one accused is guilty of the count against him, that other accused persons must be guilty of the other respective counts against them as well.

[11] Offence of rape is defined by Law. A person rapes another person if the person has carnal knowledge of a woman or girl without her consent.

[12] The particulars of the offence given in count No. 1 say that the accused Navindra Prasad had carnal knowledge of ‘A.D.’ without her consent. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 1 are;

1. The accused Navindra Prasad 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.
   

[13] The particulars of the offence given in count No. 2 say that the accused Shailendra Singh had carnal knowledge of ‘A.D.’ without her consent. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 2 are;

1. The accused Shailendra Singh 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.
   

[14] The particulars of the offence given in count No. 3 say that the accused Ravind Prasad had carnal knowledge of ‘A.D.’ without her consent. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 3 are;

1. The accused Ravind Prasad 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.
   

[15] The particulars of the offence given in count No. 4 say that the accused Avinesh Kumar had carnal knowledge of ‘A.D.’ without her consent. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of count No. 4 are;

1. The accused Avinesh Kumar 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.
   

[16] 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. Extent of the penetration is immaterial.

[17] Where the consent is obtained through fear or by threat, 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. A person’s consent to an act is not freely and voluntarily given if it is obtained by force or threat or intimidation or by exercise of authority. It is for you to decide in the given circumstances whether the accused persons were in a position of authority over the complainant or not.

[18] 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.

[19] You will see that all four counts of rape in the information are representative counts and that they cover a length of time. This way of laying charges are sometimes chosen by the prosecution in cases where the complainant is not sure of exact dates where the alleged offending has taken place over a period of time.

[20] The complainant said in her evidence that all four accused persons inserted their private parts into her private part on different occasions. She could not remember the exact dates. Defence suggested that accused persons did not commit such acts. After taking all the evidence into account, you decide whether the accused persons commit those acts on the complainant and whether the complainant was only inaccurate about the dates.

[21] If you find that the complainant was not credible and that the accused persons have not committed those acts, then you must find the accused persons not guilty. If you find that the accused persons have committed those acts, then you go on to decide whether those acts were committed on the complainant during the period that is mentioned in the charges. If you decide that those acts were committed during that period, then you may find the accused person guilty. Now what happens if you find that the accused persons committed the crimes as alleged, and that the prosecution has proved the elements of the offence of rape beyond reasonable doubt, but the crimes were committed other than during the periods alleged in the charges? Then you have to consider whether the accused persons were misled as to the allegation they have to answer and whether they were prejudiced in their defence by the fact that a different time period was given in the charges. The defence that all accused persons have taken is total denial of having sexual intercourse with the complainant. It was also suggested to the complainant in cross examination that she never came back to Sawani after she left at the commencement of the school vacation. Complainant denied that suggestion. May I also direct you that suggestions made by the counsel are not evidence unless the witness accepted the same.

[22] If you find that any prejudice was caused to the accused in his defence by the fact that a different time period on which the offence was committed was given in the information, you must find the accused not guilty. However, if you find that no prejudice was caused to the accused in his defence by that difference of time period, then you may find the accused guilty. You must consider each count separately.

The Evidence

[23] Prosecution called the complainant ‘A.D’ to give evidence first. In 2013 she had been 15 years old. She said that she was born on 27/10/1999. Shailendra Singh is her uncle, and between 2013 and 2014 she had been staying at his house in Sawani. In year 2014 Navindra Prasad who is the 1^st accused had been staying in HB Singh Road, Sawani. He had come and told her sisters to go and wash his taxi. She said that Navindra then told her to open one movie and then had closed the door. Only Navindra and she had been in the house.

[24] Navindra had taken her clothes off. She had been crying. She said that it happened in Shailendra’s room. He had inserted his private part into her private part. She said it started bleeding. He had told her not to tell anyone. She said that she felt bad, and that she did not allow him to do that. Then Navindra had worn his clothes back. He had seen her tears in her eyes.

[25] She said that in the same year 2014, Shailendra the 2^nd accused had asked her not to go to school as visitors were coming. She was supposed to look after the visitors, she said. At about 9.00am uncle Shailendra had come home and had asked her to take the clothes out and that he would have a shower and come.

[26] After she put the clothes out, Shailendra had come back to the room. He had held her hand and pushed her on to the bed. She said that she felt bad. She said that he climbed on top of her and put his private part into her private part. She said that her private part means the place where girls have sex. She said that she did not allow him to do so. At that time no one else had been at home.

