State v Ram - Summing Up [2019] FJHC 1016; HAC168.2018 (4 October 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 168 of 2018

STATE

vs.

VIJAY RAM

Counsel: Ms. S. Tivao for the State
Mr. J. Reddy for Accused

Date of Hearing: 01^st and 2^nd October 2019
Date of Closing Submission: 03^rd October 2019
Date of Summing Up: 04^th October 2019

SUMMING UP

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. As I explained you before the commencement of the hearing, we have different functions. 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. Your function is to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I 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. However, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard any comment I make about the facts of this case, unless it coincides with your own independent opinion.
   
4. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box and the exhibits tendered as evidence. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purposes of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. Therefore, the opening address of the prosecution is not evidence. The closing addresses of the counsel of the prosecution and the defence 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.
   
5. 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 put before you in this courtroom. Ensure that no external influence plays a part in your deliberation. You are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach 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 advise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I make my judgment.
   
6. 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, the complainant 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 to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   

Burden and Standard of Proof

7. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused guilty of the offence.
   
8. The burden of proof of the charge against the accused is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused to prove his innocence, as his innocence is presumed by law.
   
9. 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’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you find 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.
   

Information and elements of the offences

10. The accused is being charged with one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act. The particulars of the offence are in the information which is before you. Hence, I do not wish to reproduce them in the summing up.
    
11. The main elements of the offence of Rape as charged are that:
    

i) The Accused,
ii) Penetrated into the vagina of the complainant with his penis,

iii) The complainant did not consent to the accused to penetrate into her vagina

with his penis,

iv) The accused knew or believed or reckless that the complainant was not

• consenting for him to insert his penis in that manner.
  

Admitted Facts

12. I now request you to draw your attention to the agreed facts, which are before you. They are the 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.
    

Accused

13. It is the onus of the prosecution to prove beyond reasonable doubt that it was the accused who committed this offence to the complainant. According to the admitted facts, the accused had admitted that he met the complainant on the 5th of January 2018. The complainant had then boarded into his van. Hence, the identity of the accused is not a disputed issue between the prosecution and the defence.
    

Penetration

14. Evidence of slightest penetration of the penis of the accused into the vagina of the complainant is sufficient to prove the element of penetration. Hence, it is not necessarily required to adduce the evidence of full penetration.
    

Consent

15. Let me now draw your attention to the issue of consent. It is your duty to decide whether the prosecution has proven beyond reasonable doubt that the complainant did not give her consent to the accused to insert his penis into her vagina as charged in the information.
16. 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 complainant consents only, if she had the freedom and capacity to voluntarily make a choice and express that choice freely. A consent obtained through fear, by threat, by exercise of authority, by use of force or by intimidation could not be considered as a consent given freely and voluntarily. A submission without physical resistance by the complainant to an act of another person shall not alone constitute consent.
    
17. The complainant must have the freedom to make the choice. It means that she must not being pressured or forced to make that choice. Moreover, the complainant must have a mental and physical capacity to make that choice freely. The consent can be withdrawn at any time. The consent is an ongoing state of mind and is not irrevocable once given. It should not be an optional choice. The consent of a person should not be assumed.
    
18. If you are satisfied, that the accused had inserted his penis into the vagina of the complainant 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 or knew or reckless that the complainant was freely consenting for this alleged sexual act. I must advice you that belief in consent is not the same thing as a hope or expectation that the complainant was consenting. You must consider whether the accused knew either that the complainant was not in a condition or a position to make a choice freely and voluntarily, or the complainant had made no choice to agree to sexual act. If you conclude that the accused believed or knew that the complainant 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.
    

Evidence of Corroboration

19. You must bear in mind that offences of sexual nature do not need the evidence of corroboration. It means that if you are satisfied with the evidence given by the complainant and accept it as reliable, credible and truthful; you are not required to look for any other evidence to support the account given by the complainant.
20. 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, a rapist or a victim of rape.
    
21. Offences of this nature can take place in any circumstance between any kinds 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 of the hearing.
    
22. It is your duty as judges of facts to assess the evidence in order to determine whether the accused has actually committed this crime to the complainant. 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. Demeanours of the complainant in the court while giving evidence is not necessarily a clue to the truth of the complainant’s account.
    

Evidence of the Prosecution

23. Let me now remind you the evidence presented by the prosecution and the defence during the course of the hearing. The prosecution called three witnesses including the complainant to give evidence during the course of the hearing. I will now summarize the evidence of the prosecution.
    
