State v Bhurrah - Summing Up [2018] FJHC 130; HAC27.2016 (28 February 2018)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 27 OF 2016

BETWEEN: THE STATE

AND: DANIEL BHURRAH

Counsel: Ms A Vavadakua for the State

Mr V Tuicolo and Ms M Singh for the Accused

Date of Hearings: 21 – 23 and 26 February 2018

Date of Summing Up: 28 February 2018

SUMMING UP

[1] Ladies and Gentleman Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused's guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused. The State brings the charge against the Accused. Therefore it is for the State to prove the charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] You must decide this case upon the evidence presented to you. If a witness was not called you must not speculate the reasons why the witness was not called. You must only consider evidence which were led in the trial. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[7] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charges against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[8] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[9] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box.

[10] Neither speculation nor theories of one's own constitute evidence. Media coverage, idle talk, or gossip, are similarly not evidence. Put out of your mind when considering your opinions, anything you may have heard about this case outside the courtroom. Focus solely on the evidence which you have seen, heard, or examined in this court.

[11] This summing up is not evidence either, nor are counsel's opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[12] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness's answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[13] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses' evidence and demeanour together with all of the evidence in the case. You can accept part of a witness's testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[14] You saw the use of a screen when the complainant, Vaciseva Simpson and the witness, Erica Molly gave evidence. Ms Simpson is an elderly woman with a medical condition. Miss Molly is a child. The use of screen is permitted by law to receive the evidence of witnesses who may find the courtroom environment confronting due to the nature of the evidence they are called to give. You must not draw any adverse inference against the Accused from the fact that a screen was used to receive Ms Simpson and Miss Molly’s evidence.

[15] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the Accused has been proved before you, proved with evidence led by the State.

[16] The Accused is charged with four counts. The last count is an alternative count to the third count. You must consider each count separately, when you examine the case in your deliberations. You must only consider the alternative count if you reach an opinion that the Accused is not guilty of the third count. If you reach an opinion that the Accused is guilty of the third count, then you are not required to consider the alternative count. Look at the evidence as it affects each count separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each count and the evidence available on each count.

[17] I turn now to deal with what the prosecution must prove.

[18] On count one, the Accused is charged with indecent assault. To prove indecent assault, the prosecution must prove beyond reasonable doubt that the Accused unlawfully and indecently assaulted the complainant. The word "unlawfully" simply means without lawful excuse. An act is an indecent act if right-minded persons would consider the act indecent. As to whether the act of kissing on the lips is indecent, you must ask yourselves what right-minded persons would think of this act. Was the act so offensive to current standards of modesty and privacy as to be indecent?

[19] The Accused admits kissing the complainant on the lips. His defence is that the act is not indecent because the act was consensual. The prosecution case is that the complainant had not consented to kissing on the lips and that even if she had consented she did not have the mental capacity to freely and voluntarily give consent to a sexual act.

[20] In law, a valid consent to a sexual act is one that is freely and voluntarily given by the complainant with the necessary mental capacity to give the consent. Lack of physical resistance by the complainant to a sexual act alone does not constitute consent.

[21] In considering the question whether the act was indecent and non-consensual you may consider the general nature of the relationship between the Accused and the complainant and the circumstances under which the act was committed. If you are satisfied beyond a reasonable doubt that the Accused without lawful excuse and without consent kissed the complainant on lips and that the act was such that right- minded persons would consider to be indecent, then you may find the Accused guilt on count 1. If you are not so satisfied then you must find him not guilty on count 1.

[22] On count 2, the Accused is charged with sexual assault. Sexual assault has the same elements as the offence of indecent assault. The Accused admits touching the complainant’s vagina. His defence is that the act is not indecent because the act was consensual. The prosecution case is that the complainant did not consent for the Accused to touch her vagina and that even if she had consented she did not have the mental capacity to freely and voluntarily give consent to a sexual act. If you are satisfied beyond a reasonable doubt that the Accused without lawful excuse and without consent touched the complainant’s vagina and that the act was such that right- minded persons would consider to be indecent, then you may find the Accused guilt on count 2. If you are not so satisfied then you must find him not guilty on count 2.

[23] On count 3, the Accused is charged with rape. To prove rape, the prosecution must prove three elements.

