IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 050 of 2010

BETWEEN:

STATE
Prosecution

AND:

SACHEND CHAND
The Accused

Dates of Trial: 30-31 May and 01 June 2011
Date of Summing-Up: 02 June 2011

Ms L Vaiteitei with Mr S Babitu for the State

Mr T Tarere of Legal Aid Commission for the Accused

•	Name of the victim suppressed on an application by the prosecution and she will be referred to as BX hereafter as and when necessary.

SUMMING UP

Madam Assessor and Gentleman Assessors

1.	Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon by me 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 facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is. 

2.	In my summing-up of the case to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case. 

3.	In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly. 

4.	Your duty, therefore, is a noble task and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.

5. Let me explain a further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately could be utilized to decide the case before you.

6.	As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard that and you must form your own opinions without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.

7.	Counsel for the State and Counsel for the defence have both made submissions to you as to how you should find the facts of the case. They have done so in accordance with their duties as counsel for the respective party on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by counsel.

8. 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 that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

9.	I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an incident of rape of a small child of four years of age. This certainly shocks the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which most human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to in the present day society that we live in. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.

10.	Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence that the accused-person is guilty of the offence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over. 

11.	The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of rape. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.

12.	In other words, if I am to put it differently from the perspective of the accused-persons, there is no burden of proof whatsoever on the accused-person that he is innocent. You will recall that the accused-person is presumed to be innocent and, therefore, there needs not be any burden on him to prove his innocence. His innocence is presumed by law.

13.	In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond reasonable doubt. 

14.	Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test at a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of rape as I go on.

15. Lady and gentlemen, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later. 

16.	Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty. 

17.	Let us now look at the charge of rape on the information, as amended, on 31 May 2011, which was read over to the accused-person, upon which this trial proceeded. It is under Section 207 (2) (c) of the Crimes Decree No 44 of 2009. (Section 207 read out.) The particulars of the offence, as alleged by the prosecution, are:

'Sachend Chand on the 13th day of June 2010 at Tavuvegavega in Ba penetrated the mouth of
BX with his penis without the consent of the said BX.'

18. I will now deal with the elements of the offence. The offence of rape is defined under Section 207 of the Crimes Decree. Section 207(1) of the Decree makes the offence of rape an offence triable before this court. Section 207(2) (c) states as follows:

'A person rapes another person if the person penetrates the mouth of the other person to any extent with the person's penis without the consent of the that other person'

 Section 207 (3) says that:

'For this section, a child under the age of 13 years is incapable of giving consent.

19. So, the elements of the offence are that the accused penetrated the mouth of BX to some extent, which means that the insertion of the penis fully into the mouth of the BX is not necessary. The consent of BX in this case is immaterial as she is admittedly below 13 years of age and, therefore, law recognizes her as a person who cannot give consent to such an act. Therefore, with or without the consent of BX, the offence of rape is committed as and when the penis of the accused is inserted into the mouth of BX to any extent. The prosecution, therefore, should prove from its evidence that the accused put his penis into the mouth of BX beyond a reasonable doubt.

20. In a criminal trial, an accused-person or his lawyer can admit any fact and/or an element of the offence. Such admissions are required to be in writing. Once admissions are made after following that procedure, they are filed of record to enable court to make use of the admissions. 

21. Legal effect of such admissions is that they make sufficient proof of the facts and elements of the offence. Therefore, such facts or elements of the offence need no further proof by way of evidence by the prosecution. You must carefully examine the record of agreed facts to identify the facts and the elements of the offence, if any, that have been admitted by the accused-person. I will read out matters that have been admitted by the accused as follows in the record of the agreed facts. (Admissions read out to the assessors)

22. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, BX is a witness who offered direct evidence, if you believe her, as to what she saw and felt.

23. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, cautioned-interview statements, which are before you, are documentary evidence. If you believe such a record of cautioned interview was made, as the prosecution presented to you, then you can act on such evidence. Medical Report, relied on by the accused is also another example of documentary evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time. 

24. Cautioned-interview statements are before you. You must read them very carefully. These are statements made to police under caution that they will be used as evidence against the maker of such statement. If the statement contains a confession/s, that is relevant evidence in the case. Confession is an admission/s admitting the commission of the offence. But you must be satisfied that the confessions were in fact made voluntarily without any force. And, they were obtained without any influence or oppression or without being assaulted, promise, threat or any such inducement.

25. Real evidence is the material objects that are used to commit an offence and/or those recovered from the scene of the crime. In this case, bed-sheet (PE-3), piece of cloth (PE-4) and the black pants (PE-5) are examples for real evidence. They can be used to support the evidence of a witness and to advance one's case. You must consider whether the material objects were, in fact, used or found from the scene before you accept them as relevant real evidence in the case.

26. You must consider all direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence and real evidence that form the mass of evidence in this case. 

