IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. 011 OF 2020

STATE

V

OM KRISHNA NAICKER

Counsel: Ms S Sharma for the State
     Mr K Prasad for the Accused

Date of Hearing: 12 October – 14 October 2020
Date of Summing Up	: 15 October 2020

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 prosecution. In our system of justice there is a presumption of innocence in favour of an Accused. The prosecution brings the charge against the Accused. Therefore it is for the prosecution 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.

[6] 	The Accused has elected to give evidence. He was not obliged to give evidence. He does not have to prove his innocence. He does not have to prove anything. However, he has chosen to give evidence. You must take what he has said into account when considering the issues of fact which you have to determine. It is for you to decide whether you believe the evidence of the Accused or whether it may be true. If the account given by the Accused is or may be true, then the Accused must be found not guilty. But even if you entirely reject the account given by the Accused,  that would not relieve the prosecution of its burden of making you sure by evidence of the Accused’s guilt in respect of the charge which you have to consider.

[7] 	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.

[8] 	In this case the complainant’s evidence was prerecorded on a video and presented at the trial. The giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness to feel more at ease when giving evidence. It is not intended to prejudge the evidence which the witness give. The fact that the evidence had been so given must not in any way be considered by you as prejudicial to the Accused.
[9] 	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 charge against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[10] 	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.

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

[12] 	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.

[13] 	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.

[14] 	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.

[15] 	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.

[16] 	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 prosecution.

[17] 	I turn now to deal with what the prosecution must prove. The Accused is charged with two counts of digital rape.  You must consider each count separately, when you examine the case in your deliberations.  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.

[18]	On count one, the prosecution alleges that the Accused on 2 April 2019 at Vatuwaqa penetrated the vulva of the complainant, a child under the age of 13 years, with his finger. On count two, the prosecution alleges that the Accused on the same date and place penetrated the anus of the complainant, a child under the age of 13 years, with his finger. 

[19] 	For the Accused to be guilty of digital rape, the prosecution must prove beyond reasonable doubt that he penetrated the vulva and anus of the complainant with his finger as alleged on counts one and two. Vulva is the external female genitalia that surround the opening to the vagina. The slightest degree of penetration is sufficient. The prosecution is not required to prove that the complainant did not consent or that the Accused knew she did not consent. The law is that a child under the age 13 years does not have the capacity to give consent to sexual penetration of her genetalia or anus. The age of the complainant is not in dispute. Her birth certificate is in evidence and marked PE1. She was born on 26 May 2015. At the relevant time she was 3 years old and did not have the capacity to give consent.

[20] 	The real issue for you to determine is whether the Accused penetrated the eternal genitalia and anus of the complainant with his finger as alleged on counts one and two. 

[21] 	I turn now to summarize the evidence. In doing this it would be tedious and impractical for me to go through the evidence in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention 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.

[22] 	The following facts have been admitted by the parties and you must treat these facts as true when you consider the charges:

1.	At the time of the alleged offending, Om Krishna Naicker was 30 years old and resided at Wailea Settlement, Vatuwaqa;

2.	Om Krishna Naicker is also known as Sonu;

3.	The complainant is Kristal Gloria Lal, 3 years old, residing at Wailea Settlement, Vatuwaqa;

4.	The complainant’s parents are Kris Lal and Namrata Nandani Prasad;

5.	Om Krishna Naicker was a tenant at the complainant’s parents’ house;

6.	The complainant’s baby sitter’s name is Adi Siteri;

7.	On 2nd April 2019, the complainant was alone with the accused in the sitting room at their home;

8.	This matter was reported on 2nd April 2019 at Nabua Police Station. 

[23]	In relating to the alleged incidents, the complainant told the court that she is now 5 years old and goes to kindergarten. She said she does not like the Accused because he had touched where she pass stool and urinate after removing her panty when she was alone with him in the sitting room of her home.  She said the Accused used his index finger to touch her. She said he put his finger inside where she urinate and pass stool and that she didn’t like it. She said she told him not to do it and then he poked her with a pencil. She said she told her mum what the Accused did the same day when she returned home from work. 

[24]	 In this case, the child complainant was of very tender age (3 years old) at the time of the alleged incidents.  She gave evidence that the Accused tickled her and had also touched her private parts. Her complain to her mother was that the Accused did something to her without giving details of what the Accused had done to her.  A child of tender age is unlikely to realize the difference between an innocent touching like tickling and touching that was sexual. The child may accept the sexual touching without any feeling of discomfort or dislike, and the child might not make any complaint about it or resist or protest when it happens. In explaining this I am not suggesting what you should decide did, or did not, happen. I am simply making sure you understand a potential difficulty a child of tender age in such a situation could face. It is for you to decide whether or not the complainant faced this situation. 