[24] Firstly, it must be proved beyond reasonable doubt that the Accused had unlawful carnal knowledge, that is, unlawful sexual intercourse with the complainant, Vaciseva Simpson. The physical act of intercourse must be proved, that is that the Accused's penis penetrated the complainant's vagina. The slightest penetration is sufficient. It is not necessary to prove ejaculation. The Accused admits penetration. He disputes the mode of penetration. He admits penetration using his finger and not his penis.

[25] Secondly, it must be proved that when the Accused had unlawful sexual intercourse with the complainant he did so without her consent. A valid consent to sexual intercourse is one that is freely and voluntarily given by the complainant with the necessary mental capacity to give the consent. The prosecution case is that the complainant did not give her consent to sexual penetration by the Accused and even if she had consented, it was not a free and voluntary consent with the necessary mental capacity to consent to sexual penetration. The defence case is that the complainant gave consent to sexual penetration and that she had the mental capacity to freely and voluntarily consent to sexual penetration.

[26] Thirdly, it must be proved that the Accused either knew that the complainant did not consent or was reckless as to whether she consented. The Accused was reckless as to whether the complainant consented to sexual intercourse if you are sure that he realised there was a risk that she was not consenting and carried on anyway when in the circumstances known to him it was unreasonable to do so. The resolution of all three elements is dependent upon whether you accept whether the complainant freely or voluntarily consented and with the mental capacity to give consent to penetration of her vagina with either penis or finger by the Accused.

[27] That brings me to the alternative count of rape. If you find the Accused had not penetrated the complainant’s vagina with his penis but with his finger as agreed by him, then you must consider whether the complainant had freely and voluntarily consented with the necessary mental capacity to consent to sexual penetration of her vagina and whether the Accused knew that the complainant did not consent or was reckless as to whether she consented, that is, whether the Accused realised there was a risk that she was not consenting and carried on anyway when in the circumstances known to him it was unreasonable to do so. You will only be asked to give your opinion on the alternative count if you express an opinion that the Accused is not guilty of count 3.

[28] I turn now to summarise the evidence. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[29] The first prosecution witness was the complainant’s daughter, Ms Gardenia Murphy. Ms Murphy’s evidence was that she became full time carer for her 72- year old mother after she had a stroke about seven years ago. Mr Murphy said her mother has not recovered from stroke, which has also affected her mind. While her mother was mobile and was able to walk around, Ms Murphy said she had to care for her in terms of cooking her meals, ensuring she was dressed properly and so on. Ms Murphy said the Accused was related to them and he lived closed to her home in the same settlement. She also said that the Accused used to visit her home and she had seen him talking to her mother on a few occasions.

[30] The next witness was the complainant, Ms Simpson. Ms Simpson gave evidence that the Accused kissed her and touched inside her dress. She said he touched her vagina. The incidents occurred when she was sitting on the veranda of her home and her family members were in church. Ms Simpson said that later on the same day the Accused returned to her home and inserted his penis into her vagina. She said she did not want him to do that because he was her nephew. She did not consent to any of the sexual acts done to her by the Accused. She said she did not like it and what the Accused did was wrong.

[31] At times in examination in chief and in cross examination, you saw and heard that Ms Simpson was confused about whether she agreed or liked the sexual acts done to her by the Accused. In order to understand her state of mind at the time the alleged incidents occurred, the prosecution led expert evidence from Dr Elizabeth Koroivuki. Dr Koroivuki is a qualified doctor and a psychiatrist. Her formal qualifications are in the field of medicine and psychiatry. She carried out a psychiatric evaluation of Ms Simpson. Dr Koroivuki said that the complainant is very likely to be suffering from dementia, which is a neurological condition, possibly caused by stroke. The doctor also said that the left side of the complainant’s brain is not functioning, affecting her reasoning process or judgment. Dr Koroivuki is of the opinion that the complainant understood the sexual events that occurred were wrong but her ability to reason out what had been done to her was impaired by her mental condition at the time of the incidents. Dr Koroivuki also expressed opinion that the complainant did not have the mental capacity to give a free and voluntary consent to the sexual acts due to dementia.

[32] I need to give you a further direction on law regarding Dr Koroivuki’s evidence. Expert evidence is permitted in a criminal trial to provide you with scientific information and opinion, which is within the witness’ expertise, but which is likely to be outside your experience and knowledge. It is by no means unusual for evidence of this nature to be called and it is important that you should see it in its proper perspective, which is that it is before you as part of the evidence as a whole to assist you with regard to one particular aspect of the evidence, namely whether the complainant had the mental capacity to give a free and voluntary consent to sexual acts (kissing, touching of vagina and penetration of vagina) performed on her by the Accused.