27. I will now deal with the evidence in this case briefly.

BX is the girl, whom the prosecution alleged to have been raped in this case on 13 June 2010. She was about five and half years at the time of giving evidence before you, which means that she was about four and half years at the time of the incident. She was living with her grandmother at Tavuvegavega in Ba after the death of her father when she was about three months. Her mother had left her and gone to the village. So, it was the grandmother, with whom she was living all this time, who has given her care and looking after her. Her evidence was led, you will recall, with the assistance of a Hindi/English interpreter, who was a female, with a view to create a child-friendly environment in court after screening from the accused in order to avoid a possible psychological trauma. 

•	BX, in her own way of child-like behavior, came before you to testify. She started off by saying that she could remember police coming to take a man who did 'something to [her]'. She said that the man undressed himself and pulled her pyjama down. Then, he put his penis, which she referred to as 'punupunu' in Hindi, around her vagina and then put his penis into the mouth. Upon being asked what 'punupunu' was, she drew a picture similar to a male sex organ or penis. She also demonstrated with her index finger as to how the man inserted his penis into her mouth. She further said that the man took the penis out and 'pissed' on the bed, which she saw white in colour. The man then wiped it out with a cloth. 

•	Witness said that the man told her not to tell the incident to anyone. But, she told it to the grandmother no sooner she went to her and the matter was reported to police after the grandmother told the incident to another aunt. 

•	The witness said that she used to call the man as 'grandfather' who was living in her neighbourhood. Upon being asked, whether the man was in court; and, if so, whether she could identify him, BX moved out of the witness's stand, moved about and pointed to the accused.

•	In cross examination, she confirmed that the man was living close to her house and that she used to go and play there always and that she called him a grandfather. When she was specifically asked as to whether she was sure of what the man did to her, she said 'yes' and told court that she was saying the truth. 

•	She said that she could not know the time of the incident but it was midday around 1200 noon.

•	Learned counsel for the accused suggested to the witness that her mother had told her to say something bad about this man, she said 'yes'. He further suggested that it was because the mother had wanted to take over the land close to her place, she said 'yes'. In re-examination she confirmed what she told about the man doing on her was the truth. 

28. Kushnuma Begum, giving evidence, said that BX was her grandchild being her son's daughter. Her son Hazareth Ali died five years ago. Thereafter, she brought up the granddaughter, who gave evidence before her in court. She said that the girl was calling her mummy. 

 Further, she said that: 

•	 She used to play with other kids at the accused's place. A week before, she had lost her shoes. She saw the shoes at the accused's place outside and told her to go and bring the shoes. She was sitting under a mango tree at her home as BX went to bring shoes. 

•	On her return she told her that the grandfather did something bad with 'punupunu'. She was sad and excited. She said that the accused took her inside. There was nobody inside. Accused took off his pants and BX'S clothing and took penis out and rubbed his penis around her vagina from the back and put his penis in her mouth. She said after he pulled penis out of mouth he pissed on the bed.

•	 The witness waited for her daughter and told her. The daughter got angry and told that to her husband and reported the matter to police.

•	 No land issue with accused. That is a mataqali village and anybody can build one' own house. That is the story and I never make up stories. 'We don't accuse people', she said.

•	She answered cross-examination as follows

 'Q. How long have you been in Tauvegavega?
 Almost 2 years.

 Q. With whom you were staying?
 With [BX].

 Q. How old is she?
 She is 5 years 6 months

 Q. Ayesha goes to accused's place and plays?
 Yes.

 Q. Do you know accused personally?
 Yes, he is a distant neighbor. But I don't usually go there but BX goes there and plays with accused's son's kids, who used to visit the accused.

 Q. Why did not you go and bring it [shoes] yourself?
 I don't go to anyone's place, she always goes there to play and I told her to bring that.
 
 Q. According to you, BX told what accused did to her?
 Yes.

 Q. That's what you heard from BX?
 Yes.

 Q. This never happened. You make up against the accused?
 No, you can't tell a kid to make up stories.

 Q. You are making up this story to get rid of accused of his land?
 I don't do that. I don't want to get him out of his land. Anybody can live there. Whatever counsel says is false.

 Q. You are using your grand daughter to make stories against accused?
 Am I mad to make these allegations? Accused is mad, not me.

29. Prosecution then placed the evidence of D. Cpl. 2501 Sunil Dutt, who said that he was attached to Ba Police Station in June 2010. He said that the accused was arrested around 9.00 a.m. on 14 June 2010 at his house in Tavuvegavega. The witness said that he caution-interviewed the accused but did not assault or force him in the course of the interview. He said that the interview commenced at 1335 hrs on 14 June 2010 itself and visited the scene after suspending the interview at 1710 hrs. The caution-interview statement was produced as 'PE 1' (original in Hindi) and 'PE 2' (English translation). The witness recovered a bed-sheet (PE 3), a piece of cloth (PE 4) and a black pair of short pants (PE 5) as they were shown by the accused. He denied the allegations of forcing the accused to make admissions and those of assaults put to him on behalf of the accused.