24. The complainant said the accused had asked her to come to the back gate of the St Christopher’s Home in the evening of the 5th of January 2018. The complainant had gone to the back gate and met the accused. The accused had asked her to come with him. The complainant said in her evidence that she did not want to go, but the accused called her to come with him. According to the complainant, she knew that the accused was calling her to go with him because he wanted to have sexual intercourse with her.
    
25. The complainant then got into the van of the accused and seated on the front passenger seat. They have then gone to the opposite side of the Nakasi High School, where the accused parked his van on the road which has no houses around. He then got off the van and pulled the complainant from her hand towards the driver’s seat. The complainant tried to get out, but the accused closed the door of the driver’s side. When the accused closed the door of the van, her hand got injured. Once she was pulled over to the driver’s seat, the accused had pulled her skirt, tights and the undergarment down. He then inserted his penis into her vagina. The complainant said that she did not want to have sexual intercourse with the accused. She had told the accused to stop it, but he continued with his penetration into her vagina with his penis.
    
26. Once the accused finished his penetration into the vagina of the complainant with his penis, two police officers came around and asked the accused who was inside the van. The complainant wanted to see the police officers, but the accused had pulled her down. Thereafter, the accused had taken the complainant back to the St Christopher’s Home and dropped her back.
    
27. When she returned to the St Christopher’s Home, she found the children at the home were looking for her. She had grasses on her hair when she returned to the home. The grasses got stick to her hair when she got off the van.
    
28. On the following day, the complainant had related this incident to Sister Longo at the St. Christopher’s Home. Sister Longo then took her to the house of the accused. Thereafter they have gone to the police and reported the matter. The complainant was later medically examined by Doctor Losana Natuva.
    
29. You have heard that the complainant said during the cross examination that she was wearing a skirt and not a pants. It has been recorded in the statement that she made to the police on the 06^th January 2018 that she was wearing a pants and the accused pulled it down. The complainant said that she told the police that she was dressed in a skirt and does not know anything about the pants. The complainant further said the police officer who recorded her statement read it over to her. The complainant said the contents in the statement are not true.
    
30. Moreover, you have heard that the complainant said that no person came and inquired from the accused after the two police officers left. The two police officers came after the accused penetrated into her vagina with his penis. You heard the complainant said yes when she was suggested by the learned counsel for the defence saying that the accused did not put his “polo” on her vagina at all on that day.
    
31. You have seen that the complainant identified the accused as the person who took her in his van and committed this alleged crime to her.
    
32. The second witness of the prosecution is Sister Vutulongo Tuinea According to Sister Tuinea, the complainant went missing from her bed on the evening of the 5th of January 2018 at around 8.45 p.m. They have looked for her but could not find her. She later came back to St. Christopher’s Home through the back gate. When Sister Tuinea met the complainant, she had already changed her clothes, but grasses were still on her hair. She looked disturbed. Sister Tuinea then inquired the complainant, asking where was she. The complainant had told her that she had gone to the shop. However, Sister Tuinea felt that the complainant was hiding something. Therefore she had told the complainant to go and pray for her lies and tell the truth on the following morning.
    
33. At around 6.30 am on the morning of the 6th of January 2018, the complainant approached Sister Tuinea and related her the story that she had gone out with Vijay in the last evening. The complainant had further told her that Vijay had done a bad thing to her. When Sister Tuinea asked the complainant whether two of them had sexual intercourse, the complainant had replied saying that Vijay had put his ‘polo’ into her vagina. She then took the complainant to the house of the accused and then to the Nausori Health Centre. They then went to the police station.
    
34. During the cross examination, Sister Tuinea said that the complainant has to take permission to go out of the St Christopher’s Home. In the evening of 5th of January 2018, the complainant had not obtained permission to go out from the Home. Moreover, Sister Tuinea said that she did not notice any injuries on the arm or the elbow of the complainant when she came back to the St Christopher’s Home in the evening of the 5th of January 2018.
    
35. The last witness of the prosecution is Doctor Losana Natuva. She has conducted the medical examination of the complainant on the 6th of January 2018 at the Nausori Health Centre. You have noticed that the Doctor Losana tendered her resume containing her education and professional qualifications and experiences as the prosecution exhibits two. She then explained the specific medical finding that she had observed during the medical examination of the complainant. Those findings have been recorded under D12 of the Fiji Police Medical Examination Form.
    
