IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 16 of 2018

STATE

V

RAVNEEL SANDEEP PRASAD

Counsel	:	Miss D. Rao for the State
			Mr. A. Kohli with Miss R. Raj for the Accused

Date of Trial		:  	27, 28 and 29 March 2019
Date of Summing Up	: 	01 April 2019

SUMMING UP

1.	Ladies and Gentleman assessors. It is now my duty to sum up 	to you. In doing so, I will direct you on matters of law which you 	must accept and act on. You must apply the law as I direct you 	in this case.

2.	As far as the facts of this case are concerned, what evidence to 	accept, what weight to put on certain evidence, which witnesses 	are reliable, these are matters entirely for you to decide for 	yourselves. So if I express any opinion on the facts, or if I 	appear to do so it is entirely a matter for you whether you 	accept what I say or form your own opinions. In other words 	you are masters and the judges of facts.

3.	Counsel for the prosecution and the defence made submissions 	to you on Friday about how you should find the facts of this 	case, they have the right to make these comments because it is 	part of their duties as counsel. However you are not bound by 	what counsel for either side has told you about the facts of the 	case. If you think that their comments appeal to your common 	sense and judgment, you may use them as you think fit. You 	are the representatives of the community in this trial and it is 	for you to decide which version of the evidence to accept or 	reject.

4.	You will not be asked to give reasons for your opinions, but 	merely your opinions themselves, and you need not be 	unanimous although it would be desirable if you could agree on 	them.  Your opinions are not binding on me but I can assure 	you that I will give them great weight when I come to deliver the 	final judgment of the Court.

5.	On the issue of proof, I must direct you as a matter of law that 	the onus or burden of proof lies on the prosecution to prove the 	case against the accused. The burden remains on the 	prosecution throughout the trial and never shifts. There is no 	obligation upon the accused to prove his innocence. Under our 	system of criminal justice an accused person is presumed to be 	innocent until he or she is proved guilty.

6.	The standard of proof is one of proof beyond reasonable doubt. 	This means that before you can find the accused guilty of the 	offence charged, you must be satisfied so that you are sure of 	his guilt. If you have a reasonable doubt about the guilt of the 	accused, then it is your duty to express an opinion that the 	accused is not guilty. It is only if you are satisfied so that you 	feel sure of the guilt of the accused that you can express an 	opinion that he is guilty.

7.	Your opinions must be based only on the evidence you have 	heard in the courtroom and upon nothing else. In this regard, 	Mr. Kohli has made reference to the absence of evidence such 	as photographs and the vehicle log book. You may wish to adopt 	what he said about these but they are not before us in evidence 	and you must judge this case on the evidence you have seen 	and heard.

8.	The accused faces two charges of rape. In our law and for the 	purposes of this trial, rape is committed when a person 	penetrates the vagina of another with his penis and without her 	consent.

9.	In this summing up, I am calling the victim Mere to protect her 	identity from anyone reading this document.

10.	To find the charges proved you must be sure:

1.	That it was this accused, Ravneel, who
2.	Penetrated Mere’s vagina with his penis, and 
3.	That Mere was not consenting, and
4.	He knew that she was not consenting, or was reckless in 	proceeding not knowing whether she was consenting or 	not. 

11.	As you know, Ravneel is charged with two separate counts of 	rape. One in the spring of 2016 and one in the autumn of 2017. 	You must look at each count separately. Just because you 	might think he is guilty of one count it does not necessarily 	mean he is guilty of the other and of course the same if you 	think he is not guilty of one. The evidence on each count is 	different.

12.	I also direct you on the issue of consent. You have heard the 	evidence of Mere in which she said that she was shocked and 	tried to push Ravneel away and in the second incident tried to 	run from the bed. You may find that this indeed shows a lack of 	consent. Furthermore, our law says that consent cannot be 	freely and voluntarily given if it is obtained by the exercise of 	authority over the victim. 

13.	There is evidence before you both from Mere and the accused 	himself that he assumed the role of correction and discipline 	over her. In addition to the circumstances, you might then find 	that she was submitting to this authority when she says he was 	raping her.

14.	In his cross-examination, Mr. Kohli pointed out various matters 	in Mere’s statement to the police which were different from what 	she was telling us in Court. I must tell you about the laws of 	evidence around this - what we lawyers call previous 	inconsistent statements. Let me explain it to you.