30. Police Constable 3028 Sanjay Prakash giving evidence said that he charged the accused with the allegation of rape of BX and recorded the charge-statement. He said that he did not force or assault the accused in recording his charge-statement. The witness produced the charge-statement as PE 6 and its English translation as PE 7.

31. Tomasi Nakeke DC 2982 stated that he along with D. Cpl. Sunil Dutt arrested the accused on 14 June 2010 after receiving the report against the accused. After the arrest, it was he who escorted the accused to the Ba Police Station and handed over to the officers on duty at the station.
 
32. That was the case for the prosecution, which was closed with the above evidence and exhibits marked PE 1-PE 7.

33. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that the exercise of my power under law as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and he can exercise options available under law. The accused decided to give evidence. That is his legal right and you must consider that evidence too in the way you consider the evidence of the prosecution.

34. The accused in his evidence said that he was Sachend Chand, 50, and living in Tavuvegavega in Ba and working for Ba Auto Parts as a security officer.

•	On 13 June 2010 he was at home sleeping. He went to sleep around 7.00am and woke up at 9.00am. He had his meal and slept again. He got up around 1.00 p. m. and nobody came on that day. 

•	He said that he kept his door open before going to sleep. No problem with his neighbors but they are coming in towards my boundary and planting banana trees despite my telling them that this was a NLTB boundary.

•	On 14 June 2010, he was at home. He had his nap as he could not go anywhere after night work. On 14 June 2010, he said that he was falsely alleged of some incident. He did not do anything. Child's mother falsely alleged. He didn't know her name, but she was his neighbor. She alleged that he raped the child and reported the matter. 

•	He said that D. Cpl. Sunil 2501 assaulted. He said that they punched him and hit with PVC Pipe and put it into his mouth. They hit the chest, back and on the head and ears at the interview room. This was the first time he had entered a police station. They assaulted him and made him sign on the paper. He said that he signed papers, which had allegations and he did not know how to read English or Hindi.

•	He said that he did not know that he had to tell the Magistrate. Magistrate did not ask him anything. He had a counsel and appeared in court. He did tell counsel but he said nothing in court. He was remanded for 3weeks and given a date before the High Court and remanded in Natabua.

•	He said that he was taken to Hospital with his blood samples from vomit. Doctor did not release the medical report as it contained all details of injuries. He denied allegation of putting penis into the mouth of the girl. She must have been manipulated by the mother because of the boundaries as there was no other reason to manipulate, the accused said.

•	The accused submitted a document as a Medical Report, which was marked as 'DE 1' 

35. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.

36. In summary the prosecution presents mainly two kinds of evidence to establish its case. One is the direct evidence of BX, who became the victim of the offence; and, the other is the admission/s or confession/s alleged to have been made in the cautioned-statements.

37. The accused attacks the evidence of BX as being manipulated at the instance of her mother, witness-Begum, in order to get rid of him of the land that he is occupying. You need to consider, evaluate and weigh the evidence of BX and Begum to see whether the evidence of those two witnesses stands despite the attack. You have to see whether the attack is based on true facts or whether it has been just made to escape the charge against the accused; whether witness Begum was shown to be as a woman who could do such a manipulation at the expense of little BX. Also, whether the BX could understand those matters such as manipulation, land dispute and motive to allege against the accused etc. when she answered 'yes' to the questions put by learned counsel for the accused. All those are matters for you to consider with your own experience as men and women of the society.

38. The accused also attacks the evidence of police witnesses in regard to cautioned interview statements stating that they were obtained forcefully and after being assaulted. You need to consider the confessions in the cautioned statements in light of this attack to see whether confessions were in fact made. If so, whether they were voluntary and that they satisfy the elements of the offence. You need to consider the evidence of the accused more closely to see whether there is in fact acceptable proof of such assaults by police to affect the reliability of confessions. For this, you must consider whether there were prompt complaints of such assault or evidence of treatment medically for conditions, if any, created by such assaults.

39. If the attacks of the accused on both kinds of evidence are accepted by you, then the prosecution case fails. Or, if you feel that it creates a reasonable doubt, then again, the case for the prosecution fails and the accused should be acquitted.

40. Please remember, even if you reject the attack of the accused on both kinds of evidence, that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has established its case beyond a reasonable doubt that the accused did put her penis into the mouth of BX through one or both forms of evidence for you to find the accused guilty of the offence.

41. You can also consider whether the two forms of evidence is consistent and corroborative of each other or whether they fall apart. That is, whether confessions in the cautioned statements also reveal the same line of events as narrated by the victim BX or whether they do not match each other in coming to your conclusions.

42. You must remember that the case for the prosecution can succeed if it has established beyond a reasonable doubt even one of the two kinds of evidence above, without being shaken by the attack of the accused. Then you can find the accused guilty.

43. In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed by emotion, speculation, your imaginations or wishful thinking. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable men and women in our society. 

44. Madam assessor and Gentleman assessors, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.

45. I thank you for your patient hearing to my summing-up.

You may retire to consider your opinions now.

Priyantha Nawana
Judge

High Court
Lautoka
02 June 2011