[27] Shailendra had told her “when Navin did this thing to you, you kept quiet”. Then she did not say anything, she said. Then Shailendra had told her, that if she says anything to anyone that he would chop her. She said Shailendra is her mother’s brother and Navin is her aunty’s husband.

[28] She said that she remembered school holidays in 2014. She said Navindra came to get some water and she was washing dishes. She referred to 3^rd accused also as Navindra and said that names are slightly different.

[29] She said that then the 3^rd accused dragged her and made her fall down in the kitchen. Then, he had come on top of her, held her hands and had pushed his private part into her private part. She said that it was hurting. After doing that he had told her that if she told anyone else, he would chop her.

[30] In December 2014 her brother Avinesh had been sharing the room with her. She said Avinesh is her cousin brother and he is the son of her mother’s 1^st husband. She had known Avinesh since she was small.

[31] In the night at about 12 midnight when she was sleeping Avinesh had come on top of her. When she opened her eyes she had seen that it was Avinesh. She had seen him from the kitchen light that was about 2-3 meters away from her bed. She said that the light was a little bright.

[32] She said that she felt bad and that she did not do anything as she was scared. She said that Avinesh inserted his private part into her private part. She said that she did not allow him to do that. He also had told her what Navin said, that he would chop her. She identified 4^th accused as Avinesh.

[33] She had run away from Sawani. She had met her mother in Nausori and had told her the things that happened to her. Her mother had told her not to report otherwise all of them will go to jail. Then she had told her father and her father had told her to report to police. When she was asked as to why she did not report for so long, she said that she told her mother several times but she did not get it reported.

[34] In cross examination by the 1^st accused that her birthday was 27/08/1999, she said that she doesn’t know her right birthday, but she knows it as 27/10/1999. She said that after everything happened she ran away to her friend’s place in Sasawira. She had told her mother plenty times and then she had told her father. When it was put to her by the 1^st accused that he was not staying at Sawani, BH Singh Road, she said that Navin the 1^st accused was staying there and then later on they moved away.

[35] She said that in November 2014, after last day of school, she was at Sasawira Road. She had gone to school and had run away. She said that she cannot remember the particular date and time the 1^st accused came to wash the taxi. It had been in the morning.

[36] She said that her father did not rape her and that she was not scared to go back to her father. She said that although it was written down in her statement, her father never raped her. She said that she attended AOG High school only for 10 days. She did not know when she left school. She said that she got sick and she left school. She said that she stayed in Sawani for more than 9 years. She said that she did not go to a hospital when she was bleeding after being raped, because Shailendra did not let her to go anywhere.

[37] She said that she told her father that her parents raped her. She said that she referred to Shailendra, Navindra, Avinesh and Ravind as parents. She could not recollect the year she ran away from Sawani. She said that she was in Sawani when she was raped. She said, that after school she went to Sasawira and came back to Sawani and that she did not go to her father at that time.

[38] She said that the 1^st accused used to come on Sundays to wash his car and the distance for his house was about 3 minute drive in a car. She said that she did not ask the 1^st accused as to why he closed the door as she was busy. She said while she was tidying the uncle’s bedroom, the 1^st accused came and touched her. She had told 1^st accused not to touch her. She said that Navin asked her not to shout and pressed her mouth. She said that she ran away from Sawani with her school friend. Then she had come back. Again for the 2^nd time she had gone with her friend. Thereafter she had gone to her father. When her father asked her as to why she came, she had told him that Shailendra is hitting her. Thereafter she had never gone back to Sawani. In the beginning she had told her father that Shailendra hit her because she had wanted to talk to her mother and tell her.

[39] Answering questions by the counsel for 2^nd and 4^th accused, she said that Shailendra’s house has only 2 rooms. One room was for Shailendra and his daughter and the other for Avinesh, she said. She used to sleep in the sitting room, she said.

[40] She said that both rooms did not have doors. Later on a door was made for Avinesh’s room and later on it got broken, she said. Rooms are divided by a thin partition and any noise in one room can be heard in the other room, she said. She said that the distance to the closest neighbour’s house from Shailendra’s house was about the distance to the main steps from the court house.

[41] She said that Shailendra raped her in end of 2014. She said that she tried to escape. She had not screamed because Shailendra had told her not to shout. She denied lying in court. She said that after she ran away from Sawani to Sasawira from school, she went to Nakasi Police Station on the 29/11/2014. She has reported that Shailendra was causing trouble to her. She had not reported about rape as she wanted to tell mother and father first, she said. She said that she came back to Sawani after she left for the 1^st time on 28/11/2014. She had gone back to Sawani as Shailendra was looking for her, she said.