36. During the cross examination, Doctor Losana said that she had examined the entire body of the complainant but found no injuries on her arm or elbow.
    

Evidence of the Defence

37. At the conclusion of the case of the prosecution, the accused was explained about his rights in defence. The accused opted to give evidence. I will now proceed to summarize the evidence given by the accused for the defence.
    
38. The accused in his evidence said that he went to pick vegetable in the evening of the 5th of January 2018. On his way, he met the complainant at the Willow Street. She had stopped his van, asking the accused to drop her to the St. Christopher’s Home. The accused then denied this allegation, stating that he never took the complainant to a secluded location near the Nakasi High School and committed this alleged crime of rape.
39. I have summarized the evidence presented during the course 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 recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.
    

Analysis and Directions

40. The prosecution alleges that the accused had taken the complainant to a secluded location near the Nakasi High School and then penetrated into her vagina with his penis without her consent. The defence denies the allegation, stating such an incident never happened. According to the complainant, this alleged incident took place in private between the accused and the complainant. Therefore, in order to determine whether the accused had actually committed this crime as alleged by the prosecution you have to evaluate the evidence presented by the prosecution and the defence.
    

Evaluation of the Evidence

41. I now take your attention to the direction of evaluation of the evidence. The evolution of evidence consists with two main steps, the determination of the reliability and the credibility of the evidences and the witnesses.
    

Reliability of Evidence

42. You must be satisfied that you can rely on the evidence as reliable evidence. In order to do that, you have to be satisfied that evidence is free from mistakes, errors and inaccuracies. If you find the evidence is free from such mistakes, errors and inaccuracies, you can take the evidence into consideration as reliable evidence.
    

Credibility of Evidence

43. The assessment of credibility of evidence does not concern with unintended inaccuracy, mistakes or errors. It is focused on the lies or inaccurate facts that are intentional and motivated attempts to deceive. The credibility depends on the individual who gives evidence, his or her motivations, his or her relationship to and the reaction to the particular situation.
    
44. Evaluation of the reliability and credibility of evidence will assist you to determine what evidence you may accept and what part of the evidence you may refuse. In doing that, you may accept or reject such parts of the evidence as you think fit. It is for you to decide whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
    
45. 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 should then 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 or her own evidence but also with other evidence presented in the case.
    
46. It is your duty to consider the demeanour of the witnesses, how they react to being cross examined and re-examined and were they evasive, in order to decide the credibility of the witness and the evidence.
    
47. Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
    

Evidence of the Defence

48. I now kindly draw your attention to the evidence adduced by the defence. The accused elected to give evidence on oath. The accused in his evidence denies this allegation and claims that he never took the complainant to a secluded location near the Nakasi High School and penetrated into the vagina of the complainant with his penis.
    
49. It is for you to decide whether you believe the version of the accused. If you consider that the account given by the defence is or may be true, then you must find the accused not guilty of this offence as charged.
    
50. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then find the accused not guilty of the offence as charged.
    
51. Even if you reject the version of the defence that does not mean that the prosecution has established that the accused guilty of this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.
    

Evaluation of Evidence of Prosecution

52. As I explained you before, you have to take the evidence of the prosecution into consideration in order to determine whether the evidence given by the complainant is reliable. In doing that you must carefully consider whether the evidence of the complainant is free from mistakes, inaccuracies, and errors. If you find such or have reasonable doubt of the existence of such mistakes, inaccuracies and errors, then you must find which part of the evidence is infested with such mistakes, inaccuracies and errors. Then you can proceed to determine whether such unreliability of evidence have affected the whole or part of the evidence given by the complainant.
    
53. Likewise, you have to take the evidence of the complainant into consideration in order to determine the credibility of her evidence. In doing that you have to determine whether the complainant lied, intentionally provided inaccurate facts or intentionally provided facts in order to deceive. When you determine the credibility of the evidence given by the complainant, you could take into consideration whole of the evidence presented during the course of the hearing.
    
54. If you find such or have reasonable doubt of the existence of such lies, intentionally provided inaccurate facts or intended attempts of deceive, then you must find which part of the evidence is infested with such lack of credibility. Then you can proceed to determine whether such evidence have affected the whole or part of the evidence given by the complainant.
    

Inconsistencies and omissions

55. Madam and Gentlemen, you have heard that the learned counsel for the accused cross examined the complainant about the omissions and inconsistencies in the statement that she made to the police and the evidence given in the court.
    
