State v Prasad - Summing Up [2019] FJHC 838; HAC143.2019 (28 August 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 143 OF 2019

STATE

V

RASIL PRASAD

Counsel : Ms. S. Shameem for State

Mr. K Chang with Ms. M. Singh for Defence

Dates of Hearing : 26, 27 August 2019
Date of Summing Up : 28 August 2019

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me, as the judge who presided over this trial, to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.
   
2. I will direct you on matters of law which you must accept and act upon.
   
3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
   
4. 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.
   
5. The Counsel for Prosecution and the Defence made submissions to you about the facts of this case. That is their duty as the Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.
   
7. On the matter of proof, I must direct you as a matter of law, that the accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the Prosecution and never shifts.
   
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.
   
9. 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 or read about this case outside of this courtroom. Your duty is to apply the law as I explain it to you to the evidence you have heard in the course of this trial.
   
10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
11. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in a trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
    
12. In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.
    
13. In evaluating evidence, you should see whether the story relayed in evidence is probable or improbable; whether witness is consistent in his or her own evidence and with his or her previous statements or with other witnesses who have given evidence in court. You must however, be satisfied whether a contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. It does not matter whether that evidence was called for the Prosecution or for the Defence. You must apply the same test to evaluate evidence.
    
14. In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth.
    
15. The agreed facts of this case are that:
    
    1. The Complainant is Annie Laynon of 37 Sagali Road, Nadera.
    2. The Accused is Rasil Prasad, 42 years old of Lot 6 Bhindi Street, Nasole.
    3. On 1^st April, 2019, the Accused and the Complainant met.
    4. On 1^st April, 2019, the Accused took the Complainant to his house in Nasole.
    5. The Accused and the Complainant engaged in Sexual Intercourse on 1^st April 2019 at the Accused’s house in Nasole.
    6. The Accused was interviewed under caution and charged at the Valelevu Police Station.
       
16. Now I refer you to the Information on which the accused is charged:
    

Statement of Offence

ABDUCTION OF A YOUNG PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to section 211(1) of the Crimes Act 2009.

Particulars of Offence

RASIL PRASAD on the 1^st day of April 2019, at Nasinu in the Central Division, with the intent to have carnal knowledge of ANNIE LANYON an unmarried girl below the age of 18 years, unlawfully took the said ANNIE LANYON out of the possession and against the will of her father BEN LANYON.

17. I will now deal with the elements of the offence. In Section 211(1) of the Crimes Act, the offence of Abduction of a young person under 18 years of age with intent to have carnal knowledge is defined as follows:
    

"Any person who, with intent that any unmarried girl under the age of eighteen years shall be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, takes or causes to be taken such girl out of the possession and against the will of her father or mother, guardian or any other person having the lawful care or charge of the person under 18 years.''

18. It must be proved that:

(a). the accused- Rasil Prasad

(b). took or caused the complainant-Annie Lanyon to be taken away out of the possession and against the will of her father.

(c). the complainant was unmarried and below the age 18 years at the time of the incident and

(d). the taking away was with the intention to have carnal knowledge of the complainant.

19. "Taking" need not be by force, either actual or constructive and it is immaterial whether the girl consents or not. There must be some evidence that there was a "substantial interference with the possessory relationship of parent and child"
    
20. There is a statutory defence available for an accused charged for this offence. Section 211 (2) provides for a defence in the following terms:
    

"It shall be a sufficient defence to any charge under this section if it shall be made to appear to the court that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of eighteen years."

21. The accused does not have to prove his defence. The Prosecution must disprove the evidence introduced by the Defenec that the accused had reasonable cause to believe and he did in fact believe that the girl was of or above the age of eighteen years.
    
22. I will now remind you of the Prosecution and Defence cases. It was a short trial and I am sure thing are still fresh in your minds. I will refresh your memory and summarise the salient features. If I do not mention a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision in this case.
    