15.	What a witness says in Court is the definitive evidence. That 	over-rides anything he or she may have told the Police 	beforehand. However you must then Judge how important the 	differences are. You might think the differences are unimportant  	- for example you might think – does it matter if Ravneel came 	into the room bare topped or wearing a vest? Or you might 	think that the differences are important. If so, while accepting 	the evidence in Court as the proper evidence  you might think 	that a very different version given to Police before would make 	the evidence of the witness unreliable and you might not give it 	much weight. It is all a matter for you.  

16.	I know that the evidence will be fresh in your mind but it is my 	judicial duty to remind you of the evidence, both for the 	prosecution and for the defence. I will remind you of the facts 	but it is for you to determine if those facts make you sure that 	Ravneel committed either or both of these offences he is charged 	with. 

17.	The main prosecution witness was Mere (not her real name).

18.	She told us that she is now 18 and a student in Form 7 at a 	local secondary school. In October 2016, her elder brother, the 	accused, took her in his company vehicle to their grandparents’ 	house to get a machine that he had left there. It was about 2am. 	Her mother said she could go. However they never got to the 	grandparents’ house. He (the brother) turned off the road and 	took a road towards the sea. He stopped the vehicle and locked 	the doors. It was an area of mangroves, trees and grass – she 	thought he might be going to get some plants. He moved to sit 	beside her in the front passenger seat. He held her hands and 	lay her down. He was holding her legs. Entangling her legs with 	his own, he lay on top of her. She tried to escape but couldn’t. 	He removed her bra and t-shirt and then her shorts and panty. 	He was sitting on her legs. He removed his clothes and then he 	penetrated her. She couldn’t believe it – she never expected he 	would do that. She told him to leave her alone but he kept on 	in the act for 10 to 15 minutes until he ejaculated outside her 	body. They both got dressed and went back to where they lived 	arriving at about 3.30am. Mum was awake but she didn’t tell 	Mum because she would not have believed it and anyway she 	always favoured Ravneel. 
19.	Mere was afraid of Ravneel because he was strict with her and 	used to beat her.

20.	Mere told us about the second incident which she says 	happened in March or April 2017. The three of them, Mum 	Ravneel and the witness Mere were all still living together. At 	about 6.30 am on the day in question (it was a Saturday) she 	was in bed sleeping ; she heard a conversation between he Mum 	and Ravneel in which he told her he had a headache and would 	be going to work late. After Mum left, he came into the room 	and locked the door. He came and sat on the bed next to her. 	He took the blanket off her. She tried to run away because she 	knew that he was going to have sex with her and she didn’t 	want that to happen. He pushed her on to the bed. She was 	wearing a shorts and a t-shirt and he was wearing shorts and 	was bare chested. He removed her top and bra. She tried to 	escape by pushing him away with her legs. He took his own 	shorts off and sucked her breasts and kissed her neck. Then he 	penetrated her with his penis. She was shouting and calling out 	for Mum. He kept doing it for 5 to 10 minutes. She bit him on 	his upper arm and ran naked into the next room. She locked 	the door with the nail and stayed inside that room for about 15 	minutes. She heard him leave the house. Mum came home at 	5pm but she didn’t tell Mum for the same reasons as before. In 	addition she thought that if she told, he would go to gaol. 

21.	She told the Police in February 2018 about these two assaults. 	She came into contact with the Police when she was with a 	friend in Malau and she was taken in because of her young age. 	She was sent for a medical about 2 or three days later. The 	friend that she was with was named Rajesh and they were going 	for a ride in his van. Mum didn’t know she was with Rajesh but 	Mum was with her at the Police Station and later at the medical. 
22.	In cross-examination, Mere said that on the night of the first 	incident in October ’16, the three of them had gone to the 	grandparents earlier at about 8pm along with her Uncle. They 	had returned, Uncle was dropped off at home to drink grog and 	when Ravneel came back he had said that he had forgotten the 	machine. Mum said she wanted to rest and he wanted someone 	to go with him so she was asked to go. 

23.	Mr. Kohli then took the witness through the minutia of the 	assault which you will of course take into careful consideration. 

24.	When pressed about his beating her, she admitted that he had 	slapped her once when he learned that she was playing truant 	from school. 