[25]	The second witness for the prosecution was Farisha Shafil. She told the court that she is 16 years of age and a Year 8 student. She was the complainant’s neighbour in Vatuwaqa. She said on the evening of 2 April 2019 she went to check on the complainant as she knew her mother was not at home. As she stepped out of her house she heard the complainant saying ‘don’t do it don’t do it’.  When she arrived at the complainant’s house she questioned the Accused as to what he was doing and the Accused responded by saying that she should mind her own language.  At first she said that she saw the complainant with her pants pulled down and the Accused touching the private parts of the complainant but in cross examination she retracted from that evidence and said the account she gave in her police statement was the true version and not the version she gave in court. In her police statement she said she heard the complainant’s distress call when she arrived at the door of the complainant’s house and that she only saw the Accused touching the complainant’s thighs on top of her clothes. She explained the inconsistency by saying that she did not read her police statement and that she was confused. 

[26]	I must give you a further direction regarding this inconsistency. Evidence is what the witness told us in court on oath. Police statement is not evidence. However, you may take into account the inconsistency in the police statement when you consider whether a witness is believable as a witness. In examining the inconsistency, you will wish to decide, first, whether there is in fact an inconsistency and if you decide there is one whether it is a material and relevant inconsistency. If there is an inconsistency, it might lead to conclude that the witness is generally not to be relied upon, or that a part of the witness’s evidence is inaccurate or you may accept the reason the witness has provided for the inconsistency and consider the witness to be a reliable. That is a matter for you to consider.

[27]	The third witness was the complainant’s mother Namrata Prasad. She said when she arrived at her home from work on the night of 2 April 2019 the complainant came to the front gate and started complaining that the Accused did something to her. Ms Prasad said when she confronted the Accused he acted as if he didn’t know anything.  In cross examination Ms Prasad admitted she was not present to see what the Accused had done to the complainant and what the complainant had said to the Accused. There is a further direction that I wish to give you regarding the complaint evidence. In a case of sexual offence, recent complaint evidence is led to show consistency on the part of the complainant, which may help you to decide whether or not the complainant has told you the truth. It is for you to decide whether the evidence of this complaint given to a mother (that the Accused did something) helps you to reach a decision, but it is important that you should understand that the complaint is not independent evidence of what happened between the complainant and the Accused, and it therefore cannot itself prove that the complaint is true. You must consider these matters if you decide to rely upon the complaint evidence to assess whether the complainant’s evidence is consistent and therefore believable.
[28] 	That brings me to the end of the prosecution case.

[29] 	The defence called the Accused to give evidence. The Accused told the court that on 2 April 2019 he returned to his home from work around half past six.  He said when he arrived home he saw the complainant was crying because her mother was not at home. He called on her mobile but she did not answer. But he told the complainant that her mother was on her way to calm her down. She was quite for a while and when her mother did not turn up she started crying again. At that moment she was in the kitchen. He said he went to her and told her that her mother was on her way and he tickled her underneath her arms and her legs. After tickling her he went to have his shower. He said at no time he had touched the complainant’s private parts. He said that Farisha never came to his home that night. He said when the complainant’s mother confronted him with the allegation that he had touched the complainant’s private parts he told her he didn’t do it.  

[30]	The defence case is one of denial of the charges and that the allegations have been concocted by the complainant, her mother and Farisha Shafil. 

[31] 	The prosecution case wholly rests on the complainant's evidence.  When you decide of the complainant’s account is true you should look at all of the evidence. Once you have looked at all the evidence, if you are sure that the complainant’s account is true then you are entitled to rely on it in reaching your opinions. But you cannot rely on it in reaching your opinions if you are not sure it is true, or if you are sure that it is untrue.

[32]	If you believe the complainant is telling you the truth that the Accused had penetrated her external genitalia (where she urinates from) and her anus (place she pass stool from) with his finger, no matter how slight, and if you feel sure of the Accused’s guilt then you may find the Accused guilty of the charges. But if you do not believe the complainant’s evidence that the Accused penetrated her vulva and anus with his finger, or if you are not sure of the Accused’s guilt, then you must find the Accused not guilty of the charges. Remember the Accused does not have to prove anything including the motive for the complainant to fabricate the allegation against him. The prosecution must prove his guilt beyond reasonable doubt. If you feel unsure of guilt the benefit of doubt must be given to the Accused and he must be found not guilty. 

[33] 	On each count, your opinions would be either guilty or not guilty. When you are ready with your opinions, please advise my clerk and the court will reconvene to receive them. Please now retire to deliberate on your opinions.

. …………………………………….
Hon. Mr Justice Daniel Goundar

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