56. The complainant had stated in the statement she made to the police that she was dressed in a pants. However, she said in her evidence that she was dressed in a skirt. She further said that she told the police that she was dressed in a skirt and do not know anything about the pants. Furthermore, she said what has been recorded in the statement is not true.
    
57. Moreover, the complainant has stated in the statement that a friend of the accused came and inquired from the accused when they were in the van at the secluded location near the Nakasi High School. The complainant in her evidence said no such person came to the van when the accused and the complainant were in the van.
    
58. I now explain to you the purpose of considering the previously made statement of the complainant with her evidence given in court. You are allowed to take into consideration about the inconsistencies and the omissions in such statements when you consider whether the evidence given by the complainant is reliable and credible. However, the statement itself is not evidence of the truth of its contents. The evidence is what the witness said from the witness box.
    
59. It is obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.
    
60. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.
    
61. Moreover, you are allowed to take into consideration whether the evidence of the complainant is consistence with her own evidence and also with the evidence of the other witnesses when you proceed to determine the reliability and credibility of the evidence of the complainant.
    

Evidence of Recent Complaint

62. You have heard the evidence that the complainant had related this incident to Sister Tuinea at the St Christopher’s Home. Sister Tuinea in her evidence said that the complainant related her this alleged incident on the morning of the 6th of January 2018. This form of evidence is known as evidence of recent complaint. It is not an evidence as to what actually happened between the complainant and the accused. Sister Tuinea was not present and witnessed what happened between the complainant and the accused.
    
63. You are entitled to consider the evidence of recent complaint in order to decide whether or not the complainant has told the truth. It is for you to decide whether the evidence of recent complaint helps you to reach a decision, but it is important that you must understand that the evidence of recent complaint is not independent evidence of what happened between the accused and the complainant. It therefore cannot of itself prove that the complaint is true.
    

Delay in Reporting

64. You may recall that the learned counsel for the defence suggested to you to consider the delay in reporting this matter to the Sisters at the St Christopher’s Home by the complainant could make less likely that the complaint made against the accused was true. The complainant had not informed Sister Tuinea about this alleged incident on the evening of the 5th of January 2018 when Sister Tuinea asked the complainant where she has been in the evening. The complainant had only told Sister Tuinea on the morning of the following day, that was on the 6th of January 2018.
    
65. It is a matter for you to consider and resolve. However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the courts is that victims of sexual offences can react to the trauma that they have faced in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. It takes a while for self-confidence to reassert itself. There is, in other words, no classic or typical response. A late complaint does not necessarily signify a false complaint; likewise an immediate complaint does not necessarily demonstrate a true complaint.
    
66. You have heard the evidence of the accused saying that the complainant stopped his van when he was going to pick vegetable. She then got into the van, asking him to drop her back at the St Christopher’s Home. The learned counsel for the accused never asked the complainant whether she stopped the van of the accused when he was going to pick vegetable and then asked him to drop her at the St Christopher’s Home.
    
67. It is a rule of evidence in criminal trials that if one party is going to present a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given an opportunity to comment on them. The failure to such questions could be used to draw an inference that the accused did not give that account of events to his counsel. That in turn, may have a bearing on whether you accept what the accused said on that particular point or event. However, before you draw such an inference you should consider other possible explanations for the failure of counsel to put questions about such different versions.
    
68. In preparation for trial, usually counsel would be given his client’s instructions: that is, what his client has to say about the matter in written form or in oral form or both. Counsel then uses that information from his client to ask questions of the opposing side’s witnesses. However, communication between individuals is seldom perfect; misunderstandings may occur. The counsel may miss something of what his client is telling him. In the pressures of a trial, counsel may simply forget to put questions on an important matter. You should consider whether there are other reasonable explanations for the failure to ask the complainant about such different versions. You should not draw any adverse inference of the credibility of the evidence of the accused unless there is no other reasonable explanation for that failure.
    

Final Directions

69. Madam and Gentlemen, I now take your attention to the final directions of the summing up.
    
70. Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged, you can find the accused guilty of the said offence of Rape.
    
71. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Rape as charged, you must find the accused is not guilty of the said count of Rape.
    

Conclusion

72. Madam and Gentlemen assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
    
73. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R.D.R.T. Rajasinghe

Judge

At Suva
04^th October 2019

Solicitors
Office of the Director of Public Prosecutions for the State.
Jiten Reddy Lawyers for the Accused.