Case for the Prosecution

PW.1 Annie Lanyon

23. Annie said that she was born on 21^st June 2001. She tendered her birth certificate in her evidence. In 2019 April, she was 17 years of age. She was living in Nadera with her father Ben and mother Medge. On the 1st April, 2019, she met Rasil Prasad at Valelevu at around 11.30 pm. Prior to this meeting, Rasil was not known to her. When she met Rasil that night, no conversation took place between them.
24. Rasil told her that he will drop her home. When she got into his taxi he told her to go with him to his house. Instead of dropping her home, Rasil took her to his house in Nasole. She did not agree to go to his house but she did not tell Rasil that she did not want to go with him. Upon arrival at Rasil’s house, they engaged in sexual intercourse.
    
25. Annie said that she did inform Rasil that she was going to Dudley High School and she was in Form 5. She did not tell him how old she was because she did not know him. He did not ask her age. Before going with Rasil to his house, Rasil did not take her father’s permission to take her to his house. Her father was not aware that Rasil had taken her to his house. She returned home on 3^rd of April 2019.
    
26. Under cross-examination, Annie admitted that she did not attend school on the 1st of April 2019 and also the week immediately prior to the alleged incident. She admitted that she left home informing everyone at home that she was going to school. She admitted that she did not inform her parents that she was not going to school because she was afraid that his father would get angry and beat her up. She admitted that she was planning to ditch school and took extra cloths when she left home on the 1st April, 2019.
    
27. Annie said that she met Rasil at a bus stop while she was hanging around in Valelevu town. She denied that she had consumed alcohol. She admitted that after school, she did not go straight home with her friends. She admitted that she was afraid to go home because she was smelling of alcohol. She admitted that she was not in school uniform when she met Rasil. She denied that she had told Rasil that she was above the age of 18.
    
28. She admitted making three statements to police, first one on 3 April 2019, second one on 21 May 2019 and the third one on 30 July 2019. She admitted that in the statement given on 21 May 2019, she had confirmed to police that, in her previous statement, she had initially lied to police. She admitted spending 2 days with Rasil, shopping, smoking and consuming alcohol with Rasil and roaming around his house freely. She admitted calling her sister using Rasil’s mobile phone and chatting with friends and browsing facebook while she was at Rasil’s house. She admitted that the police had called on Rasil’s phone looking for her and that Rasil was surprised. She admitted that she was caught by her brother when she was returning home.
    

PW.2 - Ben Lanyon

29. The father of the complainant- Ben Lanyon said that her daughter, Annie Lanyon turned 18 in July 2019. He was not aware where Annie was on the 1^st of April, 2019. Before Annie had gone missing, no one had come and asked for his permission to take her. This is the first time she had gone missing.
    
30. Under cross-examination, Ben admitted that Annie was escorted home by her brother who had found her staggering on the road. At that time, she was smelling of liquor and there were some bite marks on her neck.
    
    31. Ben admitted that he used to discipline his children by tutoring and denied that he was using corporal punishment. He did not agree that Annie was afraid of him although he is a strict father. He admitted that he reported to police only after Annie arrived home with bruises on her neck, and she was smelling heavily of liquor.
        
    32. That is the case for Prosecution. You heard me explain to the accused what his rights were in defence and how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined.
        
    33. The accused elected to give evidence under oath. Now I must tell you that the fact that an accused gives evidence in his own defence does not relieve the Prosecution of the burden to prove its case to you beyond reasonable doubt. The burden of proof remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
        

Case for the Defence

DW1- Rasil Prasad (The Accused)

34. Rasil said that he is a taxi driver by profession. On the 1st April 2019, when he was looking for passengers, he met Annie near a bus stop in Valelevu at around midnight. Annie was wearing a 3/4 jeans and a top. She appeared a bit drunk. She was smelling of alcohol and her eyes had turned red. From her appearance, her talk and behaviour, he thought that she was an adult. He had a conversation with Annie for 10 minutes. In that conversation, she told him that she was above the age of 18 years. After the conversation, she got into his taxi and sat in the front. She did not want to go home. She was scared of her parents. She was looking for money in exchange of sexual intercourse. He gave her $ 100. She agreed to come to his flat. He took her to his flat at Nasole and they had sexual intercourse. She drank alcohol with him and his friend Avishek till morning, smoked cigarettes and went shopping with him. She spent two nights with him. She borrowed his telephone and that of Avishek to chat with her friends and browse facebook. Avishek came during midnight to inform that the police is looking for the girl. He was surprised. He did not know that police or anybody else was looking for her. He asked her what she had done. He offered her to go home but she wanted to go in the morning. In the morning he went to have a shower before going to the police station. When he returned from the shower, she had left.
    