25.	When cross examined about the second incident she admitted 	that the door to the next room did not have a functioning lock 	but insisted it could be locked with the nail. She stood naked in 	the next room until he left

26.	The other prosecution witness was WPC Komal who is posted to 	the Sexual Offences Unit in the Labasa Police Station. 

27.	She said that in February 2018 she was the Investigating Officer 	for this case and she recorded Mere’s statement. She also 	interviewed the accused under caution. She visited the two 	scenes of the report; the first in the bush at Naleba and the 	second at the family home. 

28.	On the 16th February, she was with a colleague patrolling in 	Malau when they saw a vehicle of interest. When investigating 	that vehicle they found a young girl sitting in the back 	passenger seat and it was found that she was only 16, a minor. 29.	They proceeded to pick up her mother and they were both taken 	to the Station for enquiries. The girl was Mere and she said that 	she was in the vehicle with her friend to talk. She was taken for 	a medical examination because the WPC said they wanted to 	confirm if the girl had been sexually active that day or 	beforehand. It was found that her hymen was broken and the 	assumption was that she had been sexually active. That medical 	finding led to further questioning revealing the details of the 	allegations Mere had made in Court. 

30.	When she interviewed the accused he denied his involvement in 	both allegations.

31.	In cross examination she denied Mr. Kohli’s suggestion that she 	(the WPC) was related to the man in the vehicle in Malau and 	that she trying to shift any blame away from him. You will also 	recall that there was some confusion over the dates of the 	medical examination - the 16th or the 19th. She explained that 	although the broken hymen was noticed on the 16th and told to 	the Social Welfare Officer who told the Police; it was not until 	the 19th that it was actually recorded in the medical report.  It is 	for you to decide how to resolve that confusion and indeed how 	much weight you put on it. 

32.	It is also for you to decide what to make of her evidence that she 	inspected the log book of the vehicle Ravneet drove, bearing in 	mind that it has not been produced as evidence in this case; 	and you are not to speculate on what evidence there should 	have 	been in this case. 

33.	That was the end of the prosecution case and you heard me 	explain to the accused what his rights are in defence. He could 	remain silent and say that the State had not proved the case 	beyond reasonable doubt or he could give sworn evidence from 	the witness stand. In either case he was entitled to call 	witnesses. As you know he elected to give sworn evidence from 	the witness stand. You must consider his evidence in the 	normal way and give it the weight that you think fit. If you don’t 	believe him it doesn’t necessarily make him guilty. The 	prosecution must still prove to you so that you are sure that he 	committed the crimes. 
34.	Ravneel told us about his job at Mirror and Glass. He had the 	use of the Company vehicle but he never had it overnight for his 	personal use. 
35.	He first heard of the allegations of Mere when the Police came 	for him at work. He had heard that his sister Mere had been 	found in a van with a married man called Sonnu in Malau. She 	had been taken in by the Police on 16 February 2018, and she 	had made these allegations against him (the accused) the next 	day. He was questioned and told the Police that he had not done 	anything. He told the truth in his interview, he said. He entered 	into a love marriage in November 2017.
36.	He had never been with Mere in the truck . They used to go to 	visit grandparents in the day time; never at night and he would 	hire a car from Avinesh to get there. He had never gone to visit 	them with Uncle Shardha.
37.	He never had sex with Mere in March or April 2017. 
38.	He was interviewed by the Police on 23rd February 2018.
39.	In cross-examination he admitted that as the provider of the 	house and the breadwinner, he was the authoritative figure in 	the household. 
40.	The accused called his Uncle Sharda as his witness. He was 	adamant that he had never been in a vehicle with the accused’s 	family to visit to visit the grandparents. He would go in the bus 	in the afternoon, stay overnight and return in the morning.
42.	Well Ladies and Sir, that was all the evidence. You will make 	your findings by taking it all into account, and by not 	speculating 	on evidence that could have been before you.
43.	Keep in mind that it is the defence case that Mere’s presumed 	sexual activity was not conducted with him. I ask you to ignore 	the accused’s evidence that it was Rakesh she was having sex 	with. He is in no position to know that and in any event even if 	she were it is irrelevant to these charges.
44.	You may leave us now and you will let my staff know when you 	are ready and I will reconvene the Court but before you do I am 	going to ask Counsel if they wish me to add or alter any of my 	Directions on the law. The facts of course are for you.

P. K. Madigan
Judge

At Labasa
01 April 2019