[42] She said that when Avinesh raped her, Shailendra’s 2 daughters were sleeping in the other bedroom. Avinesh had told her not to shout and that he would cut her with a chopper. She said that she did not go to Makoi Police Station to report when she was with her father. She said that they reported to the Mobile Police Station but cannot remember the year.

[43] Answering questions posed by the Counsel for the 3^rd accused, she said that 3^rd accused used to come to Shailendra’s house alone. 3^rd accused had raped her during the 8 weeks school holidays in 2014. She said that 3^rd accused used his both hands to hold her hands. She said that her mouth was covered by the mouth of 3^rd accused. She denied lying. She said that the 3^rd accused put his private part into her private part. She said that he threatened to chop her.

[44] In re-examination she said that she had run away from Shailendra’s house twice.

[45] The last witness for the prosecution was the Investigating officer WDC 3749 Ateshni Ram. On 25/01/2016 she had been on duty at Nausori Police Station. She had got instructions from the Crime officer to investigate a case of Rape. Complainant had been ‘A.D’. She said that the four accused persons were Navindra, Shailendra, Ravindra and Avinesh.

[46] She had visited the crime scene in Sawani. She said that it was a three bedroomed house belonged to Shailendra. She said that the distance from that house to the next door neighbour’s house was about 7 meters.

[47] She had taken the complainant for medical examination after recording her statement. She had visited the crime scene after that. She said that the bedrooms did not have doors but curtains. She had visited the crime scene 2 years after the alleged crime.

That was the evidence for the prosecution.

[48] Ladies and Gentleman assessors,

At the end of the prosecution case you heard me explain several options to the accused persons. They have these options because they do not have to prove anything. The burden to prove their guilt beyond reasonable doubt remains on the prosecution at all times. All accused persons chose to remain silent and you must not draw any adverse inferences from their choice.

[49] Ladies and Gentleman assessors,

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

[50] The 1^st accused was not represented by a counsel. That should not

be a disadvantage to him. The case presented by the 1^st accused therefore should be considered by you carefully keeping that fact that he was unrepresented in mind.

[51] You may have observed that when the complainant gave evidence there was an inconsistency between the evidence before this court and the statement given by her to the police. In court she said that her father never raped her. However, she said that it is written in her statement 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. However, you first decide whether that inconsistency is significant to this case. To what extend that inconsistency influences your judgment of her reliability is a matter for you. I may also mention that it is irrelevant whether her father had raped her or not. What you have to consider is whether the accused persons who are charged have committed the offences and whether the prosecution has proved the elements of the offences charged beyond reasonable doubt.

[52] The complainant has made the report to the police about 2 years after the incidents happened. However, she says that she told her mother several times but her mother told her not to complain as the accused persons would go to jail. It is evident that the complainant was staying at her uncle Shailendra’s house as her father was in jail. You heard her evidence and reasons she gave for the delay in complaining. It is for you to decide whether her delay in reporting to the police is justified or not. When deciding that, you may also consider her circumstances evident. That she was being sheltered by the 2^nd accused who is her mother’s brother. You may also consider her age and the social background. It is an admitted fact that she was under the age of 16 years in year 2014. Children do not have the same life experience as adults. Their understanding may be severely limited for number of reasons such as their age and maturity. They may be embarrassed and feel guilty about what happened to them. You may take into account all those factors when evaluating her evidence.

[53] Complainant says that she was raped by the accused persons on separate occasions. She says that they inserted their private parts in her private part. Defence suggested that the accused persons did not commit those acts.

[54] You decide whether ‘A.D.’ is a reliable witness or not. If you decide that she is not a reliable witness you must find the accused persons not guilty of Rape on their respective charges. If you find that she is a reliable and credible witness, then you need not seek for corroborative evidence and you may find the accused guilty of rape on their respective counts. You must consider the evidence on each count separately.

[55] Ladies and Gentleman assessors,

Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you. You must decide which witnesses are reliable and which are not. You observed all the witnesses giving evidence in Court. You decide which witnesses were forthright and truthful, and which were not. Which witnesses were evasive or straight forward? You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanor in arriving at your opinions.

[56] 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 charges against the accused persons have been proved beyond reasonable doubt.

[57] Your opinions on each count of Rape will be either guilty or not guilty.

[58] Ladies and Gentleman Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused persons. 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 Suva
04^th August 2016

Solicitors
Office of the Director of Public Prosecutions for the State.
1^st Accused In Person
Office of Legal Aid Commission for 2^nd, 3^rd and 4^th Accused