35. Rasil said that he believed Annie’s words; her appearance and her adult behavior made him believe that she was an adult above the age of 18.
    
36. Under cross-examination, Rasil admitted that the complainant said that she was scared of her father. He denied that Annie had informed him that she was still schooling at Form 5. He admitted that he did not ask for permission from her father to take her to his place.
    
37. That is the case for Defence.
    

Analysis

38. Ladies and Gentleman assessors, there is no dispute in this case about the identity of the accused. The accused admits that he took the complainant out of her father’s possession and that he did not take permission from complainant’s father to take the complainant to his house. The accused admits that he paid $100 in exchange of sexual gratification before the complainant was taken to his house and that he had sexual intercourse with the complainant at his house. Therefore you may be satisfied that accused took the complainant to his house with the intention to have carnal knowledge of the complainant. The complainant said that she was 17 years of age at the time of the alleged offence. The birth certificate tendered in evidence shows that the complainant was under the age of 18 years at the time of the alleged offence. The complainant was still schooling. Therefore you may be satisfied that the complainant was under the age of 18 years and unmarried at the time of the alleged offence. The main dispute is whether the accused had reasonable cause to believe and he did in fact believe that the complainant was of or above the age of eighteen years. The Defence relies on the statutory defence to the offence that I have elaborated above.
    
39. The complainant in her evidence said that she informed the accused that she was schooling at Dudley High School and that she was in Form 5. However she admits that she did not disclose her age to the accused. The accused on the other hand denies that he was informed that she was schooling at Form 5. He says that the complainant in fact told him that she was above the age of 18.
    
40. Prosecution says that the accused had reasonable cause to believe that the complainant was of or above the age of eighteen years. They say that the accused was trying to defend himself by lying to this court. The State Counsel argues that by looking at complainant’s built and her fear of her father, it was reasonable for the accused to suspect that she was an underage girl.
    
41. The Defence submits that the complainant lied to this court and you should not rely on her evidence. To support the submission of the Defence, the Defence Counsel highlighted certain inconsistencies in her own evidence and with her father’s evidence, her own admission that she had lied to police and her father. The Defence also says that the complainant was evasive in her testimony when she was confronted with crucial questions. You observed the demeanour of complainant in court. You decide what weight you should attach to complainant’s evidence and if she told the truth in court.
    
42. If you accept the evidence of the complainant that she had informed the accused that she was schooling at Form 5, you decide whether, in the circumstances of this case, and from the perspective of the accused, it was reasonable for the accused to believe and he in fact believed that the complainant was of or above the age of eighteen years.
    
43. The Defence relies on the following pieces of evidence to convince you that it was reasonable for the accused to believe that the complainant was of or above the age of eighteen years.
    • ➢ That the accused had met the complainant close to midnight in a bus halt in Valelevu Junction.
    • ➢ The complainant was a complete stranger to the accused.
    • ➢ Accused’s evidence that he was told by the complainant that she was above the age of 18.
    • ➢ The complainant was not dressed in school uniform.
    • ➢ She was drunk and smelling of alcohol.
      
44. The accused in his evidence denies that he was informed by the complainant that she was schooling at Form 5. He says that he was told by the complainant that she was above the age of 18. He also says that in the circumstances in which he had met the complainant in that night, her appearance and her adult behaviour made him believe that she was an adult over the age of 18 years.
    
45. You observed complainant’s physique and her manner of giving evidence in court. It is up to you to decide whether you could accept accused’s version and his version is sufficient to establish a reasonable doubt in the Prosecution’s case. If you accept accused’s version of events and if it appeared to you that the accused had reasonable cause to believe and he did in fact believe that the complainant was of or above the age of eighteen years you must find the accused not guilty. Even if you reject the version of the accused, still the Prosecution should prove its case beyond reasonable doubt.
    
46. You may now retire to deliberate on the case. Once you have reached your decisions, you may inform our clerks, so that we could reconvene to receive the same.
    

47. Any re-directions?

Aruna Aluthge

dge

At Suva

28 August 2019

Solicitors: Office of the Director of Public Prosecution for State
Office of the Legal Aimission for Defence

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