[33] Dr Koroivuki is entitled to express an opinion in respect of the mental capacity of the complainant to give a free or voluntary consent to sexual acts performed on her by the Accused and you are entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by Dr Koroivuki when coming to your own conclusions about this aspect of the case. You should bear in mind that if, having given the matter careful consideration, you do not accept the evidence of Dr Koroivuki, you do not have to act upon it. It is for you to decide whose evidence, and whose opinions you accept, if any. You should remember that this evidence relates only to part of the case, and that whilst it may be of assistance to you in reaching an opinion, you must reach your opinion having considered all the evidence.

[34] The last witness for the prosecution was Miss Erica Molly. Ms Molly is 14 years old. She is the complainant’s granddaughter. She witnessed the Accused kissing the complainant on the afternoon of 14 May 2016 when she returned home from church. She said when the Accused kissed her grandmother she was not holding him. She said that her grandmother wanted to go inside the house but the Accused pulled her back. When she noticed that the Accused had seen her, she ran back to her parents who were on their way home from the church.

[35] After the close of the case for the prosecution, the Accused elected to remain silent and not to call any evidence. That is his right and you must not draw any adverse inference against the Accused for remaining silent and not calling any evidence. You must decide the charges on the evidence led by the prosecution.

[36] On count one, the physical act of kissing is not in dispute. The defence case is that the act was consensual and therefore not indecent. The prosecution case is that the act of kissing on the complainant’s lips was indecent because the complainant did not consent, and even if she had consented her consent was invalid due to her mental condition, dementia. The prosecution says that the Accused knew about the physical and mental condition of the complainant. Both were related and he was a frequent visitor to her home. The issue is whether the complainant consented to the kissing? If she did, then the Accused is not guilty of the charge. But if you believe the 72- year old complainant that she did not consent or that she did not have the capacity to give a free and voluntary consent due to her mental condition of dementia, and the Accused knew that she had not consented or knew that the complainant did not have the capacity to give a free and voluntary consent due to her mental condition at the time of the act, and that you feel sure that right minded persons would consider the act to be indecent, then the proper opinion is guilty.

[37] On count 2, the physical act of touching the complainant’s vagina is not in dispute. The defence case is that the touching of the complainant’s vagina was consensual. The question for you is whether the complainant consented to the touching of her vagina? If she did, then the Accused is not guilty of the charge. But if you believe the 72- year old complainant that she did not consent or that she did not have the capacity to give a free and voluntary consent due to her mental condition of dementia, and the Accused knew that she had not consented or knew that the complainant did not have the capacity to give a free and voluntary consent due to her mental condition at the time of the act, and that you feel sure that right minded persons would consider the act to be indecent, then the proper opinion is guilty.

[38] On count three, the physical act of penetration is not in dispute. The method of penetration is in dispute. The issue of consent or lack of it is also in dispute. If she consented to penetration of her vagina and had the mental capacity to give a valid consent, then the Accused is not guilty of rape. But if you believe the 72- year old complainant that the Accused penetrated her vagina with his penis and that she did not consent to the act of penetration or she did not have the capacity to give a free or voluntary consent to the act due to her mental condition at the time of the act, and that the Accused either knew that the complainant did not consent or was reckless as to whether she consented, then the proper opinion is guilty on count three.

[39] If you are not sure if the Accused had penetrated the complainant’s vagina with his penis and if you are of the opinion that the Accused is not guilty of count three, then you must consider the alternative count. The defence case is that the Accused digitally penetrated the complainant’s vagina with his finger and with her consent. If she consented to digital penetration of her vagina and had the mental capacity to give a valid consent, then the Accused is not guilty of the alternative count of rape. But if you believe the 72- year old complainant that she did not give consent to any form of penetration of her vagina, and that you feel sure that the Accused either knew that the complainant did not consent or knew she did not have the mental capacity to consent or was reckless as to whether she consented, then the proper opinion is guilt on the alternative count of rape.

[40] You must consider all the evidence when deciding whether the Accused is guilty or innocent of the charges. If you have a reasonable doubt as to the guilt of the Accused, you must express an opinion of not guilty. Consider the evidence on each count separately. On each count, your possible opinions are either guilty or not guilty. You will only be asked for an opinion on the alternative count, if your opinion on count three is not guilty. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive them. You may now retire to deliberate on your opinions.

................................... .......

Hon. Mr Justice Daniel Goundar

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